There is often confusion regarding the classification of the news media. Is it a ‘business’ Tunder Article 19(1)(g) of the Constitution of India, or an activity deserving protection under Article 19(1)(a) as a right to freedom of speech and expression? This question is critical in determining the standards applicable to the conduct of the many news-providing outlets in India today.
The right to express opinions freely is critical in a democracy. Intellectuals have long championed it as a gateway to other liberties, positing that curtailment of free expression inevitably leads to restrictions on other rights such as the right to be informed. This right, however, is confused and equated with the necessity to overlook the media as a business (falling under Article 19(1) (g)), which is fundamentally flawed. The rights of a citizen and the rights of a media business owner fall under different baskets and contours, and cannot be considered the same. Freedom of speech and expression includes freedom of circulation, to the extent that the ability to propagate one’s expression is inherent in that freedom.
However, a recipient of news and a publisher of news belong to fundamentally different interest groups. This is precisely why expressing an opinion per se and the business of publishing/circulating news have been so clearly distinguished by our law makers. Both, therefore, need different levels of oversight to ensure that a later right enshrined in Article 19(1) (g) does not abrogate or limit the rights enshrined in Article 19(1) (a). Press freedom under Article 19(1) (g) has to be secured as such to allow the public to be well informed. Also, the democratic credentials of a state are judged today by how mindful the press is to ensure that the ordinary citizen actually gets the right to free speech and expression—to enable an effective democracy—and that such a right is not denied to them for commercial ends.
The Constitution, the supreme law of the land, guarantees freedom of speech and expression under Article 19, which deals with ‘Protection of certain rights regarding freedom of speech, etc.’ Clause (1)(a) of Article 19 states, “All citizens shall have the right to freedom of speech and expression.” The open discussion of ideas allows individuals to fully participate in political life, making informed decisions and strengthening society as a result—especially in a large democracy such as India. The placement of Article 19 within the Constitution is revealing—it is found in Part III and is therefore a ‘fundamental right’. Pertinently, Part III of the Constitution does not only confer fundamental rights but also confirms their existence and gives them protection.
Hence, even a right to enforce a fundamental right by moving the Supreme Court is guaranteed under Article 32 of the Constitution as a fundamental right. Further, fundamental rights form a part of the ‘basic structure’ of the Constitution and cannot be amended. While there are certain restrictions imposed on the freedom of speech and expression by Article 19(2), constitutional protection is the greatest guarantee of free speech in India. A system of double restriction is in place, whereby freedom is not absolute, but neither is the power to diminish it.
Article 19(1) (a) draws inspiration from the First Amendment to the United States Constitution, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
A key difference is that in the US Constitution freedom of the press is explicitly safeguarded. In the US, free speech can be restricted through defamation laws or because of national security concerns, but the courts have allowed the press much leeway when discussing and criticising issues pertaining to public life.
Famously, in New York Times Co. v Sullivan , the Supreme Court of the United States said that “discussing the stewardship of public officials” was fundamental to their form of government. A strong line was taken against behaviour that threatened free speech for the sake of offended politicians. Censorship of the press was antithetical to the American way of life envisioned by the founding fathers of that nation, who believed that “the censorial power is in the people over the government, and not in the government over the people.”
However, the Indian news press enjoys two-fold protection, namely the freedom of speech and expression guaranteed under Article 19(1) (a) and the freedom to engage in any profession, occupation, trade, industry or business, guaranteed under Article 19(1) (g). Problems arise when Article 19(1) (a) and (g) are read to be one and the same and even the oversight and restrictions in the interest of the ‘general public’ contemplated under Article 19(6) are ignored because of this
confusion.
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