Like any other freedom, freedom of expression too is a product of relentless struggle. In one of my earlier columns, “From principle to practice” (January 28, 2013), I looked at three significant high court judgments upholding this fundamental right. In this column, let me look at two important judgments delivered by the Supreme Court of India, and its latest intervention last week that may change the face of Indian broadcasting in more ways than one.
In 1994, an apex court bench comprising Justice B.P. Jeevan Reddy and Justice S.C. Sen gave a landmark judgment that decidedly shut the door on prior restraint and prepublication censorship of any publication. In the R. Rajagopal versus the State of Tamil Nadu case, the apex court examined some of the crucial issues relating to freedom of expression and came up with an observation that “there is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.” But it also cautioned that the observations were “only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable.”
Some of the issues examined in this case were: “Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorised writing infringe the citizen’s right to privacy? Whether the freedom of press guaranteed by Article 19(1)(a) entitles the press to publish such an unauthorised account of a citizen’s life and activities and if so to what extent and in what circumstances? What are the remedies open to a citizen of this country in case of infringement of his right to privacy and further in case such writing amounts to defamation? Whether the government can maintain an action for its defamation? Whether the government has any legal authority to impose prior restraint on the press to prevent publication of material defamatory of its officials? Whether the public officials, who apprehend that they or their colleagues may be defamed, can impose prior restraint upon the press to prevent such publication? Whether the prison officials can prevent the publication of the life story of a prisoner on the ground that the prisoner being incarcerated and thus not being in a position to adopt legal remedies to protect his rights, they are entitled to act on his behalf?”
Airwaves as public property
In 1995, another bench of the apex court comprising Justices P.B. Sawant, S. Mohan and B.P. Jeevan Reddy in the Ministry of Information and Broadcasting versus Cricket Association of Bengal case ruled that “the airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in the case of any other public property. The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the best of means of imparting and receiving information and as such to have an access to telecasting for the purpose.”
The subsequent, partial opening up of the radio sector to private and community players is a direct result of this verdict. Vinod Pavarala, UNESCO Chair on Community Media, University of Hyderabad and former president of the Community Radio Forum (CRF) of India, points out the present limitation in the Indian community radio scenario: “news is not permitted and politics is proscribed under clause 5 (vi) of the Policy Guidelines for Community Radio. Many CR stations have had to confine themselves to the developmental agendas of the NGO concerned or the donor agency. The irony is that while several CR stations have a model of ‘community radio reporters,’ they are not expected to produce and broadcast any news.” The only news that is permitted is All India Radio’s bulletin without any modification whatsoever.
This serious limitation may not last long if one goes by the open court observation by the first bench of the apex court, comprising Chief Justice P. Sathasivam and Justice Ranjan Gogoi. The bench has issued notice to the Union Government on a Public Interest Litigation seeking permission for private FM and community radio stations to air news.
Prashant Bhushan appearing for the non-governmental organisation, Common Cause, argued that like TV channels, private radio stations be allowed to broadcast news as this medium is far more accessible to people and radio stations can be set up with relatively smaller investments. In a significant observation the Chief Justice said: “You rightly mentioned that radio is accessible to everybody. There is no problem in case of TV channels. Only TV channels are allowed to broadcast news. Radio channels have access to every village, nook and corner. We will examine the issue. We will impose some conditions…. (before granting permission).”
If all the players in the radio sector — private FM, campus radio and the community radio — are permitted to air news and current affairs, then we may well witness the next level of information revolution in this country.
Keywords: Readers' editor column, Freedom of expression, Prior restraint and prepublication censorship, R. Rajagopal versus the State of Tamil Nadu case, Airwaves as public property, Private FM, Community radio stations, Electronic media freedom