In news: In a recent decision, a division bench in the Bombay high court introduced an additional restriction to the fundamental right to free speech and expression under Article 19(1)(a).
The thrust of the petitioners’ argument was that TRAI’s economic regulations restrict the circulation of broadcaster programming, violating the broadcaster’s right to disseminate and consumer’s right to receive information, both of which are core components of the right to free speech.
The Bombay high court upheld TRAI’s economic regulations andheld that “public interest” serves as an additional ground on which the State may issue diktats to restrict free speech.
The Bombay High Court Judgement is being criticised on three counts.
Judicial Overreach
Additional restriction on Free Speech is supposed to have been introduced by Parliament through Constitutional Amendment to Article 19(2)
Through this judgement, the high court overstepped its jurisdiction and stepped onto turf reserved for democratically elected legislators. A primary duty of the judiciary is to interpret laws, not create them.
Encourages more interference by State
Public interest is a fluid construct in Indian legal parlance, it is not defined, and it finds mention across a host of statutes, often justifying the more non-transparent elements of governance.
By reading in a vague notion such as public interest as a valid restriction on free speech in broadcasting, the court paved the way for greater State interference in television content, particularly news
It is alleged that High Court failed to uphold the rights of citizens and operate as a check against abuses of State power.
Against Judicial Precedence set by Supreme Court
The Bombay high court did not adhere to the judicial precedent on the matter of reading public interest as an implicit restriction on free speech.
The Supreme Court has remained mindful of the political dimensions of public interest and what might result if it allowed the State to restrict free speech on this ground.
While the right to free speech in India is not absolute and comes with certain restrictions listed under Article 19(2) of the Constitution, public interest never operated as a legitimate restriction on it. Also, courts do not permit its entry as an implicit restriction on Article 19(1)(a).
Do You Know?
In Indian Express Newspapers vs. Union of India, SC observed that the framers of the Constitution purposefully omitted public interest from 19(2) to ensure that the State did not hold the right to free speech ransom when it wished to impose excessive burdens on the press.
Conclusion
The Bombay high court, with due respect, usurped the jurisdiction of the legislature, failed to uphold press freedom on television, and disregarded for the precedent set down by higher courts. The order merits wider discussion and a review.
