TELEVISION AND FREEDOM OF SPEECH

Author(s): P.M. Bakshi

Source: Journal of the Indian Law Institute , July-September 1989, Vol. 31, No. 3 (July-
September 1989), pp. 408-411
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43951252

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 TELEVISION AND FREEDOM OF SPEECH

THE GUARANTEE of freedom of speech and expression in article 19(l)(a)

of the Indian Constitution is worded in wide language, as are most
constitutional provisions relating to fundamental rights. It is only when some
specific problem, in a concrete situation, arises that the full implication of
such provisions come to be unfolded. This is a common experience, not
merely in constitutional matters, but in respect of many other judicial and
legal problems. Writers on the legal system often debate the question
whether the Judges merely interpret the law or whether they make it. There
is a view that, in defining the day to day role of the Judge in the legal system,
one might approach the subject by regarding the role of a Judge as falling
somewhere along a spectrum. The two poles of this spectrum reflect the two
opposite functions of a Judge within the legal system. There is, in the first
place, the view that would favour a quasi-legislative role for the Judge. Here,
the Judge resolves particular matters, not in isolation, but rather in the
context of social, economic and other considerations. He renders decisions
in such a way as to permit the law to respond to changing social conditions.
According to this view, responsiveness of the legal system to changing
circumstances should be effected, not only by legislation, but also by the
Judges. In contrast to this model of judicial liberalism, many Judges view
their role as a merely interpretative one. According to this view, the role of a
Judge is to strictly apply the law to the particular facts and to decide cases
accordingly. Under this model, a Judge is bound by precedent and has no
discretion to modify the law in response to changing social conditions or
prevailing attitudes. In practice, most Judges view their roles as falling
somewhere between the two extremes. A typical Judge views his role as
essentially an interpretative one, but tempered by the dictates of justice and
fairness and by the realisation that the law, in order to gain public acceptance
and credibility, must not be applied without reference to changing social
conditions.
However, when one comes to constitutional questions, certain additional
observations are in order. Such questions are not approached in a purely
pedantic manner. They have to be dealt with in a broad perspective.
Particularly where fundamental rights are at stake, the courts take note of the
fact that there may be several factors which are not expressly reflected in the
text of the articles of the Constitution, which still require consideration by the
court. It is for this reason that whenever a constitutional question comes
before the court, the text book type of rules of interpretation may not yield a
sound conclusion. One finds an interesting illustration of this aspect in a
recent judgment of the Bombay High Court.1 In the Bombay case, the
petitioner, a distinguished lawyer of the High Court and of the Supreme
Court, and also Editor of a Law Magazine, was invited to give an interview

1. Indira Jaising v. Union of India, A.I.R. 1989 Bom. 25.

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1989] TELEVISION AND FREEDOM OF SPEECH 409

on television on the topic of problems of law relating to women. In her

interview, she referred to two types of questions. First, she dealt with some
aspects of laws pertaining to women. Secondly, she expressed adverse
comments on the Bill relating to Muslim women and protection of their
rights, which was then pending before the Parliament. She expressed the
view that the Bill was unconstitutional and violative of the right of women to
equality of law and equal protection of the law. The interview was recorded
in Bombay on first March, 1986. Apart from the petitioner, whose interview
lasted for six minutes, several other persons were also interviewed for the
programme. All these interviews were collated and "edited" for the
purpose of the programme. When, on third March, 1986 the programme was
telecast, the petitioner was surprised to find that though her views on the
other aspects of laws relating to women were telecast, her opinion with
reference to the Bill relating to Muslim women had not been telecast. She
wrote to the television authorities, pointing out that not allowing her to
express her views on the above Bill was a clear imposition of censorship. To
this letter of protest sent by the petitioner, the Deputy Director of
Doordarshan replied that as the duration of the programme was exceeding its
stipulated time, and also because of the discussions going on in Parliament,
the portion in question was not included in the programme.
Subsequently, the Deputy Director of Doordarshan informed the
petitioner that it would not be possible to telecast the views expressed by the
petitioner on the proposed Bill, but that they would get in touch with her if
they plan any programme on the subject in future. The petitioner then
moved the Bombay High Court for the following reliefs:

(a) a determination of the basis on which programmes on

Doordarshan would be scheduled, edited or censored;
(b) a declaration that, by censoring or deleting her views on the Bill,
the Union of India had violated her fundamental right of freedom
of speech and expression without the authority of law;
(c) a declaration that the Union of India had acted arbitrarily in
censoring her views, thereby violating article 14 of the
Constitution and similar othef reliefs.

The main question that fell to be considered was, whether what the
Doordarshan authorities had done was in exercise of the right to "edit" the
programme, or whether it amounted to censorship. Dealing with this
question, the court pointed out that the deleted portion was directly relevant
to the subject of the programme. The Union of India, through thè television
authorities, had given two reasons, namely, paucity of time and the fact that
the subject was being debated in Parliament. In the view of the High Court,
the second reason clearly indicated the reluctance of the authorities to
telecast opinion on a controversial Bill then being debated in Parliament.
The deletion was, therefore, in effect, by way of censorship. Paucity of time,

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410 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 31 : 3

cannot justify a wholesale omission of the subject, according to the High

Court. Secondly, the High Court held that while editing various interviews, it
was necessary to ensure that in the process of editing, the views expressed
were correctly conveyed on the telecast programmes. At times, a portion of
the interview may have to be deleted. But, in the process of such deletion,
there should not be any gross distortion or misrepresentation of what had
been said. Moreover, important points raised should not be completely
omitted under the guise of "editing".
This pronouncement of the High Court is directly linked with article 19(1)
of the Constitution. Somewhat surprisingly, it was contended on behalf of
the government that article 19 was not applicable to the telecast. This
argument did not carry conviction with the High Court. In its exposition of
the law, the High Court laid down several important propositions, which can
be analysed as under
(i) The right to freedom of speech and expression had been considered by
our courts as including freedom of the press. The right equally covers
freedom of other media. A citizen cannot enjoy freedom of speech and
expression, if he is not permitted to express his views freely through mass
media even when he is invited to use this media.
(ii) Freedom to propagate one's views is an important ingredient of the
right of frçe speech. A citizen who is interviewed over the television by
invitation of the television authorities is entitled to express his or her views
freely.
(iii) Censorship or deliberate distortion of these views would violate
article 19(1). Any restriction of this right must be within the ambit of article
19(2) of the Constitution, that is to say, it must be for achieving one of the
specified objectives as enumerated in that article.
(iv) Besides this, any restriction of this right must be by law.
It was the combined effect of all these propositions that justified the grant
of a declaration in favour of the petitioner, to the effect that the deletion in ;
question had violated her freedom of speech and expression. Of course,
most of these propositions are supported by earlier rulings. Thus, for ;
example, it was established as early as 1950, that the freedom of speech and ¡
expression includes the freedom of propagation of ideas and that freedom is Í
ensured by the freedom of circulation. Again, it was held in 1962 that this
freedom carries with it the right to publish and circulate one's ideas, opinions
and views with complete freedom and by resorting to any available means of
publication, subject to such restrictions as could be legitimately imposed
under article 19(2). In a few other decisions, it has been pointed out that a
restriction cannot be imposed on the freedom of speech and expression
without specific legislative authority.2

2. Romesh Thaper v. State of Madras, A.I.R. 1950 S.C. 124; Edward Mills Co. v. State ofAjmer ,
A.I.R. 1955 SC 25; Sakal Papers Private Ltd . v. Union of India, A.I.R. 1962 S.C. 305; Kharak Singh
v. State of UP A.I.R. 1963 SC 1295 and Benett Coleman & Co. Ltd. v. Union of India, A.I.R. 1973
S.C. 106.

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1989] TELEVISION AND FREEDOM OF SPEECH 411

An interesting case cited by the Bombay High Court is a judgment of

Supreme Court of the United States.3 In that case, the court placed emphasis
on the right of business of citizens, in the context of radio and television, to
hear differing views on various topics of public interest. The decision is
noteworthy, because it operated even against a private licensee of radio. The
Supreme Court of the United States observed:

It is the purpose of the First Amendment to preserve uninhibited

market place of ideas in which truth will ultimately prevail, rather than
to countenance monopolisation of that market, whether it be the
Government itself or a private licensee.4

Referring to this pronouncement of the American Supreme Court, the

Bombay High Court added that it is even more essential to preserve such
uninhibited market place of ideas when a medium like television is a State
monopoly. Hence, there is all the more reason why, in the light of article
19(l)(a), persons who are invited to express their opinion on television are
allowed to express them openly and freely subject to reasonable restrictions
as may be imposed by law. In the instant case, no such restrictions had been
laid down by "law". Ultimately, the High Court declared that by deleting
the views of petitioner in their entirety, the respondents had violated her right
to freedom of speech and expression, without any authority of law. A
suitable direction was given by the High Court to the respondents (on their
own offer) that in future, if a programme on such a subject is telecast, the
petitioner would be allowed comparable time to express her views as may be
proper and reasonable in the circumstances.
Incidentally, it may be mentioned that in the United States, some
controversy has been going on as to how far the above ruling of the Supreme
Court of the United States is applicable against newspapers and how far the
public can claim a right of "access to the press".5 But, in any case, in the
Indian context, the pronouncement of the Bombay High Court is of seminal
significance as regards television6 and is bound to lead to many more
developments on the subject.

P.M. Balcshi*

3. Red Lion Broadcasting Co. v. Federal Communications Commission , (1969) 395 U.S. 367.
4. Id. at 389.

5. Sec Lee Bollinger, in 75 Michigan Law Re'>iew 1 at 36. (1976).

6. In Fasih Chowdhary v. Director General Door dar shan, A.I.R. 1989 SC 15 the Supreme Court
has held that in the acceptance of television serials fair play must be observed. The Court relied
upon /tom Shyam Co. v. State of Haryana, A.I.R. 1985 SC 1147 and Haji TM Hassan Rawther v. Kerala
Financial Corporation , A.I.R. 1988 SC 157.
* Member, Law Commission of India.

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