Protection of free speech from oligarchic masters: The paramount right of the viewer

The Orwellian spectre that “The people will believe what the media tells them they believe” is the irony of our times. The medium of communication has always shaped the destiny of societies as much as ideas have charted their course. In this truth lies the enormous significance of the freedom as well as the responsibility of the medium.

The pervasive control that broadcast media holds over our lives today and indeed the power it wields in moulding society itself, cannot be overemphasized. Sadly, we have helplessly witnessed a steady degeneration in content over the last decade, if only accelerated by the onslaught of the pandemic and the recent “TRP wars”. The distinction between news and propaganda seems to have insidiously faded into the past.

To be told to simply not view a particular channel if you disagree, is no answer to the infliction of political or personal agenda on the unmindful viewer. To be told to trust the discerning mind of the viewer is no solution to the massacre of genuine public debate in the public space of broadcast platforms.

Being acutely cognizant of the dangers of control of media by privileged and powerful interests, the United States Supreme Court ominously warned half a century ago,

“The First Amendment interest of the public in being informed is said to be in peril because the ‘market-place of ideas’ is today a monopoly controlled by the owners of the market.”

While democracy is undoubtedly founded on the sacrosanct principles of free speech, it is often forgotten that the raison d’être of free speech itself places certain inherent limitations on that right. For, without a genuine plurality of opinions, people lose the very ability to freely choose their representatives.

It is for this reason that courts in most democracies, including our own Supreme Court, have maintained that while considering the freedom of speech of the media, particularly the broadcast media, it is the “right of the viewer” that is paramount and not that of the broadcaster.

Drawing a vital distinction between broadcast media and print media, the Supreme Court of India observed:

“Broadcasting media by its very nature is different from press. Airwaves are public property. [hence] It is the obligation of the State under our constitutional system to ensure that they are used for public good...[And] Public good lies in ensuring plurality of opinions, views and ideas …. [as well as] ensuring that the broadcasting media is not monopolised, dominated or hijacked by privileged, rich or powerful interests.”

This public good obligation must also trigger a meaningful right to respond on the same platform whenever a personal or an ideological attack is mounted against an individual or a class - as is generally accepted in the US.

Undeniably, the guarantee of a free press is what secures its role as the fourth pillar of democracy. But this fourth pillar was envisaged as a check on power, as the voice of a common man, not as a machinery that could be exploited for financial or political gains. For, a skewed public discourse is as much a death-knell for democracy as is a muffled debate.

That the State may “by law” place certain reasonable restrictions on free speech, within the ambit of Article 19(2), was always envisaged by the founding fathers. But decades of experience of our democracy resulted in the Supreme Court recognising that even in original content, no right or power under our Constitution can be seen as being absolute or unrestricted. That in content itself each fundamental right has an inherent limitation - each right is confined by the contours of fundamental rights of others.

Thus in Sahara, in the context of media trials, the Constitution Bench sought to balance freedom of the press against the right to free trial of an individual and laid down circumstances under which reporting may be temporarily injuncted in order to protect the right of the accused. It was emphatically laid down that in case of an egregious and ominous portrayal that augurs a “clear and present danger” (accepting the American test) to the right to fair trial of an accused, a court could injunct or restrict media reports. It was noticed that “prior restraint” orders are recognized in all liberal jurisdictions, even if they are to be narrowly tailored. This equally applies in a case where media reportage poses an egregious threat as well as a “clear and present danger” to the right to reputation or even the inviolable right to dignity of a person or a class of people.

Indeed, the philosophy that our Constitution abhors absolutes is well entrenched in our jurisprudence. Absolute rights are as much an anathema to our constitution as absolute powers. There may be many competing rights that may define the contours of freedom of the media – an invaluable right in a democracy being the right of the society to be informed of the true facts. Just the way the right to administer does not include the right to maladminister, so too the right to inform can never include the right to “misinform”.

The fact remains that it is a Constitutional Court, in absence of a specific law, that must perform this duty of balancing the competing rights. The media is undoubtedly to be protected from State control. But the distinction between control or restrictions by the “State” on the one hand and defining the contours of free speech by a Constitutional Court on the other, must necessarily be borne in mind. An intervention by a Constitutional Court to protect a fundamental right of one party from an egregious exercise of free speech by another, can scarcely be termed control by the ‘State’. It is indeed the duty of a Constitutional Court to perform this delicate task of balancing competing fundamental rights.

The fond hope expressed by Justice Jeevan Reddy that “....When presenting or discussing a public issue, it must be ensured that all aspects of it are presented in a balanced manner, without appearing to espouse any one point of view”, seems like a far cry in today’s scenario. Nonetheless, it would be fitting to bear in mind the sagacious words of Justice White that “the right to free speech….does not embrace the right to snuff out the voice of others”.

Experience has shown that self-regulation by broadcast media has been a futile pipedream. Control of the media is undoubtedly a constitutional anathema, but the exigent need for “standards” is writ large today – ideally by Parliament but in absence thereof by the Supreme Court, tapping into the enormous potential envisaged in Vishakha. Well-meaning journalists will always, by and large, tend to adhere to explicit standards.

Judicial oversight of free speech may be a bit of a slippery yet a surmountable slope, but oligarchic manipulation of media is an unchartered abyss that stares our democracy in the face today.

The author is a Senior Advocate at the Supreme Court of India. Views are personal.