Guest Column

Guest Column: Liberty and expression in good governance

Media (File photo) Representational image

The ordinance promulgated by the government of Rajasthan, dated September 7, 2017, was meant to amend sections 156 and 190 of the Code of Criminal Procedure (CrPC) and insert section 228B into the Indian Penal Code (IPC). The proviso added to CrPC section 156(3) mandates that a magistrate cannot order an investigation against a judge, magistrate or a public servant except with previous sanction under section 197. The addition to CrPC section 190 restricts media by prohibiting disclosure of identity of the public servants, till sanction is obtained. The addition of section 228B to the IPC criminalises such publication and provides for up to two years imprisonment and a fine.

The Constitution of India provides for the fundamental right to freedom of speech and expression, and in that context, the media occupies a pivotal space in the functioning of a liberal democracy. It functions as the representative of the public, by acting as a watchdog over the government. The media and also social media are intricately linked to the freedom, dignity and personal autonomy of citizens, and the executive is bound to intervene only when legal norms are violated. Nevertheless, considering its ability to mould public opinion, it is imperative that the media is fair, impartial and transparent.

The right to freedom of speech is, however, not absolute. Exceptions had been enumerated under the Constitution’s articles 19(2), 19(6), 34, and 352. It is worth remembering that during the Emergency, the executive imposed censorship, besides using the press for propaganda. Rajasthan’s ordinance only aims to regulate the ‘stage’ at which the media can disclose the name, address, photographs or any other detail which may lead to identification of the concerned public servant. It is important to note that those protected discharge sovereign functions. If information relating to them is released by the media at a premature stage, it impinges upon other important aspects like human dignity, right to reputation and right to privacy under Article 21 of the Constitution.

The Supreme Court has set certain parameters on a case-to-case basis, wherein it had pointed out that public order would be disrupted if the information released had the “calculated tendency of aggravated form of insult”. Public order might not be affected if it were only scurrilous personal attacks on judges or public servants. However, one of the important grounds mentioned in Article 19(2) is decency and morality, and when there is violation of this norm, the executive can intervene. Such violations are also punishable under criminal laws.

The role of a democratic state is not merely limited to sustaining law and order. Without a minimum of social security, citizens will not able to participate in social and political processes in a fully independent manner. Moreover, having adopted the mix of liberalism and pluralism, the state also has a responsibility to guard the rights of deprived groups in society.

The very purpose of free speech is to facilitate and encourage the ability of the citizens to decide their fate. An essential precondition for exercising this ability involves meaningful debates on public issues. The freedom of the media entitles autonomy, whereas free speech points towards public debate. On this, eminent jurist Owen M. Fiss said: “Autonomy may be protected, but only when it enriches public debate. It might well have to be sacrificed when, for example, the speech of some drowns out the voices of others or systematically distorts the public agenda.”

Professor (Dr) S. Sivakumar is member, Law Commission of India. He recently authored Press Law and Journalists: Watchdog to Guidedog. The views and opinions expressed are personal.

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Topics : #Rajasthan | #Media

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