Rahul Gandhi is providing more than required grist to the legal luminaries of our country and also to successive Governments at the Centre to study the innumerable civil and criminal laws of our colonial British rulers that we embraced and adopted with glee. It needed a Rahul Gandhi to show us how those laws of a colonial rule (made to suppress the colonised people) do not protect our dignity and aspiration as a FREE people.

Yes, old, draconian, dehumanising laws of the British India could not have been annulled immediately on attaining freedom. But if those laws are allowed to be on our statute books, with self-serving amendments to certain Sections of our law and Articles of our Constitution, even after 75 years of independence, what could be the reason?

We the people of India, who gave unto ourselves a bulky ‘fit all’ Constitution need an answer for this question from our elected representatives, legal luminaries and wise men of judiciary. The answer cannot come from the ideologically divided intellectuals or politicians. However, the answer and the corrective action can come from Statesmen. But pray, where are they? Where is their public discourse on the subject?

As a journalist let me pick just one law that concerns all journalists, mostly. But it also singes we the people of India. It is about their fundamental right to freedom of speech and expression. The fountain head from which this fundamental right to speech and expression springs is our Constitution. Since independence this British made law seemed draconian for a free democratic country. And we the people must discuss, debate and decide on the law about our freedom of speech and expression and on the question of defamation related to it. We should not avoid bringing a new law just as theologians avoid discussing the question of the First Cause while deliberating about the existence of God! Let it be.

Understandably, there are no ‘absolutes’ in nature. If there is a mighty mountain, there are the smaller ones too; if there is a roaring river rushing downwards, there are tributaries too. This helps nature to hold itself in balance in times of its fullness and in times of calamities.

Our bulky Constitution too is provided with such self-balancing and self-preserving, ‘mechanisms.’ Under Article 19(1) a of our Constitution we the people are provided with the right to freedom of speech and expression as part of our fundamental rights. But are the fundamental rights absolute? Without any restriction? As the saying goes, ‘your freedom ends where my nose begins.’ Hence beware. There is Article 19(2) that tells you about the exceptions to the fundamental rights in terms of ‘reasonable restrictions.’ It is here the question of defamation arises. What is defamation? Where is the cause of action to invoke the offence? What kind of ‘speech and expression’ tantamounts to defamation? Why both criminal and civil defamation charges are allowed? etc., etc.

It is interesting, the media, both print and electronic, do not have special mention in our Constitution and it is included in the fundamental right to speech and expression under Article 19(1) a and Article 19(2). So this fundamental right is available to press and electronic media like it is available to every citizen of our country — subject to ‘reasonable restrictions.’

However, who will interpret the law and decide what is ‘reasonable restriction’? Whether restraint is exercised or not while speaking or writing? The Court, of course. How far it would be just and fair? God only knows, because, after all, as Alexander Pope said, ‘Our reason is like our watches, none go just alike, yet each believes his own.’

A discussion and debate must be held in this 75th year of our independence about ‘Free Speech, Free Media and Defamation Law’ so that harassment, intimidation and extortions are disabled under a new law. That criminal defamation or civil defamation is abolished in other former British colonies cannot be justification for us to follow their example. Let us think Indian and pass the new law in keeping with our dignity and aspiration.

Be that as it may, here I would like to produce excerpts from an article I wrote on this subject in my Abracadabra column on Jan. 11, 2018. The title was “Supreme Court redeems Journalists’ Right to  Freedom of Expression.”

Before I come to the case in which this journalist-friendly judgement came from the highest Court of our country, let me quote here what the Chief Justice of India (CJI) Dipak Misra (now retired) said: “There could be some error or enthusiasm in reporting an alleged scam. But we must allow Freedom of Speech and Expression to Press at the fullest. There may be some wrong reporting. For that they need not be hauled up for defamation.”

The reason for the people, specially those whose name is connected with a scam, scandal or an offence, to rush to the Court and file a criminal or civil defamation case, at the drop of a hat as they say, is that our Constitution does not separate the Right to “Freedom of Speech and Expression” from that of a citizen of our country and the journalists who work for the print and electronic (TV, radio and now the social) media. This has inhibited the media from factual reporting. 

In the changed world of journalism, our law-makers should take note of the observation made by the Supreme Court (in a case, filed against the heavy-weight journalists Rajdeep Sardesai and Raghav Bahl by the daughter of a former Bihar Minister) and proceed to either amend the Constitution or make appropriate law providing immunity from filing false and frivolous criminal defamation cases against journalists or a citizen.

It may be recalled that some time back there was a debate and discussion at some quarters about annulling the provisions of the criminal defamation and providing only for civil defamation which will save the accused (journalist) from taking bail and being present in the Court for each hearing. And the hearing would, as we know in India, go on for decades! However, the issue was not taken to its logical end leaving it as it was in the IPC and Cr.PC.

A new law regarding the ‘Freedom of Speech and Expression’ exclusively for the media is the need of our times and it will help strengthen the fourth pillar of Democracy, the Media.

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