Sunday, August 31, 2008

Freedom of speech

We are proud of India as a liberal democracy, but what we have has shaky legal foundations. In a blog post by Harsh on swaraj.nationalinterest.in:

Compare this enunciation of free speech

Constitution of India, Article 19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right- (a) to freedom of speech and expression; .... _15[(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of _16[the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation

with this:

American Constitution, Amendment 1- Congress shall make no law abridging the freedom of speech, or of the press (no further caveats)

In the first case the constitution hands out rights and freedoms to individuals. In the second case the constitution assumes pre-existing rights and freedoms, and places limitations on the government instead.

In the first case, the state is supreme with practically no constitutional limits because of all the myriad caveats and exceptions. In the second case, the state is but a constitutionally restricted agent of the individual.

In the first case the onus is on the individual to show that he is within his rights to do something; in the second case the onus is on the government to show that it has constitutional authority to regulate something.

That is the difference between lip-service to freedom, and true freedom.

I have always been curious about the collision between freedom of speech and (a) government control of radio and TV and (b) restrictions against foreign media. It seems clear to me that if we believe in freedom of speech, these two elements do not belong. With a US-style constitution, would the courts have ruled against the government on these two fronts?

3 comments:

  1. Ajay,
    Thanks for the link. I think if India had its own first amendment, then we would definitely have no/extremely limited government control of radio, and I am almost equally sure that we would have allowed full FDI in media.
    In the US, for example, there used to be a fairness doctrine in radio etc. which used to allocate equal time to various political views - but that was dismantled (and now obviously radio is all Republican). The FDI part in the US is also much more permissive than here (Mudroch when he first came here), but if they wanted they could always use (abuse?) antitrust acts and FCC to prevent that from happening (say Aljazeera from taking over CNN)

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  2. With regards to FDI in media in US, while there may not restrictions on publication, but ownership certainly has restrictions. For example, from the example given, Murdoch had to become US citizen, which he did, to own media in US - print/TV...

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