Economic structure
ravee...@gmail.com
Bennett Coleman
Raveena Rao Kallakuru
213018
This case basically dealt with a Newspaper Order and Policy. Now, the dealt with the import of newsprint whilst the Policy prevented a group from starting newspaper houses. The Court goes on to hold the validity of the order and the strikes down the validity of the Policy. It strikes down the Policy because it goes beyond the restrictions envisaged by Article 19 (2). But how it arrives at this isn’t explained. To put it more clearly, the part about this case that I find confusing is the way the Court looks at a law as either something that does even not affect the ‘freedom of speech’ or otherwise tests a law on the basis of Article 19 (2). For example, suppose the Government passes a law which states that a person can only fly Indian flags that are made at a Government shop. How do we decide whether this is the environment under which one exercises their right to fly the Indian flag (their freedom of expression) or whether it is a restriction upon their freedom itself.
In Sakal Papers for example, the Court held that the regulation upon the number of pages and so forth, was a violation of the freedom of the press. It is possible to argue it the other way also, by putting down these restrictions as the framework through which the freedom of speech can be exercised. It is quite difficult to note this difference. In this case, the Court holds that there might be an abridgement of speech but not an abridgement of the freedom of speech itself. That might be an interesting philosophical debate but I don’t understand how the Court reaches its conclusion. In fact, I am not sure of its conclusion. The Newspaper Order was supposedly brought in to control import of newsprint and this was upheld. But the Policy was struck down. Both were decisions taken by the Government alone. I agree with the striking down of the Policy, but that line of thinking leads me to the conclusion that the Order should also be struck down. The shortage of newsprint seems to justify the Order.
But I recall that in Sakal, the Court refused to entertain the law which tried to prevent monopolies. I just read Express Newspapers where the Court upholds laws on the working conditions of people in the newspaper industry. Going by Sakal, I believe they should have ruled to the contrary. But I still cannot understand how the Court decides when it is alright to lay down the environment under which this freedom ought to be exercised. I don’t think the Court can lay down the environment or pass any law where the environment is directly affected. If it does pass a law, it should be tested upon Article 19 (2). But I cannot find reasoning in the judgment to support my stand or go against it, because it doesn’t engage in this debate at all.
r.venk...@gmail.com
Thought Paper
Life Insurance Corporation of India and Union of India and another v. Prof. Manubhai D. Shah and Cinemart Foundation
R. Venkatesh
The Supreme Court through its judgment in LIC v. Prof. Manubhai championed the idea of freedom of speech and expression. In fact, it is interesting to note that J. Ahmadi promoted its status from a constitutional right to that of a natural right, which every human acquires at birth. The case concerns the right of a person to circulate or broadcast his/her opinions or views to the world through the media. Though I agree with the reasoning of the Court, it seems odd that the Court can instruct an autonomous television channel (not really, but still) to broadcast a particular movie without paying any attention to its commercial interests.
It is probably to mitigate the above apprehensions that the Court mentioned that the propositions they are laying in this case are not absolute, but to meet the exigencies of the peculiar facts of the case at hand. J. Ahmadi further clarified that a magazine running with public funds is not obligated to print any matter that any informed citizen may forward for publication. But, the above comments were made specifically in the context of LIC and the question now arises: What about television channels or other media? Does this proposition apply across the board to other media as well? The answer is contingent upon the interpretation by the Courts in subsequent cases.
The Court observed that the freedom of speech and expression should be interpreted in the broadest sense possible, until such an interpretation is restricted by Art. 19(2). The Court quoted Sakal Newspapers case, wherein the Court held that “freedom of press” is included within the right of freedom of speech and expression. Then, the Court observes that while freedom of speech and expression is exercised, care should be taken not to trench on the rights of other citizens. But, isn’t the Court, by way of imposing the content to be published/broadcasted, infringing upon the media’s “freedom of press”. It seems that there is a conflict between the Art. 19(1)(a) of the citizen and Art. 19(1)(a) of the media. Furthermore, the issue of interference with Art. 19(1)(g) right of the media arises. The Court ignored these concerns and proceeded to pronounce its judgment, solely on the basis of the citizen’s right to circulate/broadcast his views.
Having said that, I would consider the conclusion of the Court to be impeccable, considering the circumstances brought before the Court. The Court held that a citizen being permitted to use the media to answer the criticism leveled against the view propagated by him, is an aspect of freedom of speech and expression. The above interpretation, in my opinion, is certain to bring a multitude of cases, wherein the litigant would claim that his “right to reply” has been infringed upon. The ever expanding horizons of freedom of speech, though desirable, may lead to frivolous litigations.
ksh...@nujs.edu
The respondent in this case published a study-paper pointing out the discriminatory practices of LIC that affected its policy holders. An LIC official published a counter in a newspaper, to which the Respondent published a rejoinder to the official’s counter in the same newspaper. The dispute arose when the official’s counter was published in LIC’s in-house magazine, but the Respondent’s rejoinder to that counter was refused to be published by the magazine.
In Ramesh v. Union of India, the Hon’ble Supreme Court had laid down a peculiar test for determining the content of a motion picture. The standard that was laid down was that a film when viewed in its entirety should be capable of delivering a message of peace and coexistence and that the viewers were not likely to be obsessed, overwhelmed or carried away by the violence or fanaticism shown in the film. So the attempt of the filmmaker to convey a social message through his film was termed as an “achievement of great social value”. This judgment can be said to be curbing the filmmaker’s ideas to the extent to what can and what cannot be shown in his film as in a film which carries scenes of violence and fanaticism, a stabilizing act in the form of a message of peace and co-existence must be ensured. Similarly, in Rangarajan v. Jagjivan Ram, it was held that a movie must ensure that the message it conveys is not harmful to the society or even a section of the society.
LIC cites both these judgments and the reasoning that it imparts is on the lines of the abovementioned judgments, making it a poorly reasoned one. Both Ramesh and Rangarajan which assert on maintaining content or ideological neutrality have clearly influenced this judgment. On the one hand it says that LIC being a State instrumentality, which survived on public funds could not have acted in an arbitrary manner and claimed that it was a matter of its exclusive privilege to print or refuse to print the rejoinder. On the other hand it brings into its reasoning the “fairness doctrine”. As per the judgment this doctrine contemplates both sides of the views to be placed before the readers to enable them in drawing conclusions.
The Court’s insistence upon readers having a complete and not a one sided or a distorted picture before them is a disturbing one as people must have the freedom to make opinions on the ideas they think suit them the most. It was completely avoidable (especially once it was found that LIC in this case was bound to publish such views under Article 12) because the "fairness doctrine" cannot be contemplated even if Article 19 is defined in the widest possible manner. The words “under an obligation” which make it a mandatory requirement under Article 19(1)(a) to publish counter views are an example of soft paternalism at play, where the Court takes upon the burden to decide what ideas or views are balanced enough for the community to formulate its opinions on.
Saksham Ojha
Bennett Coleman
Saksham Ojha
213104
Bennett Coleman essentially challenged the cap placed on the maximum number of pages that could be printed and the restriction placed on the import of newsprint material. With respect to the cap placed of the number of pages, the “direct effect test” was employed, to determine that an infringement of Article 19 (1)(a) had taken place. This test looked into whether the law in effect had such a consequence that it resulted in the eventual abridgement of freedom of speech. I think this was a deviation from the “intent and effect test” laid down in Express Newspapers. In the intent and effect test the restriction placed is not considered to be outside the ambit of Article 19 (2), if the consequence took place as a result of legislative intent of the restriction.
The problem with such an intent and effect test is that it can be abused, as was done in Sakal Papers, wherein I feel the Court wrongly held that there was no violation of freedom of speech because the legislative intent in that particular case was to improve the conditions of the journalists. It’s basically the State saying since their intentions were in the right place, they should be absolved of any wrongful consequence thereafter. Bennett Coleman thankfully does away with such a test and amplifies down the scope of unreasonable restriction of freedom of speech to a direct effect, wherein if the ultimate consequence of legislation is violation of freedom of speech then the application of such legislation cannot be saved. Here placing a restriction on the number of pages and restriction on newsprint material is directly affecting the newspaper business, since it is reducing the number of articles that can be published. Ideally in this case both the Order as well as the Policy should have been struck by applying the direct effect test.
This case is also where Justice Mathew’s dissent is faulty, as he dissented on the grounds that such an action by the government merely causes an abridgement in the speech and not freedom of speech. A reduction in the number of articles that can be printed and a restriction on the newsprint material directly affects freedom of speech. Because freedom of speech of a journalist does not limit itself only to thinking the idea, but also to conveying it to others through newspapers.
maith...@nujs.edu
Thought Paper 3 : Bennett Coleman case
Maithili Pai
In the case of Bennett Coleman v. Union of India, the validity of the Newsprint Control Order, which fixed the maximum number of pages for newspapers to ten, was struck down by the Court holding it to be violative of provision of Article 19(1) (a) and since it did not fall under the reasonable restrictions listed under Article 19(2). Further, freedom of the press, people was held to be integral to the exercise of the freedom of speech and expression.
The case I believe is most significant for its departure from the standard of the object-cum-effect test and adopting the effect test, which has been applied subsequently in various cases. Thus, the court holds that while judging the constitutionality of a statute, it is the effect of the impugned statute on a fundamental right that needs to be examined, and not the object of the impugned statute. However, since the judgment specifically speaks about the ‘direct’ effect on a fundamental right, a question arises about what happens when there is a difference in judicial opinion regarding whether the effect on a fundamental right is ‘direct’ or ‘indirect.’
This is also a significant decision on the issue of corporation as a citizen, and the consequent question of whether it is guaranteed fundamental rights under the Indian constitution. The Court held that the fundamental rights of shareholders of company are infringed by State action the shareholders’ rights would be guaranteed constitutional protection. The reason is that the shareholders’ rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the corporation. However, in my opinion this part of the decision is premised not so much on the relationship between shareholders and the company, as much as it is on the fact that the shareholders were citizens of India, since a company that was incorporated in India but whose share capital was held by foreign citizens would have led to a completely different outcome in this case.
Particularly interesting in this case was Justice Mathew’s dissenting opinion, which is based on the right of citizens to be informed. He reasoned that once the right to hear, read or be informed was taken into account while analysing the scope of freedom of speech, regulation with respect to limited resource allocation such as newsprint need not necessarily be inhibiting, but may also be considered to enrich the freedom of speech and expression by enhancing the right to read and gather news from a variety of sources. He contended that regulation which sought to enhance the freedom of speech and expression in this manner did not constitute an “abridgment” of the freedom of speech and expression. The line of reasoning adopted by him has become relevant in current debated about net neutrality and other regulatory frameworks for media such as TRAI. In the dissenting opinion, I was also particularly amused by Justice Mathew’s statement that Article 19(1) (a) is not a “guardian of unlimited talkativeness.”
arj...@nujs.edu
Though Paper – I
Union of India and Ors. v. Motion Picture Association
From a bird-eye view, I find the judgment fundamentally problematic. The judges have taken a hard paternalistic stance. They have referred to the common man as illiterate and ignorant, just like many other decisions. At one point in the decision, the Court draws an analogy between the warning on a cigarette box and the must-carry provisions of the concerned clips. This analogy is flawed because in the case of the warning on cigarette boxes is about the ill-effects of the contents of these boxes themselves, however, these clips might not necessarily be warnings about the activities shown in movies. While the former is meant to protect/inform individuals from the ill-effects of a product before they consume it, the latter is meant to generally impart state’s paternalistic duty of educating the citizens about other matters it deems fit. In my opinion, therefore, the Court failed to justify this brand of paternalism in the first place.
“Similarly, looking to the purpose for which such films are shown, the expense incurred also cannot be considered as unreasonable.”
I fail to see as to how the fee charged and the purpose of the clips (discharge of the state’s paternalistic duties) is even related.
Even if one were to accept the brand of paternalism, the Court failed to state as to why the platform which belongs to the exhibitors can be used by it for imparting its functions. In other words, the judges failed to show as to why the regulation of free speech can be done in such a way that private individuals are supposed to perform state’s paternalistic duties, especially when such regulation is in no way related to the speech itself.
That said, I also failed to see as to why the 19(a) argument was warranted at all in the first place, until and unless the exhibitors were arguing that the aesthetic value of the movies is destroyed by addition of such clips. Even if they were, that would be a slightly weak argument because the speech is not being curtailed per se.
Another problem is that the Court upheld the charge levied in exchange of the clips. The Court says at one point that the contract between the Films Division and the exhibitors is in nature of quid pro quo, which is simply false, in my opinion. As far as my understanding goes, quid pro quo is when one gives another individual something she wants in exchange of something the former wants. In the case of these clips, however, the exhibitors wouldn’t have wanted the clips in the first place if it weren’t for the statutory obligation. Both the fee and the wasted screen time are financial disincentives for exhibitors. Therefore, under this model, not only does the state impart its role through private entities without giving them anything substantial in return, but also recovers most of the costs incurred in the process by charging them for doing so.
Furthermore, one of the justifications by the Court at various points for upholding the impugned provisions was the fact that the provisions had not been challenged for three decades, hence, they fee must not be excessive. I feel that in and of itself, appealing to history is logically flawed. Moreover, the Court completely ignored the justification of the same given by the exhibitors.
oieshi...@nujs.edu
kruthi...@gmail.com
Thought Paper: LIC v. Prof. Manubhai D. Shah
Kruthika N. S.
What struck me most about LIC v. Prof. Manubhai D. Shah was its treatment of what forms the foundation of laws surrounding information dissemination: circulation. In earlier cases such as Romesh Thappar v. The State of Madras, the Supreme Court had held that the freedom of speech and expression includes freedom of propagation of ideas, and this freedom is ensured by the freedom of circulation. In this though paper, I shall attempt to briefly present why the rationale of LIC was not entirely agreeable.
Any law that deals with
information dissemination has to have a strong practical leg to it, that is, it
must actually ensure that it aids in the
communication of that information. Be it the earlier, rather, earliest forms of
copyright protection (The Statute of Anne), or today’s free speech,
communication of the information to the masses is as important as non-interference
by the State. Not only does the author have to gain by such freedom, but also
the recipients of that information. Consequently, this free flow of information
only benefits society as a whole, as it facilitates the formation of opinions,
and more importantly, the formation of dissent.
In LIC, the Court opined that Doordarshan had the liberty to decide if any film was unfit for airing, and that this was essentially based on its discretion. While this seems to be perfectly acceptable on first reading (as after all, there was ban as such on the film), the issue is far more nuanced. It is imperative to look at the time of the cause of action, which was before liberalisation of television had commenced, and hence Doordarshan was still the sole means of communication.
Moreover, while it is understandable that despite the above factors, Doordarshan was not keen on airing the film, there is a slight anomaly. This is because it had been argued that the channel was to air award winning documentaries at a particular slot. The court did not go into this argument at all. Had it done so, reading the freedom of circulation as a part of expression, and tying this in with Doordarshan being the only method of circulation to the masses, and the slot available for such a film, the judgment could have favoured the interest of the viewers. In that case, it could have favoured the interest of the right to free speech and expression itself.
Issac John
Thought Paper II
Express Publications (Madurai) v. Union of India, (2004) 11 SCC 526
Issac John, 4th Year, 212112
Though
the court has framed two questions in this case, the determination of one is
inextricably linked to the other. The question concerning differential
treatment to the newspaper industry and Article 14 would greatly mould the
determination of the question concerning the freedom of the press. If intelligible
differentia and a rational link to the object of the legislation are established,
then the special nature of the newspaper industry such that it necessitates differential
treatment would also be proven. As a consequence, the arguments supporting the
preferential treatment of the newspaper industry would be greatly strengthened,
considering the unique nature of the media as the fourth pillar of a democracy.
This also works to negate the other argument of the employers of the newspapers industry. The higher costs of newspaper employers due to the lack of a Provident Fund ceiling, resulting in lower circulation and thereby affecting the freedom of the press would either be non-existent or inconsequential. Assuming that newspapers are in a unique position, if the employees are not treated commensurately, it would not only lead to a lower standard of reporting but also a decrease in the amount of information received by the people. This would affect the corollary right embodied by Article 14, the right of the people to receive information. Therefore, the negative impact on the freedom of the press would be greater than in the case of preferential treatment being given to the newspaper industry.
However, the judgment is badly written and possibly even flawed. The court recognizes the existence of criteria of intelligible differentia and rational link in the argument concerning Article 14. The analysis concerning the intelligible differentia which puts the newspaper industry in a unique position, thereby necessitating preferential treatment is either lacking or non-existent. The only references in the judgment regarding the same are a few lines which state that the newspaper industry is part of the fourth pillar of a democracy. The judgment does allude to the fact that the Press Commission had come to the conclusion that the newspaper industry was in a special position, such that it necessitated this differential treatment. However, it does no discuss what these circumstances are. Neither does it analyse if these circumstances are still existent fifty years on. As the court itself notes, the existence of circumstances which necessitated preferential treatment does not invalidate a constitutional challenge if such circumstances no longer exist.
In such a scenario, the reasoning of the court is limited to the blanket statement that the freedom of the press is important. While there is no doubt that it is important, such a superficial level of analysis cannot be the basis for a judgment by the Supreme Court. If such reasoning were to be considered legally sound, then it would open a floodgate of problems. Similarly important industries like the hospital industry would also demand preferential treatment considering their special nature of furthering the right to life of the citizenry.
The other possible route of analysis which could have justified the judgment in terms of its legal reasoning is once again, alluded to, in a single sentence in the last paragraph. This mentioned that Schedule 1 of the Provident Fund Act had been expanded to various other industries as well. The court could have further expounded on this line of reasoning to show that newspaper industry was not being treated any differently. Proving the same would mean that there existed no additional burden on the newspaper industry, rendering the argument concerning the negative impact on circulation affecting the freedom of press inconsequential.
The court refrains from the same, thereby robbing the judgment of the necessary legal reasoning which would justify it.
udbhav...@gmail.com
Thought Paper II –
Udbhav Tiwari
LIC v. Manubhai D. Shah (for the 30th Class on Economic Structures)
The case is a fairly interesting one but my opinion on the case is divergent on its two clubbed matters, with me disagreeing with the court with regard to the LIC matter and agreeing with its decision in the Doordarshan matter. This is quite strange as my primary reason for dissenting with the LIC matter (lack of analysis & engagement) is quite thoroughly fulfilled with regard to the Doordarshan matter within the same judgement.
With regard to the LIC matter and the publication of the rejoinder, I believe
the court was excessive in its interpretation of Article 14 & Article 19 (1)
(a) by imposing a mandatory requirement on LIC to publish the rejoinder in its
in house magazine. Even if the magazine was not an in house one, I believe that
imposing a requirement on the state to publish any criticism of it alongside an
exultation of its achievement/virtues (especially as a rebuttal to such accusations)
is both unfair and takes away from editorial discretion that different limbs of
the state may have to function effectively. This is not to say that the
rejoinder could be opposed in any manner by either LIC or the State but the
aspect of other avenues available for publication when contrasted with the
editorial discretion that is available to any magazine (regardless of the
nature of content) should have been balanced. A mere notification of the fact
the counter by LIC was a response to the original article, along with the date
and location of publication of the original article would be sufficient to meet
any equality and disclosure requirements that may be placed upon the state. The
courts analysis that it was ‘unfair’ and ‘unreasonable’ due to the publication
being derived from public funds was lacking in its extreme (it’s a mere 5
lines) and dismisses arguments about editorial discretion without giving them
any merit, by calling them without ‘logic or justification’. All of these serve
to make me strongly disagree with both the final order of the court and the reasoning
behind the same.
With regard to the Doordarshan screening of the movie, Beyond Genocide, the
court is quite the opposite in its approach, going to into good, comparative analysis
of the Cinematographic Act, its provisions, the evolutionary nature of
fundamental rights, the Central Government rules that govern the public
broadcasting of movies, etc. It does all of this while sufficiently showing the
importance on public opinion and discourse in general as well as with regard to
sensitive matters. The depth of analysis, excellent point by point rebuttal of
the government’s arguments and the resonance with the general theories of free
speech and prior restraint, all serve to make me quite like the stand and
reasoning taken by the court in this sub matter.
arj...@nujs.edu
THOUGHT PAPER- II
Life Insurance Corporation of India and Union of India and Anr. v. Prof. Manubhai D. Shah and Cinemart Foundation
Arjun Agarwal
I agree with the Court’s judgement in this case. With respect to the Doordarshan issue, I believe that the Court was correct in holding that given that other movies which had received similar recognition were being broadcasted and there wasn’t an issue of screen time, it was the duty of the State to broadcast it on Doordarshan given that it was the only avenue available to anyone who wanted to broadcast their movie on television. Moreover, the analysis with respect to “prior restraint” was good. I also thought the Court did a commendable job by not going into the ideology espoused by the speech in question, hence ignoring the “ideological neutrality” test.
With respect to the LIC issue, I thought that the use of the “fairness principle” or the right to respond was the most important aspect. The Court gave a significant amount of importance to the fact that the readers (howsoever limited they might have been) of LIC’s in-house magazine deserved a fair chance to ascertain the truth by having the opportunity to read both sides of the story. While it might not be acceptable to always compel the state to publish criticism to its policies/programmes along with their promotion on public-funded platforms, it is only fair that when such a criticism is a direct response to a response to a previous criticism by the same person, it is allowed to be published on a public-funded platform which accepts contributions by everyone. The Court deserves credit for clearly stating that its observation in this case was only with respect to the peculiar set of facts in the case. Moreover, the Court did not delve into ascertaining the ideological neutrality of the content in this issue either. be acceptable to always compel the state to publish criticism to its policies/programmes along with their promotion on public-funded platforms, it is only fair that when such a criticism is a direct response to a response to a previous criticism by the same person, it is allowed to be published on a public-funded platform which accepts contributions by everyone. The Court deserves credit for clearly stating that its observation in this case was only with respect to the peculiar set of facts in the case. Moreover, the Court did not delve into ascertaining the ideological neutrality of the content in this issue either.
I believe that the Court doesn’t curb the editorial freedom of editors of public-funded platforms by this ruling as the LIC never argued that the quality of the content was not satisfactory in the first place. However, if that had been the case, it would have been interesting to see as to whether the Court would blindly place reliance on LIC’s assertion or would itself delve into ascertaining the quality of the content, with or without the help of people qualified to do so.
