Thread by @barandbench

Justice Rajiv Shakdher, Justice GR Swaminathan, and Advocate Sanjay Pinto to hold a dialogue on Freedom of Speech in the 15th anniversary lecture series conducted by HSB Partners, Advocates.

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Advocate Srinath Sridevan moderating the talk, opens the dialogue.

Justice Shakdher begins the discussion, he says that Article 19(1)(a) is one of the crown jewels of the Constitution of India.

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Justice Shakdher says that when the Right of the Press to publish was challenged, we introduced the restrictive clause of reasonable restrictions to Article 19(1)(a) in the first amendment to the Constitution

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Justice Shakdher: Unlike American Constitution, our Constitution does not find mention of Right to Freedom of Press in Article 19(1)(a). But through judgments, with the decision in Anuradha Basin case being the latest, Courts have reiterated that A.19 includes Freedom of Press

Justice Shakdher says that the Madras High Court has been at the forefront of upholding the freedom of Press.

Citing the judgments in R Rajagopal case or N Ram's case, the Courts have recognised the right to freedom of press and right of people to know under A.19(1)(a).

Justice Shakdher: According to me only the Press can show the mirror to the emperor and say that the "emperor is not wearing clothes" and triggering criminal process under defamation law cannot be the way to go forward.

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Justice Shakdher: Courts are cognizant of the vibrant things that come with the freedom of press.

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Justice GR Swaminathan continuing the dialogue says he is happy that Justice Shakdher talks about showing the mirror to the "emperor" because emperor would include Courts and Judges also.

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Justice Swaminathan: The Constitution will not be amended tomorrow... but we Judges can take a vow that we will not initiate or take recourse to criminal contempt or proceedings against a journalist or Press... At least I will not.

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Justice Swaminathan: I believe that Article 19(1)(a) should be expansively construed and Article 19(2) should be construed in a very limited manner.

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Justice Swaminathan: This is why I decided to stand by Perumal Murugan. He is a very good writer. When he came to me, he told me he was summoned.

The movement against Murugan was led by some of my friends, but I stood by him because I felt he had the right as a writer.

Justice Swaminathan recalling a case where defamation case was filed against a cartoonist says, job of a cartoonist is lampooning and ridiculing. While nobody has right to defame another, the same yardstick cannot be applied to cartoonists. Therefore i quashed the proceedings.

Advocate Sanjay Pinto now continuing the dialogue says that defamation is often used as a sword as opposed to a shield as it is meant to be used.

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Pinto says that the role of the media is adversarial and to ask questions of those in power.

Pinto says that there cannot be a sword of defamation hanging on the head of a journalist.

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Pinto: For a Free Press, it is important that defamation law is not used against journalists. The trial is a punishment in these cases and there needs to be a slight room for error because often what is incorrect is not always defamatory.

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Pinto: Defamation cases against a journalist are no longer a badge of honour but are of great nuisance value.

Hinting at the recent case regarding #ArnabGoswami, Pinto says why should there be multiple cases filed against various places against a journalist?

Pinto says that even politicians need to develop a thick skin and defamation should not be taken recourse to ever so often against a journalist. Defamation should be the last tool used, Pinto says.

Srinath Sridevan raises the question concerning the irreparable damage that broadcast news often causes these days, asks how the freedom of the press can be balanced in such an environment.

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Justice Shakdher says that sometimes even trained minds by what is shown on live TV.
He asks, "What do we do? Do we stop this? Do we self censor?"

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Justice Shakdher: Sometimes journalists on the field are told details of accused persons even before filing of an FIR... But the best way according to me is there needs to be self censorship which the journalists need to introspect on and regulate.

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Justice Swaminathan adds to the aspect put forth by Justice Shakdher and says that when things are said on live TV, the broadcaster should at least at the end of such a debate and discussion dissociate with the controversial views are put forth by the guests on the broadcast.

Justice Shakdher weighs in to say that the broadcasters in the end care about the TRPs and know where the viewership is coming from. At the end of the day, it has become a commerce.

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Pinto, who is also a former journalist with NDTV, says that the problem with self-censorship especially with electronic media is that there is a presumption of guilt affixed when it comes to allegations made against a celebrity.

Pinto: There is a race for TRPs... why is it that @ndtv does not have the highest TRPs despite having a string editorial ethic and despite speaking truth to power is because people now have a voyeuristic tendency and prefer to watch shouting matches.

Pinto: Primetime anchors are no longer speaking truth to power but are acting as cheerleaders.

So self-regulation may not work because everyone is this mad rat race for TRPs.

Content is no longer the king, "masala" is the king

On the issue of free speech vs hate speech:

Justice Shakdher: If you have a post on social media which offend the sentiments of some people, are emotive, but do not degrade the ethos of plurality, those are not according to me criminally actionable.

Justice Shakdher: But ones (posts) which target a particular community, section, and degrade the ethos of plurality our Constitution stands for are perhaps to be dealt with.

Content such as satire cannot be labelled as hate speech because the dispensation is thin skinned.

Justice Shakdher: You need to be first of all clear about what is hate speech... everything is labelled as hate speech and things that are actually hate-speech are not viewed as such

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Justice Swaminathan says that, just like how we are now in a time where we have to live with Corona, we are also in a time where we have to live with fake news.

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Justice Swaminathan citing a recent judgment of the Delhi High Court where it was said that people have the right to know who their leaders meet. He questions how far can public interest be used in a case like this which touches upon the question of another's privacy

Pinto says that he disagrees with this judgment, and says when it comes to public interest, there can be no place for "peeping toms".

Justice Swaminathan also questions if there should be legislative action when it comes to controlling content on social media like there is in other countries.

Pinto says that Section 66A needed to be struck down because it was loosely worded but there is need for regulation

Pinto says lawyers are governed by the Bar Council, Doctors by Medical Council, but when it comes to social media, there needs to be regulatory action, not self censorship alone.

Pinto, however, says that Section 66A of the IT Act was loosely worded and had to be struck down

On Public interest, Justice Shakdher says that it depends on whether the information to be brought out concerns the public, not in a voyeuristic way, but in a way that does it affect and impact them.

Justice Shakdher: If the actions of a leader behind closed doors affect the public, it is public interest.

On Fake News and Legislative tool, Justice Shakdher says that while it is a big menace and various platforms have their own policies, it is laborious and with technology, it may be difficult to regulate such content.

On a question on the need for legislation for social media, Justice Swaminathan says, social media needs to be regulated through legislation and says, "it is getting out of hand."

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On government ads as also a tool to muzzle the media, Justice Shakdher says that there needs to be some equitable distribution and egalitarian approach when it comes to government ads also.

Pinto agrees, says after all "one who pays the piper calls the tune"

Justice Swaminathan agrees and says that while government ads may be used as positive reinforcement, prosecution is used as negative reinforcement and cites how under UPA government, there were raids on Indian Express and under BJP government, raids on Outlook

Pinto says, ads are a way of censorship used by the the government which is that ads can be withdrawn by the government if the news is not in favour of the dispensation.

The dialogue concludes and Advocate K Harishankar thanks the panel for the talk.

Only the press can show the mirror to the emperor: Justice Rajiv Shakdher during panel discussion on Free Speech

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