Musings on Right to Free Speech & Privacy Narasimhan Vijayaraghavan  4- Brij Bushan v. State of Delhi Alongside Romesh Thapar,  Brij Bushan, Publisher and K R Halkani , Editor of Organiser, Rashtriya Swayam Sevak Sangh backed newspaper was also hauled

 

 

Musings on Right to Free Speech & Privacy

Narasimhan Vijayaraghavan

 

 4- Brij Bushan v. State of Delhi

 

Alongside Romesh Thapar,  Brij Bushan, Publisher and K R Halkani , Editor of Organiser, Rashtriya Swayam Sevak Sangh backed newspaper was also hauled up.

 

The facts of the case are as follows: The petitioners in the present case approached the Supreme Court under Article 32 of the Indian Constitution. Mr.Brij Bhushan was the printer and publisher and K.R.Halkani   was the editor of an English weekly of Delhi, called the Organizer. On 2ndMarch, 1950 the Chief Commissioner of Delhi issued an order against the petitioners under Section 7(1) (c) of the East Punjab Safety Act, 1949.

 

Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been pub- lishing highly objectionable matter constituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.

 

Now there more in exercise of the powers conferred by section 7 (1)(c) of the East Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij Bhushan, Printer and Publisher and Shri K.R. Halkani, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America to the Provincial Press Officer, or in his absence, to Superintend- ent of Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours 10 a.m. and 5 p.m. on working days.”

 

This order was challenged by the publisher and editor before the Supreme Court and the case was heard by the same six judges’ bench of FAZAL ALI, SAIYID. KANIA, HIRALAL J. (CJ),

SASTRI, M. PATANJALI, MAHAJAN, MEHR CHAND, DAS, SUDHI RANJAN and MUKHERJEA, B.K. which heard Romesh Thapar. The only point argued related  to the constitutional validity of section 7 (1) (c) of the impugned Act.

 

The petitioners contended that this provision infringed the fundamental right to the freedom of speech and expression conferred upon them by Art.19(1)(a) of the Constitution inasmuch as it authorised  the imposition of a restriction on the publication of the journal which is not justified under clause (2) of that article. And this challenge before the first ever amendment to the Constitution in 1951.

 

The Supreme Court found that there  could  be no doubt that to impose pre-censorship on a journal, such as had  been ordered by the Chief Commissioner in the said case , was a restriction on the liberty of the press which was included in the right to freedom of speech and expression guaranteed by Art.19(1)(a) of the Constitution, and the only question which the Court was called upon  to decide was whether clause (2) of Art.19 stood  in the way of the petitioners.

 

This may just be the occasion to allude to why the Constituent Assembly did not think it fit of proper of necessary to include ‘freedom of press’ within ‘free speech’ faculty. Many Historical Constitutions, which capture the constitutional imagination prior to the formal constitution making process, viewed freedom of speech as a key fundamental right. However, only a few demanded the freedom of the press as a separate right. States and Minorities (Dr B.R. Ambedkar, 1945), a book that was submitted to the Sub-Committee on Fundamental Rights in the Constituent Assembly declared: ‘No law shall be made abridging the freedom of Speech, of the Press, of Association and of Assembly except for consideration of public order and morality’. (Sir Tej Bahadur Sapru Committee Report , 1945), which was primarily set up to examine then prevailing communal questions from constitutional and political perspectives, demanded ‘the freedom of Press and association’ Constitution of India – A Report- M N Roy- released and discussed by the Radical Democratic Party, sought ‘The freedom of press and speech is guaranteed to all but the enemies of the people’.

 

When the formal constitution making project kicked off, some Constituent Assembly members had similar demands. During the debates around Draft Article 13 ( Article 19), Constitution of India,1950), Damodar S Seth proposed an amendment which sought to spell out “freedom of the press” along with the other freedoms. He noted while one might argue that press freedom might be implicit in freedom of speech and expression: “the present is the age of the Press and the Press is getting more and more powerful today. It seems desirable and proper, therefore, that the freedom of the Press should be mentioned separately and explicitly.”

 

KT Shah was another strong proponent of freedom of the press. He wanted to i insert “freedom of speech and expression; of thought and worship; of press and publication”. He pointed out that several countries underwent ‘constitutional struggles’ to ensure freedom of the press. Further, he implied that freedom of the press is explicitly guaranteed where ‘liberal constitutions prevailed’. Shah insisted that leaving this out, as described by another member, was a “black Act”. He further noted,  “To omit it altogether, I repeat, and I repeat with all the earnestness that I can command, would be a great blemish which you may maintain by the force of the majority, but which you will never succeed in telling the world is a progressive liberal constitution, if you insist on my amendment being rejected.”

 

After a long debate on the need for distinct freedom of the press, BR Ambedkar, the Chairman of the Drafting Committee, gave a curt reply. He did not see a point in spelling out freedom of the press, a departure from his earlier position in States and Minorities. He argued that the press did not have any special privileges, it ‘is merely another way of stating an individual or a citizen’. The editor, manager of the press is a citizen who can exercise free speech effectively. Therefore, ‘no special mention is necessary of the freedom of the press at all’.The strong demands to encode freedom of the press within Article 19 (1) (a), were defeated because the framers did not see the press as a separate category.

 

Yet again Patanjali Sastri wrote the majority verdict siding with Organiser. “ There can be little doubt that the imposition of precen- sorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Art.19(1)(a) is pointed out by Blackstone in his Commentaries “the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press(1). The only question therefore is whether section 7 (1)(c) which authorises the imposition-of such a restriction falls within the reservation of clause (2) of Art.19. As this question turns on considerations which are essentially the same as those on which our decision in Romesh Thapar was based, our judgment in that case concludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the Chief Commission- er, Delhi, dated the 2nd March, 1950”.

 

Following Romesh Thapar, a communist,  Brij Bushan a conservative too succeeded. On either end of the spectrum, as it were as Romesh Thapar despised RSS as much as he did Congress too. And Brij Bushan, equally had no love lost for Romesh Thapar. Interesting contrast not irony.

 

Yet again Fazl Ali, the dissenter stood firm. He did not touch the RSS mouthpiece with even a barge pole as he displayed arm’s length to communists too. Fall’s Ali’s words bear repetition in the times we live in. “ It must be recognized that freedom of speech and expres- sion is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guard- ed by the Courts. It must also be recognised that free political discussion is essential for the proper functioning of a democratic government, and the tendency of modern jurists is to deprecate censorship though they all agree that “liberty of the press” is not to be confused with its “licentiousness.” But the Constitution itself has pre- scribed certain limits for the exercise of the freedom of speech and expression and this Court is only called upon to see whether a particular case comes within those limits. In my opinion, the law which is impugned is fully saved by Art.19(2) and if it cannot be successfully assailed it is not possible to grant the remedy which the petitioners are seeking here.

 

As has been stated already, the order which is impugned in this case recites that the weekly Organizer has been publishing highly objectionable matter constituting a threat to public law and order” and that the action which it is proposed to take against the petitioners “is necessary for the purpose of preventing or combating activities prejudi- cial to public safety or the maintenance of public order.” These facts are supported by an affidavit sworn by the Home Secretary to the Chief Commissioner, who also states among other things that the order in question was passed by the Chief Commissioner in consultation with the Central Press Advisory Committee, which is an independent body elected by the All-India Newspaper Editors’ Conference and is composed of representatives of some of the leading papers such as The Hindustan Times, Statesman, etc. In my opinion, there can be no doubt that the Chief Commissioner has purported to act in this case within the sphere within which he is permitted to act under the law, and it is beyond the power of this Court to grant the reliefs claimed by the petitioners. In these circumstances, I would dismiss the petitioners’ application.”.

 

Times they are a changing. Or rather, the more they change, the more they remain the same.

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