Intro: The circular issued by Arvind Kejriwal against media is a clear attempt to take away the Freedom of Speech and Expression. Though, the Supreme Court stayed the Draconian Circular, the question over Kejriwal’s intention to use and then abuse media needs to be interrogated.
The Circular issued on May 6, 2015 by the Government of NCT of Delhi headed by Mr Arvind Kejriwal has raised a burning and sensational topic for discussion by providing a mechanism for registering complaints of defamatory news or actions of the Fourth Estate of Our Constitution in order to cover the Chief Minister, Cabinet and various other functionaries of the Delhi Government. By attacking on it politically some say its anti-democratic, an un-announced emergency or an attempt to strangle the democracy or more specifically an attack on media both print and visual as well. But, I feel that his government is trying to give a message “Both sides of a coin are mine” and a direct attack on Freedom of Speech and Expression as enshrined in Article 19(1)(a) of our Constitution.
This Article 19(1)(a) of our Constitution secures every citizen the Right to Freedom of Speech and Expression and a well-recognised connotation which means the liberty to express one’s view, opinion and beliefs. However, it does not mean the right to say whatever, whenever and wherever one likes. In the words of JS Mill, the liberty is the bulwark of a healthy, progressive and democratic society. It leads to the creation of new ideas and knowledge, finding of truth, building tolerance and receptivity and is essential for self rule. The Romesh Thapar Case (1950) in the Hon’ble Supreme Court of India, had occasioned Patanjali Sastri, Chief Justice to observe that “Freedom of Speech and of the Press lay at the foundation of all democratic organisations, for without free political discussion, no public education, so essential for the proper functioning of the process of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of our Constitution may well have reflected with Madison, who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, that it is better to leave a few of its noxious branches to their luxuriant growth than by pruning them away, to injure the vigour of those yielding the proper fruits”.
In India, it is well settled proposition of law that the Right to Freedom of Speech and Expression in this Article includes the liberty of the press. In Sakal Papers (P) Ltd. Case (1962) the Hon’ble Supreme Court had held that the freedom of the press is not confined to newspapers and periodicals, but includes also pamphlets, leaflets, circulars, and every sort of publication which affords a vehicle of information and opinion. However, this does not confer an absolute right to speak or publish without responsibility, whatever one may choose or an unrestricted or unbridled license that gives immunity for every possible use of language and does not prevent punishments for expression may be restricted. It enables the legislature to impose reasonable restrictions on the right to free speech and defamation is one of the grounds. However, the Hon’ble Supreme Court in Express Newspaper (P) Ltd. Case (1986) had held that the reasonable restrictions under the said head can be imposed only by a duly enacted law and not by an executive action. On this count, the said circular can be christened as an instrument of executive, usurping the legislative powers and is a case of excessive delegated legislation which is not permissible in our Constitution. The Circular dated May 6, 2015 provides a mechanism for registering complaints of defamatory news or action as per Section 199 of Code of Criminal Procedure (CrPC) thereby criminalising them under Section 499/500 of Indian Penal Code (IPC). Mr Kejriwal throughout his campaign, whether he was a part of the government or not had used defamatory words or news against various political leaders and the business scions of this country for which he is facing trial at various places and propagates himself as a victim of such complaints and he challenged before the Hon’ble Supreme Court to de-criminalise Section 499/500 of IPC and still enjoying the stay granted by the said Hon’ble Court. Thereby, ensuring his one side of coin.
The other side of the coin he gets through the very “Draconian Circular” on May 6 by attacking the Fourth Pillar of our Constitution, which on the touchstone of law fails as discussed above and using the same weapon against it, which he himself had attacked and is pioneering to de-criminalise Section 499/500 of IPC. This circular is a clear attempt to take away the Freedom of Speech and Expression, according to PK Tripathi, which is a political freedom and as per Mr Kejriwal’s own party popular hijacked historical statement—a purna swaraj. Thus, he and his Cabinet loves the suitability factor most and to have the both sides of a coin without caring that such attacks are anti-democratic, un-constitutional and even when the matter is sub-judice before the Hon’ble Supreme Court.
Sanjay Kumar Visen (The writer is Advocate-On-Record, Supreme Court)