Public interest can’t b an additional ground to restrict free speech

In a recent decision, a division bench in the Bombay High Court (HC) exercised a power that vests solely with Parliament; it, in effect, amended the Constitution. Specifically, the judges introduced an additional restriction to the fundamental right to free speech and expression under Article 19(1)(a).

The matter involved nine petitions that challenged Telecom Regulatory Authority of India (TRAI) regulations in broadcasting (full disclosure — I work with broadcasters). The thrust of the petitioners’ argument was that TRAI’S economic regulations restrict the circulation of broadcaster programming, violating the broadcaster’s right to disseminate and consumer’s right to receive information, both of which are core components of the right to free speech.

The Bombay HC, however, held that “public interest” serves as an additional ground on which the

State may issue diktats to restrict free speech. This is problematic on three counts.

First, the HC overstepped its jurisdiction and stepped onto turf reserved for democratically elected legislators. A primary duty of the judiciary is to interpret laws, not create them.

Second, by reading in a vague notion such as public interest as a valid restriction on free speech in broadcasting, the court paved the way for greater State interference in television content, particularly news. As such, it failed to uphold the rights of citizens and operate as a check against abuses of State power.

Public interest is a fluid construct in Indian legal parlance, it is not defined, and it finds mention across a host of statutes, often justifying the more non-transparent elements of governance. For instance, Section 8 of the Right to Information Act uses public interest as a ground for the State to withhold information. Article 22 of the Constitution allows authorities issuing orders regarding preventive detention to maintain confidentiality about any facts related to such orders that it considers to be against the public interest.

The absence of a definition of public interest in legislation means that it falls to the judicourts tend to test public interest on a c by-case basis.

In Central Public Information Off Supreme Court of India v Subhash Cha Agarwal, related to Right to Informa requests made to courts on the colleg process, judges’ asset declarations, and j cial elevations, the court held that infor tion officers must determine what constit public interest.

In addition, it re-emphasised and cher icked wide statutory grounds for the Sta withhold information from the public, inc ing breach of confidentiality fiduciary responsibilities. Wha lows is that the concept of pu interest is often employed to pr the interests of powerful individ and institutions.

Third, the Bombay HC did adhere to the judicial preceden the matter of reading public inte as an implicit restriction on speech. The Supreme Court (SC remained mindful of the political dimens of public interest and what might resul allowed the State to restrict free speec this ground. While the right to free speec India is not absolute and comes with cer riders expressly listed under Article 19( the Constitution, public interest never o ated as a legitimate restriction on it. Ar 19(2) does not mention it and the court not permit its entry as an implicit restric on Article 19(1)(a).

In Indian Express Newspapers vs Unio India, for instance, the SC observed tha framers of the Constitution deliberately o ted public interest from 19(2) to ensure the State did not hold the right to free sp ransom when it wished to impose exces burdens on the press.

Rather than make a rational deci guided by constitutional principles, in case, the Bombay HC, with due resp usurped the jurisdiction of the legislat failed to uphold press freedom on televi and disregarded the precedent set dow higher courts. The order merits wider dis sion and a review.