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Report No. 255

Right to Freedom of Speech and Expression [Article 19(1)(a)]

7.36. In Jununa Prasad Mukhariya v. Lacchi Ram, AIR 1954 SC 686 the Supreme Court held that regulation of election speech does not raise any Article 19(1)(a) concerns. Rejecting a challenge to speech-restricting provisions of the RPA (Sections 123(5) and 124(5)), the Court held:

"The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them."

7.37. Although the Court has, in subsequent cases, subjected provisions of the RP Act to Article 19(1)(a) scrutiny, it has done so while affirming the core holding of Jumuna Prasad. See, e.g., Dr. Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113. Therefore, insofar as prohibition of paid news and regulation of political advertising is accomplished through the RP Act, in the form of prescriptions upon the conduct of candidates, it will not raise any constitutional concerns.

7.38. Assuming that Article 19(1)(a) is prima facie applicable to the regulation of paid news and political advertising, the following two questions arise: do paid news and political advertising fall within the constitutional protection of Article 19(1)(a)? And if so, is legal regulation justified under Article 19(2)?

7.39. One way of understanding political advertisement is as a form of commercial speech. Since the issuer pays for newspaper space, in order to extol his product, there is little to separate political advertising from commercial advertising simpliciter.

The constitution on commercial speech is very clear. Although, in Hamdard Dawakhana v. Union of India, [1960] SCR 2 617, the Court excluded commercial speech from the protection of Article 19(1)(a), this general position was overturned in Tata Press v. MTNL., AIR 1995 SC 2438. However, while holding that commercial speech was protected by Article 19(1)(a), the Court also held that " commercial speech" which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2) of the Constitution and can be regulated/prohibited by the State."

This makes it clear that disclosure requirements for political advertisements, which are designed to ensure that the advertisements are not deceptive, misleading or untruthful, would pass constitutional muster.

7.40. What of the prohibition of paid news altogether? It is important to note that in Secretary, Ministry of Information and Broadcasting, Government of India. v. Cricket Association of Bengal, (1995) 2 SCC 161 the Supreme Court of India observed, "one-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry". The significance of free and fair information specially for the electoral process was also observed in PUCL by the Supreme Court.

The availability of proper and relevant information about the candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information. PUCL v. UOI, Writ Petition (Civil) 490 of 2002, 509 of 2002, 515 of 2002, decided on 13th March, 2003. Lastly, in Union of India v. Motion Picture Association, AIR 1999 SC 2334 the Supreme Court held that a requirement compelling cinemas to showcase short documentaries before the start of films was justified, since it furthered the democratic purpose of Article 19(1)(a), i.e., spreading information and awareness.

The conclusion that flows from these cases is that the central meaning of Article 19(1)(a) is the connection between the freedom of speech and the democratic process, which is to be achieved by using the freedom of speech as a method of spreading awareness and information among the electorate. Paid news quintessentially distorts this process. Consequently, the prohibition of paid news is unlikely to run into any Article 19(1)(a) hurdles, because it does not fall within the protection of the constitutional right to freedom of speech and expression (Article 19(1)(a)).



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