• The Tejasvi Surya gag order violates a voter’s right to free speech and expression

    Radhika Jhalani & Nishant Sirohi

    April 10, 2019

    The recent gag order passed by Bangalore Civil and Sessions Court’s judge, Dinesh Hedge, restraining 49 newspapers, television channels and other media outlets from publishing anything defamatory against Tejasvi Surya, the BJP candidate for Bengaluru South Lok Sabha constituency, has raised constitutional questions pertaining to the rights of voters to access information about the candidates they will be voting for. By all accounts, it would seem that this order goes against the essence of at least two Supreme Court judgments that assert the right of the voter to make an intelligent and rational choice of their representative to not only preserve the integrity of the election process but to enhance the nation’s democratic values.

    The gag order came after there were a series of tweets by a Dr Som Dutta against Surya alleging that he had sexually assaulted and abused women. Dr Dutta subsequently deleted her Twitter account along with the tweets, making one wonder if she felt threatened for daring to take on a ruling party candidate. The charges, if filed against Surya would include sexual harassment punishable under Section 354-A of Indian Penal code where the maximum punishment is three years with rigorous imprisonment.

    The Right of the Little Man to Speak Out

    Two Supreme Court judgments, Union of India vs Association of Democratic Reforms (2002) and People’s Union Of Civil Liberties vs Union Of India (2003) deal extensively with the right of the voter to access information about their candidates in order to be able to make an informed choice. Both judgments peg that right to Article 19 (1) (a) of the Constitution of India by describing the vote as an expression of opinion by the ‘little man” (citizen) on a particular candidate.

    In the Union of India vs Association of Democratic Reforms,  the Supreme Court said the public had a right to know of the background of a candidate which ‘makes him worthy of his vote by peeping into the past of the candidate’. It directed the Election Commission to provide information about the candidates, following which the Parliament brought an amendment to the Representation of People’s Act, 1951 where section 33A was introduced, making it mandatory to disclose information about criminal past of the candidate.

    The Handbook for Candidates (Handbook) issued by the Election Commission of India subsequent to the 2002 ADR judgment incorporates this rationale in order to justify the need for a candidate to divulge all relevant information, including their criminal antecedents.

    It describes the vote as an expression of their opinion of the candidates in the fray.  Voters, according to the EC, ‘speak out” and express themselves by casting their vote.  Denying information about a candidate takes away the right of the ‘little man’ to know the antecedents of a candidate, a right that is so fundamental and basic for the survival of a democracy.

    Relying on the ADR judgment, the Handbook says “Under our Constitution, Art 19(1)(a) provides for freedom of speech and expression. Voters’ speech or expression in case of the election would include casting of votes, that is to say, voter, speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man-citizen) right to know the antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for the survival of democracy. The little man may think over before making his choice of electing lawbreakers as lawmakers,” the EC says in its Handbook.

    Surya, a lawyer himself, could argue that ‘criminal antecedents’ mentioned in the judgments refer to proved cases against the candidate, that Surya himself would have had to divulge in the papers he filed with the EC.  But that would be going against the very essence of the two judgments, both of which speak of the right of the voter to all available information about a candidate and the duty of the media to filter that information and make it available to the public to enable them to make an informed choice. The gag order deprives the public to be informed and prevents the media from doing its duty to inform the voter of the choices available to them.

    The right of the voter and the role of the media

    The right to vote, the Supreme Court said in the 2003 PUCL judgment, which is the basic postulate of democracy is two-fold: “first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth. The first step is complementary to the other.”  It said voters would be handicapped in formulating an opinion and making a proper choice of their candidate unless “essential information” regarding the candidate was available. “The voter/citizen should have at least the basic information about the contesting candidate, such as his involvement in serious criminal offences. To scuttle the flow of information – relevant and essential would affect the electorate’s ability to evaluate the candidate.” (emphasis added).

    The judgments also discussed the role of the media in disseminating information relating to the candidate in order to “enlighten and alert the public at large regarding the adverse antecedents of a candidate”. Information about the candidate, it said, would go a long way in promoting freedom of speech and expression by help the voter in seeking and receiving information about the candidate in forming an opinion according to their conscience and the best of their judgment. Disclosure of that information would also facilitate the media in imparting information on a matter of vital public concern. “An informed voter – whether he acquires information directly by keeping track of disclosures or through the press and other channels of communication, will be able to fulfill his responsibility in a more satisfactory manner. An enlightened and informed citizenry would undoubtedly enhance democratic values,” the judgment said.

    None of the 49, according to sources, have made any move to challenge the order, in what appears to be a capitulation to the ruling party by the fourth estate.

    The gag order, it would appear, is undemocratic in its sentiment and takes away the constitutional right of the voter to express their opinion about a candidate.

    The next date of the gag hearing is on 27 May 2019, much after the elections to Surya’s constituency are over on April 18, 2019.


    First published in The Leaflet.

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