Issue 3 – Art.21 and Art.19(1)(a) – Priority or balance

Which right shall have priority over the other?

Right to Freedom of Speech and Expression as provided under Article 19(1)(a) or Right to Life and Liberty under Article 21 of the Constitution of India?

Press has the freedom of speech and expression. The Supreme Court intends to protect the right to life and liberty of citizens by placing restrictions on the media reporting on cases.

Few of the counsels who appeared before the Supreme Court have contended that Article 19(1)(a) should be priority over Article 21 because Article 19 gives explicit right to the citizens where Article 21 is a negative covenant which says ‘no person shall be deprived of his life and liberty except according to the procedure established by law’.

Few counsels contended that, Article 21 is an indefeasible right and it should be given priority over the Article 19(1)(a) citing some judgments to that effect.

The Supreme Court, from the beginning, was of the view that, there cannot be one fundamental right having priority over the other but it is the duty of the Supreme Court to find balance between these two rights.

With all these contentions, Mr. Harish Salve made an interesting point. According to Mr. Salve, reporting anything on cases by the Media is not a right guaranteed under Article 19 (1) (a). No right under Article 19 is absolute and obviously, every right has to be exercised within its limits.

Mr. Salve made it very clear that, Supreme Court framing guidelines on ‘media reporting on cases’ cannot be treated as imposing restrictions on Article 19 (1) (a) for the simple fact that, press do not have the absolute right at the first place. Mr. Salve was of the opinion that, at this circumstances, it is necessary that the Supreme Court at least defines and clarifies to the press through this judgment what all their rights and what not. Can’t agree more.

One more interesting point made by another Counsel during the hearing. In his views, the right under Article 19 (1) (a) is a right entrusted by the Constitution to its citizens wherein right under Article 21 is assumed to have been there even prior to the Constitution. Conscious reading of both these Articles would suggest the difference.  Article 19 (1) (a) reads as “All citizens have the right to freedom of speech and expression”, whilst Article 21 does not even have the word ‘right‘. It reads, “No person shall be deprived of his life and liberty”, clearly indicating that right under Article 21 is omnipresent even prior to the Constitution.

The Supreme Court of India would definitely not find either of these rights having priority over the other. But, it will be interesting to see how the Court interprets both these Articles without damaging any of its basic constitutional values.

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