Context

• Sudarshan TV case will have several implication for the regulation of free speech.
• In principle, Indian law allows prior restraint on broadcasting. This prior restraint should be used sparingly and must meet a high constitutional bar.
• Indian law also allows regulation for hate speech.

Maintaining the equilibrium

• The government feared that if it did not have the power to regulate speech, it will threaten the stability of society.
• The hate and violence got the state to betray its own liberal commitments
• Liberals never acquired the confidence of people to let go of  state regulation in the name of defending the republic.
• The spread of hate speech and its political consequences are now infinitely greater.
• The situation, where communication mediums are used to target communities, are not outside the realm of possibility.
•  It is for this reason we still have so many restraints on speech.

Challenges in regulation of speech

• Almost every regulation of speech, no matter how well intentioned, increases the power of the state.
• But now, in the current context, empowering the state is a frightening prospect as well.
• The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
• An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.

3 lessons to learn

• 1) The more the state regulates, the more it politicises the regulation of speech, and ultimately legitimate dissent will be the victim.
• 2) There is a whole bunch of laws and regulation already on the books for regulation, these have been ineffective because of institutional dysfunction.
• 3) Social media operates on a set of monetising incentives. But broadcast media is also based on political economy.
• The granting of licences has always been a political affair; the pricing structures set by the TRAI have perverse consequences for quality and competition.
• Our current media landscape is neither a market nor a state. The more the underlying political economy of media is broken, the less likely it is that free speech will stand a chance.

Way forward

• Not post facto content regulation, but a market structure that can help provide more checks and balances.
• Not let bad media drive out good.
• The Court suo motu setting up a regulatory framework does not inspire confidence. It is not its jurisdiction to begin with.
•  This is something for Parliament to think about.

Conclusion

The government must walk the tight rope of regulation and safeguarding the rights of all.

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