INDIAN CONSTITUTIONAL LAW REVIEW: EDITION I (JANUARY 2017)

REVIEWING A COMPANYS FUNDAMENTAL RIGHT TO

FREEDOM OF SPEECH AND EXPRESSION
P. Srinivas Reddy
Vivekananda Institute of Professional Studies, Pitampura

ABSTRACT

The rights enunciated in article 19 of the Indian Constitution are available to the citizens only, which
hampers the right of a company or corporation to enforce the same. The article discuss the need to
devolve the right to freedom of speech and expression on a company, by referring to the one hundred
and first report of Law Commission of India which deals in detail with enforceability of the right to
freedom of speech and expression and suggested an amendment to the Constitution, a suggestion which
was never followed by any government till date. Amendment provides a potent solution to the issue at
hand. The article delves into a fascinating mode of interpreting the same by incorporating such a
freedom into the term personal liberty of an individual. Article 21 can be enforced by a company,
interpreting rights into the term life and personal liberty according, i.e. keeping in consonance with the
interpretation of a company under article 21. Such an interpretation in is consonance with the law laid
down the apex court in the Bank Nationalization case and Maneka Gandhi case. Such an interpretation
of a companys right under Article 21 will lay down effective platform for the enforcement of the
freedom of speech and expression in the court of law.

The Constitution of India confers the fundamental right to freedom of speech and expression only to
the citizens277, thereby excluding the corporations or companies out of the purview of Article 19. The
nine judge bench decision in State Trading Corporation of India Ltd. v. Commissioner of 278 held that a
company is not a citizen and cannot enforce the rights inculcated in Article 19. Justice K.C. Das Gupta
was the sole dissenting judge who ruled in favor of companies competence to enforce the rights
mentioned in Article 19. The Apex court has given another facet to this issue, by upholding the right of
the company to plead the violation of Article 19 by lifting the corporate veil. For instance, in Tata
Engineering & Locomotive Co.279 the court observed that the corporate veil could be lifted in cases
where the company is charged with trading with the enemy or perpetuating fraud on the revenue officer.

277
Article 19, The Constitution of India
278
[1964] 4SCR 99
279
[1964] 6 SCR 885

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 INDIAN CONSTITUTIONAL LAW REVIEW: EDITION I (JANUARY 2017)

The Honble Supreme Court has potently established the maintainability of the writ petition by
shareholders challenging the violation of their rights under Article 19 by a legislative or an executive
action280. The position pertaining to a companys right to enforce freedom of speech and expression
needs a revolutionary change. This articles scope is limited only to interpreting a companys right to
freedom of speech and expression.

The change mentioned hereinabove is essential for various reasons, one of it being to ensure the
Freedom of Press (one of the aspects of freedom of speech and expression), which has been vigorously
upheld and guarded by the Supreme Court281. The Supreme Court has laid emphasis in several cases on
the importance of maintaining freedom of press in a democratic society. In Printers (Mysore) Ltd. v.
Assistant Commercial Tax Officer,282 the Supreme Court observed that, though freedom of press is not
expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. The
Press acts as an essential medium for people to communicate their views to the whole country, which
is subject to reasonable restrictions. A Government will never abide by constitutional norms, especially
when its repute is on the line. It will blatantly disregard these essential rights which is clearly evidenced
by the past emergencies, thus requiring a re-look into the enforceability of such rights by non-citizens.
There can be an anarchic government in the future, which will ultimately cause ruckus to constitutional
values. In these instances, a citizen can effectively enforce his rights under Article 19, which will be
not be at the disposal of a company or for that matter a foreigner. In the light of these disruptive
situations that may arise or some of which our country has already experienced, there is a need to amend
the Constitution by including the freedom of speech and expression of a company or corporation,
thereby giving them a right to enforce the freedom of press that flows from Article 19.

The Law Commission in its one hundred and first report283 stated the broad categories of companies,
which need such a right for effective functioning of the organisation. The report divided the companies
into several broad categories; in the first place, commercial organisations (for example, companies
owning newspapers), whose primary object is to disseminate or publish news with the motive of profit.
Secondly, there are entities connected, with the publication of views (e.g. companies owning
magazines) again with a profit motive. Thirdly, there are organisations (such as, companies producing
or distributing films), which are engaged in certain activities wherein, though the dissemination of news
or the propagation of views may not be the direct objective of those activities, yet views are propagated

280
Bennet Coleman & Co. v. UOI, (1972) 2 SCC 788
281
Sakal Papers v. UOI, [1962] 3 SCR 842; Bennet Coleman (Supra 4)
282
1995 AIR SCW 204
283
(Dec. 18, 2016), http://lawcommissionofindia.nic.in/101-169/Report101.pdf

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in circumstances to which questions of freedom of expression become very crucial. The depiction of
life in all its reality and in all its variety, through visual or audio-visual media, is done so intensively in
the activities of these organisations, that questions of freedom of expression poses real significance to
them. Fourthly, non-commercial corporations, which are engaged in activities directly involving the
dissemination of news or propagation of views, or occasionally involving such operations. Fifthly,
corporate bodies (e.g. Universities and institutions having University status), whose activities may
occasionally involve questions of freedom of speech and expression, particularly where the universities
actively organize lectures and seminars or bring out publications as a part of their activities. The report
finally suggested an amendment for establishing the aforementioned fundamental right of the company.
And also the Bar Councils, which are empowered to organize seminars and bring out publications.

A company being an artificial person enjoys other fundamental rights under Article 14 and 21284. The
interpretation of the term personal liberty came up for consideration before the court for the first time
in Kharak Singh v. State of UP285. The Honble Supreme Court, while dealing with the issue of whether
the right to move freely flows from Article 19, observed that the personal liberty has been used in
Article 21 as a compendium of variety of rights. Though the majority in Kharak Singh observed that
rights instilled in Article 19 have been carved out of the term personal liberty and exist independently
and separately in Article 21. Though Subba Rao, J., in his minority opinion rejected the aforementioned
statement of the majority and stated: it is said that the freedom to move freely is carved out of personal
liberty and, therefore, the expression "personal liberty" in Art. 21 exclude that attribute. In our view,
this is not a correct approach. Both are independent fundamental rights, though there is overlapping.
There is no question of one being carved out of another. The fundamental right of life and personal
liberty have many attributes and some of them are found in Art. 19. Justice Subba Raos observation
was followed by the majority in Maneka Gandhi case286 where he stated the following: there can be
no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India, the minority view
must be regarded as correct and the majority view must be held to have been overruled.

The upshot of the above discussion leads us towards a conclusion that the term personal liberty
encompasses wide ranges of freedom pertaining to the liberty of an individual, and has been given
expansive interpretation by the apex court of the country. In the light of the above observation it is put

284
Sec 2(42) states person shall include any company or association or body of individuals, whether
incorporated or not
285
[1964] 1 SCR 332
286
(1978) 1 SCC 248

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forth that a companys right to freedom of speech and expression must be read into the Article 21 of the
Constitution, which is conferred on the company. A personal and an extensive right of speech and
expression is an attribute of the term personal liberty of an individual. The above submission must be
read in light of dictum of the court in Maneka Gandhi: we may point out even at the cost of repetition
that this Court has said in so many terms in R.C. Cooper's case that each freedom has different
dimensions and there may be overlapping between different fundamental rights and therefore it is not
a valid argument to say that the expression 'personal liberty' in Article 21 must be so interpreted as to'
avoid overlapping between that Article and Article 19(1).

There is no constraint which prevents such interpretation and instilling the right of the company in
Article 21 of the Constitution. Such a right can be taken away by procedure established by law. The
term procedure established by law has to be read in consonance with the aforementioned right to
indoctrinate the reasonable restrictions within the procedure established by law. Such contextual
interpretation has to be given to term procedure established by law in regard to freedom of speech
and expression of a company, thereby imposing restrictions which are per se reasonable and not
arbitrary, thereby implanting the concept of reasonable restrictions within procedure established by law.
Such restrictions would be reasonable if they fall within public order, interest of the nation and all such
restrictions in 19(2) or the restrictions may be judged from the point of view of the prevailing social
conditions and not in the abstract. Hence, what may have been reasonable earlier may no longer be
reasonable today, as observed by Katju, J., in Ganesh Chandra Bhatt v. District Magistrate Almora and
Ors287.

The latter form of interpretation includes wider powers of restrictions to be imposed compared to
restrictions expressly stated in Article 19(2) subject to the condition i.e. such condition should be fair,
just and reasonable and also to be tested in the light of prevailing social conditions. Such an
interpretation will harmonize the right of the company and the restrictions to be imposed on such right
in purview of procedure established by law. In Ganesh Chandra Bhatt case, the Supreme Court
observed: it may be mentioned that 'due process' is of two kinds-procedural due process and
substantive due process. Procedural due process means that no one can be deprived of his life, liberty
or property except in accordance with the procedure laid down in the statutory law. Substantive due
process means that this procedure (for depriving a person of his life, liberty or property) must be fair,
just and reasonable. Thus, while on a literal interpretation it has been held to include substantive due
process also. Thus, the restriction to be imposed on the freedom of speech must be fair, just and

287
1993(1) BLJR 669

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reasonable. In Bacchan Singh v. State of Punjab288 , the Supreme Court held that: the concept of
reasonableness runs through the entire fabric of the Constitution' and also 'Every facet of the law which
deprives a person of life or personal liberty would therefore, have to stand the test of reasonableness,
fairness and Justice in order to be outside the inhibition of Article 21". In Maneka Gandhi's case (supra)
the Supreme Court observed that: "the principle of reasonableness which legally as well as
philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence and the procedure contemplated by Article 21 must answer to the test of
reasonableness in order to be in conformity with Article 14." Such restriction cannot be tested against
the restrictions mentioned in Article 19 (as this particular right pertains to a company), though it must
satisfy the test of reasonableness and non-arbitrariness enunciated in Article 14.

The importance of Article 19 (especially Freedom of Speech and Expression) has been impressively
stated by the apex court in various judgments. The prominence of such a vital right can judged in regard
to status given by the Supreme Court in I.R. Coelho v. State of Tamil Nadu289, wherein the court held
that laws in ninth schedule have to be tested on the anvil of Articles 14, 19 and 21 which form a part of
the basic structure of the Constitution. Article 19, which is of such great magnitude, enunciates the right
of freedom of speech and expression. Freedom of speech and expression, which lays down a platform
for the effective functioning of a democratic institution, ought to be devolved upon a company that
should be able to effectively enforce such right itself. In the words of the famous author Salman
Rushdie, what is freedom of expression? Without the freedom to offend, it ceases to exist. Such a
freedom should be protected and enforceable by a company under Article 21 as the term personal
liberties has been given expansive interpretation over the years. Thus the freedom of speech and
expression of a company flows from the term personal liberty of an individual company. Such a liberal
interpretation of the companys fundamental right under Article 21 will ensure the enforceability in
situations where the company is subjected to cruel administrative or legislative actions purporting to
take away a companys valuable freedom of speech and expression.

288
1982 (1) SCALE 713
289
(2007) 2 SCC 1

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