Law Commission of India Report No. 101
Freedom of Speech and Expression under Article 19 of the Constitution: Recommendation to Extend it to Indian Corporations
Forward to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by K.K. Mathew, Chairman, Law Commission of India, on May 28, 1984.
May 28, 1984Shri Jagannath Kaushal, Minister of Law, Justice and Company Affairs, New Delhi. My Dear Minister,
I am forwarding herewith the One Hundred and First Report of the Law Commission on "Freedom of Speech and Expression under Article 19 of the Constitution: Recommendation to extend it to Indian Corporations".
The subject was taken up by the Law Commission on its own. The need for taking up the subject is explained in Para I of the Report.
The Commission is indebted to Shri P.M. Bakshi, Part-time Member and Shri A.K. Srinivasamurthy, Member-Secretary, for their valuable assistance in the preparation of the Report.With regards, Yours sincerely, Sd/- K.K. Mathew
Freedom of Speech and Expression under Article 19 of the Constitution: Recommendation to Extend it to Indian Corporations
Introductory1.1. The scope.—The Law Commission of India has taken up for consideration the question whether the fundamental right of freedom of speech and expression as guaranteed by the Constitution should be made available to companies, corporations and other artificial persons, and if so, subject to what conditions. The need for taking up the subject, and some of the dimensions of the inquiry, will be presently indicated. 1.2. The background.—In the Indian Constitution, Article 19(1) guarantees to citizens six freedoms in all. Of these, the first is the right to freedom of speech and expression in Article 19(1)(a). This right is subject to the power of the State to make a law imposing reasonable restrictions on the right in the interest of the various considerations set out in Article 19(2). We are not, in the present inquiry, concerned with the scope and ambit of the restrictions that can be imposed by law on the freedom of speech and expression. What we propose to deal with is a restriction made explicit in the Constitution itself, namely, that the provisions of the Article 19 can be availed of only by citizens. As will be apparent from a brief resume of the judicial decisions on the subject that will follow1 in subsequent paragraphs of this Report, the use of the word "citizen" in Article 19 has had the effect of leaving corporate bodies out of the scope of the article. The result is, that one important segment of the nation does not have any constitutional protection in respect of speech and expression. Institutions and organisations, being impersonal in character, cannot qualify for "citizenship". The protection of Article 19 is, thus, not available to them, and is confined to natural persons, on a reading of the judicial pronouncements. In any case, the position in this regard is nebulous2. 1. Chapter 3, infra. 2. Paras. 3.1 to 3.5 and also Chapter 4, infra. 1.3. Classification of institutions that need the freedom of speech.—This, in our opinion, creates a serious anomaly. There are numerous organisations and institutions that need the freedom of speech and expression. They fall into several broad categories. There are, in the first place, commercial organisations (for example, companies owning newspapers), whose primary object is to disseminate or publish news with a 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 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 possess real significance for them1. The three categories of entities enumerated above have been selected from the commercial field. Besides these and as a fourth category one should mention non-commercial Corporations, which are engaged in activities either directly involving the dissemination of news or propagation of views, or occasionally involving such operations. Fifthly, there are 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 organise lectures and seminars or bring out publications as a part of their activities. In this connection, it may be of interest to mention that Bar Councils are, by statute, now empowered to organise seminars and bring out publications2. 1. See paras. 4.2 to 4.7, infra. 2. Section 6, Advocates Act, 1961 (as amended in 1973). 1.4. The anomaly.—The enumeration of organisations and institutions in the preceding paragraph is only by way of illustration. None can make an exhaustive catalogue. If that were possible, problems of the nature that have now arisen could not arise. The point to make is, that there is a vast variety of organisations and institutions in legal language, "artificial" or "juristic persons" whose activities might lead to their involvement in situations where freedom of speech and expression and its constitutional protection could become of great practical importance. To elaborate the point, the following issues would be of importance:
(i) whether the law should place any restrictions on these organisations in regard to their activities as depicting life in all its vast panoply; and
(ii) if so, the limits to which the law itself should conform, while imposing such restrictions.An answer to question (ii) posed above directly involves a consideration of the scope of Article 19 of the Constitution. 1.5. Anomaly.—The anomaly to which the present position, represented by the limited scope1 of Article 19(1) of the Constitution, can give rise, may be illustrated by taking a hypothetical case. Suppose a State passes a law regulating the performance of dramatic plays and imposing prior restrictions on such performance, say, by requiring the previous permission of the Superintendent of Police before any play can be enacted in public. A literary society (even if it has acquired a corporate status) or a co-operative society (such as an author's cooperative guild) cannot, at present, challenge the constitutionality of the law, because such a society is not a "citizen". Not being a citizen, such a society cannot claim the protection of Article 19. In other words, the State can make any kind of law curbing speech and expression vis-a-vis such societies. The anomaly is grave enough to justify an examination of the constitutional position. The anomaly may not have been so far keenly felt in practice, partly because the members of such organisations and institutions can institute appropriate proceedings. The absence of a constitutional right of the organisation has not therefore been always noticed. But the deficiency is a real one. In many cases, their own freedom would also come to be violated by the attempted enforcement of legislation of the nature posed in the hypothetical illustration given above. Since the members themselves enjoy the fundamental right, the fact that the organisation as such has no right, often goes unnoticed. But this can hardly be regarded as a satisfactory position. There is no logical reason for denying the right in question to the organisations and institutions. Their status and activities have an importance of their own, as will be elaborated in the next paragraph and also in a later Chapter2. 1. Para. 1.2, supra. 1. Para. 1.4 and Chapter 4, infra. 1.6. Importance of organisation.—There is a vital difference between individuals and organisations. Individuals may come and go. Their views may vary. Their keenness to defend their freedom and to assert their rights may not be the same as that of the organisation viewed as a whole. Their resources, time and energy, their status and stature, their moral weight and social eminence, may be of a much lower quality than that of the organisation. Hence, enforceability of a right at the instance of members of an organisation is no substitute for enforcement at the instance of the organisation. Apart from all these considerations, a constitutional provision dealing with fundamental freedoms cannot afford to neglect practical realities for long. Such a neglect is likely to lead, in course of time, to distorted interpretations, to the emergence of legal fictions and to similar other developments that are no substitute for a clearly-worded and straight-forward provision. These are the principal reasons that have weighed with us in undertaking the present inquiry, aimed at considering the question whether Article 19(1)(a) of the Constitution should not be extended to non-natural persons, subject to certain conditions. 1.7. Press Commission Report.—Added to the above considerations is the fact that the second Press Commission, in its Report forwarded to the Government, has drawn attention to the need for a suitable amendment of the Constitution on the subject under consideration1. After a discussion of the present position, the Press Commission made the following recommendation on the subject:—
History2.1. Drafting history of Article 19.—For the purposes of this Report, we have tried to examine the question why, at the time of framing of the Indian Constitution, Article 19 was decided to be confined to citizens. It appears that the Sub-Committee on Fundamental Rights first considered, on March 25, 1947, the rights to freedom of expression, association, assembly, and other rights as contained in the drafts of Dr. Munshi and Dr. Ambedkar. Dr. Munshi's draft1 proposed that every citizen should have, within the limits of the Union and in accordance with the law of the Union, several personal rights safeguarded to him. These included the rights of freedom of expression of opinion, of free association and combination, of assembling peacefully and without arms, of secrecy of correspondence, and of free movement and trade. According to this draft, freedom of the press was also to be guaranteed, subject only to such restrictions imposed by the law of the Union as might be necessary in the interests of public order or morality2. Dr. Ambedkar's draft proposed that "no law shall be made abridging the freedom of speech, of the press, of association, and of assembly, except for considerations of public order and morality."3-4 1. Munshi's draft, Article V(1) and (2), Select Documents II, 4(ii)(b), p. 75. 2. Shiva Rao The Framing of the Constitution of India, (1968), p. 211. 3. Ambedkar's draft Articles 141), (12) and (7); Select Documents, II, 4(11)(d), pp. 86-87. 4. Shiva Rao The Framing of the Constitution of India, (1968), p. 211. 2.2. Report of the Sub-Committee on Fundamental Rights.—The Sub-Committee on Fundamental Rights, in its draft report, formulated five specific rights of the citizens, viz. (i) the right to freedom of speech and expression, (ii) the right to assemble peaceably and without arms, (iii) the right to form associations or unions, (iv) the right to the secrecy of correspondence, and (v) the right to freedom of movement throughout the Union, to reside and settle in any part of the Union, to acquire property, and to follow any occupation, trade, business or profession1. The freedom of the press which had been proposed as a separate right by Dr. K.M. Munshi2, has not ultimately found a place in the Constitution as a separate right. Thus, the provisions in question have come up be confined to citizen only. 1. Select Documents II, 4(iii) and (iv), pp. 119-120, 130. 2. Para. 2.1, supra, Munshi's draft, Articles III(1) and (10). 2.3. Drafting history of Article 14.—The position regarding Article 14 of the Constitution (equal protection of the laws), is different in this respect. The principle of guaranteeing to every person equality before the law and the equal protection of the laws was first included in the drafts submitted to the Sub-Committee on Fundamental Rights by Dr. Munshi and Dr. Ambedkar1. After considering the drafts for two days (March 24 and 29, 1947), the Sub-Committee adopted Dr. Munshi's draft, modified as follows:—
The Present Position3.1. Present position under Article 19 of the Constitution.—The present position as to the applications of Article 19 of the Constitution to various categories of persons may be stated in the form of propositions, as under:—
(1) Article 19 of the Constitution being confined to citizens, foreigners cannot claim any right thereunder1.
(2) A corporation cannot claim citizenship2, and cannot therefore claim any right3 under Article 19, as it stands at present.
(3) This is so, even though the corporation is a company whose shareholders are citizens of India4. (In a recent judgment, the position has been described as "nebulous")5.
(4) But the share-holders of a company can challenge the constitutional validity of a law on the ground of infringement of Article 19, if their own rights are infringed6, and in such a proceeding the company may be joined as a party7.1. Anwar v. State of Jammu and Kashmir, AIR 1971 SC 337 (338). 2. (a) Barium Chemicals v. Company Law Board, AIR 1967 SC 295. (b)Tata Engineering Co. v. State of Bihar, AIR 1965 SC 40 (48): (1964) 6 SCR 85. (c) S.T.C. v. C.T.O., (1964) 4 SCR 99: AIR 1963 SC 1811. 3. Amritsar Municipality v. State of Punjab, AIR 1965 SC 1100 (1106). 4. (a) Barium Chemicals v. Company Law Board, AIR 1967 SC 295 (305). (b)Tata Engineering Co. v. State of Bihar, AIR 1965 SC 40 (48): (1964) 6 SC.: 85. 5. Para. 3.6, infra. 6. R.C. Cooper v. Union of India, (1970) 3 SCR 53(): AIR 1970 SC 564. 7. Bennet Coleman v. Union of India, AIR 1973 SC 106: 1973 (2) SCR 757. 3.2. Chronological survey of case law—cases upto 1965.—Chronologically, the first important case to be noticed on the point at issue is of 1957. The Supreme Court had, in that case1, hinted at the difficulty that might arise, out of the fact that corporations are not "citizens". In 1959, the Supreme Court observed that a non-citizen running a newspaper is not entitled to the fundamental right of freedom of speech and expression and, therefore, cannot claim the benefit of liberty of the press2. Thereafter, there are two decisions of the Supreme Court reported in 1964, relevant to the subject. The first was a ruling of a bench of nine judges which (by majority), held that the provisions of the Citizenship Act were conclusive on the question that a corporation or a company could not be a citizen of India3. In the second case of 1964, it was unanimously decided by a bench of five judges of the Supreme Court that Article 19 guaranteed the rights in question only to citizens as such, and that an association (such as a company) could not lay a claim to the fundamental rights guaranteed by Article 19, solely on the basis of the fact that it was an aggregation of citizens4. 1. R.M.D. Chamarbaugzvalla v. Union of India, 1957 SCR 930. 2. M.S.M. Sharma v. Shri Krishna Sinha, 1959 Supp 1 SCR 806. 3. S.T.C. v. Commercial Tax Officer, (1964) 4 SCR 99. 1. Tata Engineering & Locomotive Co. Ltd. v. State of Bihar, (1964) 6 SCR 85: AIR 1966 SC 40 (48). 3.3. Decision of 1970.—In 1970, the Supreme Court1 held that the jurisdiction of the Court to grant relief cannot be denied when the rights of the individual shareholder are impaired by State action, if the state action impairs the rights of the company as well. The test for determining whether the share-holders' rights is impaired is not formal; it is essentially qualitative; if the State action impairs the rights of the share-holders as well as of the company, the court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief. However, it should be pointed out that Shah, J. in the above decision, definitely said that the Supreme Court rulings of 19642 had no relevance to the question at issue. The petitioner had sought to challenge an infringement of his own rights, and not an infringement of rights of the bank (of which he was a shareholder and a director, and with which he had accounts current and in fixed deposit). 1. R.C. Cooper v. Union of India, (1970) 3 SCR 530. 2. Para. 3.2, supra. 3.4. Decision of 1973.—In 1973, the majority of the Supreme Court1 held that although a company is not a citizen, the citizen-share-holders can enforce their right of free speech, as the company is only a medium for expressing their views. The material dicta are as under:—
The Need for Constitutional Amendment4.1. Need for amendment.—It does not need much elaboration to show that if right of freedom of speech and expression is to be effectively enjoyed, it should be available to corporations, institutions and other entities which are not natural persons. The present position limiting this freedom to natural persons has the effect of excluding a pretty large number of entities through whom the natural persons operate. These entities are (as we shall show in the next few paragraphs) as much in need of a constitutional protection for the freedom of speech and expression, as natural persons. Not to recognise this is, if we may say so, to disregard realities. 4.2. The individual's life as lived through the organisation.—In the modern era, the expression of views, the communication of ideas and the transmission and distribution of news take place more often through agencies organised as bodies or associations of individuals, rather than by the individuals directly. If these organisations and entities are to be left out of the needed constitutional protection, the indirect effect would be to leave out of that protection the individuals also, because the activities in regard to which the constitutional protection is needed are themselves often carried on through organisations and entities. In modern times, a part of the individual's life is lived through such organisations and this part of his life as much deserves recognition as the life lived exclusively on an individual level. In this sense also; the indirect effect of the present position is to leave out of protection the individuals themselves. 4.3. Reality of organisation.--Secondly, one should remember that organisations and entities themselves have a real existence of their own. Their personality may, in law, be artificial. But the fact that an activity is conducted in an organised manner through an entity definitely adds a new dimension to the activity in question. 4.4. Company as a distinct entity the legal aspect.—In this context, we would like to stress the distinct importance of a company as an entity. Take the legal aspect. It is well recognised that a company is a separate entity from the shareholders, and that the rights of the company are distinct from those of the shareholders. It is only those rights which a company has, that could be enforced by it1. In fact, the whole object of the law of corporations is to bring into existence a legal being and to put life, as it were, into the group itself. 1. Salmen v. Salmen & Co., 1897 AC 22 (HL). 4.5. Social character of corporations.—Then, there is the social reality of a corporation. The Supreme Court of India pointed out long age as under1—
Position in England, U.S.A., Canada and Some of Commonwealth Countries5.1. Introductory.—It would be of interest to note the position on the subject under consideration in selected other countries. Of course, in embarking upon a comparative survey, two broad propositions must be emphasised at the outset. In the first place, many countries do not have, in their Constitutions (whether written or unwritten), the concept of fundamental rights, so that the topic of freedom of speech and expression, as also the topics of other freedoms, must, in regard to those countries, be approached only as a part of a discussion of the rules of ordinary law. Secondly, some of the foreign countries do not have a codified law, even in regard to ordinary rights. Hence, a discussion of the precise extent and coverage of a particular freedom, as recognised even in ordinary law, must, in regard to those countries, be derived from the substance of the relevant judicial decisions, if any, on the subject. This aspect is also vital to the present study, because it is elementary that a statement of the legal position as derived from case law cannot be so precise as a statement based on the text of a statute. Since then would be no formal and authoritative formulation of the relevant rules, question such as the meaning of the expression "citizen" or of the expression "person" (or other analogous statutory expressions) cannot be dealt with where the law is not codified. 5.2. Position in England.—Both these prefatory observations apply to England which, as yet, has no written guarantee of fundamental rights, nor a codified law dealing with the freedom of expression even as an ordinary right.1 Therefore, the question whether a corporation (or any other entity) can claim the freedom of speech and expression must in the context of English law, be dealt with only by a statement of rules of ordinary law—and that too, primarily on a study of the judicial decisions. English books on constitutional law (or on the law of torts) do not generally devote much space to a discussion of the very narrow point with which we are at the moment concerned, namely, whether a corporation (or other entity) can claim the freedom of speech and expression like a natural person. However, from the fact that occasionally, in England, a corporation has been proceeded against for some crime (such as libel or blasphemy) or for some tort, constituted by the publication of allegedly offending matter and the proceeding has failed by reason of some rule of the ordinary law which recognises some privilege, one can deduce that a corporation in England possesses the same right to freedom of speech and expression as a natural person. Perhaps, it may be worthwhile elaborating the statement just now made. The chain of reasoning may be thus expressed. In England, a person is entitled to speak or write as he pleases, so long as he does not commit a breach of a specific rule of law punishing particular type of speech or writing or rendering it actionable. It is a general principle of English constitutional law that a subject is free to do everything which is not specifically rendered illegal by a rule of law2. This applies in the sphere of expression, as it applies in other spheres3. If a particular speech or writing does not fall within such specific prohibitory rule, a prosecution or civil proceeding (against the speaker or the writer) based on the speech or writing, would fall. Now, such prosecutions or proceedings against corporations have actually failed in the past, because the prosecutor or plaintiff could not prove that the writing or speech in question fell within the four corners of the prohibitory rule. Since the defendant in these cases was a corporation, this result could have been arrived at, only if the law recognises that a corporation, like a natural person, has the freedom to speak or write any matter that does not violate a specific prohibitory rule of law. By this chain of reasoning, one can conclude that in this sphere a corporation has the same right as a natural person. 1. Generally, see Margaret Demeriux Delineation of Right to Freedom of Expression, (Winter 1980) Public Law 359. 2. Halsbury's, 4th Edn., Vol. 8 (Constitutional Law), p. 548. 3. As to freedom of expression, see De Smith Constitutional and Administrative Law, (2nd Edn.), pp. 482-496. 5.3. Illustrative case.—In this context, it is particularly relevant to mention a very well known case decided by the House of Lords1 which is the leading case on the subject of blasphemous libel. We are not concerned herewith details of the legal propositions canvassed in that case as to the precise scope of blasphemy. What is of immediate relevance is the fact that the defendant in that case was a company limited by guarantee. The defendant corporation in this case was a legatee under a will. The plaintiff challenged the validity of the bequest, on the ground that the object for which the defendant was established, were unlawful. The spread of secularism was the dominant object of the defendant company (as stated in its memorandum of association). The specific question that was debated at length, and examined with great learning by the House of Lords, was, whether denial of Christianity was, in itself, blasphemous. The House held that it was not, unless the preaching was accompanied with something vile, indecent or ribaldrous. The actual discussion is fairly elaborate, but only the gist thereof has been mentioned above. Christianity, it was held, was not a part of English Common law. The proceedings failed because the plaintiff could not prove that the objects of the defendant corporation were, in law, blasphemous. Accordingly, the relief sought was not granted, and legality of objects of the defendant corporation was upheld. This conclusion could have been arrived at only on the assumption that if a particular preaching is not prohibited by a specific rule of law, then a corporation can engage itself in it, by virtue of the general freedom of expression available under the ordinary law. In other words, there was an implicit recognition by the House of Lords of the principle that a corporation can make or publish any statement which does not violate a specific prohibitory rule of law. In effect, this approach equates natural and artificial persons for the purpose of the right in question. 1. Bowman v. Secular Society, 1917 AC 406 (House of Lords). 5.4. Recent suggestion made in England.—It may also be stated, as a matter of information, that a recent English book1, which argues for the enactment of a bill of rights has, in an Appendix, given a draft of a Bill of Rights for England (as suggested by the author) and, of the various clauses of the Bill so suggested, one deals with the freedom of speech and expression. It proposes that the right should be available to all "persons". No distinction has been suggested between natural and artificial persons as such. The relevant clause, as proposed, reads as under:—
(a) libel laws;8
(b) special taxation;9
(c) obscenity laws;10 and
(d) restrictions upon various forms of business advertising11.1. Para. 5.6, supra. 2. The Supreme Court, 1977 Term, (1979) 92 Harvard Law Review 57, 163-164. 3. Hart & Shore Corporate spending on State and Local Referendums, (1979), Vol. 29, Case Western Reserve Law Review 808. 4. Note, Political Contributions, (1979), Vol. 4, Journal of Corporation Law 460. 5. See, Philosophy of Language and Free Expression, (1980), Vol. 55, New York University Law Review 157, 189, 190. 6. O'Kelley The Constitutional Rights of Corporations Revisited, (1979), Vol. 67, Georgia Law Journal 1347. 7. For an exhaustive analysis see Archibald Cox Freedom of Expression in the Burger Court, (1980) 94 Harvard Law Review 198. 8. New York Times Co. v. Sullivan, (1964) 376 US 254. 9. Grosjean v. American Publishing Co., (1936) 297 US 283. 10. Bantam Book Ins. v. Sullivan, (1963) 372 US 48 (92) Ed 2d 584. 11. Linmark Flassociates v. Township of Willingboro, (1977) 431 US 85. 5.15. Orgainisation other than newspapers.—Cases relating to freedom of expression claimed by organisation other than those connected with newspapers are also available in U.S.A. Thus, the denial by the Chattanooga municipal board of an application made by the promoters of theatrical productions for the use of a municipal theatre in presenting the rock musical "Hair" constitutes a prior restraint on the freedom of expression under a system lacking in the constitutionally required minimum of safeguards1. This decision is regarded by some as resting on right to public forum2. Similarly, in a case involving a corporation3, it was held that a particular restriction by way of prior restraint was not valid as presenting as "exceptional" case4. 1. South-eastern Promoters Ltd. v. Collard, (1975) 43 L Ed 2d 448: 420 US 546. 2. Lawrence Tribe American Constitutional Law, (1978), paras. 12-21, as referred to by Archibald Cox Freedom of Expression, (1981), p. 58, fn. 205. 3. Bantam Book Inc. v. Sullivan, (1963) 372 US 48: 9 L Ed 2d 5684. 4. OF Willis cited in para. 5.5, supra. 5.16. Other freedoms in U.S.A.—position regarding corporations.—The question how for (apart from the freedom of speech and freedom of the press), other freedoms can be claimed by corporations in the U.S. is also a very interesting one. It is not necessary to go into details. But following salient propositions, culled, in part, from the American Jurisprudence and taken, in part, from some other sources, may be of some interest1:
(a) For the purpose of property rights claimed under the Fifth and Fourteenth Amendment, a corporation is a "person"2.
(b) For the purpose of the equal protection clause of the Fourteenth Amendment also, a corporation is a "penson"3.
(c) For the purpose of the Fifth Amendment privilege against self-incrimination, a corporation is not a "person"4.
(d) How far, for the purpose of the other liberties guaranteed by the Fourteenth Amendment, a corporation is or is not a "person"5, depends on the nature of the right asserted.
(e) For the purpose of that part of the Fourteenth Amendment which provides that the privileges and immunities of "citizens" shall not be restricted, a corporation is not to be regarded as a citizen6.1. Vol. 18 Am Jur 2d (Corporations), pp. 570-571, section 21. 2. Vol. 18 Am Jur 2d, section 21. 3. Vol. 18 Am Jur 2d, section 21. 4. Vol. 18 Am Jur 3d, section 21. 5. Based on case law. 6. Vol. 18 Am Jur 2d, section 21. 5.17. Position generally in other Constitutions.—Municipal law1, it is stated, occasionally contains express constitutional provisions regarding the political activity of aliens. For example, Article 25 of the Nicaraguan Constitution states2 that aliens are prohibited from intervening, directly or indirectly, in the country's affairs. Violation of this prohibition renders the alien concerned liable to prosecution and expulsion. Such express constitutional provisions are, however, rare. It is more common for constitutions, by implication, to allow for the restriction of political activity by aliens. While freedom of opinion and speech are usually guaranteed to all persons, only citizens are guaranteed quality before the law3. Thus, the way is left open for discrimination between citizens and aliens as regards the exercise of these freedoms. As for collective freedoms, such as freedom of association and assembly, these are usually guaranteed only to citizens. Thus, Constitutions are careful not to preclude the restriction of the exercise of such freedom of aliens4. 1. A.C. Evans The Political Status of Aliens in International Law, Municipal Law and European Community Law, (Jan. 1981), Vol. 30, Part I, 'the International and Comparative Law Quarterly, pp. 20, 24-25. 2. A.J. Peaslee Constitutions of Nations, (1968), Vol. 4, p. 959. 3. A.C. Evans The Political Status of Aliens in International Law etc., (Jan. 1981), Vol. 30, Part I, ICLO, pp. 20, 24-25. 4. A.C. Evans The Political Status of Aliens in International Law etc., (Jan. 1981), Vol 30k, Part I, ICLO, pp. 20, 24-25. 5.18. Canadian Bill of Rights of 1966.—It may be of interest to note that the provisions in the Canadian Bill of Rights3 of 1966 were so worded as to allow the applicability2 of the rights envisaged by that Bill to citizens as well as to noncitizens. At least, that could be the prima facie construction, since the relevant provisions avoided the use of limiting words like "citizens". Part I, sections 1 and 2 of the Bill (so far as is material), were the following terms:— 3. Preamble, and Part I, sections 1 and 2, Canadian Bill of Rights, 1960 (8-9 Eliz 2, Ch. 44). 4. For the text, see, Canadian Bill of Rights, (1966), p. 229 (Appendix 1).
Bill of Rights
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the equal protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.2. Every law of Canada shall, unless it is expressly declared by an act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgment or infringement of any of the rights of freedoms herein recognised or declared."
Guarantee of Rights and Freedoms:1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Fundamental Freedoms:2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and express on, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association."1
(a) that is reasonably required
(i) in the interest of defence, public safety, public order, public morality or public health;
(ii) for the purpose of protecting the reputations, rights and freedoms of other persons, or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating telephony, telegraphy, posts, wireless broadcasting, television or other means of communication, public exhibitions or public entertainments; or
(b) that imposes restrictions upon public officers."
Comments Received on the Working Paper6.1. Comments received on the Working Paper.—As stated earlier,1 the Law Commission had invited, from interested persons and bodies, comments on the Working Paper prepared by the Commission on the subject. A request was made to forward the comments to the Commission by the 31st December, 1983. The Commission has taken into consideration all comments received upto the date of signing this Report. 1. Para. 1.9, supra. 6.2. Analysis of comments.—Leaving aside one reply of a confidential character, the Commission has received ten replies in all, on the Working Paper. Of these, five replies broadly agree1 with the idea that the constitution should be amended on the lines indicated in this Report. Two replies do not agree with it.2 Two replies have no comments to offer. One reply sought time for forwarding comments, but no comments were received from that source even after the expiry of two months after the last date fixed by the Commission. 1. Para. 6.3, infra. 2. Para. 6.4, infra. 6.3. Replies expressing agreement with the need for amendment of Article 19.—The five replies that have expressed agreement that there is need to extend the benefit of Article 19(1)(a) to corporation are from
(i) one High Court,1
(ii) two State Governments,2
(iii) the Law Commission of one State,3 and
(iv) one High Court Judge.4The reply sent on behalf of the State Law Commission, it should be added, is subject to confirmation by meeting of the State Law Commission and is further subject to the comment that the share-holding in a corporation should be cent-percent or wholly Indian. Comments taking the view that Article 19(1)(a) of the Constitution should not be extended to Corporations have been received from:—
(i) one State Government5 and
(ii) one High Court Judge.61. Law Commission File No. F.2(13)/83-L.C., S. No. 3. 2. Law Commission File No. F.2(13)/83-L.C., S.N. No. 7 3. Law Commission File No. F.2(13)/83-L.C., S. No. 9 (State Law Commission of MP). 4. Law Commission File No. F.2(13)/83-L.C., S. No. 10. 5. Law Commission File No. F.2(13)/83-L.C., S. No 1 6. Law Commission File No. F.2(13)/83-L.C., S. No. 10. 6.5. Some points made in the comments as to need for amendment.—In some of the comments received on our Working Paper, the view has been expressed1, that since individuals can take appropriate proceedings for enforcing their own freedom of speech and expression, there is no need to amend the Constitution for the purpose. In this context, we would like to point out—as had already been done in our Working Paper—that even granting that individual editors and similar functionaries concerned with media can pursue the appropriate remedy, there is still need for specifically recognising the rights of Corporation as such. This point has already been made at length in an earlier Chapter2 of this Report, and need not be discussed again at this stage. This is in addition to the fact that there is need to settle the law as to the position of Corpora tions3. 1. E.g. Law Commission File No. F.2(13)/83-L.C., S. No. 10 (A High Court Judge). 2. Chapter 4, supra. 3. Para. 3.6, supra. 6.6. Scope of the amendment.—It also appears to be convenient to make it clear, at this stage, that the recommendation that we are going to make is not confined to corporations engaged primarily in the field of mass media. The recommendation covers (subject to certain criteria concerned with share-holding or membership), all corporations, irrespective of their principal field of activity. The position will be clear from our concrete recommendation1. In fact, that was also the proposal put forth in the Working Paper. The point has been referred to in an earlier Chapter of this Report also2. So long as the character of the company or corporation is Indian, it should enjoy the protection3. 1. Para. 7.5, infra. 2. Para. 4.11, supra. 3. Paras. 7.1(b), 7.2 and 7.5, infra.
Recommendation for Constitutional Amendment7.1. Two important considerations on the points of issue. On giving some thought to the lines on which the Constitution should be amended on the points at issue, we have come to the conclusion that any amendment has to be formulated, keeping in mind two broad considerations:—
(a) The protection under Article 19(1)(a) of the Constitution should be made available also to entities that are not "natural persons" but have a corporate status. In drawing up the list of such entities, notice could be legitimately taken of the varieties of organisations which we have described.1
(b) At the same time, it should be ensured that the corporations have an "Indian" character, just as natural persons (who are, at present entitled to the protection of Article 19, are required to be citizens of India for claiming the protection. Extension of the right to non-citizens is not the subject of the present inquiry.It is needless to state that the consideration at (b) above qualifies the consideration at (a) above, and sets certain limits on it. One can call it. In brief, the character of "Indianness". The manner in which these limits can be incorporated while extending the right to non-natural persons, is a point which requires some discussion; we deal with that point in the next few paragraphs. 1. Para. 1.3, supra. 7.2. Companies.—First, we take the case of companies proper. The requirement of "Indianness" can (in the generality of cases) be brought out by prescribing that all share-holders of the Company should be Indian citizens. However, it can happen that the share-holders themselves are not natural persons, but are artificial persons (or even the Government). Such cases have also to be covered. Accordingly, the amendment, while ensuring (as far as practicable) the Indianness of the entity that holds the share in the company in suitable language, specifically covers this refinement1. We may mention that in the Working Paper, circulated by us, we had put forth the test of 80 per cent. Indian share-holding, but we are now of the view that it should be 100 per cent. 1. Para. 7.4, infra, proposed Article 19, Explanation (a). 7.3. Corporate bodies other than Companies.—Besides companies, it may be proper to extend the constitutional protection in question to corporate bodies which are not companies. As examples of such bodies, one may cite local authorities and universities, and also statutory bodies established by, or under specific Central or State Acts. The protection in question would also be needed by them. In all these cases, again, care has been taken, in framing the proposed amendment, to ensure their "Indianness", by inserting suitable conditions in that regard. The amendment which we are recommending keeps this in mind1. 1. Para. 7.4, infra, proposed Article 19, Explanation (h). 7.4. Unincorporated bodies.—As regards entities such as registered societies, for whom corporate status does not exist in law1, the amendment recommended by us will not apply. We had, in our Working Paper, included unincorporated bodies and associations (with members who are Indian citizens) as entities to whom the right should be extended. However, we have now come to the conclusion that since they do not, strictly speaking, have a legal personality, they need not be covered by the article under consideration2. 1. See—
(a) Board of Trustees, Ayurvedic and Tibbia College v. State of Delhi, AIR 1968 SC 458.
(b) Kalra Education Society v. Amalgamated Society of Rly. Servants, AIR 1966 SC 1301.
(c) S.P. Mittal v. Union of India, AIR 1983 SC 1, para. 67.2. Para. 7.5, infra. 7.5. Recommendation.—We therefore recommend that Article 19 of the Constitution be amended by adding the following Explanation:—
Explanation to be added to Article 19 of the Constitution
(a) all companies incorporated in India in which the entire share capital is held:—
(i) by citizens of India; or
(ii) by the Government; or
(iii) by any such corporation as is specified in clause (b) of this Explanation; or
(iv) by a company incorporated in India in which the entire share capital is held by citizens of India or by the Government or by any such corporation as is specified in clause (b) of this Explanation, or by some or all of them taken together; or
(v) by some or all of them taken together;1
(b) all corporations, other than companies, being corporations established by or under any law of the time being in force in India2.