Freedom of expression and Gatekeeper Theory

Abstract

This paper analysis that access to information and free flow of information needs to be seen as significant part of our freedom of expression jurisprudence. In particular, it highlights the role played by information gatekeepers in the free circulation of information. Starting from the landmark judgment by Supreme Court in which the strict liability of gatekeepers was used to restrict the circulation of obscene material, up to the current system for government ordered blocking of content by internet intermediaries in India, using information gatekeepers to control information access. Our freedom of expression norms need to take this into consideration in addition to their focus on the rights provided by the Constitution to every citizen, since information gatekeepers can be used as tool to censor speech in an opaque fashion stifling the voice of dissent or disagreement or suppressing the democratic right to question the acts, plans and policies of the government that leaves little scope for accountability. The freedom of the press, while not recognized as a separate freedom under Fundamental Rights, is embedded in the freedom of speech and expression. The Supreme Court has described this freedom as the “ark of the covenant of democracy”.