Ashutosh Rajput | Hidayatullah National Law University | 22nd May 2020
Recently, on 28 April 2020 the three months airline ban on Kunal Kamra has done away with. He is best known as a stand-up comedian who is more inclined towards political commentary and also has a YouTube handle having channel name ‘Official Peeing Human’. He has been criticized by many politicians with respect to the videos he uploads on his YouTube handle which depicts a comparison of speeches made before and after by politicians, news anchors, film stars, etc. He got banned by several airlines in January 2020.
On 28 January, as soon as Kunal saw Arnab sitting on the same fight, he reached him and raised questions about coverage of national affairs and suicide of Rohit Vemula. In 2016 Arnab laid out the facts of Vemula’s suicide and ultimately he held BJP ministers responsible for Vemula’s death but in 2017 he contradicted statements made against those ministers in 2016. Kunal simply used the term ‘be human’ for his biasness towards news anchoring and he also urged Arnab to read suicide letter of Vemula and again said ‘for once in life be human’ later Kunal sat in his own seat as soon as one of the crew members told him to not create a nuisance. Arnab for the whole instance kept mum neither retreated not complained. This action of Kamra initially called for 6 months ban and later imposed to a 3 months ban.
He has been banned as per Civil Aviation Rules Level-I offence which has been enshrined in para 8.1 (a) and such offences include verbal harassment, unruly behavior, etc.
Whether his right to speech and expression is curtailed in this scenario?
Article 19(1)(a) of the Indian Constitution gives right as to freedom of speech and expression to people living in India. It also incorporates the right to express one’s view with respect to any kind of issue. This right can be curtailed as per article 19(2) of the Indian Constitution.
As India is a democratic country, freedom of speech and expression is a must to make the government know it’s true position as without public opinion the working of the government would not find a good direction.
Grounds on which ban takes place with respect to unruly behavior
According to para 4.10 of CAR, unruly behavior can be categorized in the following 3 levels.
- Level 1: Disruptive behavior which includes physical gestures, verbal harassment, unruly inebriation, etc.
- Level 2: Physically abusive behavior which includes pushing, kicking, hitting, grabbing, or inappropriate touching or molestation, etc.
- Level 3: Life-threatening behavior which includes damage to aircraft software, physical violence like choking, eye gouging, murderous assault, attempted or actual breach of the flight crew compartment, etc.
Grounds of the ban with respect to unruly behavior in the current case
Experts say that Kunal Kamra’s action can be categorized as ‘level-1 offence’. This includes unruly behavior, physical gestures, verbal harassment, unruly inebriation, etc. Sale of the ticket by mistake to such a person who has been banned from airways shall not confer a right upon him to fly. According to para 8.1 of CAR which states for any person who is placed on the No-Fly List, airlines shall have the option to bar him from taking flights to/from/within India for periods as indicated below. This shall be in addition to any action that may be taken against him under the appropriate law:
- Level 1 upto three months
- Level 2 upto six months
- Level 3 for a minimum period of 2 years or more than 2 years without limit.
- Persons covered under Para 7 are barred till such time that the person is perceived to be national security risk by the Ministry of Home Affairs.
Indigo banned Kunal from boarding its flight for a period of 6 months whilst he has done level-1 offense.
Is there infringement of freedom of speech and expression?
As per Article 19(1)(a) All citizens shall have the right to have the freedom of speech and expression. Freedom of speech is the right of an individual to articulate their ideas and opinions without any fear of legal sanctions. Freedom of speech and expression is the lifeblood of a democratic country and India being a democratic country should ensure freedom of speech and expression. Article 19(1) encompasses the right to seek information and ideas; the right to receive information and ideas; the right to impart information and ideas. One can express freedom of speech by word of mouth, writing, printing, picture, film, movie, etc. Freedom of speech and expression not merely includes elocution but also include freedom of Silence.
Article 19(2) allows for reasonable restrictions to be imposed on all fundamental rights, including that of freedom to speech and expression which is given in Article 19(1)(a).
Herein Kunal expressed his freedom of speech to ask questions from a journalist and his question cannot be said to have been restricted as per Article 19(2). If Arnab doesn’t want his interference in his matter then he would have said directly or conveyed to Kunal rather than enjoying his presence around him, this act of Arnab of not saying anything rescinds Article 19(2). As far as what Kunal is been saying to Arnab was true without a reasonable doubt and he was justified within his speech and expression.
Romesh Thappar v State of Madras
In this case the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which are ensured by freedom of circulation of a publication, as the publication is of little or of no value without circulation.
Indian Express Newspapers v. Union of India
In this case, the Court observed that, Article 19 of the Indian Constitution doesn’t use the phrase “freedom of the press” in its language, but it is enshrined within Article 19(1) (a). There can’t be any interference with the liberty of the press in the name of public interest. The aim of the press is to boost public interest by publishing facts and opinions, without which a democratic electorate cannot take responsible decisions.
Is Government in power controlling ban?
Recently, Pragya Thakur the BJP MP who held up Spice Jet flight for 45 minutes and refused to move from the flight’s emergency seat despite being repeatedly requested to do so by the SpiceJet crew, what happened to her, nothing? As per CAR, Disruptive behavior is an offence under Level-1 and the person doing this offence will be liable for 3 months expulsion from the respective airline, but here Pragya Thakur’s matter got done and dusted in minutes.
In 2017 Ravinder Gaikwad, the leader of Shiv Sena who hit an Air India employee with a slipper 25 times was banned for a grand of only 2 weeks and he did not even apologized to the person he beaten up, though at that time CAR was not formulated but giving only 2 weeks ban was unreasonable with respect to heinous offence he had done. Later on Gaikwad’s travel ban was removed as the central government ordered Air India to do so.
As airways works under Ministry of Aviation so there is a direct Government intervention.
The ban on Kamra is unjustified as the ban was excessive with respect to the incident and is against the existing rules of DGCA. He has a right of speech and expression and asking questions from a journalist doesn’t violate his right. Every individual living in the territory of India has certain Rights given under article 19 of Constitution of India.
 1950 AIR 124
1986 AIR 872