This article has been written by Manya Dudeja, a student of the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University. This article deals with the freedom of speech and expression and its boundaries. 

Introduction

Lisa: I posted my opinion online which is completely justified. I have been granted this right by the Constitution itself. This is my freedom of speech and expression.

Police Officer: Your freedom of speech and expression is not absolute. What you posted online is seditious. We have a right to detain you. 

Article 19(1)(a) of the Indian Constitution guarantees to all citizens, the right to freedom of speech and expression. The Preamble to the Indian Constitution also provides to its citizens, the liberty of thought and expression. However, this right is not an absolute one and Article 19(2) lists down the restrictions that can be imposed on the exercise of this right. 

The freedom of speech and expression has been granted universal acknowledgment and has been understood to be of fundamental importance for democratic systems. Article 19 of the Universal  Declaration of Human Rights (UDHR) also says that everyone has the right to freedom of opinion and expression. Besides, Article 19(2) of the International Covenant on Civil and Political Rights grants everyone the right to freedom of speech and expression. India has also ratified these international declarations and hence holds high regard for this essential freedom of its citizens. 

This article will discuss the importance and need of the freedom of speech and expression in a democracy and look at some of its facets. To look at the scope of this right, the various laws that restrict it will also be studied to protect the State’s security

Importance and need of freedom of speech and expression

The importance and need of the freedom of speech and expression can be understood from the following:

1. In a democracy, the freedom of speech and expression is one of the prime liberties granted to the citizens. It forms a foundation for other rights granted to citizens, such as the freedom of the press. Freedom of the press, in turn, helps in inculcating a better-informed public and electorate. 
2. It ensures that citizens can express their opinions freely and also hold their political leaders accountable. Also, this freedom ensures that important information is legally shared and circulated among citizens. 
3. It also provides a platform to make the marginalized and minority voices heard. Issues that concern these groups can be highlighted and brought to the forefront by using the right to freedom of speech and expression.
4. The freedom of speech and expression protects the creative license of artists and allows them to develop and share ideas freely. These can be academic writings, satirical work, theatre, cartoons,  visual arts, and stand-up comedies.

Sedition vs. right to free speech and expression

Section 124A of the Indian Penal Code penalizes anyone who by words, either spoken or written or by visible representation or by otherwise attempts to bring disaffection, hatred, or contempt against the government established by law. The colonial-era law of sedition has been widely criticized for serving as a restriction on free speech and expression. Even though the explanations to the section make it clear that only attempts to excite hatred, contempt, or disaffection lead to sedition and lawful criticism with a view of obtaining change does not amount to sedition, the law has been widely abused. For an act to amount to sedition, there must be an intention to cause public disorder or disturbance and hinder public peace. The Supreme Court in the case of Kedarnath Singh v. State of Bihar put a limit on the scope of Section 124A, whereby only the individuals using free speech and expression to incite violence and disrupt the law can be penalized. In the case of Shreya Singhal v. Union of India, the court emphasized that there has to be a degree of proximity between the words spoken or expressed and the public disorder that takes place. However, in reality, there has been a continued trend where charges of sedition have been pressed against individuals for criticizing the government. Due to this abuse of the law, demands have been made to abolish the Section to protect the sanctity of free speech and expression.

Recently in a petition against the sedition case filed against the Senior journalist, Vinod Dua, Vinod Dua v. Union of India, the Supreme Court upheld his journalistic freedom and said that every journalist is entitled to protection and the sedition law has to be applied as provided in the Kedarnath judgment. A BJP leader in Himachal Pradesh had filed an FIR against Vinod Dua for criticising the Prime Minister and the Union government on his Youtube channel. The court quashed the FIR.

Hate speech and the freedom of speech and expression

Hate speech poses a challenge to the right to freedom of speech and expression. In contemporary times, it is often used as a tool to gain popularity. It manifests itself into a form that creates divisions in society by attempting to belittle specific groups of people based on their religion, culture, ethnicity, race, gender, sexual orientation, disability, language, occupation, ideology, appearance, etc. It runs contrary to the objective of the fundamental right to free speech and expression that is to liberate people from all strata of society. Hate speech often relies on and perpetuates stereotypes. Hate speech has been seen to be used post-elections to cause anti-minority incitement and is often related to the politics of violence and hatred.

The Constitution of India by law seeks to prevent the delivery of hate speech under the garb of free speech and expression. It prohibits expressions that can be insulting to others. According to Article 51A (h) of the Indian Constitution, citizens must develop scientific temper, humanism, and the spirit of inquiry and reform. Various criminal laws in India also penalize hate speech. In the case of Dr Das Rao Deshmukh v. Kamal Kishore Nanasaheb Kadam, the appellant sought votes by using a poster that said: “teach a lesson to Muslims”. The Supreme Court held that the poster cannot be justified as it threatens to arouse communal feelings and create disharmony between the communities. It was offensive and went against the secular structure of the country.

Facets of free speech

Freedom of press

The freedom of speech and expression as under Article 19 also includes the freedom of the press. During the Constituent Assembly Debates,  Damodar S. Seth argued that freedom of the press should be explicitly included in the Article due to the present age where the press holds immense value. However, it was decided that a separate provision for the same is not required.

Right to Silence

The citizens’ right to stay silent has also been considered a part of the right to freedom of speech and expression. In the case of Bijoe Emmanuel & Ors. v. the State of Kerala, the court upheld the petitioner’s right to stay silent during the national anthem.

Right to report and broadcast

Under the freedom of speech and expression, citizens possess the right to circulate and publish content. It also includes the right to broadcast information. They also have the right to report proceedings of a court of law, this also ensures transparency. 

The right to be informed

A citizen’s right to know, receive, and impart information as a part of their right to information has also been recognized as a part of the freedom of speech and expression. In the judgment of the Union of India v. the Association of Democratic Reforms, the court held that the voters’ have the right to know about candidates.

Limits to freedom of speech and expression

The right to freedom of speech and expression is not absolute and has been reasonably restricted by the Constitution of India under Article 19(2). The grounds for imposing these restrictions are:

Sovereignty and Integrity of India

India gained its sovereignty after 200 years of colonial rule and established itself as an independent state wholly responsible for its internal affairs. Hence, citizens have been restricted to make statements that can harm this hard-earned sovereignty and hurt the integrity of the nation. This ground was added in 1963 through the Constitution (Sixteenth Amendment) Act to impose restrictions on individuals or groups that were instigating secessionist movements in the country. 

Security of the State

The government has the right to deny the freedom of speech and expression to protect the security of the State. However, the threats against security must be an aggravated threat to public order, such as rebellion, insurrection, waging war against the State, etc.  

To maintain friendly relations with foreign states

In a globalized world with unequal power relations, maintaining positive relations with neighbouring countries and other countries is significant. Hence, if a person’s freedom of speech and expression threatens to hinder these relations or harms the country’s international relations, it can be restricted. This is essential to curb malicious actions by some to jeopardize the reputation of the country.

Decency and Morality

One’s speech and expression must be decent and moral. It should not go against the morals of contemporary society. Restrictions on freedom of speech and expression imposed in the interest of decency and morality can be found in Section 292 to Section 294 of the Indian Penal Code, they deal with content that is deemed to be obscene. However, it must be noted that standards of decency and morality evolve and change along with society and are not static. The Hicklin test which originated in England is one of the tests to determine the decency or morality of a publication by checking its effect on the most vulnerable members of society. 

Contempt of Court

The judiciary holds great value in a democracy and hence to maintain its stature and preserve public trust in the institution, free speech and expression can be curbed. This is important to ensure that the courts are not vandalized or jeopardized. Contempt of Court is punishable under Article 129 and Article 215 of the Constitution by the Supreme Court and High Courts respectively.

Defamation

Defamation is a criminal offence under Section 499 of IPC. The right to freedom of speech and expression is not an ultimate license to defame another person and hinder their reputation. Hence, the right to free speech and expression does not provide anyone with the immunity to tarnish another person’s reputation in society. If defamation is committed in the form of spoken words, it is called slander, if the same is committed in a permanent form, written or printed, it is called libel.

In the case of Subramanian Swamy v. Union of India, the validity of Section 499 and Section 502 of IPC were challenged. While upholding the validity of these provisions, the court stated that to protect the freedom of speech and expression, the reputation of individuals cannot be “allowed to be sullied. It asserted that the right to freedom of speech and expression is not absolute and has to follow a social interest. It also said that the right to reputation is included under the right to life, granted by Article 21 of the Constitution.

Conclusion

“ To suppress free speech is a double wrong. It violates the right of the speaker, as well as those of the hearer.” 

– Frederick Douglass

While the right to freedom of speech and expression is sacred to individual autonomy, liberty, and democracy in the contemporary world, it cannot be absolute and indisputable. With rights come responsibilities and hence it is the responsibility of the citizens to make judicious use of their rights and use it for the right reasons. This will help protect the spirit of the right. It has often been questioned as to how far the right to freedom and expression be allowed and where one needs to draw the line to one’s liberty. We have heard the principle that one’s right and freedom should not serve as another’s hindrance and inconvenience. Our right is absolute only until it does not disturb our neighbour. Hence, we can exercise our right to freedom of speech and expression as long as it is not hateful and defamatory to another person or it incites violence in the country. Criticism is not just allowed but is welcomed in a democracy, to strive to qualitatively improve our laws, criticism is necessary. But, this criticism must be fair and should not act as a double-edged sword that aims to express and create distress in the country. Due to the nature of this right, some degree of subjectivity will always exist, yet it is hoped that the article was able to make clear some boundaries of the freedom of speech and expression.

References

• Sedition and the Right to Freedom of Speech and Expression by Ananya Kuthiala
• Hate Speech and Freedom of Expression: Balancing Social Good and Individual Liberty by M.K. Bhandari and Mithilesh Narayan Bhatt
• http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf
• http://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression.html
• https://www.probono-india.in/blog-detail.php?id=159
• https://www.lawctopus.com/academike/freedom-of-speech-and-expression/
• https://10years.mediadefence.org/10-reasons-freedom-of-expression/#:~:text=Freedom%20of%20expression%20is%20a%20core%20value%20in%20the%20democratic,others%2C%20without%20censorship%20or%20reprisals.
• https://lexforti.com/legal-news/freedom-of-speech-and-expression/

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