In this article, Kavya Bharadwaj of Rajiv Gandhi National University of Law discusses the evolution of Freedom of Speech under the Indain Constituion.
“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” – John Milton, Areopagitica
The very fundamental instrument of freedom which any democratic institution or state, at large, can offer its citizens is very right to effectively express one’s views, ideas, thought, expression ,belief, opinion or faith in an utmost secure environment without any fear of retribution, repression, restriction or any other form of state’s arbitrary control from the government. The very essence of freedom of speech lies in the fact that it molds and shapes public opinion, assists in bringing about healthy discussions and discourses, helps in better exchange of idea and opinions, serves as the ground of debates and effective decision making and per say, develops stronger democratic institutions.
The Constitution of India guarantees to every citizen certain rights regarding freedom of speech under article 19 of the Constitution of India which involves to the modern date, six clauses in accordance with the freedom of speech which are-:
- Freedom of speech and expression;
- Freedom to assemble peacefully without arms;
- Freedom to form associations or unions (or cooperative societies)99th amendment
- Freedom to move freely throughout the territory of India;
- Freedom to reside and settle in any part of the territory; 44th amendment
- Omitted by the 44th amendment act, 1978
- Freedom to practice any profession, or to carry on any occupation, trade or business.
Article 19 (1) (a) contains the crux of freedom of speech in India as “freedom of speech and expression”. Even the preamble to the Constitution of India echoes the very sentiment of this fundamental freedom as the very “liberty of thought, expression, belief, faith and worship which has been inserted as a human right or specifically a fundamental right under article 19 (1) (a) of the Constitution of India. The very basis of a democracy is the untrammeled flow of word, ideas, thoughts and expressions. The very basic right to speech and express one’s view effectively without any state control is not only seen in the constitutions and statutes of countries but also in international conventions such as the Universal Declaration of Human rights, European Convention on Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights. Wide debates often take place on the scope and extension of freedom of speech in democracies and reasonable restrictions have been imposed accordingly for the effective operation of law and public order interest of peace and security.
The need for protection of Freedom of Speech in India
India being the world’s largest democracy and the second most populated state in the world has a very broad need to protect the freedom of speech and expression of its citizens. Being a secular state with a huge diversity in language, religion, caste and creed, freedom of speech basically is a sensitive and essential right guaranteed to the citizens of India. Need to protect freedom of speech can be illustrated as-:
- Active participation in democracy- freedom of speech helps the citizens to actively participate in the smooth functioning and operation of democracy as it helps in proper decision making.
- Expression of beliefs and attitudes- in a country where there exists people of different religion, caste and creed; freedom of speech helps in proper expression of beliefs and attitudes of different
- Self-fulfillment and development – the exchange of ideas and opinions effectively and freely assists in the healthy development of citizens and also provides significant self-fulfillment
- Open discussions- in order to discover the truth and facilitate healthy and sound decision making, open discussions significantly help in the running of a democracy and other political institutions contained within.
Time and again, judicial precedents serve to reiterate the importance of the freedom of speech which is one of most quintessential fundamental right enshrined under Part III of the Constitution of India.
Birth of Freedom of Speech under the Indian Constitution
Under the colonial era, the liberties of the Indians were at a complete stake. The atrocities of the British Empire actually curbed the freedom of expression and speech of the Indian masses. From the Sedition laws imposed by the English in 1870 to Section 295A of the Hate speech law, the British took every possible way to curb opinion making among Indians in order to suppress the revolutionary sentiments prevailing the masses to an independent struggle. The prevention of Seditious Meeting Act, 1907 which prevented open discussions and formation of Unions was also the driving force behind the very fundamental freedom of speech and expression being guaranteed to the citizens which they were earlier deprived of. The framers and the architects of the Constitution of India have also borrowed the idea of freedom of speech from the democratic ideas laid in the American Constitution. Freedom of speech and expression is a significant feature of the American Constitution.
Status of Freedom of Speech in India
- Firstly, freedom of speech and expression in India can only be enforced by its citizens. Therefore the freedom to express and speak cannot be exercised by any non-citizen visiting or present in India.
- Secondly, this fundamental right under article 19 (1) (a) cannot be enforced by a company as given in shree sidhbali steels ltd. V state of uttar Pradesh which stated that company not being a citizen has no fundamental right.
- Thirdly, there exists freedom of speech and expression on social media/ internet also, where the Supreme Court struck down section 66A of the Information Technology Act which provided for police action for social media posts construed as “offensive” or “menacing” , in shreya singhal v UoI, thus fortifying article 19 (1)(a).
- Fourthly, the right to expression under Article 19 also involves the right not to express. The Supreme Court in Excel Wear v UOI held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”.
Legal remedies available on infringement of Freedom of Speech
- In case of violation of article 19 (1) (a), there stands another fundamental right under article 32 of the Constitution which deals with remedies for the enforcement of rights conferred under part III of the Constitution; that is, the right to move to the Supreme Court for the enforcement of right to speech and expression.
The Supreme Court has the power to issue directions or writs-habeas corpus, mandamus, quo warranto, prohibition, and certiorari; for the enforcement of Article 19(1) (a) of the Indain Constitution).
- Even the High Courts under article 226 have been conferred the same power like the Supreme court to issue orders and writs in order to enforce the fundamental right to speech and expression of the citizens.
- Public Interest Litigation can also be filed to the Supreme Court or the High Court directly, by any person if in case the freedom of speech of theirs or any other party is violated, thus acting in bona fide interest
Hence, any aggrieved person may approach these courts which are considered to be the guardian of the Constitution.
Can a non-governmental entity infringe your Freedom to speech?
No, a non-governmental entity is not empowered to infringe and make laws restricting the freedom of speech and expression of a citizen vested under article 19(1) (a) of the constitution. Therefore, freedom of speech and expression exists in workplaces and no non governmental entity has the right to infringe or abrogate the same.
Who can violate your Freedom of Speech and Expression?
One’s liberty must not offend the liberty of others, therefore the exercise of freedom of speech and expression is subject to reasonable restrictions under Article 19(2) which was inserted by the 1st amendment to the constitution of India in 1951; whereby a state can make any law which restricts the freedom of speech and expression of an individual, on the following grounds and interests-:
- Sovereignty and integrity of India- any challenge to the sovereignty and integrity of India must be curtailed by imposing restriction on article 19(1) (a).
- Security of the state- it involves restricting freedom of speech which may cause aggravation like riots, affray, waging war against the state, armed rebellion etc which may threaten the security of the state
- Friendly relations with foreign states- any act of speech and expression which may harm India’s relations with foreign states and affect international diplomacy may be restricted by the government. However commonwealth nations are not treated as foreign state; therefore any statement for example adverse to Pakistan would not be restricted on the basis of article 19(2)
- Public order- which refers to public peace and tranquility should always be observed even if it restricts freedom of speech and expression.
- Decency or morality- Section 292 to 294 of the Indian Penal code deals with restrictions on article 19(1) (a) on the provisions of decency and morality. However till date no fixed standard has been set to define what is moral and decent.
- Contempt of court- freedom of speech is restricted if it may lead to contempt of court. However truth may serve as a valid defense.
- Defamation- freedom of speech and expression cannot be used to defame or harm anyone’s reputation. Criminal defamation is punishable under Indian Penal code under section 499.
- Incitement to an offence- article 19 (1) (a) cannot be used to incite any commission of an offence; which is punishable under law.
Freedom of Press in India
Though freedom of press is not explicitly mentioned in the constitution of India but is implied under article 19 (1) (a). In Express newspapers Ltd. V UOI it was laid down by the Supreme Court that “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments.”
Censorship of press is unhealthy for a democracy however Section 19 (2) also operates on freedom of press in India imposing reasonable restrictions. In Romesh thappar v state of Madras the Supreme Court said, “There can be no doubt that freedom of speech includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication.”
Cinematographic freedom v state controlled censorship
In K.A Abbas v UOI, the Supreme Court upheld the constitutionality of censorship and said it comes within the ambit of article 19 (2) and treated motion pictures separately from other forms of art since these motion pictures can stir up “emotions more deeply than any form of art”. Several pictures till date are banned because they are not healthy for public society.At one hand we profess right to information as a form of freedom of speech and on other hand we strangulate freedom of speech by censoring films. Censor board at many instances acted as a puppet in the hands of the government and banned all scenes from films which were against the government or its policies. In Rangarajan v PJagjivan Ra, the Supreme Court overturned the Madras High Court judgment where a Tamil film was banned for criticising the reservation policy of the government of Tamil Nadu and the Supreme Court here upheld article 19 (1) (a).
Recently, Pahlaj Nihalani was sacked from his post and was replaced by Prasoon Joshi as the new Censor Board chief. Director Alankrita won the case after challenging the Censor Board at an appeals tribunal. Nihalani has been widely criticised for his moves like demanding multiple cuts in movies like Udta Punjab and Indu Sarkar as well as his refusal to certify Lipstick Under My Burkha. He had recently objected the use of the word ‘intercourse’ in When Harry met Sejal.He even asked to bleep words like “Hindu India” in a documentary film on economist Amartya Sen. Filmmakers and critics have often accused him of unnecessary cuts and moral policing. Thus the tussle between cinematographic freedom under article 19 (1) (a) and state controlled censorship continues which has had negative impact on the freedom of the film industry.
Sedition and Freedom of Speech
Section 124A of the IPC and its challenge to freedom of speech is widely discussed. However suitable grounds need to be examined as to whether freedom of speech of an individual actually causes sedition. Section 124A is upheld only when it comes within the ambit of “public order”. It is important to differentiate between advocacy and incitement where incitement is required to constitute offence under section 295A.In case of hate speech it is important to lay the burden of proof on those whose sentiments have been hurt. In Balwant Singh v state of Punjab it was laid out that,” Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established, nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups”.
The Facebook status posted by a 21-year-old girl in Maharashtra after Bal Thackeray’s death, which observed significant spark, one could also conclude that there is no real interconnection that could be established between the act and any possibility of violence. In kanhaiya kumar v Nct of Delhi, allegations were made against students of JNU who shouted anti national slogans under section 124A. However students’ president Kanhaiya Kumar was released on bail as enough evidence to prove sedition was not generated by the police.
Forced patriotism and Freedom of Speech
In a widely criticized move the Supreme Court in the case shyam chouskey v UOI, made it mandatory to play the national anthem before the screening of any movie and compulsory for all cinema goers to stand while the national anthem is played. Here the bench consisting of Justice Dipak Misra and Justice Amitva Roy gave emphasis to patriotism over freedom of expression.
Contempt of Court and Freedom of Speech
In Indirect Tax Practioners’ Association v R.K Jain, it was laid down by the Supreme court that freedom of speech and expression shall win over contempt of court as under article 19 (2), if truth as a defense is used in public interest and is bonafide. Therefore freedom of speech can be curtailed on the grounds of contempt of court, only in exceptional circumstances.
Thus to conclude, freedom of speech in India is that fundamental freedom that serves the very basis of the smooth operation of democracy. In an emerging economy like India, liberalization and freedom of thought, expression, beliefs and ideas is significantly essential. Freedom to speech is not just fundamental but natural too, therefore any restriction on it should be widely discussed and debated upon.