The article is written by Nikhil Thakur from Manav Rachna University. The author has attempted to explain the issue of freedom of speech with national security. Along with this, the author has included the European court of law’s verdict as a reference.
Table of Contents
Every person irrespective of his race, caste, sex has the right to freedom of speech and expression. Freedom of speech and expression incorporates freedom to hold conclusions and to get and confer information and ideas without obstruction by the public authority or the state.
Classically, the government legitimises intemperate abridgement of the right to speech and expression on the grounds of national security and terrorism, such a mishandling is encouraged by the troublesome relationship and pressure between national security and human rights protection.
The key role that can be played in addressing and resolving this tension can be the judiciary. There are a plethora of instances around the globe where the judiciary has played a pro-active role by rejecting the justification as to curtailment of freedom of speech and expression at the time of emergency and in the interest of national security.
The concept of national security is pivotal to every nation which refers to the situation where the government ensures that the states and their citizens are protected and safe and assures these via political, economic, diplomatic and military mightiness.
Above all these, the states have a wider obligation concerning the protection of the fundamental rights of citizens, guaranteeing appropriate working of the democracy and establishing an atmosphere of amity and synchronization.
“National security is all about the free will of the government to take opposite decisions and to guarantee a country’s sovereignty and territorial integrity.
According to Collins dictionary, national security is defined as the ability of the government to protect itself from the threat of violence and so on.
Freedom of speech and expression
According to the Convention for the Protection of Human Rights and Fundamental Freedom (the European Convention on Human Rights), freedom of expression is a right in itself along with this it is a component of other rights like the freedom of assembly.
Freedom of speech and expression signifies the right of the citizens to verbalise their views, opinions, beliefs and thoughts by way of words through mouth, writing, printing and any other format. Article 19(1)(a) confers following of the rights:
- Freedom of press;
- Freedom of silence;
- Right to propagate one’s view; and
- Right against tapping of electronic communication and many more.
But, these rights are not absolute because they are subjected to few restrictions as according to Article 19(2), the right to freedom of speech and expression can be curtailed on the grounds of :
- Morality and decency
- Friendly relation with the foreign state
- Incitement to an offence
- Content of the court
- Public order and
- Security of the state.
Indian judiciary’s perspective of national security
In the interest of the security of the nation, the freedom of speech and expression can be curtailed if the government believes that such a speech and expression may:
- Wage war against the government,
- Exaggerate external aggression etc.
Following the State of Bihar v. Shailabala Devi (1952), the hon’ble court observed that the gestures, graphical representation having a high probability of causing the problem in the state can be restricted and are covered within the purview of Article 19(2) of the Indian Constitution.
In Sanskar Marathe v. The State of Maharashtra and Anr (2015), the court specifically held that only those expressions that influence or instigate hatred against the government or may cause public disorder are punishable within the meaning of Section 124A of the Indian Penal Code, 1860.
European Court of Law
In Hadjianastassiou v. Greece (1992), there was an officer who revealed classified information. The information disclosed by him were concerning weapons and their technical knowledge has the capability of effecting significant harm to national security. The Hon’ble court held that the conviction of such a person shall be an intrusion with the officer’s freedom of speech and expression.
Following Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedom, it says that the freedom ensured carries certain rights and responsibilities that are subjected to formalities, conditions, restrictions and are necessary for a democratic society, or in the interest of national security, territorial integrity and so on. Article 10 says that the rights conferred are not absolute and hence in the interest of national security, territorial integrity can be restricted.
Article 10 of the Convention allows the domestic authorities to intervene with the exercise of freedom of expression when a three-part test condition is fulfilled:
- When the interference by domestic authority is prescribed by the law (Gaweda v. Poland (2002) and The Sunday Times v. The United Kingdom (1979)).
- When the interference by domestic authority is aimed at protecting and ensuring; national security, territorial integrity, public safety, prevention of disorder or crime, protection of health, reputation, morals, right of others, secret information (Observer and Guardian v. The United Kingdom (1991)).
- When interference by domestic authority is necessary for the democratic society (Dlugolecki v. Poland (2009) and Tolstoy Miloslavsky v. The United Kingdom (1995)).
The essential part of Article 10 of the Convention is to secure freedom of expression for everyone. In this manner, the court through the above-mentioned exception built up rules for a strict interpretation of the possible restrictions so that they cannot be misused.
The grounds as mentioned under Article 10 of the Convention concerning the restriction of freedom of speech and expression are exhaustive. Thus, domestic authorities cannot use any other mechanism falling outside the list to restrict freedom of expression. For illustration: an injunction against a newspaper company can be held as legitimate in the interest of national security if the same is distributing or publishing classified data/ information. However, the court of law must guarantee that the interest that is to be protected shall be genuine and not merely a dubious possibility. Once the court is satisfied that the interest was genuine, then it shall decide whether it was necessary for a democratic society or not.
In Observer and Guardian v. The United Kingdom 1991 the hon’ble court observed that the phrase as mentioned under Article 10 of the Convention shall imply the presence of “pressing social need” and the 1st one to assess the pressing social need is the national authorities.
Moreover, in Mukong v. Cameroon (2015), it was observed that merely in the name of national security and safeguarding the state, the author cannot be subjected to arrest and detention because it is violative of freedom of expression and Article 7 of the European Convention on Human Rights. Further, it was said that in the name of national security and safeguarding the state under difficult situations cannot be executed by restricting the right to freedom of expression and democratic tenets.
Observer and Guardian v. the United Kingdom 1991
The above-mentioned case is a landmark case where national security as the ground was taken to restrict the freedom of expression.
- During the year 1986, two newspaper organizations planned to publish the extracts from a book Spycatcher which was written by Peter Wright, a retired intelligence agent.
- When the newspaper organization announced that they were going to extract the information from the book and get it published, the book Spycatcher was yet to be published.
- The book contained a description of alleged unlawful activities committed by the British intelligence service and its agents.
- The book clearly mentioned all the unlawful activities committed by the intelligence like bugging the entire diplomatic conference that took place in London during the span of 1950s-1960s, the 1979 Zimbabwe independence negotiation was bugged, the entire diplomats from Germany, France, Greece and Indonesia were bugged, even the suit of Mr Khruschchev’s was bugged when he visited Britain in the 1950s, the Soviet Consulates were also bugged, Even Britain in order to have check on left-wing political group in the country relocated its resources for the same cause and so on.
- The attorney general requested the hon’ble court to issue a permanent injunction against the newspaper organization from publishing the extracts from the book Spycatcher.
- The Hon’ble court allowed the injunction but temporary, to prevent the newspaper organizations from publishing the extracts during the proceedings of the case.
- The newspaper organization contended that the book already got printed in the US and the copies of the same were distributed in the United Kingdom. Despite this fact, the court maintained the temporary injunction.
- The British government contended that at the time the temporary injunction was imposed on the newspaper organization, the classified information available to Peter Wright was confidential.
- Further, the government contended that if this information had been released then the British Intelligence along with its agents would have suffered huge damage because such information aided the alien country to identify the British agents. Not only this, the friendly relationship among British and allied countries would have been hampered, the trust that all had upon British intelligence would have been broken.
- Moreover, the British government said that it was necessary to stop such a publication because it would invite other former agents to disclose confidential information.
The court observed that the temporary injunction granted was justified till the time the book Spycatcher was not published but now it cannot be justified. Furthermore, the court held that after the publication of the book in the United States of America, the information available in the book lost its confidentiality and hence the interest of maintaining the information confidential and away from the public no longer existed. Therefore, the hon’ble court dismissed the injunction imposed upon the Observer and the Guardian.
Judge Pettiti gave a dissenting opinion and said that the temporary injunction even if imposed before the publication of the book in the USA could not be justified. Further, judge Pettiti said that it is a violation of the freedom to receive information as depriving the public of the information concerning the functioning of the state is a violation of the fundamental democratic rights of its citizens.
The judgment in the immediate case accommodates 2 key significant principles such as:
- That if the information is present under the public domain, the right to freedom of expression cannot be restricted, obstructed or eliminated in the name of national security.
- The state is barred from unconditionally defining all information as confidential in the name of national security because such an act restricts the people to have an access to said information and hence is a violation of freedom to receive information.
The right to freedom of speech and expression is a basic fundamental right available to every person. Solely in the name of national security and territorial integrity, the freedom of expression shall not be restricted, withdrawn or taken away. A proper justification shall be provided by the state that why they are restricting these rights and is it important to restrict the same.
The landmark judgment in Observer and Guardian v. The United Kingdom clarified that, if the information is publicly known then the same cannot be used arbitrarily by the state to restrict the right to freedom of expression and further, the state cannot designate every information under the head confidentiality. Hence, the state shall ensure a balance between the right to freedom of expression and national security.
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