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This article has been written by Avni Sharma, a 2nd-year student at National Law University, Odisha. The article talks about the various laws in India regarding freedom of speech and expression.

Introduction

Freedom of speech and expression is guaranteed to us by the Constitution of India as a fundamental right. The real question is are we provided with the guarantees. The laws provide all the theoretical rights, however, the theoretical rights do not necessarily provide all the guarantees. International Covenant on Civil and Political Rights along with all the other international treaties guarantee freedom of speech and expression. 

However, there is a subtle exception, the protection of national security. National Security is a term which can be used in such a wide sense that it can be interpreted in seven hundred different ways to the advantage of the parties. National Security can be hampered by any circumstances. Any action might bring a threat to national security whether it is posting articles or pictures on social media or coming to the streets for protests. Let me mention what to expect out of this article. This article is an account of laws and cases which can or cannot be used to restrict freedom of speech and expression.

Importance of criticism in a democracy

The importance of criticism cannot be stressed enough in a society such as ours, because of the diverse conditions we live and the laws that we are bound by. The society before civilization had no system that would conduct the behaviour of human beings. But as society progressed there were slight improvements in the way people behaved. 

Finally, society evolved by something known as a Social Contract Theory. The theory legitimized the control of the ruling power over any individual. It propounded that certain freedoms may be surrendered by the citizens in exchange for the assurance of protection against evils and some basic rights for healthy survival. The citizens had surrendered their freedom in return for the expectation of certain rights which would ensure their survival with dignity. Therefore, when it comes to talking about the guarantee of basic rights such as the right to speak and criticize freely, the social contract theory comes into question.

In a country such as ours, the freedom of speech and expression must be granted with very limited barriers because it forms the basis for our fourth pillar of democracy, which is the media. Media forms the most important bridge between the public and the government. It acts as a translator of expression between the public and the government.

Expressions may include all kinds of appreciation, suggestions and criticism. Among these, criticism is the expression that must reach the government in order to bring a change in policies if it is not suitable for the public. Even Prime Minister Narendra Modi has emphasized that criticism is the key to democracy. Therefore, being a part of a system which gives respect to public opinion, we must grant the citizens to criticize freely.

Media and its rights

On the matter of the freedom of speech and expression, the First Press Commission in its report said, “This freedom is stated in wide terms and includes not only freedom of speech which manifests itself by oral utterances, but freedom of expression, whether such expression is communicated by written word or printed matter. Thus, freedom of the press, particularly of newspapers and periodicals, is a species of which the freedom of expression is a genus.

Therefore, there is no doubt that freedom of the press is included in the fundamental right of  freedom of expression guaranteed to the citizens under Article 19(1)(a) of the Indian Constitution.” Justice Mudholkar had ruled that censorship on the press results in indirect curbing freedom of speech and expression.

However, there are reasonable restrictions imposed on the media. Some opine that our constitution is paradoxical as it grants rights on one hand and takes them away in the form of exceptions and provisions. But, it is certain that there are certain factors that come into play when we talk about freedoms and rights guaranteed. The factors which play a crucial role in imposing reasonable restrictions on are:

  1. Security of the country;
  2. Friendly relations with the countries;
  3. Public order;
  4. Decency and morality;
  5. Contempt of court; 
  6. Defamation;
  7. Incitement to an offence;
  8. The integrity of the country;
  9. Contempt of the legislature.

Despite all these reasonable restrictions, the media possesses unlimited power to influence both sides that is the government and the citizens. 

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Misuse of media power

With great power, comes great responsibility. The responsibility of circulating original and reliable content lies on the editors and publishers as the public relies heavily on the information provided by the media. A piece of simple news about a sensitive issue, which is unnecessary and unreal can lead to massive uninvited unrest in the country which results in loss of credibility of the authorities. There have been cases where the media has misused the great power that is conferred with it.

The media has the power to even enrage the public against something which is fabricated with false facts. Public order largely depends on the kind of content that is posted by the media. The media handles this responsibility with great caution, in most circumstances. The laws which reasonably restrict the freedom of speech helps in maintaining the circulation of genuine content in the country.

Development of fake news in the media

Fake news contains information that is contaminated by different sources for political and economic interests. Social media also plays a major role in this scenario because it is very easy for the people who spread such news as the determination of the source of the information is very difficult. With the advent of technology, the generation of fake news has become all the more convenient. Such news impacts the ideologies and thinking patterns of the general public.

For example, if there is a piece of fake news about a certain political leader that affects the race he belongs to, there can be an outrage in the public because of the content put up by the media houses. There are different sources who spread fake news, such as political parties, business houses and international enemies, etc. it happens often that the presence of fake news leads to scepticism in the public. 

This, in turn, leads to people having no trust in the media. With the advent of such instruments, the legislative authorities get bound to create rules and regulations regarding restricting freedom of speech and expression. But, how far is such a restriction reasonable? This has been adjudged in a variety of cases, most prominently being, Kedarnath v State of Bihar (Kedarnath judgment, henceforth).

Freedom of speech and expression: Sedition and Defamation Laws

Section 124 of the Indian Penal Code, states that anyone who incites or attempts to incite disaffection against the government shall be held liable for the act of sedition. Now, the catch here is, that any speech which is critical of the government’s policies may also be included in the ambit of the offence of Sedition if it is widely interpreted. This results in the infringement of the right to freedom of speech and expression.

While talking about freedom of speech and expression, the most important pronouncement by the court, in India was in the Kedarnath Judgment. The Supreme Court affirmed that Sedition is a criminal offence as it is dangerous for national security.

Section 499 of the Indian Penal Code which states about Defamation which prevents publication of any representation which may injure the reputation of a person in the eyes of a reasonable person. This provision can also result in frivolous prosecution against anyone as the injury to respect ends up being a very subjective factor. So, since any person can find anything offensive and injurious to reputation, it is dangerous for freedom of speech and expression.

The question arises whether they are even required in the Indian penal system. There are different arguments attached to their constitutionality and unconstitutionality. There is numerous jurisdiction including that of Great Britain which have held the provisions unconstitutional and unnecessary. However, it shall be noted that the Indian Courts have repeatedly re-affirmed the constitutionality and necessity of these provisions. 

International conventions and their standing

International law mentions several guidelines, rules and directives which suggest that there must be no unnecessary restrictions on freedom of speech and expression. Treaties and conventions such as the International Covenant on Civil and Political Rights, European Court of Human Rights and American Court of Human Rights among others, have provisions that specify rights about freedom of speech and expression. The various provisions of conventions are given below:

International Covenant on Civil and Political Rights (ICCPR)

Article 19 of the ICCPR states about the freedom of speech and expression, very similar to Article 19 of the Universal Declaration of Human Rights (UDHR). The Covenant on civil and political rights states:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may, therefore, be subject to certain restrictions, but these shall and are necessary:
  • For respect of the rights or reputations of others;
  • For the protection of national security or of public order (ordre public), or of public health or morals.

It is worth noting that the court has mentioned certain reasonable restrictions in Article 19(3). So, it is clear that the international community also realizes the importance of reasonable restrictions.

European Court of Human Rights (ECHR)

Freedom of expression is also protected under Article 10 of ECHR, it states:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and to impart information and ideas without interference by public authority regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 
  2. The exercise of these freedoms, since it carries with its duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Sedition laws 

Sedition laws have been a matter of discussion for a very long time now. While some suspect archaic application of Colonial law that it is excessively important for the security of the state. We are already aware that the law has been upheld in numerous judgments but let us have a look at the arguments against the law.

The citizens of a country require respect from the government. That right also includes placing trust in the citizens. Provisions like these often display that the colonial laws have not been revised to suit the situation of modern times. The citizens of today require the freedom to speak freely and criticize anything that seems off track.

The presence of such provisions will lead to a restriction on freedom of speech and expression. The expression in recent times happens through social media which runs with the help of the internet. In order to curb the incitement of any offence, the government recently posed a ban on internet services in various parts of the country. Let us have a look at whether the government can even do such a thing.

Anuradha Bhasin v. Union of India: Can the government impose an internet shutdown?

The government had put a blanket ban on the internet in various parts of India. The court, in the case of Anuradha Bhasin v Union of India, adjudged whether such a ban can be imposed or not. 

The facts of the case were that all the internet activity was blocked in the areas of Jammu and Kashmir. All communication including landlines were blocked in the name of Internet security. The court has now affirmed such a blanket ban is not acceptable. Section 144, CrPC cannot be imposed until there is a public emergency in the area. There must be a prior inquiry before issuing any order regarding that.

Conclusion

The courts have started to recognize the importance of freedom of speech and expression in the country but there is still a long way to go for India and its scope of freedom of speech and expression. A substantial change will come only if the courts have a broad interpretation of the meaning of freedom of speech and expression. 


To know more about Article 19 of the Consitution, please Click Here.


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