This article is written by Aditya Dubey, Student of Indore Institute of Law, Indore. The author in this article has discussed the concept of Freedom of Speech and Expression as defined under the Constitution of India along with its importance and the grounds on which it can be restricted by the Government of India.
Freedom of Speech and Expression is defined under Article 19(1)(a) of the Constitution of India which states that all the citizens of India have a right to freedom of speech and expression. The philosophy behind this Article lies in the Preamble of the Constitution of India- ‘where a solemn resolve is made to secure to all its citizen, their liberty of thought and expression’. The exercise of this right is, however, subjected to reasonable restrictions for some purposes being imposed under Article 19(2) of the Constitution of India.
What are the main elements of freedom of Speech and Expression?
These are the following essential elements of the freedom of Speech and Expression:
- This right is solely available to a citizen of India and not to persons belonging to other nations i.e. foreign nationals.
- The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions about any kind of issue and it can be done through any kind of medium, such as by words of mouth, by writing, by printing, through picturisation or through a movie.
- This right is not absolute as it allows the Government of India to frame laws which can impose reasonable restrictions in the cases which are involved with the sovereignty and integrity of India or the security of the state, or friendly relations with foreign nations, even public order, decency and morality and contempt of court, defamation and incitement to an offence.
- Such a restriction on the freedom of speech of any citizen may be imposed as much by an action of the State as by its inaction. Thus, if failure is found on the part of the State to guarantee to all its citizens the fundamental right to freedom of speech and expression would also constitute a violation of Article 19(1)(a).
How is Freedom of Speech important?
In a democracy like India, the concept of freedom of speech & expression opens up channels of free discussion of issues. Freedom of speech plays a very important role in the formation and the showcasing of the public opinion on social, economic & political matters throughout the country. It ensures within its scope, the freedom related to propagation and interchangement of ideas, dissemination of information which would, later on, help the formation of one’s opinion along with their viewpoint on certain issues and give rise to debates on matters which involve the public. So long as the expression is confined to nationalism, patriotism & love for our nation, the use of National flag by the way of expression of those sentiments would be a Fundamental Right.
The independent judiciary of India has held and stated it’s an opinion that the right to receive any information is another part of the right to freedom of speech and expression and the right to communicate and receive any kind of information without any sort of interference is a crucial aspect of this right. This is because, a person cannot form an informed opinion or make an informed choice and effectively participate socially, politically or culturally without receipt of adequate information.
A print medium is a powerful tool for broadcasting any kind of information to any citizen of the nation. Thus, access to printed material is very crucial for the satisfaction of a person’s right to freedom of speech and expression guaranteed to him under the Constitution. If any failure is found on the part of the State to make legislative provision for enabling access to people having print impairment of material in alternative accessible formats would constitute a deprivation of their right to freedom of speech and expression and such an inaction on the part of the State shall fall in the wrong place of the Constitution. It is an obligation on the part of the State to make sure that sufficient provisions are made in the law which enables people with a print impairment to access printed material in accessible formats.
Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the press as it is already included in the freedom of expression, which is given to all the citizens of the nation.
What is meant by the Freedom of Press?
Freedom of the Press is not mentioned anywhere in the Constitution of India. However, it is present as a right under the meaning of freedom of speech and expression (not directly expressed though) as laid down under Article 19 of the Constitution. If by democracy it is meant that the Government is of the people of the nation, it is by the people and it is for the people, then it is necessary that every citizen should be entitled to participate actively in the democratic process of the nation. Free debates and open discussions about certain matters are not possible unless there is a free and independent press.
The freedom of the press includes one of the pillars of democracy and indeed lies at the foundation of democratic organization. It has been held so by the Supreme Court of India in many decisions that the freedom of the press is a part of the Freedom of Speech and Expression and covered under Article 19(1)(a) of the Constitution of India, the reason for this is that the freedom of the press is nothing but an aspect of freedom of speech and expression. Therefore, it has been rightly explained that although the Press is considered to be a medium for reaching the people’s views to the everyone and yet it has to stick to the limitations which are imposed upon them by the Constitution under Article 19(2).
In this case it was established after observing that the term “freedom of press” is not used under Article 19 in its language but it is contained in the form of its essence within Article 19(1)(a) of the Constitution of India, and hence, there can not be any interference with the freedom of press which involves the public interest and security. Therefore, it was concluded that the imposition of censorship of a journal or prohibiting a newspaper from publishing their own views about any issue which involves public interest would amount to a restriction on the press’ liberty.
What are the grounds on which this freedom can be restricted?
There are many grounds on which the freedom of speech and expression can be restricted up to some reasonable restrictions by the state. Such restrictions are defined under the clause (2) of Article 19 of the Constitution of India which imposes certain restrictions on free speech under the following:
- Security of the State
- Friendly relations with foreign States
- Public order
- Decency and Morality
- Contempt of court
- Incitement to an offence, and
- Sovereignty and integrity of India.
Security of the State
Some reasonable restrictions can be imposed on the freedom of speech and expression, in the sections which are involved with the security of the State. The term ‘security of the State’ is required to be distinguished from the term ‘public order’ because they are similar but different in terms of their intensity. Hence, the security of state refers to serious and aggravated forms of public disorder an example of this can be rebellion, waging war against the state even if it is against a part of the state, etc.
Public interest litigation (PIL) was filed under Article 32 of the Constitution of India by PUCL, against the frequent cases of telephone tapping happening throughout the nation. And thus the validity of Section 5(2) of The Indian Telegraph Act, 1885 was challenged. It was then observed that “occurrence of public emergency” and “in the interest of public safety” is the sine qua non for the application of the provisions laid down under the Section 5(2). If any of these two conditions are absent from the case, then the government of India has no right to exercise its power under this section. Telephone tapping, therefore, will be violative of Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2).
Friendly relations with foreign States:
This ground for the restriction was added by the Constitution (First Amendment) Act of 1951. The State has the authority to impose reasonable restrictions on the freedom of speech and expression if it is affecting negatively the friendly relations of India with other State or States.
This ground for the restriction was also added by the Constitution (First Amendment) Act, 1951 this was done in order to meet the situation arising from the Supreme Court’s decision in the case of Romesh Thapar v. The State of Madras (AIR 1950 SC 124). According to the Supreme court of India, public order is very much different from law and order and security of the state. The term ‘public order’ indicates the sense of public peace, public safety and tranquillity. Anything that disturbs public peace, in turn, disturbs the public. But mere criticism of the government does not disturb public order. A law which hurts the religious feelings of any class has been held to be valid and reasonable restriction aimed at maintaining the public order.
Decency and morality
These are defined under the Sections 292 to 294 of the Indian Penal Code 1860 provides for the instances of restrictions on the freedom of speech and expression on the grounds of decency and morality, it then prohibits the sale or distribution or exhibition of obscene words.
Contempt of court:
The right to freedom of speech in no way allows a person to contempt the courts. The expression Contempt of Court has been defined under Section 2 of the Contempt of Courts Act, 1971. The term ‘contempt of court’ relates to civil contempt or criminal contempt under the Act.
The clause (2) of Article 19 of the Constitution of India prevents any individual from making any statement that injures the reputation of another in the eyes of society. Defamation is a serious crime in India and is defined under Section 499 and 500 of the Indian Penal Code. Right to free speech is not necessarily absolute. It does not mean freedom to hurt any other person’s reputation (which is protected under Article 21 of the constitution). Although ‘truth’ is considered a defence against defamation, but the defence would only help if the statement was made ‘for the good of the public’ and that is a question of fact to be assessed by the independent judiciary.
Incitement to an offence
This is another ground which was also added by the Constitution (First Amendment) Act of 1951. The Constitution also prohibits an individual from making any statement which incites or encourages other people to commit an offence.
Sovereignty and integrity of India:
This ground was added subsequently by the Constitution (Sixteenth Amendment) Act of 1963. This is only aimed to prohibit or restrict anyone from making statements that directly challenge the integrity and sovereignty of the country.
Expressing one’s opinions through speech is one of the basic rights guaranteed by the Constitution of India and in the modern context, the right to freedom of speech and expression is not just limited to expressing one’s own views through words but it also includes the circulation of those views in terms of writing, or through audiovisuals, or through any other way of communication. This right also comprises of the right to freedom of the press, the right to information, etc. Hence it can be concluded with this article that the concept of freedom is very much essential for the proper functioning of a Democratic State.
The words “in the interest of public order” and “reasonable restrictions” mentioned under Article 19 of the Constitution of India are used to indicate that the rights provided under this section are not absolute and they can be restricted for the safety of the other people of the nation and to maintain the public order and decency.