This article is written by Kritika Garg from National Law University, Odisha. This is an exhaustive article which explains the conflict between the right to free speech and the right to reputation. 

Right to free speech 

Right to free speech and expression is one of the major aspects of liberty which is considered to be an indispensable part of true democracy. Democracy, being a form of government elected by the people, for the people and to the people, it becomes extremely essential to avail individuals the right to express their opinions and thoughts about the social, economical and political matters. Freedom of speech and expression enables individuals to form their public opinion about different matters. Enshrined under Article 19 (1)(a) of the Constitution of India, freedom of speech and expression is guaranteed by various international conventions as well like Universal Declaration of Human Rights, European Convention on Human Rights and fundamental freedoms, and International Covenant on Civil and Political Rights. 

Right to free speech finds its existence from the preamble of the Constitution of India which provides for the liberty of thoughts and expressions to all the citizens. Further, freedom to express one’s opinion without any hindrance or fear of getting punished or suppressed from the state is essential for the shaping of the society into a well-administered unit. 

Reasonable restriction

However, it is important to note that freedom of speech and expression as guaranteed under Article 19(1)(a) of the Constitution is not an absolute right. Article 19(2) imposes reasonable restrictions on the exercise of the rights conferred under Article 19(1)(a) in the larger interest of the nation. The restrictions are imposed for the protection of the sovereignty and integrity of the nation, relations with foreign states, public order, or with regard to the contempt of court, defamation or incitement to an offence. 

However, in order to impose a reasonable restriction, there are three prerequisites which need to be fulfilled:

1. The restriction must be imposed by the authority of the law. Right to free speech cannot be restricted by any administrative or executive order without any legal sanction.
2. The restriction must be placed on the grounds mentioned under Article 19(2). 
3. The restriction must be reasonable. It should not be excessive or disproportionate. Further, the procedure of imposing restrictions must also be just, fair and reasonable. 

Right to reputation 

Right to reputation has been an integral part of Article 21 of the Constitution. Every individual has a right to live a dignified life. Reputation and honour are connected with dignity and thus, constitutes an inalienable part of human life. Even, the apex court has time and again reiterated the important role that reputation plays in an individual’s life and how the right to reputation is an inextricable part of the right to life under Article 21 of the Constitution. Apart from the Constitution of India, there are various international conventions as well which recognize Right to Reputation as an integral part of human existence.

International conventions

Various international conventions have stressed upon the significance of reputation in an individual’s life. Article 12 of the Universal Declaration on Human Rights, 1948 explicitly states about the importance of reputation and honour. Further, Article 19 of the International Covenant on Civil and Political Rights mentions the right to reputation. Furthermore, Article 8 and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom provides for the right to respect for private and family life and freedom of expression. All the aforementioned conventions recognize the right to reputation as an inseparable right of an individual. 

Right to reputation and free speech

The right to reputation and the right to free speech often clash with each other for the reason that right to free speech of an individual may violate the right to reputation of another individual. 

Whenever a person intentionally makes or publishes such imputations about an individual which causes harm to his/her reputation, then it amounts to the infringement of the right to reputation of the individual. The Supreme Court has time and again addressed the conflict between both the rights and has emphasised on the need of balancing the right to free speech under Article 19(1)(a) with the right to reputation under Article 21 of the Constitution.

In the recent judgment of Subramanian Swamy v. Union of India, the apex court held that the reputation of an individual is a basic element under Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity. Right to free speech does not give a right to an individual to defame others. The citizens have a correlative duty of not interfering with the liberty of other individuals since everybody has a right to reputation and right to live with dignity. 

Further, the court held that it is the duty of the State to regulate the freedom of speech and expression and to ensure that the citizens do not make defamatory speeches. Existence of Section 499 of the Indian Penal Code, 1860 is not a restriction on the freedom of speech and expression because it ensures that the social interest is served by holding a reputation as a shared value of the public at large. Therefore, it is essential to keep Section 499 (Criminal Defamation) of the Indian Penal Code, 1860 alive in order to protect the reputation of individuals. 

Further, in the case of Re Noise Pollution, the Supreme Court while addressing the conflict between both the rights, observed that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right under Article 21 of the Constitution. 

Furthermore, the Delhi High Court recently banned the publication and sale of the book named ‘Godman to Tycoon: The Untold Story of Baba Ramdev’ on the grounds that the book was defamatory towards Baba Ramdev and thus, violative of the right to reputation under Article 21 of the Constitution. The Court, further, observed that the right to reputation of an individual cannot be crucified at the altar of somebody’s right to free speech. Harmonization between both the rights has to be made since no amount can redeem the loss suffered due to the adverse impact on an individual’s reputation.

Freedom of media and right to reputation

Media plays a crucial role in a country with a democratic form of government. It is an important pillar which not only provides a link between the government and the general public but also ensures accountability and transparency in the functioning of the government.  

The media derives its right to free speech from Article 19(1)(a) of the Constitution. However, it has similar rights as the rights of the citizens and does not have any special privileges. The same was affirmed by the apex court in the case of M.S.M. Sharma v. Krishna Sinha. Therefore, the media does not have any special immunity as compared to the citizens of the country and is subjected to the general law of the land. 

The media, under Article 19(1)(a), has the freedom to not only publish but to circulate information and opinions as well. The apex court in the case of Sakal Papers v. Union of India held that the State cannot formulate such laws which affect the circulation and the volume of the circulation of the media since the same would be violative of right to free speech of the media.

However, since the right is not absolute, the media also faces certain restrictions. The media has to ensure that whatever news, articles or opinions it publishes, they are fair in approach and do not defame someone or harm their right to reputation. 

Further, when the media engages in political speeches and debates, it generally forms opinions about the ideas and attitudes of political leaders. It is believed that since political leaders knowingly place themselves for close scrutiny before the general public at large, the scope of criticism of a political leader gets wider as compared to a private individual. However, this does not avail an absolute right of free speech to the media and the general public. The Right to reputation remains an inextricable aspect of Article 21 of the Constitution.

Social media platforms and Right to reputation 

The Internet Revolution has led to the introduction of various social media platforms where people can freely express their views and expressions. However, when such wide powers are being allocated to the citizens, it becomes indispensable on the part of the government to make such regulations which can balance the freedom of speech and expression and right to reputation. The Information technology Act, 2000 and the Information Technology Rules, 2011 are the steps which have been taken by the government for regulation of free speech and reputation on social media platforms. The Information Technology Rules, 2011 recognizes defamation as a non-permissible activity. The government has placed a statutory duty on the social media platform providers to formulate rules and policies for the regulation of their users.  

The platform providers regulate the content which can be posted by the user under the user agreements framed by them. They have the power to take down the content which is defamatory and violative of the right to reputation of an individual. 

Privilege to Members of Parliament

While the right to free speech is restricted in terms of the right to reputation for all the citizens including the media, members of the Parliament have no such restriction as they are immunized from any proceedings in any court for anything said in the Parliament.  

Right to free speech is in fact considered as an essential prerequisite for the efficient discharge of Parliamentary duties. The privilege has been given to the members on the grounds that putting restrictions on their right to free speech would not allow them to speak out their mind and to express their views for the fear of saying anything wrong. No civil or criminal proceedings can be initiated against any member of Parliament for any speech made within the Parliament. 

Article 105(2) of the Constitution provides the immunity to the members of the Parliament from any legal proceedings for ‘anything said in the Parliament’. It means that anything said by a member in the Parliament during the course of the business of the Parliament cannot amount to a violation of Article 21 of the Constitution no matter how malicious or defamatory it is. However, since the power given to the members is wide and the misuse is possible, the Committee of Privileges has time and again emphasized that the power is not an unrestricted license of speech to the members in the Parliament and therefore, it is an obligation upon the members to be careful while making such statements or decisions which would have been defamatory or criminal had they been made outside the Parliament. 

Conclusion

The right to free speech and the right to reputation are two fundamental rights which often conflict with each other due to their overlapping nature. Both the rights have been recognised as an integral part not only by the Constitution of India but by various international conventions as well. While a person has a right to live a dignified life, people have a right to freely express their views and opinions at the same time. The court has time and again emphasized the need for balancing both the rights as has been discussed above. However, when the right to free speech has been reasonably restricted for the protection of the right to reputation, the members of the Parliament get unfettered right to free speech within the four walls of the Parliament.

They have the absolute right to make statements, no matter how defamatory they are, during the course of business of the Parliament. While the Committee of Privileges has emphasized upon the need of being cautious while making statements during the course of business of the Parliament, lack of any proceedings has left it free for misuse by the members. The question that remains unanswered is, is absolute freedom of speech really essential for the members of the Parliament to work efficiently? And how defamatory statements towards a member by another member in the Parliament amounts to efficient work?

While these questions have not really been answered, there is a need for the Committee of Privileges to review the privilege of free speech given to the members in order to ensure that a balance is being maintained between right to speech and the right to reputation. 

References

• https://www.livelaw.in/columns/right-to-free-speech-versus-right-to-reputation-151647
• https://heinonline.org/HOL/LandingPage?handle=hein.journals/nilq63&div=8&id=&page=
• http://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression.html
• https://www.corteidh.or.cr/tablas/r29311.pdf
• http://docs.manupatra.in/newsline/articles/Upload/4F72F84B-E235-4893-9770-EDCDA76BA782.pdf

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