This article is written by Srishti Chawla, a 5th-year student at Amity Law School, Noida.

Introduction

Freedom of speech and expression occupies a very high position in the Constitution of India because the Preamble to the Constitution of India itself guarantees to its citizens the “Liberty of thought, expression, belief, faith, and worship.” The framers of the Constitution had given us the fundamental freedom of speech and expression in India. A Democracy can survive only if there is a free and fair exchange of ideas. Free speech does not imply that a person has the license to say anything that comes out of his mouth. The speech should not be in such a way that it aggravates or influences people to commit any kind of offences that disturb public order and peace or creates a sense of hatred towards persons belonging to any particular caste, community, religion, etc or any form of speech that tarnishes the reputation of another person. Article 19(1)(a) provides that the citizens shall have the right to freedom of speech and expression. Such speech should always be within permissible limits prescribed under article 19(2) in the form of reasonable restrictions. With that being said the exposition of truth should not be counted in as an infringement of free speech.

History

A lot of restrictions were put on the freedom of citizens in the colonial era. The British Rulers were very harsh towards the Indians and tried to reduce their fundamental freedoms including the freedom of speech. In 1870, section 295A was added to the Hate Speech Law prevailing in India which restricted the rights of citizens to express their views and opinions regarding the colonial rule and to suppress the revolutionary sentiments of the citizens encouraging them to launch massive independence struggles to attain freedom. Furthermore, in 1907 a law was enacted known as the Prevention of Seditious Meeting Act, 1907 which prevented open discussions and formation of unions which also deprived the citizens of their right to freedom of speech.

Following the attainment of independence and the establishment of the Constituent Assembly, the framers of the Constitution adopted the resolution for providing fundamental rights to its citizens. The idea of Fundamental Rights was derived from the Bill of Rights in the American Constitution. Furthermore, the provision pertaining to freedom of speech and expression was adapted from the 1st Amendment to the US Constitution, 1726. The bill provided that the Congress shall not abridge the freedom of speech or freedom of the press. This has been well interpreted by the Supreme Court of the United States in a number of landmark precedents.

The Sub Committee on Fundamental Rights on March 1947 considered the reports of Dr. B.R. Ambedkar and Dr. Munshi on the rights to freedom of expression, association, assembly and other rights contained in the drafts provided by them. Here a proposal was put forth by Dr. B.R. Ambedkar that no law shall be made restricting the freedom of speech, of the press, of association, and of assembly except by certain restrictions imposed by the union in the interest of the public order or morality.

What does freedom of speech and expression include?

The words “speech” and “expression” seems simple enough for not requiring any sort of explanation yet the court has legally interpreted this fundamental right to include the following –

i) Freedom of Expression implies the privilege to express one’s feelings and sentiments unreservedly by the method of word of mouth, composing or printing, etc.

ii) It includes the liberty to express or propagate one’s own views. It also includes the right to propagate or publish the views of other people, otherwise, this freedom could not have included the freedom of the press.

iii) Expression presupposes a second party to whom the ideas are communicated. In short, expression includes the idea of publication and distribution or circulation as well as the right to receive the matter distributed as held by the Supreme Court of India in the case of Romesh Thapar vs. the State of Madras(1950).

iv) It includes freedom to hold opinions, to seek, receive and impart information and ideas, either orally, by words written or printed matter or by legally operated visual or auditory devices such as the radio, cinematography, gramophone, loudspeaker, etc.

v) It includes the right to not only give but also acquire and import the ideas and information from others about matters of common interest i.e the right to be informed.

vi) A right to speech also implies the right to silence as well. It implies the freedom not to listen and not to be forced to listen. The right comprehends the freedom to be free from what one desires to be free from. In the case of Bijoe Emmanuel vs. State of Kerala(1986), the school authorities punished some school children for not singing the National Anthem. The children belonged to a sect called Jehovah’s Witnesses who worshipped only Jehovah the Creator and no one else. They refused to sing the National Anthem because according to them it was against their religious faith. But the children showed respect to the national anthem by standing up silently when it was sung and never showed any disrespect. Therefore it was held that the action of the school authorities in punishing the students amounted to the violation of Article 19(1) (a).

vii) The right to criticize public affairs includes the right to criticize the Government, including its defense policy and conduct of Armed Forces. In a free country, public discussion is not only a matter of right but also a political duty as the greatest threat to freedom is an inactive nation of people. Free political discussion is essential for the proper functioning of a democratic government. It was held by the Supreme Court in the case of Brij Bhushan vs. the State of Delhi(1950) that-

“Everyone in the land should be free to think their own thoughts, to have his own opinions and to give voice to them, in public or private, so long as he does not speak ill of his neighbour and free also to criticize the Government or any party or group of people, so long as he does not invite anyone to violence.”

Freedom Of Press

Freedom of the Press is nowhere expressly mentioned in the Constitution. However, it is implicitly present as a right under the meaning of freedom of speech and expression as laid down under Article 12 of the Constitution.

If democracy means the Government of the people, by the people and for the people, it is necessary that every person is to be entitled to participate in the democratic process. Free debate and open discussions are not possible unless there is a free and independent press.

The freedom of the press constitutes 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 covered under Article 19(1)(a), the reason being 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 of reaching the people’s views to the masses yet it has to stick to the limitations which have been imposed upon them by the Constitution under article 19(2).

Right to privacy and the freedom of speech

The right to privacy was implicit in the right to life and personal liberty to the citizens under article 21 until its emergence as a fundamental right. Privacy means the right to be let alone.

It can be said that privacy and free expression are two sides of the same coin where each is an essential prerequisite for the enjoyment of the other. This is because, in order to freely form and express political, religious or other beliefs, an individual requires privacy and safe private space free from the interference of the state and others. Any kind of invasion of the right to privacy for example tapping of phones, electronic or physical surveillance and intrusion in the personal space directly prevent an individual from exercising his freedom of expression.

A free and open press is nothing if the journalists writing for the papers are at risk of surveillance; if the individuals who read the online news sources are being tracked and their data recorded. Any State that is serious about promoting the right to free expression must get serious about promoting the right to privacy.

Reasonable Restrictions – Article 19(2)

In every democratic country where there are fundamental rights, the rights are never granted in absolution. Every fundamental right is to be subjected to reasonable restrictions. In the Constitution of India, the restrictions on clause 1 of Article 19 are enumerated in clauses 2 to 6 of the same Article. The restrictions on article 19(1)(a) are mentioned in article 19(2). Clause 2 was amended by the First and the Sixteenth Amendment to the Constitution in 1951 and 1963 enabling the legislature to levy restrictions on freedom of speech and expression, on the following grounds:

a)Sovereignty and Integrity of India

b)Security of the State

c)Friendly Relations with the Foreign States

d)Public Order

e)Decency or Morality

f)Contempt of Court

g)Defamation

h)Incitement to an Offence.

a) Sovereignty and Integrity of India

In 1963, the 16th amendment bill also informally known as the ‘Anti-Secession Bill’ for the final time amended Article 19(2) of the Constitution and the words ‘the sovereignty and integrity of India’ were inserted in it, creating one more exception to the right to free speech. The amendment was made to guard the freedom of speech and expression from being used to attack the territorial integrity and sovereignty of the Union of India. Therefore it would not amount to an infringement if the Parliament by law restricts the right to free speech if it preaches secession of any part of India from the Union of India. In N.T Rama Rao vs. Telugu Desam(1995), it was observed that any legislation which is to be undertaken regarding 19(2) has to be comprehensive and effective enough to keep a check on any type of infringement such as burning of the Constitution or the refusal to take oath of loyalty or the raising of flags in any provoking way etc. It is essential for national integrity not only by uniting different communities but also by rooting out any kind of anti-national sentiments that are capable of causing any sort of violence.

b) Security of State

The term “Security of State” means the safety of a country against spying, theft or other danger. In the Constitution of India, the 7th Schedule contains the entries regarding Security of State in the Union List (List I Entry 9) and the Concurrent List (List III Entry 3) respectively. The term has a very wide meaning and it covers security of the economy as well. The term refers to a very grave and serious form of public disorder which is not even equivalent to an ordinary law and order problem. It does not mean the mere danger to the security of India nor any kind of rebellion or upheaval threatening the security of the entire country. The speech and expressions that encourage violent crimes are related to the security of the State.  “Security of State” means the absence of serious and aggravated forms of public disorder as distinguished from ordinary breaches of public safety or public order which may not involve any danger to the State itself. Thus security of the state is endangered by crimes of violence intended to overthrow the Government. It would thus comprise of internal and external aggression both.

c) Friendly Relations With The Other States

Reasonable Restrictions may be imposed on the freedom of speech and expression in the interest of friendly relations with foreign states. It is a well-settled proposition of International law that the State is responsible for the acts committed by the persons within their jurisdiction. Keeping this principle in mind, the modern legal system has made provisions for punishment for any kind of libel made against the Heads of States. For example, in England, the law punishes anyone who makes any kind of libel that endangers the peaceful relations of the Crown with other foreign states.

d) Public Order

This ground which imposes restrictions on the freedom of speech and expression was added by the 1st Amendment to the Constitution of India in 1951. The amendment had been a necessity as the Supreme Court had refused the contention to impose restrictions on freedom of speech and expression in the interest of public order, citing it to be not a permissible ground of restraint. The term public order signifies the absence of disorder in contradiction to national outbreaks, armed rebellion, etc affecting the security of the State. Therefore in the case of The Superintendent of Central Prison vs. Ram Manohar Lohia(1960), Section 3 of the U.P. Special Powers Act, 1932 was held invalid and was struck down. This was because this section punished a person, even if he provoked a single person not to pay or defer the payment of government and also because there was no direct link found between the speech and public order. Justice Subba Rao of the Supreme Court observed that:

“We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may, in the long run, ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations.”

Also Section 123(3-A), of the Representation of People’s Act, 1951 which declares that any attempts to promote feeling of enmity or hatred between different classes of citizens on the ground of religion, race, caste, etc. are deemed to be unfair practices and this has been justified on the grounds of public order.

e) Decency and Morality

This is yet another ground which restricts the freedom of speech and expression. Decency means the same as lack of obscenity. Obscenity or indecency is mentioned under section 292 – 296 of the Indian Penal Code. A well-known test, known as Hicklins Test was laid down in the famous case of R vs. Hicklin which stated that “whether the tendency of the matter charged as obscene tends to deprave and corrupt the minds which are open to such immoral influences”. The Supreme Court in the famous case of Ranjit.D.Udeshi vs. the State of Maharashtra(1964) applied the Hicklins test to determine obscenity since it does not offend Article 19(1) (a) of the Constitution.

f) Contempt of Court

The term Contempt of Court is defined in Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to both civil as well as criminal contempt. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice. The power of Courts to punish for contempt of its own is prescribed in articles 129 and 215 of the Constitution which gives powers to the Supreme Court and the High Courts to punish for the Contempt of its own. This has been now settled in the case of Justice C.S. Karnan vs The Honourable Supreme Court Of India(2017) where a seven-judge bench  unanimously held that even a judge can be punished for contempt of the Court especially for raising any kind of allegation against the judges of the Constitutional Courts i.e. the High Courts and the Supreme Court.

g) Defamation

Reasonable Restrictions may also be imposed on the ground of defamation. Defamation basically refers to the tarnishing or injuring the reputation of a person. A matter which is defamatory in nature exposes the affected person to hatred, ridicule or contempt or causes him to be avoided. Such matter can be either in libel (writing, printing or some other permanent medium) or slander (words spoken or imitated by gestures). The law of defamation is contained in section 499 (Definition) and 500 (Punishment up to 2 years in jail) of the Indian Penal Code, 1860. Interestingly several petitions have been filed in the Supreme Court challenging the constitutional validity of sections 499 and 500 of IPC. The petitions contend that both the sections went beyond the restrictions enshrined in Article 19 (2) of the Indian Constitution and thus constrict the freedom of speech beyond the reasonable limits. Also out of all reasonable restrictions, only defamation protects a private individual interest and all others are public interests, therefore, are extremely misused by the politicians and corporations to silence the media, activists, and criticisms. Law Commission of India has also acknowledged that criminal defamation laws violated international norms and the penalty of two-year jail term is clearly disproportionate.

h) Incitement to an Offence

This ground too was added by the First Amendment to the Constitution in 1951. Freedom of speech does not confer the license to cause incitement to commit offences. The law of sedition covered under section 124A of the Indian Penal Code is a good example of this.

The Misuse of article 19(1)(a) and the current scenario

Nowadays, Free speech has now been in the form of curtailment against the right to speak against what is wrong. As the saying rightly goes – Free speech is a guaranteed right but nowadays the citizens take the full liberty to give out information that is false. A country like India where the necessity of free speech is to bring in change for the good is now seeing the change in the wrong sense. For example, the recent statement of Sr. Adv. Dushyant Dave regarding the opaqueness of the collegium and the transfer of Justice Jayant Patel had led to the issue of contempt proceedings against him. Free speech is a necessity to introduce changes and alter the wrong actions or activities committed by the government. But whenever a wrong is pointed out, it is taken as an insult or defamatory matter or the like. Distribution of wrong information also forms a part of the problem. Looking at the recent situations, it is necessary that a limitation is necessary on the distribution of such wrong and incorrect statements that ultimately influence those people who are illiterate.

The reasonable restrictions imposed on the fundamental rights are meant to control the use of free speech. However, nowadays there are attempts to violate such restrictions in the form of hate speeches which can be spread by masses or by social media. The spreading of hate speeches against a particular community or caste or religion can have very bad consequences in the future.

The media too is now very much inclined towards the spreading of false news and wrong information to the masses. This goes against the very ethics of the freedom of the press which has been guaranteed to us by the Constitution makers. Sometimes even the media goes to the extent of defaming a person without proper proof as seen in numerous cases. The grant of free speech as a right guarantees the right to people to speak matter about which they have no information about or no knowledge about. If truth is let out, it is denied and then silenced after a pretty long gap. The current situation of free speech in India is deteriorating as people are more inclined towards accepting what is wrong and is against what is actually right. Paid news is a very good example of this. It is important that such methods be curbed and laws passed be made stringent so that people do not get to misuse this right without substantive proof.

Conclusion

It has been rightly observed by the Hon’ble Supreme Court of India in the case of Romesh Thappar vs The State Of Madras (1950) that the freedom of speech and expression lay at the foundation of all democratic organizations. Therefore freedom of speech is of paramount importance in a democracy. Hence it is concluded here that the freedom of speech in India has been a boon granted to us by the Constituent Assembly. However, in the current scenario, the boon which had been granted to us is used in such a way that it imposes a hindrance in the life of the citizens. The use of social media and other websites for the purpose of sending messages to the citizens must be under scrutiny as there could be a possibility of the freedom of speech being used for dangerous purposes. The very essence of a democratic nation lies in public discussions and debates which can help the government and authorities mend its way of functioning so that the citizens can have the feeling that the State is indeed a welfare state and is working for the welfare of its citizens. Therefore a careful and knowledgeable use of the freedom to speak and disseminate correct information will help create a better society and the dream of a Welfare State will be realized.