This article has been written by Yashdeep Lakra, from the University School of Law and Legal Studies, GGSIP University, New Delhi. 

Introduction 

History is brimming with legions of inspiring positive social changes steered by people’s movements, for they function as the ‘wheels in the running of a democratic nation. The very essence of a democracy is the right to dissent, disagree in order to facilitate its growth in a holistic manner. In the wise words of our father of the nation, Mahatma Gandhi said “Freedom of speech and civil liberty are the very roots of swaraj. Without these, the foundations of swaraj will remain weak.”

Importance of Right to Freedom of Speech and Expression

A society wherein the free flow of opinions, the medium of dialogue is curbed turns into a redundant society. The role of the Fundamental Right of Freedom of Speech and Expression in shaping public opinion is hidden to none and this moulding of opinion serves as a channel for the populace to perceive the incidents around them. In the time that we witness, this ‘unprecedented role‘ of the free flow of thoughts and opinions in verbal, written and electronic forms has risen to a stance where it becomes ostensible in one way or another. The right to free speech empowers the masses as it is a function of multicultural democracies, a tool for the advancement of democratic principles. 

Juggling between various avenues, a common man as a result of the futility of state institutions, views the freedom of speech as a beacon of hope for the attainment of self-fulfilment, a tool for strengthening his capability to participate in decision-making, and as an inherent non-derogable fundamental right vested in him. 

The very foundation of democracies is based on the will of the people. This democratic apparatus entitles its citizens to call on the authorities in a peaceful manner and mobilize the masses to act as natural channels in upholding this democratic edifice. The dialogue takes place in various milieus and is tremendously driven by sundries of social, political, moral, environmental and religious elements, to name a few. The right to speech needs to be reckoned as an emblem of individual and collective freedom. It is indispensable to the exercise of personal liberty and forms the bottom line of democracy. 

The Backdrop 

The Freedom of Speech and Expression is an indispensable natural endowment forming the very essence of a democratic structure. We often hear the popular adage, “Rome was not built in a day”, and laying down the foundational stone for the largest Constitution in the world was a chivalrous act effectuated by the members of our constituent assembly who were heedful of all the forthcoming challenges. This intrinsic freedom of speech and expression was the end product of their incessant efforts and tenacity. In simple words, it denotes the liberty to say what one feels like and is considered as the first condition of liberty. 

The nation fought for its independence from colonial rule through the anti-colonial struggle, dialogue and discourse forming the core of the freedom struggle. The Constitution gives equal rights to all and no one is above it. The same Constitution gives the right to freedom of speech and expression to the people for registering their discontent. 

These provisions were inspired by the success of dharnas and various movements by Gandhiji with the help of his most important tools, non-violence and truth. He inspired millions to register their dissent against laws that were prima facie unjust, palpably unfair and discriminatory. The right to freedom of speech grants power of not just registering dissent but criticising the authorities in a constructive manner. This exchange of ideas and popular sentiments enable the authorities to understand the needs of society, notice their problems and secure the inclusion of the sidelined ones into the mainstream.

Hence, the right to dissent and disagree is embedded in our historical ethos, forming the conscience of our constitutional values. When we talk about freedom of speech and expression and the innate grandeur of this right, it becomes all the more imperative on the part of the government and the courts of law to ameliorate the situations where subversives endanger the exercise of this unchained freedom. 

Indian Constitution and the Right to Freedom of Speech and Expression

The right to freedom of speech and expression as enshrined under Article 19(1)(a) of the Indian Constitution. 

The role of the Hon’ble Supreme Court in shining a guiding light on the various aspects involved must not go unnoticed. The Supreme Court in the year 1992 reckoned the wide connotation accorded to freedom of speech and expression and observed in the following in the case of Life Insurance Corpn. Of India And vs Prof. Manubhai D. Shah:

“Freedom of speech and expression must be broadly construed to include the freedom to circulate one’s views by word of mouth, or in writing, or through audio visual media. This includes the right to propagate one’s views through the print or other media. Freedom to air one’s view is the lifeline of any democratic institution and any attempt to stifle, or suffocate, or gag this right would sound a death knell to democracy and would held usher in autocracy or dictatorship.”   

This judgment in a way set the ball rolling for the modern-world developments in the arena of free speech and expression and such an unequivocal interpretation opened before us a sky of vast possibilities for the evolution of this principle. 

Prior to this landmark judgment, the pioneer in the development of this freedom was the observation of the highest court of the land in the same year of adoption of our constitution. M. Patanjali Sastri, J., in the case of Romesh Thappar v. The State of Madras rightly emphasized upon its significance:

“Freedom of Speech and of the Press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”

In a series of cases, which includes the case of Indian Express Newspapers vs Union Of India & Ors., the Hon’ble Supreme Court articulated its views. The summation speaks of the fundamental principle of people’s right to know at the bottom line of freedom of speech and expression. It held, “Freedom of speech and expression should therefore receive generous  support from all those who believe in the participation of people in the administration.”

In the recent case of Harper Collins Publishers PVT Ltd. v. Sanchita Gupta @ Shilpi and ors. dated 22 September, the Delhi High Court dealt with an ex parte injunction passed against a book on Asaram Bapu and the co-accused. The court acknowledged the importance of the rights of individuals to reputation, but it also noted that this objection takes a backseat when the established facts give rise to a fair discussion. If the speech is not ex facie defamatory and the courts don’t smell any malice, no checks can be imposed on such flow of opinions. 

A similar view was taken by the Hon’ble Supreme Court in State of Uttar Pradesh v. Raj Narain and later in P.V. Narasimha Rao v. State (Cbi/Spe) wherein the apex court once again reiterated the significance of the right to know in a democracy. The court interpreted art. Article 19(1)(a) and left no room for doubt that it shouldn’t be narrowly read and instead a wider connotation shall be accorded encompassing the right to know and receive information pertaining to matters of public concern. 

Facilitating holistic growth

Dialogue is at the bottom line of every democracy, with the people acting as watchdogs and making their elected representatives answerable for their acts, serving as a feedback mechanism to the government and eventually contributing towards the refining of governmental policies. 

This also enables us to become the author of our own lives, and script our own stories. It rescues us from the shackles of dullness and provides us with an ‘oasis of serenity’ by lifting the levels of imagination. The driving force behind this mechanism is the freedom of speech and expression, as nobody is above the constitution and this very constitution vests in the populace a non-derogable right to question the ones in power in an amiable and constructive manner. To acquiesce with everything the ruling elite speaks leads to the travesty of this freedom. 

Statutes and case law

The Universal Declaration of Human Rights provides for the protection of the Right to freedom of speech under Article 19, which states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The International Covenant on Civil and Political Rights (ICCPR) also states, “Everyone shall have the right to hold opinions without interference. 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.”

The Andhra Pradesh High Court in M. Hasan & Anr. v. Government of Andhra Pradesh delved into the  importance of freedom of speech and expression within a democracy and held: 

“In democracy it is not necessary that everyone should sing the same song. Everyone has a fundamental right to form his own opinion on any issue of general concern. He The democracy is a Government by the people via open discussion. The democratic form of Government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people participation is a basic feature of democracy and a rational process of democracy which distinguishes it from all other forms of Government. Democracy can neither work nor prosper unless people go out to share their views. The truth is that public discussion on issues relating to administration has positive value.”

These words give an excellent account of the candor and honest perspective of the judiciary in championing the growth of this freedom as any development in the legislative domain gets subdued in absence of a judicial arm fortifying it. 

Reasonable restrictions

However, at the same time, the courts shall not inadvertently, unbeknown to the facts, connive with the perpetrators which would bring shame to the established principles of justice. Adherence to the limitations laid down in the exercise of the right to free speech and expression is an essential duty on the part of each and every individual. In case of any sort of dereliction to this duty, the state, by the authority of the constitution is empowered to impose ‘reasonable restrictions’ when the enjoyment of his right by a person imperils the interests of the community at large. 

Famed English Philosopher JS Mill in his book ‘On Liberty’ suggested that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

The recent wave of protests stemming out of the Citizenship Amendment Act, 2019 has reignited the debate over the extent of this freedom, and the checks which the state is authorized to impose. Indians marched holding the national flag in one hand and copies of the Constitution in the other. They assembled against the background of the national flag and representations of Bhagat Singh, Gandhi and Ambedkar.

They sang the national anthem, read out the Preamble of the Constitution that promises liberty, equality, justice and fraternity. They transformed the Constitution into a public, accessible, and democratic document. Our constitution confers on every citizen of this free country personal liberties and as no liberty can be left unbridled, none is allowed to exercise absolute powers and the same applies to the freedom of speech and expression. Hence, equilibrium needs to be established. 

Conclusion

In a democratic society, even the state cannot curb different voices for very long. People have well analysed the right to speech and understood the need for this freedom. There is no doubt that although it is the most powerful weapon to save one’s dignity, if the public goes for ‘an eye for an eye’ in the name of freedom of speech and expression, then its purpose is defeated. So owing to recent times, the public has to understand the better mode to use the right to freely express themselves and at the same time, the administration needs to understand that it can no longer ignore the voice of the masses. Otherwise, the public can be equally dangerous if its patience is tested for a long period of time. Power holders have to understand that the public is aware, hence rather than acting as rulers they have to fulfil their duty as public servants. This peaceful way will always lead to success. 

We’re now in the seventies of our republic, and the inalienable right to freedom of speech and expression which is the ‘mother of all rights’, is undergoing a gradual erosion. This mauling of the most precious freedom is a looming threat on the very existence of mankind. 

To put in the words of Benjamin Franklin, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Preserving the long-cherished freedom of speech and expression from cynics is the most important battle to fight for all countrymen, a freedom struggle for the present and future India. 

From this standpoint,  it would not be wrong to say that the democratic maturity of a state may be perceived via the extent upto which the state facilitates or curbs this freedom. A state levying unjust restraints on the dissemination of thoughts, opinions and varying point of views in a grotesque mockery of fundamental values evinces itself of being an authoritarian state.

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