Author- Ganesh Arora
Meaning & Scope
Speech is God’s gift to mankind. Through speech, a human being communicates his thoughts and feeling to others. Freedom of speech and expression is thus a natural right, which a human acquires at birth. It is one of the most desired fundamental rights in the world. It is comprehended as a human right under Article 19 of the Universal Declaration of Human Rights (UDHR) and also in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). As stated in Article19 of UDHR, “Everyone has the right to freedom of speech and expression; this right contains freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The version of Article 19 in the ICCPR later modifies this by noting that the exercise of these freedoms carries “special duties and responsibilities” and may “therefore be subject to some restrictions” when essential “for concern of the rights or reputation of others” or “for the protection of national security, public order, public health, and morals”.
Freedom of speech and expression, therefore, may not be perceived as being absolute, and common constraints to freedom of speech are obscenity, defamation, sedition, incitement, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, public security, and perjury. Explanations for these restrictions is the harm principle, proposed by John Stuart Mill in On Liberty, which signifies that “the only objective for which authority can be rightfully exercised over any member of a civilized community, against his will, is to avoid harm to others.”
Freedom of speech & expression in India
In India, the freedom of speech and expression is protected under Article 19(1) (a) of the Indian Constitution and is a part of the basic fundamental rights. It is available only to citizens and not foreign nationals. In case of infringement of article 19 (1) (a), any person may approach the Supreme court under article 32 and the high court under article 226. Public Interest Litigation can also be filed directly to the Supreme Court or the High Court. Free propagation of ideas is the crucial purpose and this may be done on the platform or through the press. Freedom of speech includes freedom of the Press. It contains the liberty to propagate not one’s beliefs only. It also includes the right to propagate the beliefs of other people. It is subjected to reasonable restrictions imposed under Article 19(2).
“Freedom is to the Press what oxygen is to the human; it is the crucial condition of its survival. To talk of a democracy without a free press is a contradiction in terms. It is not an optional extra in a democracy,” said renowned Indian jurist Nani Palkhivala while addressing the Newspaper Society. Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124), was amongst the initial cases to be determined by the Supreme Court proclaiming the freedom of the press as a component of freedom of speech and expression. In Indian Express v. Union of India,(1985) 1 SCC 641 supreme court held that the press plays a vital role in a democracy. In a democratic economy, the free flow of commercial information is necessary. The concept of speech and expression has advanced with the advancement of technology and incorporates all means of expression and communication. This would include the electronic and broadcast media.
In Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd., the Supreme Court said that a commercial advertisement was also a part of the freedom of speech and expression. Broadcasting is part of free speech under Article 19(1)(a) and various Supreme Court decisions like Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal. The freedom of speech and expression includes not only the right to express, publish and propagate information, its circulation but also to receive information. The Supreme Court observed thus in Union of India v. Assn. for Democratic Reforms. Open criticism of state policies and operations is not a basis for constraining expression. It is not necessary for democracy that everyone should sing the same song.
Recently, while rejecting the petition which alleged that while opposing the dilution of Article 370, Abdullah ‘misused’ his right to free speech, ensured under the Constitution, to speak against India the Supreme Court said that “Expression of opinions which are different from the viewpoint of the government cannot be termed as seditious.” The freedom of speech and expression is not limited to national boundaries. This was observed by Supreme Court in Maneka Gandhi vs Union of India where it considered whether Article 19(1)(a) of the Indian Constitution was confined to Indian territory. Right to speech and expression also includes the right to silence or the right not to speak. In the National Anthem case, the Supreme Court held that no individual can be compelled to sing the National Anthem and asserted that fundamental right under Article 19(1) (a) also comprises the freedom of silence.
However, this right to freedom of speech and expression is subject to limitations under article 19(2), whereby this freedom can be reasonably restricted. Restrictions can be put on the freedom of speech and expression, in the interest of the security of the State (Peoples Union for Civil Liberties (PUCL) v. Union of India). The term security of the state has to be differentiated from public order. The security of state refers to severe and aggravated forms of public disorder, for example, rebellion, waging war against the state [entire state or part of the state], insurrection, etc. The State can put adequate restrictions on the freedom of speech and expression if it hampers the friendly bonds of India with other States.
This was added by the Constitution (First Amendment) Act of 1951. The expression ‘public order’ connotes a sense of public peace, safety, and tranquility. This ground was also put in by the Constitution (First Amendment) Act, 1951 to confront the situation arising from the Supreme Court’s judgment in Romesh Thapar’s, case (AIR 1950 SC 124). According to the Supreme court, it is different from law and order and security of state [Kishori Mohan v. State of West Bengal]. Anything that disturbs public peace disturbs public order [Om Prakash v. Emperor, AIR 1948 Nag, 199]. But mere criticism of the government does not necessarily offend public order.
Section 292 to 294 of the Indian penal code (IPC) gives instances of limitations on the freedom of speech and expression on the grounds of decency and morality, it forbids the sale or distribution, or exhibition of obscene words. The criterion of morality changes with changing times. [Ranjit Udeshi v. State of Maharashtra (AIR 1965 SC 881)]. The constitutional right to freedom of speech would not permit a person to contempt the courts. It has been defined under Section 2 of the Contempt of Courts Act, 1971.
The term contempt of court refers to civil contempt or criminal contempt under the Act. [E.M.S. Namboodripad v. T.N. Nambiar(1970) 2 SCC 325; AIR 1970 SC 2015)]. Article 19(2) prevents an individual from making any defamatory statement. The right to free speech is not absolute. It does not imply freedom to damage another’s reputation which is protected under Article 21 of the constitution. Although the truth is considered a defense against defamation, the defense would help only if the statement was made for the public good. And that is a question of fact to be examined by the judiciary. The Constitution also prohibits a person from making any statement that provokes people to commit offenses. This was also added by the Constitution (First Amendment) Act, 1951. By the Constitution (Sixteenth Amendment) Act, 1963 sovereignty and integrity of India were also added as a reason for the restriction to forbid anyone from making remarks that challenge the integrity and sovereignty of India.
The stature of free speech since independence
Media is the fourth pillar of democracy and the most powerful platform to express ‘right to freedom of speech and expression under our Constitution. Media control by the state until few decades after independence was the primary constraint on press freedom. In 1975, Indira Gandhi famously asserted that All India Radio is “a Government organ, it is going to remain a Government organ…” A national emergency was declared on 25 June 1975, in infringement of the rights of Indians. The next day The Times of India (Mumbai edition) in its obituary column carried an entry that read “D.E.M O’Cracy beloved husband of T.Ruth, father of L.I.Bertie, brother of Faith, Hope, and Justice expired on 26 June”. In the 1990s, private control of media increased with liberalization, which led to greater independence of media and scrutiny of government. But analytically India’s press freedom, as could be inferred by the Press Freedom Index, has constantly reduced since 2002, when it culminated in terms of apparent freedom, achieving a rank of 80 among the reported countries.
India ranks 138th worldwide in press freedom index for 2018,140 in 2019 and dropped to 142 in 2020. In explaining the decline, various reports cited growing intolerance from Hindu nationalists, murders of journalists, coordinated social media hate campaigns, criminal prosecutions, and police violence to gag journalists and reporters critical of the government. The existing status of free speech in India induces a comparison with the national emergency in the 1970s. All assaults on the Constitution have been informal yet real. Without a formal amendment, the government has abolished the exercise of many rights. Contemporary India is unfortunately close to a de facto emergency. The new dispensation evaluates every protest as an “internal disturbance” and acts upon it vigorously. The strategy of the government to deter criticism by charging students, activists, and journalists under criminal and anti-terrorism laws is tangible. Its battle against free speech is often tainted with communalism.
Freedom of speech and expression is one of the pillars of the Constitution of India and certainly strengthens its democratic structure. The right of freedom of expression is significant in a democracy, information ideas help to enlighten political debate and are crucial to public accountability and transparency in government, for a democratic system to work, people have to be able to form their own opinions. A healthy democracy is maintained by informing and making aware the citizens of conflicting and differing opinions and any inroads into the freedom of speech and expression, and any rules made in the form of imposing curbs thereon would violate Article 19(1)(a) of the Constitution would sound a death knell to democracy and would help usher in autocracy or dictatorship.
Author Ganesh Arora is a first-year Law student at Amity University, Lucknow.