Freedom of Speech and Expression
The constitution of India provides fundamental rights to all Indians thus enabling them to live a life of harmony. The Article 19 of the constitution of India guarantees some rights to every citizen of the country which include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights leads to punishments as prescribed in the Indian Penal Code or other special laws, which is of course subject to discretion of the judiciary.
In this article we will specifically focus on Freedom of Speech and Expression. This is arguably the most desired freedom any individual requires. To be able to express oneself without any inhibition or fear is necessary for the citizens of any country to lead a peaceful and prosperous life. This freedom in a way is one of the pillars on which our constitution is based – the ability to express dissent on Government policies and also to be able to scrutinize and point out the short comings. This is at the macro level and being able express ones opinion regarding other issues is also important for any individual to feel empowered.
During the fight for Independence almost all the founding father had witnessed and had themselves experienced how the British regime stifled freedom of speech and expression to prolong their stay in the country and hence there was never any doubt whether the Constitution should explicitly protect free speech. They unanimously believed that the constitution must guarantee fundamental rights including the freedom of speech and expression. However, there was diverging opinion on whether to include specific grounds that would enable the government to curtail or restrict these freedoms. Some of the members argued that including these grounds would significantly affect or even negate the general content of these freedoms. Others, however, favored including them because they rightly feared that absolute freedom would be dangerous given India’s enormous poverty, illiteracy, and economic problems.
The Freedom of Speech and Expression is not absolute. There are a Eight restrictions to it which are given below –
These eight restrictions were:
- Security of the state – All the expressions intended to endanger the security of the State by crimes intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State. It does not refer to the ordinary breaches of public order which do not involve any danger to the State.
- Friendly relations with foreign states – This clause was added by the Constitution (First Amendment) Act of 1951. It can impose restrictions if a particular expression is being used to jeopardize the friendly relations with a foreign state.
- Public Order – It means sense of public peace and stability. It was also added by first amendment to the constitution. Restriction can be imposed if an expression in some way puts public order in turmoil.
- Decency or morality – The word “decency” in Article 19(2) is often run together with “morality”, forming the compendious term, “decency or morality“. Since judicial discussion tends to focus on the meaning of “morality”, the word “decency” tends to get subsumed within the meaning of “morality”.
- Contempt of Court– One cannot use the freedom of speech for contempt of courts. But it does not provide the judges any general immunity from criticism of their judicial conduct, given that it is genuine criticism, and not an attempt to impair the administration of justice.
- Defamation – An act to tarnish the reputation of any other person by someone is a criminal offence and is punishable under Indian Penal Code.
- Incitement to offence – Any statements which incite the other to commit an offence is also restricted. This clause was also added by the Constitution (First Amendment) Act of 1951.
- Sovereignty and integrity of India – Any statement which endangers the sovereignty and integrity of the state is also restricted.
These 8 restrictions were included in their current form in the constitution First Amendment Bill 1951, this was necessitated by Romesh Thapar v. State of Madras (1950). In this case the circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The Supreme Court held in this case that, unless a law restricting the freedom of speech and expression were directed solely against the undermining of the security of the state or its overthrow, the law could not be held a reasonable restriction though it sought to impose a restraint for the maintenance of public order. The then Chief Justice of India, Patanjali Shastri observed: “ Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”
The freedom of press is included in freedom of speech and expression in Article 19 of the UDHR. The Article 19 says: “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 eight restrictionsin many cases have been used unfairly. Even though we have the freedom of speech and expression there are many cases in our history which suggest the freedom of speech and expression still needs to be given a proper structure. India ranks 140th out of 179 countries in the Reporters Without Borders Press Freedom Index which reflects poorly on our country.
Recently there has been a lot of debate about intolerance in our country and many artists – writers, film actors etc. – are returning their awards in protest of the growing incidents of harassment of artists in various parts of the countries. It is very important that the writers, film actors and other artists such as painters and poets have the freedom to express their thoughts but within the limits of decency as there is a difference between an expression of disagreement or criticism and downright defamation.