Freedom of Speech and Expression (Semester II Unit I)

Introduction

Article 19(1)(a) of the Indian constitution says that all citizens shall have the right to freedom of speech and expression, making it one of the most valuable fundamental rights conferred to Indian citizens. The right guarantees liberty to express one’s opinion, views and beliefs. One can exercise this right, and express using verbal speech, writing, printing, pictures, different art forms and other possible ways. Every right has certain responsibilities attached to it, and thus it is important to make the right subject to reasonable restrictions to protect the right from its misuse. As it is said, absolute power corrupts absolutely, so will absolute freedom make a jungle law prevail.

For this purpose, article 19(2) imposes restriction which says that Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The constitution holds authority which declares the right to freedom of speech and expression as ‘not absolute’, and subject to reasonable restrictions. It also provides with provisions to punish those who misuse the right to freedom of speech and expression.

 Importance of right to freedom of speech and expression 

Right to freedom of speech and expression is one of those rights which:-

1. form the basis of any democracy,
2. it encourages free will of people, to think in a way they wish to,
3. helps to have a different opinion and be able express it.
4. allows to have a healthy criticism of the governmental policies, and
5. brings about liberty of thoughts and tolerance in society.
6. it is an indispensable right in a democracy, as it allows people to be able to participate in different political, social, and economic affairs   of the country.

The freedom of press derives its roots from Article 19 (1) (a) and its maintenance is the primary duty of the Court. It forms the very basis  of the independence and liberty of the fourth pillar  of democracy, i.e. press (or media). It gives the right to critically analyze the government and help in shaping public opinion.

Besides, Article 19(1) (a) grants enough liberty to an individual to express his opinions on the social, economic and political affairs, to propagate one’s own view and ideology, and for the free flow of ideas, beliefs, and thoughts and strengthens the community. Most of all, it provides us with the freedom to criticise the government, it’s policies and challenge them.

FREE SPEECH AS A CORNERSTONE OF DEMOCRACY

In Romesh Thappar v. State of Madras AIR 1950, Patanjali Shastri CJ observed, “Freedom of speech and that of press lay at the foundation of all democratic organizations, for without free public education, so essential for the proper functioning of the process of popular Government, is possible.” In this case, the notification banning the entry into or circulation sale or distribution in the state of madras, or any part of it the newspaper named crossroads, published at Bombay was held invalid. For the sake of state security, the imposition of reasonable restrictions on free speech is permissible. The Apex court observed that there are multiple levels of ‘public order’ offenses. Every public disturbance cannot be considered a danger to the state’s security. Only noteworthy and aggravated forms of public disturbances, such as rebellion, waging war against the state, and insurrection, are referred to as ‘security of the state,’ and it does not include the ordinary violations of public order and public safety, such as illegal assembly, riot, and affray. As a result, individual comments or expressions that instigates or promotes the performance of serious criminal acts, such as rape or murder, are concerns that would jeopardize the state’s security.

In the case of K.A. Abbas v Union of India AIR 1970 where the filmmaker was not given the  ‘U’ certificate for his film which showed the ‘tale of four cities’ in a form of documentary film, ahead of some ‘obscene’ scenes in the film. The court granted the certificate and said that sex is not always obscene and it depends on at what basis it is shown. Deciding on where the constitutionality of the Cinematograph Act was challenged, and the Supreme Court held that Cinema is different from other media and has a different impact on people and thus legitimized the censorship on cinema.

In Brij Bhushan v State of Delhi AIR 1950 , an order issued under section 7(1) of the East Punjab safety Act, 1950, directing the editor and publisher of a newspaper to submit for scrutiny in duplicate before publication till further order all communal matters and news and views about Pakistan including photographs and cartoons. This order was struck down by the Supreme Court as unconstitutional. The SC observed that there can be little doubt that the imposition of pre censorship on a journal is a restriction on the liberty of the press which is an essential part of the freedom of speech and expression declared by Art. 19(1) (a).

In the recent case of Re Prashant Bhushan and Anr. ,  a suo motto contempt cognizance case by SC of 2020 where a SC Advocate Prashant Bhushan was charged with Criminal Contempt of Court by the apex court itself. The said advocate had posted two tweets on twitter, one of which commented on photo of CJI S A Bobde riding a fancy bike, and another which was a comment on the role of four former CJIs in the last 6 years. While there were other issues related to the case, one of them was whether the defence of right under article 19(1)(a) could be taken or not. The Supreme Court deciding on the matter on 31th August 2020, in its judgment observed  “No doubt, one is free to form an opinion and make fair criticism but if such an opinion is scandalous and malicious, the public expression of the same would also be at the risk of the contempt jurisdiction.”

In another case Arnab Ranjan Goswami v. Union of India and Ors., where the petitioner, who is a famous TV journalist filed a writ petition, u/art 32 of the constitution, in the SC, against number of FIRs registered against him, which was infringement of his fundamental right to freedom of speech and expression and that of liberty of press conferred under article 19(1)(a) of the constitution. The FIRs were registered after the journalist questioned the silence of Congress party’s president Mrs. Sonia Gandhi over the lynching of two sages in Palghar in his debate show. The SC, in its judgment, while deciding the matter in favour of the petitioner observed that, “The exercise of journalistic freedom lies   at the core of speech and expression protected by Article 19(1)(a). The petitioner is a media journalist. The airing of views on television shows which he hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a).”

Scope of Freedom of speech and expression :

Press: Freedom of press under Art. 19(1)(a) does not expressly mention about the freedom of speech and expression of press. Under freedom of press, a person need not take permission before publishing or bringing something to public domain, but it shall be liable for the consequences that will ensue under law, just like any ordinary citizen. All these platforms will be treated as press including print and television broadcasting. Liberty of press implicit in the freedom of speech and expression stands on no higher putting than the freedom of speech and expression of citizen and no privilege is attached to the press as such as distinct from the ordinary citizen. So, the press is also subject to general law of the land and is liable for the consequences of their acts like the ordinary citizen.

Cinema: The scope of right to freedom of speech and expression has been expanded to include a filmmaker’s right to express their thoughts and ideas using the medium of cinema. However, the filmmaker’s expression through their film subjects to restrictions if the film poses a threat to sovereignty and security of the country, national peace, etc. Ahead of this, the Cinematograph Act, 1952, and Cinematograph (Certification) Rules, 1983, prescribe the parameters and process for censorship of films and grant of certification in respect of films declared to be fit for public exhibition.

In yet another case of S. Rangarajan v P. Jagjivan Ram 1989 (2) SCC 574,  where the film was granted ‘U’ certificate after deletion of some scenes, but the High Court had abrogated the said certificate for it would harm the social harmony ahead of some controversial scenes in the movie. Deciding on the matter, Hon’ble Supreme Court set aside the HC judgment and held that it was the duty of the state to protect the freedom of speech and expression since it is the right granted against the state.

Demonstrations: Demonstrations usually involve three Fundamental Rights – freedom of speech, freedom of assembly, and freedom of movement. Demonstrations can be regarded as forms of freedom of speech and expression. They are non-violent acts of persuasion. The rights to make peaceful demonstration or taking out a procession or holding out banners or arranging Public meeting, etc are democratic rights which the Constitution of India has recognized, with reasonable restrictions.

In the case of Re: Venegan Case AIR 1952 Mad 52, where the petitioner went to a shop with black cards and flags and shouted and asked people to not purchase anything from that shop, because apparently, it was owned by a ‘north Indian’. The Court held that the act of the petitioner was out of the ambit of the Art. 19(1)(a) because of the reasonable restrictions because he was infringing the shopkeeper’s right to do his business.

In another case of Kameshwar Prasad v State of Bihar, AIR 1962 SC 1166 where the government of Bihar ruled the prohibition of all the government employees to participate in the demonstrations of any type. The Supreme Court held that a government job cannot take away the fundamental right to freedom of speech and expression, which includes right to initiate or participate in demonstrations.

What are reasonable restrictions  illustrated with some recent cases related with grounds for restrictions on speech and expression.

As issues of misuse of these rights have arisen from the bestowal of such enormous freedom, the Constitution allows imposition of reasonable restrictions on the right to freedom of speech and expression, by the State “in the interest of” or “in relation to” the public at large. This includes no such use of any words that challenge and intend to disturb the sovereignty and integrity of the country and poses any threat to the security and safety of the state and people, both from external and internal forces. In addition to that no person can make use of words which intend to defame and abuse some other person, and it is required to maintain a certain level of decency and morality while expressing oneself with any means of expression. Moreover, Freedom of speech and expression cannot act as a permit or license to incite an offence i.e. any act or omission that is made punishable by law. Also, freedom of speech cannot be admitted as a defence to contempt of court and any such use of words which do, or intend to do, to scandalize the authority and dignity of the Judiciary, are restricted under article 19(2) of the Indian constitution.

“Sovereignty and integrity of India”- The Constitution (Sixteenth Amendment) Act, 1963 added India’s sovereignty and integrity to clause (2) of Article 19. Freedom of speech can be limited so that no one can question India’s integrity or sovereignty, or promote the secession of any section of the country from the Union. It’s worth noting that sedition is a legal basis for restricting freedom of speech and expression, yet it’s not addressed in clause (2). It was ruled in Debi Soron v. State of Bihar 1953 that Sections 124A and 153A of the IPC impose legitimate restrictions for the sake of public order and are preserved by Article 19(2) of the Constitution.

“Friendly relations with foreign states”- In 1951, the Constitution (First Amendment) Act inserted this clause. The purpose of this article is to curb unrestricted hostile propaganda which is not in favor of a foreign friendly state that might jeopardize India’s fine ties with it. It is important to highlight that member nations of the Commonwealth, including Pakistan, are not considered “foreign states” under this constitution. As a result, restrictions on freedom of speech and expression cannot be imposed on the basis that the issue is harmful to Pakistan.

“Public order”- Public order is an expansive expression that mentions the condition of calm that persists among affiliates of political society. Consequent to internal restrictions imposed by the government that this state of tranquility has formed. The phrase ‘public order’ was absent from Article 19(2). It was decided that only the grounds stated in that article may be used to impose limits. The term ‘public order’ was introduced in Article 19(2) as one of the legitimate criteria for restricting free speech as a result of this ruling. Public order is disturbed by anything that upsets public serenity or harmony⁴⁴. Thus, community disturbances and strikes organized solely for the purpose of generating dissatisfaction among workersare violations of public order. Public order is not always disrupted by simple criticism of the government. The Union Government would be able to ban the propaganda being spread by a country that is at war with India under ‘public order.’

“Morality or decency”- The terms “morality” and “decency” have a wide range of meanings. In the sake of decency and morality, Sections 292-294 of the Indian Penal Code offer examples of limits on freedom of speech and expression. Obscenity is described as “against modesty or decency; vulgar, dirty, and disgusting” in India. It said that the “test of obscenity” is whether a publication, when examined in its entirety, has the ability to debase and morally corrupt those whose brains are vulnerable to such immoral consequences, and that each piece must be evaluated independently.

“Contempt of court”- If a certain expression guised under freedom of speech goes beyond a logical and rational extent of free speech and is tantamount to contempt of court, it may be curbed. The term “contempt of court” is defined as follows under the Contempt of Courts Act of 1971: ‘Contempt of court’ might be either ‘civil contempt’ or ‘criminal contempt,’ as per Section 2 of the said Act. Deliberate disobedience to any judge’s decree, judgment, order, directive, writ, or some other process adopted, or deliberate breach of any direction provided to a court, is referred to as “civil contempt.” ‘Criminal contempt’ refers to the dissemination of any matter or the performance of any other conduct, whether by words spoken or written, signs or visible representations, or otherwise. It includes any act that:

1. Lowers or tries to lower the authority of any Court,
2. Prejudices, impedes or tends to hamper the due process of justice administration; or
3. Impedes or obstructs or tends to hamper the administration of justice in any other way. Honest publication and dissemination of any matter; publication of a full and impartial report of court proceedings; legitimate criticism of judicial act; grievance against presiding judicial officers formed in good faith; publication of reasonable information relating to court hearings in camera or in chambers are not considered acts of contempt of court.

“Defamation”- Defamation is defined as a remark that damages a person’s reputation. Exposing a guy to hatred, mockery, or contempt is what it is all about. The criminal legislation governing defamation in India is found in Section 499 of the Indian Penal Code (IPC). It does not distinguish between defamatory statements directed at the ears or eyes, or between slander and libel. These portions have been kept as legitimate limitations on freedom of expression⁴⁹.

“Incitement to an offence”- In 1952, the Constitution (First Amendment) Act was made to include this ground as well. The right to free speech doesn’t imply the right to urge people to indulge in criminal activity. The constitutional term ‘offence’ is not defined. As per the General Clauses Act, an “offence” is “any act or omission made penal by any legislation in force at the time.” The Court must evaluate whether or not there was incitement based on the evidence and context of each instance.

Conclusion

The Constitution of India assures several fundamental rights to a citizen of India. One of these rights conferred is right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. Right to freedom of speech and expression enables a person to express his opinions freely with certain reasonable restrictions. It is one of those rights which are indispensable in a democracy and is guaranteed to all the citizens of India under Article 19(1)(a) of the Indian Constitution. It enshrines the principle of ‘liberty of thought and expression’ given in the Preamble. The right to freedom of Speech and Expression gives the Indian Citizens the right to express their opinions and beliefs without any fear, by modes of words, written or spoken, pictures, or any other communicable or visual representation like gestures or signs. It also includes the liberty to propagate one’s own views as well as the right to  publish  the  views  of  other people. However, the right to speech and expression is not an absolute right and reasonable restrictions may be imposed by the State under Article 19(2) of the Constitution. Where Indian citizens have right to freedom of press, cinema, hold demonstrations and perform activities so as to express themselves, all these are subject to restrictions based upon sovereignty and integrity of the country, security and safety of people, defamation and abuse, decency and morality, perform contempt of court.

Justice K.K. Mathew has observed , in a case, as free speech about civic matters is an obligatory outcome of the constitutional provisions creating and it is critical to the functioning of our intricate system of democracy. The right to free expression is a crucial and indispensable component of a nation having adopted democracy. The majority of people believe that democracy is simply about a vote-based election system, but that is not the case, though. Democracy entails far more than just voting. Citizens have a right to participate in the country’s functioning even after elections and after administrations are created. Citizens are allowed to express their opinions about the democratic processes well after the elections as well. It does not only mean that a citizen can express his views only in an eloquent, logical, or courteous manner. It can very well include discourteous, insulting, illogical, and even puzzling expressions. This has therefore required the constitution to put reasonable restrictions on this right so that it can be regulated by the state in proper manner.

A strong democracy and a healthy society have long valued the right to freedom of speech and expression. For a democratic polity, it has been regarded to be fundamental and indivisible. It is democracy’s fourth pillar. Democracy refers to a governmental system that is of, run by, and is for the people. As a result, democracy lies in the hands of the general public, and the right to free and open expression is critical to the state’s healthy functioning. The right to free speech is a tool that allows humans to live in dignity rather than as mere animals. It has been said that without access to free and unfettered speech and expression, democracy is meaningless. There is also a need to preserve balance since some individuals are corrupted and do not exercise their privileges properly. The First Amendment safeguards for free and unhindered speech and expression in the United States are closely linked to democracy. Free speech is a fundamental natural civil right assured by the European Convention on Human Rights. It is said to be the core principle and a crucial element of democracy since it allows individuals to express themselves fearlessly.