FREEDOM OF SPEECH AND EXPRESSION IN INDIA
“I disapprove of what you say, but I will defend to the death your right to say it”[1].
Voltaire’s observation throws light upon the indispensable right of individuals to exercise the fundamental freedom of speech and expression. The ability of an individual to have self-esteem and development relies on their ability to express their views and opinions. Whenever such opportunity is forbidden, humans, being social animals, can neither flourish themselves nor accomplish their innate potential. The examples of slavery and authoritarian regimes better illustrated this dilemma. In the contemporary world, where the new liberal ideologies function as the centrifugal force, individualism and more specifically the freedom of speech and expression cannot be alienated from citizens. This necessitated governments to recognize the right to freedom of speech and expression as fundamental or the inalienable right of citizens. The preamble of the Constitution also reflects upon the solemn right of Indian citizens to enjoy the freedom of thought and expression.
At the international level, the right to free speech and expression is a universal right. United Nations has recognized this right under article 19 of the United Nations Universal Declaration of Human Rights, 1948[2], to which India is an agreeing party. The proclamation says that “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers”.
Article 19(1)(a) of the Indian Constitution provides for the fundamental right of freedom of speech and expression. The article reads as follows “All citizens shall have the right to freedom of speech and expression”[3]. The right essentially stands for the liberty of Indian citizens to express their opinions and thoughts on any matter through any verbal, oral, or visual medium. Therefore, it is implied that the failure of the State to ensure and protect the fundamental right of freedom of speech and expression to all citizens, would ultra vires the constitutional provisions. The provision further elucidates that this right is reserved for Indian citizens and the other nationals cannot enjoy it as a fundamental right. The right to freedom of speech and expression is not granted as an absolute right. Article 19(2) empowers the government to impose reasonable restrictions on this right in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency, and morality and contempt of court, defamation, and incitement to an offense[4].
The apex court made a distinction between public order and the security of the state in Kishori Mohan v. State of West Bengal as that the expression 'public order' connotes the sense of public peace, safety and tranquillity where the security of the State refers to serious threats to the security concerns of the State- either internal or external[5].
Over time, the judiciary has expanded the scope of this fundamental right to the areas of the press, commercial speech, criticisms, right to information, etc. Article 19(1)(a) does not specifically mention these areas, but the judiciary recognized them through judicial interpretation as and when the context urged it to address the issue.
According to Barack Obama, former President of the United States, “We have to uphold a free press and freedom of speech because, in the end, lies and misinformation are no match for the truth”. India being a democratic country needs to encourage the freedom of the Press as it functions as the watchdog and fourth pillar of the democratic system. The press should enjoy the right to express their opinions without being subjected to arbitrary control or censoring. To conduct a free and fair election and hold the democratically elected government accountable, free speech of the Press is inevitable.
In Romesh Thappar v. State of Madras (1950), the Court recognized the freedom of the press as part and parcel of freedom of speech and expression. Justice Patanjali Sastri observed that “Freedom of speech and of 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 Government is possible”[6]. Further in Indian Express v. Union of India (1985), the Court held that the Press occupies a significant position in the functioning of democracy. Therefore, laws should protect the rights of the press including the freedom of publication, freedom of circulation, and freedom against pre-censorship[7].
The expansion of the right to freedom of speech and expression to the right to information has been made on a number of petitions that dealt with the question of the right to receive information corresponding to the right to provide or express information. The observation made by the Supreme Court in Union of India v. Association for Democratic Reforms states that “One-sided information, disinformation, misinformation, and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes the right to impart and receive information which includes the freedom to hold opinions”[8]. Therefore, the constitutional validity of the right to information falls within the ambit of the right to freedom of speech and expression.
Another question intrinsic to the debates of free speech and expression is the right to criticize. Although the judiciary has included the right to criticize under article 19(1)(a), the Sedition law conflicts with this interpretation. Section 124(A) of the Indian Penal Code, 1860 speaks about sedition as “whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law”[9]. But the recent sedition cases filed against 49 celebrities, journalists Vinod Dua and Siddique Kappan, climate activist Disha Ravi and the filmmaker Aisha Sultana show the arbitrary use of Sedition law by the authorities to control free speech. The words of Justice DY Chandrachud that “It is time to define the limits of sedition”[10] and the observation of Chief Justice NV Ramana about the outdated nature of Sedition law signifies the relevance of the right to free speech, especially criticism, over the colonial legal provision.
The right to freedom of speech and expression also implies the right to choose the clothes to wear. The recent issue of banning the Hijab- a religious scarf- in schools raised the question whether the said restriction violates the fundamental right of citizens to freedom of speech and expression. In Smt. Resham & Anr. v. State of Karnataka & Ors. (2022)[11]
The Court held that since the restriction of Hijab in educational institutions is to ensure uniformity, it can be exempted under Article 19(2) as a reasonable restriction by the Government. However, the questions relating to individual freedom are left and the issue needs to be reviewed from a liberal perspective.
The technological expansion and social developments have prompted the inclusion of new modes of speech and expression under Article 19(1)(a). The right to broadcast, the right to commercial speech, and many more interpretations were made by the apex court. Regulation of free speech in social media is a matter of discussion in contemporary times. The restrictions imposed by the Union Ministry of Information and Broadcasting on the digital media platforms during the COVID-19 pandemic, against the publication of content that criticizes and questions the government policies and pandemic programs, cannot take the shield of a reasonable restriction under Article 19(2) of the Constitution. Freedom of speech and expression is essential for any democracy to function effectively. In a pandemic situation, where the life of the citizens is in danger, the necessity of free speech to hold our political representatives accountable and duty-bound is higher.
Democracy is a political system based on the voice of millions. As it upholds modern liberal values, the functioning of democracy without the universal right to freedom of speech and expression will be impossible. Further, free speech stimulates the growth of truth in society and helps people to act as the watchdogs of democracy. However, in the contemporary Indian political system, as many instances show, the fundamental right to freedom of speech and expression faces certain challenges. The arbitrary use of Constitutional and other Statutory provisions to eradicate the opposition to the Government is against the principles of democracy. An open forum for free speech, including all the areas of freedom of speech and expression, should be protected and promoted by the legal system. India is one of the countries that successfully established democracy despite the divisive factors. Therefore, India should lead the world and provide a role model in the path of protecting the freedom of speech and expression of the citizens.
-- [1] Voltaire, (Attributed); Evelyn Beatrice Hall, The Friends of Voltaire, 1906 (originated) [2] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), https://www.refworld.org/docid/3ae6b3712c.html [3] India Const. art. 19, cl.1 (a) [4] Constitution of India: Freedom of Speech and Expression, Legal services India, https://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression [5] Kishori Mohan v. State of West Bengal, (1972) 3 SCC 845 [6] Ramesh Thappar v. State of Madras, (1950), SCR 594 [7] Supra note 4 [8] Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 [9] Indian Penal Code, 1860, § 124(A) [10] Krishnadas Rajagopal, Sedition Law: Supreme Court sends a strong message to Government, The Hindu, 16 July 2021, https://www.thehindu.com/news/national/sedition-law-supreme-court-sends-strong-message-to-government/article61441546.ece [11] Smt. Resham & Ors. v. State of Karnataka & Ors. (2022)
BIBLIOGRAPHY
Kishori Mohan v. State of West Bengal, (1972) 3 SCC 845
Ramesh Thappar v. State of Madras, (1950), SCR 594
Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294
Smt. Resham & Ors. v. State of Karnataka & Ors. (2022)
Voltaire, (Attributed); Evelyn Beatrice Hall, The Friends of Voltaire, 1906 (originated)
Indian Penal Code, 1860, § 124(A)
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A (III), https://www.refworld.org/docid/3ae6b3712c.html
Constitution of India: Freedom of Speech and Expression, Legal services India, https://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression
Krishnadas Rajagopal, Sedition Law: Supreme Court sends a strong message to Government,
The Hindu, 16 July 2021, https://www.thehindu.com/news/national/sedition-law-supreme-court-sends-strong-message-to-government/article61441546.ece
Right to Freedom of Speech and Expression in India vis-à-vis Freedom of Press, iilsindia.com,https://www.iilsindia.com/blogs/right-freedom-speech-expression-vis-vis-freedom-press/
International Standards on Freedom of Expression, unesco.org,
Freedom of Speech and Expression and the Need to Protect It, advoacteshah.com https://www.advocateshah.com/blog/freedom-of-speech-and-expression-need-to-protect-it/
Bhaswat Prakash, Right to Expression v/s Right to Hijab, legalservicesindia.com, https://www.legalserviceindia.com/legal/article-7987-right-to-expression-v-s-right-to-hijab.html
Index on censorship, Why is Free Speech Important?, indexoncensorship.org, https://www.indexoncensorship.org/2016/04/free-speech-important/
Article 19: Mapping the Free Speech Debate in India, epw engage, https://www.epw.in/engage/debate-kits/article-19-mapping-free-speech-debate-india
This article is written by Blaisy Babby P of CHRIST (Deemed to be University).
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