Why is protection of Right to Freedom of Speech needed?

By Nishita Makkar

Introduction

Democracy is considered to be the best form of the government due to its freedoms and principles that are totally based on the welfare of the citizens. Freedom of speech is considered to be fundamental in a democracy whose main proponent was “Alexander Meiklejohn”.

Even the Constitution of India provides Freedom of speech as a Fundamental Right under Article 19(1)(a) and 19(2) to all citizens of the country. But how far is it true?

Recently, there was a change in government rules related to social media and police performed raids on the offices of Twitter and Facebook. Various cases have been filed by different companies and websites pointed out that it is a restriction on Freedom of speech and expression under Article 19^[1].

Also, there was an event when a popular comedian Fariqui and four others were arrested on following a complaint for showing objectionable remarks about Hindu deities. He was released on interim bail, but stand-up comedians said the arrest of Faruqui was unjust and against the Freedom of Expression^[2].

Various other likely events are happening around, so can we say that, we, in the phase of democracy are actually enjoying ‘freedom of speech and expression’? What is the true meaning of this freedom? Why and how we need to protect this right? All such questions are going to be explained in this article.

What is the meaning and importance of Freedom of Speech and Expression?

Article 19(1)(a) of the Indian Constitution guarantees to all the citizens “the right to freedom of speech and expression” as a fundamental right. It means the right to speak and to express one’s opinions by words of mouth writing, printing, pictures are in any other manner.

It is express one’s convictions and opinions or ideas freely, through any communicable medium or visible representation, such as, gesture, signs and the like. It means to freely propagate, communicate, or circulate one’s opinions and views freely without any interference.

Such great importance is given to the right as it is the core value process of democracy. It has been held to be basic and indivisibility of a democratic polity, the citizen’s most cherished and sacred rights, the “prized Privilege”.

Also, the right is recognized internationally as a “human right” under the Universal Declaration of Human Rights, 1948, as also, under International Covenant on Civil and Political Rights. The right is identical with 1^st Amendment of U.S. Constitution, 1791.

What is the Scope and Content of the freedom?

The scope of the Right to Freedom is wide since every person has right to communicate his opinions, views and ideas and share information in whatever form is possible for them.

The different facets constituting the scope and content of freedom of speech and expression are:

• Right to know and obtain information

The right to information is a fundamental right, a facet of “speech and expression” as contained in Article 19(1)(a). In a democracy, it is mandatory that citizens ought to know what their government is doing.

No government can survive without accountability and transparency. This gave introduction to Right to Information Act, 2002.

• Right of Examinee to have Access to Evaluated Script:

In Secretary, West Bengal Council of Higher Secondary Education Vs Ayan Das^[3], It was held by Apex Court that Courts should not normally direct the production of answer scripts, to be inspected by the examinees, unless a case was made out to show that either some had not been evaluated or evaluation has been done contrary to the norms fixed by the examining body.

• Rights of the citizens to know the Antecedents of the candidates at election

Article 19(1)(a) also includes the voter’s voter’s speech and expression, in case of elections, in a democracy. It has been said that the voter speaks out or expresses by the casting vote. This was identified in Union of India Vs Association of Democratic Reforms^[4].

• Freedom of Silence-Right not to Speak

The Supreme Court in Bijae Emmanuel Vs State of Kerala^[5], stated that no person could be compelled to sing the National Anthem, the students were stood up respectfully during the period it was being sung, hence, their expulsion from the school was not valid.

• Right of the Convict to express himself

In, M. Hasan Vs Government of Andhra Pradesh^[6], The Andhra Pradesh High Court held that refusal to journalists and videographers seeking interview with the condemned prisoners amounted to deprivation of citizens’ fundamental right to speech and expression.

• Compelled Speech

The right to free speech and expression also includes compelled speech, often known as must carry provision in a statute, if it furthers informed decision-making.

Therefore, the requirement under the various cinematograph legislations that in each cinema theatre, the exhibitor of films must show a film which may be educational or scientific, a documentary film, or a film carrying news or current events, has been not violative of Article 19(1)(a).

Similarly, right against sound pollution, right to choose medium of Instructions, right to reply or answer the criticism against one’s views, right to demonstrations, picketing, strikes, right to fly national flag etc. also comes under scope of Freedom of speech and expression.

Is Liberty of press a part of Article 19(1)(a)?

Unlike the American Constitution, Article 19(1) does not specifically or separately provide fir liberty of the press. This liberty has been held to be one of the great bulwarks of liberty and can never be restrained but by despotic government.

Under the scope of this freedom, it is provided:

• No pre-Censorship on Press

The freedom of the press means the right to print and publish what one pleases, without any previous permission. Imposition of pre-censorship on publication is, therefore, violative of the Freedom of the press, unless justified under clause (2) of Article 19.

• No Pre-Stoppage of Publication in Newspapers of Articles or Matter of Public Importance

In Varinder Vs State of Punjab^[7], the Supreme Court explained that banning of publication in the newspapers of its own views or the views of correspondents about the burning topic of the day was a serious encroachment on the valuable and cherished right to freedom of speech and expression.

• Freedom of Circulation

Freedom of Speech and Expression include the freedom of propagation of one’s ideas or views and this freedom is ensured by the “freedom of Circulation”. If not given this would be a violation of liberty of press.

• No excessive taxes on Press

In Indian Express Newspapers (Bombay) Pvt. Ltd. Vs Union of India^[8], the Supreme Court emphasized that the Government should be more cautious while levying taxes on the matters concerning newspaper industry than while levying taxes on other matters.

Also, newspaper industry has not been granted exemption from taxation but exercise of power to tax should be subject scrutiny by the Courts.

• Pre-Censorship of Films

In K.A. Abbas Vs Union of India^[9], the constitutionality of films as a media of Expression and its pre-censorship came up before the Supreme Court. Under the Cinematograph Act, 1952, films are categorized as ‘U’ films are meant for unrestricted exhibition; ‘A’ films should be meant for adults only.

This also includes commercial advertisements, no indirect attack on press, right to access to source of information etc. This makes press really important source for exchange of information, ideas and views.

What is Trial by Media? How far is it good for democracy?

Trial by Media is a phrase popular in late 20^th century and early 21^st century to describe the impact of television and newspaper coverage on person’s reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in court of law.

Under Article 19(1)(a), a journalist has the right to publish, as journalist, a faithful report of the proceedings witnessed and heard in the Court. However, in certain matters, such as, the commission of offence of rape, unnecessary publicity, may lead to miscarriage of justice.

The Apex Court in the case of State of Maharashtra Vs Rajendra Jawanmal Gandhi^[10], did hold that a trial by press, electronic media or public agitation, was the very antithesis of rule of law.

Open justice which is a facet of freedom of expression, permits fair and accurate reports of Court proceedings to be published. It is held that the media, has right to know what is happening in the courts and to spread the information to public which enhances the public confidence in the transparency of court proceedings.

However, in some cases where fair and accurate reporting of the trial give rise to substantial risk of prejudice, in such cases, it is held that the court can prohibit, temporarily, the publication of Court proceedings, which is permissible under Article 19(2), read with Article 21.

Are there any restrictions on Freedom of Speech and Expression?

Like all other freedoms, Freedom of Speech and Expression also have some reasonable restrictions. It is ruled that an action tending to violate another person’s right to life guaranteed under Article 21.^[11]

In Mohd. Ajmal Amir Kasab Vs State of Maharashtra, the Apex Court held the coverage of Mumbai Terror attack by the Mainstream electronic media had done much harm to the argument that any regulatory mechanism for the media must only come from within.

Clause (2) of Article 19, at the same time provides:

“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing la, or prevent the State from making any la, in so far, 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”.

Hence, the grounds of reasonable restrictions of Freedom of Speech and Expression are as follows:

• Security of State

The expression “Security of State” refers to serious and aggravated forms of public disorder, such as rebellion or war. This expression does not merely mean as danger to the security of the entire country, it also includes security of part of that state. Hence, the government has the power to cease the activities that can be danger to the state.

• Friendly relations with foreign states

This ground was added to Article 19(2) by the Constitution (First Amendment) Act, 1951. The main objective the following was to prohibit any malicious propaganda, libels against a foreign state to maintain the friendly relations with other states. The Foreign Relations Act, 1932, even provides punishment regarding this.

• Public Order

The following ground was added by the Constitution (First Amendment) Act, 1951, after the Ramesh Thapar Case^[12], wherein Apex court rejected the contention that public order was covered by the expression Security of State. The court held Public Order to wider than ‘security of State’

• Decency and morality

Restrictions on the freedom of speech and expression can be imposed in the interests of decency and morality. The purpose is to restricting speeches and publications which tend to undermine public morals.

This question as to when some utterance or publication was indecent or obscene arose in Ranjit D. Udeshi Vs State of Maharashtra^[13], wherein a book seller in Bombay, was prosecuted and convicted under Section 292, I.P.C. for selling and keeping the book “Lady Chatterley’s Lover”. The Supreme Court applied the test laid down in the English case R. Vs Hicklin^[14], and upheld the conviction of the appellant.

• Contempt of Court

The right to freedom of speech and expression does not entitle a person to commit contempt of court. It cannot be held as law that in view of the constitutional protection of freedom of speech and expression, no one can be proceeded with for the contempt of court on the allegation of scandalizing or intending to scandalize the authority of any Court.

• Defamation

The freedom of speech and expression cannot be use to transgress the law relating to defamation. Section 499 of the Indian Penal Code, 1860 defines the offence of defamation. It includes both Libel as well as Slander means both while spoken words or gestures and in writing.

• Incitement of Offence

This particular ground was added by the Constitution (First Amendment) Act, 1951

It was held that ‘incitement of an offence’ did not refer to ‘incitement to break a law’. Thus, an incitement to a breach of every civil law is not necessarily contemplated by Article 19(2).

• Sovereignty and Integrity of India

This ground was added in Article 19(2) by the Constitution (Sixteenth Amendment) Act, 1963. The purpose is to guard the freedom of speech and expression from being used to assail the sovereignty and territorial integrity of the country.

Hence, there the grounds on which freedom of speech can be restricted reasonably so that a limit should be maintained to take the implement in a positive way.

Case Laws

• Pritam Rooj Vs University of Calcutta^[15]

Right of examinee to have access to evaluated scripts

The Calcutta Court has ruled that denial of inspection of answer scripts to examinee would amount to violation of the examinee’s constitutional right to expression and information available under Article 19 read with the Right to Information Act, 2005.

• Life Insurance Corporation of India Vs Prof. Manubhai D. Shah^[16]

Right to reply to the criticism against one’s views

In this case, the Supreme held that the right to reply, i.e., the right to get one’s reply published one’s reply in the same news media in which something was against or in relation to a citizen, was a part of the freedom of speech and expression guaranteed under Article 19(1)(a).

• Moulana Mufti Syed Md. Noorur Rehman Barkati Vs State of West Bengal^[17]

Right against sound pollution

The Calcutta High court held that Article 19(1)(a) protected the citizens against excessive sound. Upholding the restrictions on the use of microphone and loud speaker set the time of giving Azan, the Court said that no one could under Article 19(1)(a), claim an absolute right to suspend other rights or it could disturb other basic human rights and fundamental rights to sleep and leisure. The imposition of restrictions has been held not violative of the right under Article 25.

Conclusion

After studying these, we concluded that Freedom of speech is the most crucial weapon of Democracy. Even in India, it has been inserted as fundamental right under Article 19(1)(a) and 19(2).

With the concept, importance and scope of the Freedom of speech and expression, we also studied about reasonable restrictions on this freedom. This helps to enjoy the freedom without infringement of other people’s Rights. The freedom should be given in a positive manner.

Though it is very important concept, but still we have been gone through and are still facing such circumstances in our daily life where directly or indirectly we found this freedom to be encroached. This freedom plays a vital role in democracy concerning people’s welfare.

Hence, there is a need for us to be aware of our rights and also to able to fight for them and to protect them because “Even the God helps them who helps themselves.

Reference

• blog.ipleaders.in

1. Jitender K Tuli, “Freedom of Expression (Speech)”, available at: timesofindia.indiatimes.com (Last visited on July 10^th, 2021) ↑
2. Sonia Faleiro, “How an Indian Stand Up comic found himself arrested for a Joke he didn’t tell.” available at: time.com (Last visited on July 10^th,2021) ↑
3. Secretary, West Bengal Council of Higher Education Vs Ayan Das, AIR 2007 SC 3098 ↑
4. Union of India Vs Association for Democratic Reforms, AIR 2002 SC 2112. ↑
5. Bijae Vs State Of Kerala, AIR 1987 SC 748 ↑
6. M. Hasan Vs Government of Andhra Pradesh, AIR 1998 AP 35 ↑
7. Varinder Vs State of Punjab, AIR 1957 ↑
8. Indian Express Newspapers (Bombay) Pvt. Ltd. Vs Union of India, AIR 1986 SC 515 ↑
9. K.A. Abbas Vs Union of India, AIR 1971 SC 481 ↑
10. State of Maharashtra Vs Rajendra Jawanmal Gandhi, AIR 1997 SC 3986 ↑
11. Are there any exceptions to the Fundamental Rights under the Indian Constitution? Available at: lawinsider.in (Last visited on July 10^th,2021) ↑
12. Ramesh Thapar Vs State of Madras, AIR 1950 SC 124 ↑
13. Ranjit D. Udeshi Vs State of Maharshtra, AIR 1965 SC 881 ↑
14. R Vs Hicklin, (1868) 3 QB 360 ↑
15. Pritam Rooj Vs University of Calcutta, AIR 2008 Cal 118 ↑
16. Life Insurance Corporation of India Vs.Prof. Mnubhai D. Shah, AIR 1993 SC 171 ↑
17. Moulana Mufti Syed Md. Noorur Rehman Barkati Vs State of West Bengal, AIR 1999 Cal 15 ↑