Author-Jerrin B. Mathew*
Editor- Simrann Vashisht
The recent controversies regarding “UPSC Jihad”, Sudarshan News, arrests of CAA protestors, Advocate Prashant Bhushan’s and Andhra Pradesh Chief Minister Jagan Mohan Reddy’s remark on the judges has re-invigorated the debate of freedom of speech and its reasonable restrictions. Freedom of Speech is known as the mother of all liberties and lifeblood of democracy. Recently, however, the Chief Justice of India S.A. Bobde remarked: “Freedom of speech is the most abused freedom of the constitution”. Amidst all this, it becomes imperative to step back and take a wider look at this freedom given to us.
"In a democracy, it is not necessary that everyone should sing the same song." Freedom of speech and expression of one's thoughts is a fundamental right that everyone is entitled to have. Today, a person can express his views in dynamic ways and reach global audiences. Therefore, a person's speech today can have more resonance and consequences than ever before.
Although all the fundamental rights are important, many scholars think it is freedom of speech which would take the first place in the hierarchy of liberties given to us. It is called the mother of all liberties. According to Justice Jagmohan Reddy in Kesavananda Bharati v State of Kerala. ‘liberty of thought and expression’ is considered a basic structure of the constitution. Therefore, the government cannot amend the constitution to deprive people of their freedom of speech and expression. Over the years, this right has been interpreted broadly. Today it also includes freedom of press and right to information .
Freedom of Press
Printing press caused a revolution in bringing about a powerful medium of expression. Freedom of the press was thoroughly debated and discussed in the constitutional assembly debates. Some wanted that there should be an express provision of freedom of the press (as in the U.S.A), apart from freedom of speech and expression. However, this opinion was rejected and today the Freedom of Press emanates from freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Hence, the press doesn’t have any special right other than what is provided to an ordinary citizen.
All the rights under Article 19 of the Constitution of India are given only to citizens. This caused some problem in the courts since many press groups are organizations and organizations are not citizens. The courts have resolved this issue by stating that organizations have editors, writers and other individual citizens. Therefore, if there are unconstitutional restrictions placed on organizations, it violates Article 19(1)(a) of the Constitution of India since the rights of individual citizens are affected. It is interesting to note that this line of argument is not accepted by courts for other Article 19 rights such as that of freedom to carry out any occupation, trade or business in case of companies.
Press is also a very big commercial sector. However, it cannot be treated in par with other commercial establishments since it serves a very important function for democracy. Courts have maintained that there should be a balance between treating press for its commercial activity and its freedom of speech. High taxes on the press have been held unconstitutional by the courts because it was violating freedom of speech.
There had been many changes made in the reasonable restrictions over the years through constitutional amendments. The American constitution doesn’t have any reasonable restrictions laid down in its first Amendment. Therefore, American courts have evolved the doctrine of police power. This entails that states in America have the right to make restrictions on speech and expression for the betterment and general welfare of the populace. This is not the case in India. The government cannot make a restriction under any ground but only those which are present under Article 19(2) of the Constitution of India. For example, Public order as a ground for the restriction was inserted in the very first amendment to the Indian Constitution to prevent scenarios that arose in case of Romesh Thapar v State of Madras. In this case, the government had tried to censor the opinions of Romesh Thapar, an ardent communist, for hampering public order. However, public order was not a ground for restriction then, under Article 19(2)of the Constitution of India. The attempt to bring it under “overthrowing the state” failed, since it didn’t meet the criteria. Hence, the government had to amend the constitution to insert a ground as ‘public order’. There have been various amendments made in Article 19(2)of the Constitution of India. For example, parliament has introduced new grounds like, ‘friendly relations with foreign states’, ‘public order’ and ‘incitement to an offence.’ The phrase ‘tends to overthrow the state’ was deleted since the ground of ‘public order’ is broader and encompasses such speeches. ‘Libel’ and ‘slander’ was substituted by the common word ‘defamation’. ‘Any matter which offends against or undermines the security of the state’ was replaced by ‘in the interests of the security of the state’.
The government cannot place any restriction it wills on these grounds, it should be a reasonable restriction. The reasonability is required not only due to the wording of Article 19(2) but also because of judicial precedents. Justice V.R. Krishna Iyer in Maneka Gandhi v Union of India had said that we have to look at all the fundamental rights as an organic whole.Just like body parts of a human cannot be function separately, fundamental rights cannot work separately. Maneka Gandhi v Union of India ruled that Article 14, Article 19 and Article 21 of the Constitution of India should be read together. Doing this would mean that the test of reasonableness and arbitrariness under Article 14 would apply to Article 19. Hence, the restriction should not be arbitrary and should have a proximate cause to fulfil the grounds under Article 19(2).
Collateral, incidental or frivolous damage on the ability of speech and expression doesn’t attract Article 19(1)(a) of the Constitution of India. There are cases where the government brings a policy for the general welfare but it resulted in the abridgement of the freedom of speech. To deal with this, courts have developed the “direct and inevitable consequence test”. According to this test, it doesn’t matter whether the government intended to curtail freedom of speech or not. Irrespective of the intention of the law or policy, it will attract Article 19(1) (a) of the Constitution of India, if it directly and inevitably infringes freedom of speech. For example, in one case, the court struck down the government’s import control policy that directly and inevitably led to the assault on the power of the press.
The medium of the expression also matters in placing restrictions. There are more regulations in case of print and television media, then in case of online websites. Pre-censorship in India is mostly restricted to films and documentaries. In K.A. Abbas v Union of India, it was held that pre-censorship and more restrictions for motion films alone are reasonable since they are more evocative in appealing through visual and moral senses.
The content presented has also been taken into account by courts. Advertisement and other forms of commercial speech are excluded from Article 19(1)(a) of the Constitution of India. However, Advertisements which communicates a message or idea and not a commercial product is given protection under Article 19(1)(a) of the Constitution of India. A discussion on a social issue is given more liberty than a discussion on court proceedings.
The popular grounds for curtailment in India are contempt of court, hate speech and sedition.
Contempt of Court
Courts are seen as a dispenser of justice in India. Therefore, to protect the institution of judiciary in the eyes of people, scathing remarks against them must be prohibited. A person cannot put court to ridicule, misrepresent the orders or make a serious non-factual and unreasonable allegation against the judges. The criticism of the court becomes contempt only when there is a deliberate attempt made to malign the institution or the judge. Constructive criticism done in good faith is not a contempt of court. Similarly, criticism against the functioning or nature of judiciary or an objective remark made against the judge is permissible.
In cases dealing with expressions of court’s conduct, the courts have looked at the academic and professional qualification of the author. While the classification of people based on legal qualification may seem like a good idea, it can lead to denial of freedom of speech to laypersons in an unreasonable manner. A layman is deprived of questioning the court on grounds where professional qualification is not required. Moreover, in democracy respect and goodwill cannot be forced out of people through laws, rather it should be earned through efficient and just performance.
The government must maintain communal harmony in the country. Therefore, any speech which is manufactured to incite hatred and foment communal violence can and should be prohibited . If the historical record of a person gives witness to the tendency that he could deliver provocative speech leading to communal violence, then the government can prohibit such person from attending the meeting or delivering the speech. At present, no law covers internet hate speech specifically. The laws that punish hate speech, in general, are used for hate speech in social media as well. They are mainly two: 153A and 295A of the Indian Penal Code 1860. Both these laws have a punishment of three years or fine or both. Despite the presence of these laws, we see a plethora of hate speech on the internet and social media which shows the sporadic implementation of this law.
Acceptance of the authority of an elected government is the foundation of democracy. To incite contempt or hatred against the government to overthrow it is called sedition. Sedition first emerged in common law where the authority of the king was considered unquestionable. Britishers used it against freedom fighters of independent India. Sedition was removed as a ground for restriction of freedom of speech and expression in the constitutional assembly debates. However, it resurfaced as a restriction under the ground of ‘public order’ and ‘security of the state’.
Sedition is defined in section 124 A of IPC 1860. It involves breeding hatred and contempt against an elected government in the country by words or any other means. Hence, sedition remains in law and people are charged under it. Over the years, many jurists have criticized the existence of sedition. There might be some occasions where there exists a thin line between frustrated criticism of the government and sedition.
However, that is not the case every time. In many cases, the courts acquit the dissenters as they find that dissenters have only used their right to criticize an elected government and pointing out its faults. The presence of sedition then just becomes a legal tool by the government to silence dissenters by threatening them of litigation. The ideal remedy in such cases should be the imposition of high costs on government or directing the government to compensate the innocent dissenter.
Freedom of speech and expression is the mother of all liberties. It is the source of our constitutional living. Expressing thoughts and beliefs is fundamental to any democracy. It is a treasured right that has been handed down to us by our ‘constitution makers’. There cannot be a ‘free India’ without ‘free Indians’ and there cannot be ‘free Indians’ without ‘free speech’.
However, there are limits to what you can speak in any jurisdiction. Even a liberal democratic country like the U.S.A, which didn’t have restrictions in their free speech provision, had to formulate the doctrine of ‘police power’ to set limits to free speech. India on the other hand has a constitution where free speech comes with restrictions. These restrictions by no means undermine the power of free speech. The government cannot easily set restrictions on free speech. Grounds for restriction can only be added through amendments to the Constitution, which are under judicial review. Indian Judiciary has played a critical role in protecting our freedom of speech and expression from government encroachment.
Yes, this right might be the most misused fundamental right. However, this misuse should not undermine the importance of the right that is given to us. This right allows us to speak truth to the power. Government will try to silence the dissenter since they know that it can threaten the ruling by questioning their work. Hence, it is imperative for the judiciary to safeguard this right, prevents its misuse by citizen but at the same time protect it from government’s encroachment.
Keshavananda Bharati v State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154] .
S.P. Gupta v UOI, 1981, (1982) 2 SCC 365.
Constitutional Assembly Debates: 7.64.12. <https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-01> accessed 17 October.
Express New papers (Private) Ltd. and Anr. v. The Union of India and Ors., 1958, MANU/SC/0157/1958.
State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam, 1963,MANU/SC/0038/1963.
Indian Express v Union of India ,1986, AIR 1986 SC 515.
RomeshThappar v State of Madras, 1950, AIR 1950 SC 124.
Maneka Gandhi v Union of India,1978 SCR (2) 621.
Bachan Singh v State of Punjab,1980, AIR 1980 SC 898 .
Bennett Coleman &Co v UOI 1973, AIR 1973 SC 106 [LNIND 1972 SC 514].
K.A Abbas v Union of India, 1971, AIR 1971 SC 481.
Hamdard Dawakhana v Union of India,1960, AIR 1960 SC 554.
Sodhi Shamsher v State of Pepsu, 1954, AIR 1954 SC 276.
Indirect Tax Practitioners” Association v R.K. Jain, 2010, (2010) 8 SCC 281 .
State of Karnataka v Dr. Praveen Bhai Thogadia, 2004, AIR 2004 SC 2081
The Author Jerrin B. Mathew is a 2nd year B.A.LLB (Hons) student at the National Law School of India University (NLSIU),Bengaluru, Karnataka.
Disclaimer-This article is the original submission of the Author. VAIDHA doesn't hold any liability arising out of this article.