The ball and chain on Freedom of Speech

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freedom of speech

In this article Sneha Rajiv a student of B.com LLB (Hons) from School of Legal Studies, CUSAT discusses on the freedom of speech.

Abstract

The Constitution of India, being the supreme law of the country, sets out various fundamental rights for its citizens. The Freedom of Speech and Expression, as prescribed under Article 19 (1)(a), gives a citizen the right to articulate his/her opinions and ideas without fear of government retaliation or censorship, or societal sanction. The term freedom of expression includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Man as a rational being, desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled, liberty must, therefore, be limited in order to maintain peace and tranquillity in the society. The Article empowers the State to make laws imposing reasonable restrictions for reasons set out in them. Media plays a crucial role in providing a platform to express one’s opinion, but it is also a powerful tool that is often misused, causing irreparable damage to the society.

Freedom of Speech and Expression is enshrined in most of the world’s constitutions as well as in other international instruments. The essay aims to put forward the varied facets of this freedom and its restrictions, with reference to important case laws and other international instruments.

Introduction

Freedom of Speech and Expression is a sacred right, closely guarded by the highest of laws and is most indispensable in any attempt to build a democratic, social and public order. It is the power or right to express one’s opinion without censorship, restraint or legal penalty. The Constitution of India guarantees the right of all citizens to “freedom of Speech and expression”. However the right is not expressed in absolute terms, rather it is subject to Article 19(2), which allows the State to make ‘reasonable restrictions’ upon the freedom of speech and expression in the context of sovereignty and integrity of the Country. An unrestricted and unbridled license that gives immunity for every possible use of language does not prevent punishing those who abuse this freedom. Thus Article 19(2) enables the legislature to impose reasonable restrictions on the right of free speech under the various heads like; friendly relations with foreign States, public order, decency and morality, contempt of Court, defamation, incitement to an offence, sovereignty and integrity of the country[1].

In the landmark case of Kishori Mohan v State of West Bengal[2], the Supreme Court explained the difference between three concepts; law and order, public order and security of State. Anything that disrupts public peace and tranquillity was said to disrupt public order. Mere criticism of the government does not disrupt public order, but uttering words with the intention to hurt the religious feeling of a class of people was to be punished and it was held to be a valid restriction in order to protect public order.

The press or the media is a platform for the public to express their views and opinions on any matter. The freedom of the press is nowhere mentioned in the constitution, but it is believed that ‘freedom of speech and expression’ also includes ‘freedom of the press’. During the emergency in 1976, the Parliament enacted the Prevention of Publication of Objectionable Matters Act. The Act was repealed in 1978; however, the 44th Amendment adopted in 1978 has given the Parliament substantial powers to regulate the freedom of the press. Article 361-A was added to the Constitution with this object in view. Thus the present position is censorship is that it is valid in times of emergency if it is reasonable and if it is in the interest of public order. In times of emergency under Article 352, censorship is valid when Article 19 itself stands suspended under Article 358 of the constitution[3].

Provisions under International Law

Through freedom of speech and expression, people can gain an understanding of their surroundings and the wider world by exchanging ideas and information freely with others. People feel more secure and respected when they are able to speak their minds

At a state level, freedom of speech is necessary for good governance and therefore for economic and social progress. It ensures accountability by enabling people to freely debate and raise concerns with the government, including for the protection and promotion of other human rights.

Having said this, the right to freedom of expression is not an absolute right, and the State may, under certain exceptional circumstances, restrict the right under international human rights law.

Article 19 of the UDHR provides everyone with 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 regardless of frontiers.[4]

Similarly, Article 19 of the ICCPR states that;

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may, therefore, be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of public health or morals.

Articles 9 & 10 of the ECHR also deal with freedom of speech and expression.[5]

Article 9 gives people the freedom of thought, conscience and religion; it states that one has the freedom to manifest his religion or beliefs, with subject to certain limitations as prescribed by law which is necessary for a democratic society in the interests of public safety and for the protection of the public.

Article 10 ensures that everyone has the freedom of expression, everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. Clause 2 of the article states restrictions on which the right is subjected to.[6]

Many constitutions of the world ensure freedom of speech and expression to its citizens subject to these restrictions.

Facets of speech and expression in India

Article 19(1)(a) covers the right to express oneself by word of mouth, writing, printing, picture or in any other manner. It includes the freedom of communication and the right to propagate or publish one’s views. The communication of ideas may be through any medium.[7]

  • The freedom of right to speech and expression also includes the right not only to publish but also to circulate the information. The freedom of circulation has been held to be an essential as the freedom of publication.[8]
  • The right to dissent is another facet of the freedom of speech and expression. In Kedar Nath Singh v State of Bihar[9], the Supreme Court dismissed the Constitutional challenge to sections 124 A and 505, of IPC 1860, which penalised attempts to excite disaffection towards the government by words or in writing and publications which may disturb public tranquillity. The Supreme Court clarified that criticism of public measure or comment on government action however strongly worded would be within reasonable limits.
  • The right of the press to conduct interviews is a limited right, subject to the willing consent of the person being interviewed. In Prabha Dutt v Union of India[10], the petitioner was seeking to interview the condemned prisoners. The court held that the press does not have the absolute or unrestricted right to information and there is no legal obligation on part of the citizens to supply that information.
  • The freedom of speech and expression comprises of the right to receive information. This was held by the Supreme Court in a series of judgements which have discussed the right to information in varied contexts- from advertisements enabling the citizens to get vital information about life saving drugs[11], to the right of sports lovers to watch cricket[12] and the right of voters to know the antecedents of electoral candidates.
  • In Tata Press Ltd v MTNL[13], the Court interpreted the right guaranteed under article 19(1)(a) as including the right to advertise or the right of commercial speech. Till this judgement, advertisements were excluded from the realm of free speech.[14]

Reasonableness of restriction

The meaning of the term ‘reasonable restriction’ has been a matter of judicial discussion. There have been assumptions as to whether the term means total prohibition. In A.K. Gopalan v State of Madras[15], the Court was of the view that the term reasonable restriction meant partial control and not total prohibition. Further, the test of reasonableness depends upon the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at the time of imposition of such restriction.

There are two conditions imposed by the Constitution to validate the restriction on freedom of speech, any law imposing restrictions must satisfy these conditions. These conditions are that the restrictions must be for a particular purpose mentioned in the clause permitting the imposition of the restriction on that particular right and the restriction must be a reasonable one.

Some principles were laid down by the Supreme Court in Narottamdas v State of M.P[16], in ascertaining the reasonableness of the restrictions imposed by article 19, which are as follows;

  1. The limitation imposed should not be arbitrary or excessive in nature
  2. Not only substantive but procedural provisions of the statute are included within the scope of the term reasonable.
  3. The reasonableness of the restriction has to be determined in an objective manner, from the viewpoint of the general public.
  4. The court is called upon to ascertain the reasonableness of the restrictions and not of the law imposing them.
  5. The word “restriction” also includes cases of prohibition and the State can establish that a law, though purporting to deprive a person of his fundamental right, under circumstances amounts to a reasonable restriction only.
  6. The test of reasonableness has to be considered in case according to the nature of the right infringed, the purpose of restriction etc.
  7. A restriction laid down in the Directive Principles of the State policy must be regarded as a reasonable restriction.
  8. The conferment of wide powers exercisable on the subjective satisfaction of the Government cannot be regarded as a reasonable restriction.
  9. The retrospective operation of the legislative is a relevant factor in deciding its reasonableness but is not always a decisive test[17].

Conclusion

The ball and chain on the freedom of speech and expression is very much crucial in maintaining peace and tranquillity in a democratic country like India. The restrictions imposed are reasonable and adequate. The term ‘reasonable restriction’ has evolved through many case laws, it means partial control exercised on the right guaranteed by Article 19(1)(a) with regard to friendly relations with foreign States, public order, decency and morality, contempt of Court, defamation, incitement to an offence, sovereignty and integrity of the country. Article 19(2) does not impose total restriction and cannot be misused by the State in the way it pleases. Media plays an important role in the present scenario in reaching out to the public on various current issues, strict regulations are important in governing their freedom to publish, broadcast and collect information that is sensitive in nature. Many laws governing the press and media also impose reasonable restrictions on them for the maintenance of peace in the society.

 

[1] V K Shukla’s, Constitution of India, 12th Edition, Eastern Book Company.

[2] AIR 1972 SC 1749

[3] Freedom of Press in India- Brief Overview, Vijay Jaiswal, (September 3, 2013), 

[4] http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

[6] http://www.pen-international.org/what-we-do-2/policy-advocacy/freedom-of-expression/freedom-of-expression-in-international-law/

[7] S. Rangarajan v P. Jagivan Ram, (1989)2 SCC 574

[8] Ramesh Thappar v State of Madras, AIR 1950 SCR 594

[9] AIR 1962 SC 955

[10] (1982) 1 SCC 1: AIR 1982 SC 6

[11] Tata Press Ltd v MTNL (1995) 5 SCC 139

[12] Ministry of Information and Broadcasting, Govt. of India v Cricket Assn. of Bengal (1995) 2 SCC 161

[13] AIR 1995 SC 2438

[14] Madhavi Goradia Divan, Facets of Media Law, 2nd edition, Eastern Book Company.

[15] 1950 IND LAW SC 42

[16] AIR 1964 SC 1667

[17] http://shodhganga.inflibnet.ac.in/bitstream/10603/36776/11/11_chepter%202.pdf

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