NAME: AYUSHI DAS
‘RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS A MUST FOR HEALTHY DEMOCRACY'
To properly understand the statement given above, we first need to understand the terms like
1. Democracy and
2. Right to Freedom of Speech and Expression.
In simple words, Democracy is a form of government in which the common people hold
political power and can rule either directly or through elected representatives.
India as a Democratic State
India is a Democratic State. The Preamble declares India to be a Democratic State. The
Constitution of India provides for a democratic system. The authority of the government rests
upon the sovereignty of the people. The people enjoy equal political rights: Universal Adult
Franchise, Right to contest elections, Right to hold public offices, Right to form associations and
the Right to criticise and oppose the policies of the government. Freedom of speech and
expression, freedom of press and freedom to assemble peacefully have been guaranteed to all
citizens. Right of information forms a part of the freedom of speech and expression. It is on the
basis of these rights, that the people participate in the process of politics. They elect their own
government. For all it’s acts, the government is responsible for the people. The people can
change their government through elections. The representative and responsible character of the
government symbolises the self - rule of the people. They are sovereign and they enjoy
fundamental rights and freedoms which are guaranteed and granted by their constitution.
Thus, India is a democratic state with a Parliamentary form of government. India has been and
continues to be a Democratic Republic.
Right to Freedom ( Arts. 19 - 22)
Under a set of 4 Articles (19 - 22), the Constitution grants the Right to Freedom. These articles
together constitute the charter of freedoms of the people of India.
Six Fundamental Freedoms (Art. 19)
1. Right to freedom of speech and expression.
2. Freedom to assembly
3. Freedom to form associations
4. Freedom of movement.
5. Freedom to reside and settle.
6. Freedom of profession, occupation, trade.
Clause (1)(a) of Article 19 states, “All citizens shall have the right to freedom of speech and
expression.” This provides us with the liberty to express ourselves, not just through spoken
words, but also through other mediums such as books, films, newspapers, radio, television,
websites and blogs. The open discussion of ideas allows individuals to fully participate in
political life, making informed decisions and strengthening society as a result—especially in a
large democracy such as India. The right to express opinions freely is critical in a democracy.
Intellectuals have long championed it as a gateway to other liberties, as curtailment of free
expression inevitably leads to restrictions on other rights such as the right to be informed.
The women’s liberation movement and the revolutionary uprisings for the rights of the African
Americans in the USA were possible because of the freedom of expression enshrined in their
constitution. Great leaders like Martin Luther King Jr were champions who expressed their
opinions and mobilized the masses.
Restrictions
Under Indian law, the freedom of speech and expression do not confer an absolute right.
Clause(2) of Article 19 of the Indian constitution enables the legislature to impose certain
restrictions on free speech under following heads:
• I. security of the State
• II. friendly relations with foreign States
• III. public order
• IV. decency and morality
• V. contempt of court
• VI. defamation
• VII. incitement to an offence and
• VIII. Sovereignty and Integrity of India
Freedom of speech and expression is the fourth pillar of democracy and democracy is the
government of the people, by the people and for the people. This right of expression gives
us a right to criticize and ask the state to function properly and work as it is obliged to.
Freedom of expression gives us something more than just existence, it gives us a reason to
live with dignity. It makes us a social being.
● Security of the State: Reasonable restrictions can be imposed on the freedom of speech
and expression, in the interest of the security of the State. All the utterances intended to
endanger the security of the State by crimes of violence intended to overthrow the
government, waging war and rebellion against the government, external aggression or
war, etc., may be restrained in the interest of the security of the State. It does not refer to
the ordinary breaches of public order which do not involve any danger to the State.
● Friendly relations with foreign States: This ground was added by the Constitution
(First Amendment) Act of 1951. The State can impose reasonable restrictions on the
freedom of speech and expression, if it tends to jeopardize the friendly relations of India
with other States..
● Public order: This ground was added by the Constitution (First Amendment) Act, 1951
in order to meet the situation arising from the Supreme Court's decision in Romesh
Thapar, s case (AIR 1950 SC 124). The expression 'public order' connotes the sense of
public peace, safety and tranquility.
❖ Example :In Kishori Mohan v. State of West Bengal, the Supreme Court explained the
differences between three concepts: law and order, public order, security of State.
Anything that disturbs public peace or public tranquility disturbs public order. But mere
criticism of the government does not necessarily disturb public order. A law punishing
the utterances deliberately tending to hurt the religious feelings of any class has been held
to be valid as it is a reasonable restriction aimed at maintaining the public order.
● Decency and morality: The word 'obscenity' is identical with the word 'indecency' of the
Indian Constitution. Showcase of indecent or immoral expression is restricted.
❖ Example: In 2005, Indian film actress Kushboo was charged on 22 counts of obscenity
because she said in an interview that it is acceptable for women to have premarital sex,
“provided safety measures are followed to prevent pregnancy and sexually transmitted
diseases”. There were mass protests in Tamil Nadu where Kushboo was worshiped by
some as a goddess. Needless to say, the temples built in her honor were destroyed after
this incident. In April of this year, the Supreme court dismissed all 22 charges brought
against her.
Also, India’s most celebrated artist in modern times, Muqbool Fida Hussain, faced criminal
charges in 1996 when pieces that he had painted in the 70s were reprinted in
a Hindi magazine. Initially 8 cases were filed against him which eventually escalated to a large
number of cases spread throughout the country. In 2006, the death threats and acts of vandalism
increased, forcing Hussain to spend an increasing amount of time abroad. His decision to take up
Qatar’s offer of citizenship requires him to give up his Indian citizenship.
● Contempt of court: The constitutional right to freedom of speech would not allow a
person to contempt the courts. The expression Contempt of Court has been defined
Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil
contempt or criminal contempt under the Act. But judges do not have any general
immunity from criticism of their judicial conduct, provided that it is made in good faith
and is genuine criticism, and not any attempt to impair the administration of justice.
Recently, expressing shock and anguish at the steep rise in the number of contempt of court
cases and instances of non-compliance of court orders, the Madras high court has asked the
central as well as state governments to devise a mechanism to curb disobedience of court rulings.
Justice N Kirubakaran, upheld the faults of the bureaucracy for its 'remarkable unwillingness and
apathy' and pointed out that the number of contempt of court cases, which was just 421 in 1990
had shot up to more than 2,900 in 2011 and 2,434 in 2012. "Disobedience of orders of courts
strikes at the very root of the rule of law on which the judicial system rests," he observed. The
judge was making the caustic observations after the case of a 92-year-old freedom fighter came
up before him. Despite court orders, the authorities were delaying the disbursal of relief,
prompting the pensioner to initiate contempt of court proceedings against them. Giving a year-
wise breakup of contempt cases since 1981, Justice Kirubakaran said: "It is very clear that it has
been the attitude of the authorities to exhibit lackadaisical attitude towards complying with court
orders, and there has been continuous violation of court orders deliberately."
● Defamation: The clause (2) of Article 19 prevents any person from making any
statement that injures the reputation of another. With the same view, defamation has been
criminalized in India by inserting it into Section 499 of the I.P.C. Under section 499 of
the Indian Penal Code, defamation is a criminal offence, punishable by a fine and/or
imprisonment. Defendants may rely on ten exceptions listed in the IPC, including true
statements made for the public good. The fact that defamation has been retained as a
criminal offence is often criticized, especially from a free-speech perspective. The
argument has also been made that the international standard is increasingly against
criminalization of defamation.
❖ Example: BJP's Lok Sabha member Dushyant Singh, the son of Rajasthan Chief
Minister Vasundhara Raje, filed a defamation complaint against Congress leader Jairam
Ramesh and a TV channel in a court in Dholpur. "We have filed a complaint under
Section 500 of the Indian Penal Code (which deals with punishment for defamation)
against Jairam Ramesh and another complaint against a TV channel in the additional
chief judicial magistrate's court in Dholpur," Dushyant Singh's counsel V.R.S. Bajwa told
IANS.
The lawyer said Ramesh "has been quoted in certain sections of the media saying that Dholpur
Palace does not belong to Dushyant Singh and it is government property".
Also, recently, the Tamil Nadu government filed a criminal defamation case in a city court
against BJP leader Subramaniam Swamy for his recent tweet on the health condition of Tamil
Nadu Chief Minister Jayalalithaa. The petition filed by City Public Prosecutor ML Jegan
submitted that Swamy had published 'wrong' information in his twitter handle with regard to the
health condition of Jayalalithaa on July 13 and sought to punish him for criminal defamation. It
was filed before Principal Sessions Judge N Audinathan.
The state government has already filed defamation cases against Rediff.Com India Limited and
Tamil bi-weekly "Nakkheeran" for publishing articles on the health condition of Jayalalithaa.
Also, recently, in a ruling on a Rs 100 crore defamation case filed by NSE against “Moneylife”
Sucheta Dalal and Debashis Basu, the Bombay High Court ruled NSE had been at fault for not
responding to the journalist’s request for clarification or comment. Ahead of publishing an
expose about the alleged manipulation of technical systems at the NSE, Moneylife had thrice
sought a response from NSE authorities. The court has directed the NSE to pay Rs 1.5 lakh to
Sucheta Dalal and Rs 47 lakh to Debashis Basu as punitive damages. The money will be used for
work at two Mumbai hospitals.
● Incitement to an offense: This ground was also added by the Constitution (First
Amendment) Act, 1951. The Constitution also prohibits a person from making any
statement that incites people to commit offense.
❖ Example: The Calcutta High Court raised questions on the government’s silence over
MP Tapas Pal's violent speech. "Is this (making such statement) not an offence?"
wondered Justice Dipankar Datta while responding to government pleader Ashok
Banerjee's plea that the court should not entertain the writ petition filed by a Krishnagiri
resident who had gathered information from television clippings and newspapers of the
hate speech. Banerjee didn't reply to the question but went into a hair-splitting argument
on the difference between a writ petition and public interest litigation (PIL). Banerjee
instead left it to the public to answer this question at the appropriate time.
But this was not enough to satisfy the court. "People themselves are bound by the law," said
Justice Datta. He wanted to know why the court should not take cognizance of an offensive
comment made by an MP in a public gathering when the police didn't act on it. Saying so, the
judge pointed to a paragraph in the writ petition that carried the transcript of Pal's speech and
handed it over to the government pleader. Banerjee pleaded that he needed time to answer the
question.
● Sovereignty and integrity of India: This ground was also added subsequently by the
Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from
making the statements that challenge the integrity and sovereignty of India.
There are various instances when there has been controversy in regards to restrictions being
imposed. For example, Salman Rushdie’s controversial novel the “Satanic Verses” was banned
in India. The novel provoked great controversy in the Muslim community because some
Muslims believed that there were blasphemous references. Rushdie was accused of misusing the
Freedom of Speech and Expression. As the controversy spread, the import of the book was
banned in India.
Conclusion
Before we won our independence, the British had imposed various restrictions from time to time
to muffle the rising voices and patriotic expressions of our freedom fighters.
For example, the Vernacular Press Act, 1878, a highly controversial measure repressing the
freedom of vernacular press. Viceroy Lord Lytton is particularly noted for his most controversial
press policy which led to the enactment of the Vernacular Press Act on 14 March 1878. Earlier,
the dramatic performances act (1876) was enacted to repress the writing and staging of the
allegedly seditious dramas. Vernacular Press Act (1878) was aimed at repressing seditious
propaganda through vernacular newspapers. The papers that made the government worried were
Somprakash, Sulabh Samachar, Halisahar Patrika, Amrita Bazar Patrika, Bharat Mihir, Dacca
Prakash, Sadharani and Bharat Sanskarak. All these papers were said to have been leading the
seditious movement against the government. The Act provided for submitting to police all the
proof sheets of contents of papers before publication. What was seditious news was to be
determined by the police, and not by the judiciary. Under this Act many of the papers were fined,
their editors jailed. Obviously this repressive measure came under severe criticism. The
succeeding administration of Lord Ripon reviewed the developments consequent upon the Act
and finally withdrew it.
Today, we are reaping the benefits in terms of Freedom, Rights, and Democratic policies, as a
result of the incredible effort of our valiant martyrs and patriots who ensured for us, an
independent motherland. Thus we must also be responsible. The key lies in the balance between
Freedoms and Responsibilities. We must be true citizens of India and respect the rights of our
fellow citizens. What is a blessing to one person may be a curse to another.
Moreover, India, like all countries, is increasingly facing a situation where legal frameworks that
made sense before the explosive growth of the internet are proving incomplete or in some cases
being repurposed as blunt instruments of state power. Reforms are urgently needed, and the
pressure for reform begins with awareness. This is the first in a series of posts seeking to raise
popular understanding of issues of Indian law.
The past few years have seen an explosion in Internet usage in India with approximately a tenth
of the country’s population now considered active Internet users. While the increased access to
and use of online resources is undoubtedly beneficial to the country as a whole, there continue to
remain numerous shortcomings ranging from lack of access in rural areas, skewed sex ratios of
those accessing the Internet, and lack of adequate infrastructure, etc. There are also problems
with the
legal framework governing the Internet ecosystem in India that have captured public attention
over the last two years, with the media focusing particularly on censorship and surveillance.
The issue of censorship of online content in India is a tricky one – the Constitution permits
censorship in certain limited circumstances. This is a problem as due to the global nature of the
Internet, it is very difficult to control content being uploaded in foreign countries and being
viewed in India. Further, the thorny issue of who gets to decide to censor content and under what
circumstances is a nuanced debate – which unfortunately tends to be hijacked by arguments
based on security concerns / need for broad emergency provisions. Most attempts at censorship
have therefore been haphazard and inconsistent.
Thus it is a very difficult task for the Government to restrict and censor our freedom of speech
and expression, in present times. With the advent of technology, we citizens are getting more
empowered, and thus must also be more careful.
THUS, THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS A MUST FOR
HEALTHY DEMOCRACY.
