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Freedom of Expression – Sustaining Democracy

Image Credits – Ahdieh Ashrafi/Flickr CC BY-NC-ND 2.0

India is a democratic country that ensures rights for freedom of speech and expression guaranteed under the Constitution of India. Article 19(1)(a) of the same states, ‘All citizens shall have the right to freedom of speech and expression.‘ This article gives liberty to the citizens to represent their true feelings without fear. But it cannot be absolute because of the complexities that it holds like it can be easily misused or manipulated to fulfil political and economical agendas.

In July 2020, the National Institute of fashion technology, run by the government, imposed ‘NIFT Social Media Policy‘ on students. The Policy comes right after the institution has hiked its fee and it, therefore prevents students from commenting upon the institute’s action in any manner, thereby censoring the students. This article will throw a light upon background, restriction, and recent scenarios regarding the same.

Alexander Meiklejohn, one of the proponents of this link argues that democracy means self-government by the people and for the proper functioning of which, an informed electorate is indispensable which, in turn, requires that there be no constraints on the free flow of information and ideas. The media is a platform where this right can be seen taking shape and used to its maximum extent. Media majorly includes press and social platforms in today’s life.

Background

Freedom of the press is not specifically mentioned anywhere in the constitution because, in constitutional assembly debates, it was decided that the press and an individual should be treated the same in matters of speech and expression. This concept developed in England triggered by the oppression of the church creating an evolution of newspapers in the 17th century.

In Indian Express Newspapers v. Union of India, it was held that the press plays a very significant role in the democratic machinery. Article 19 of the UDHR states that ‘everyone has 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 and regardless of frontiers.

In Romesh Thapar v. the State of Madras, it was declared that ‘freedom of speech & expression of the press lays at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the process of popular government, is possible.‘ Our history is full of constitutional precedents validating media as freedom of speech for the smooth functioning of democracy. The fundamental principle related to this concept is ‘people’s right to know‘. However, at the same time, there are cases where the legislature suppressed freedom of speech and expression of media. In Bennett Coleman v. Union of India, the court struck down the restriction on the number of pages decided by the government, treating it as a violation of Article 19(1)(a). The plea that it would help in small newspapers to grow by the government was rejected.

The courts had insisted over again that newspapers shape the human mind and excessive tax on a newspaper itself could impact free speech. In Brij Bhushan v. the State of Delhi, the court struck down an order imposing pre-censorship on an English weekly of Delhi, which directed the company to submit a duplicate of the publications.

Media has evolved into its new form comprising of major activities on the internet with everyone having their own individual platform on platforms such as Whatsapp, Twitter, Instagram, etc to express their opinions. With all the continuous bombarding of the information and opinions, the right to freedom of speech and expression has a need to accompany it with certain restrictions, to maintain public tranquillity.

Why are restrictions necessary?

The Media is responsible for communicating the information to the public at large. But, in the name of freedom of speech, media surely provides a platform to commit crimes by an individual against the authorities. Considering opinionated news once posted anywhere spread like wildfire, the authorities are continuously at risk of getting defamed in one way or the other.

Recently, the high court of Tripura has asserted that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under the Tripura Civil Services (Conduct) Rules, 1988. It was also held that posting on social media was virtually the same as a fundamental right applicable to all citizens, including government employees.

The Supreme Court gave clarity on reasonable restriction stating that powers under section 19(1)(a) ‘cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights‘ but these restrictions would have to go through the test of proportionality, that is, the restriction should be proportionate to the necessity. Under 19(2), the state can restrict the freedom of media on the following grounds if the news is:

  • The Threat to Security of the state.
  • The Threat to friendly relations with foreign states to maintain good bonds without any malicious propaganda
  • The Threat to public order which can cause the disturbance. For example, to protect communal riots, deliberate intentions to hurt religious feelings, etc.
  • The Threat to decency or morality
  • Contempt of court
  • Defamation
  • Incitement to an offence
  • Sedition

For a democratic country to function in its true essence, the restriction becomes necessary. Mainly, section 144 of the Code of Criminal Procedure, 1973 empowers the authorities to block internet access to curtail the freedom of speech and expression in emergencies. The Information Technology Act has provided limited power to the government authorities to intercept, monitor, or decrypt the data on the internet. Section 66A of the Information Technology, Act 2000 controls offensive communications through digital media. However, the words in the provision such as ‘grossly offensive‘, ‘annoyance‘ or ‘danger‘ do not have a precise definition. A petition was also filed challenging the constitutionality of the same in order to prevent the misuse of technology and this rule.

Conclusion

The desirable thing is the regulation of media and not its censorship unless it is necessary. There is a very blurry line between the right to freedom of speech and expression of one’s right and the violation of the enjoyment of any other’s right. Recently, COVID-19 has proved a medium to spread hate through media.

As the governments of different countries are trying to control ‘panic’ spread worldwide, they are insisting journalists to focus on positive news. Amid a nationwide lockdown since March 24 to curb the spread of coronavirus, journalists across the world are being charged with sedition and summoned to police stations for reporting on the government’s handling of the pandemic. Some horrific incidences came into vision worldwide with respect to the treatment of our news informants. This behaviour has constantly promoted fake news, incited violence, and curtailed freedom of speech and expression.

The efforts made by the judiciary in this direction have been appreciable but we need a strict balance between both freedom that we are giving to people and the power of authorities regarding it. One wrong inclination will result in injustice.


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