Freedom of Speech and Expression – Under a Question Mark?
February 11, 2021
Speech is God’s gift to mankind. Through speech and expression, a person conveys his thoughts, feelings, and emotions to others. Thus, Freedom of speech and expression is a natural right, which human beings acquire at birth. Therefore, it is a basic right. Freedom of speech and expression is considered as the first condition of liberty. It holds a preferred and important place in the hierarchy of liberty. It is said, in fact, about the freedom of speech that it is the mother of all other liberties. It is through free speech, people can come together to achieve political influence, to strengthen their morality, and to help others to become moral and enlightened citizens.
Freedom of speech and expression means freely expressing your beliefs and thoughts through words of mouth, expressing, writing, printing, pictures, or any other mode. It thus involves the expression of one’s thoughts through any communication medium or visual representation, such as gestures, signs, and the like.
In modern times it is widely accepted that the right to freedom of speech is the essence of the free-society and it should be protected in any case. The first principle of a free society is an uncontrolled flow of words in an open platform. Freedom to express opinions, thoughts, and ideas without hindrance, and especially without fear of punishment, plays an important role in the development of society and it is one of the most important fundamental freedoms which is guaranteed against state suppression or regulation. Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions such as the Universal Declaration of Human Rights, International Convention on Human Rights and Fundamental Freedoms, and International Covenant on Civil and Political Rights, etc. These declarations expressly talk about the protection of freedom of speech and expression.
Freedom of speech and expression is often considered as one of the most important fundamental rights under the Indian Constitution. A ban on this right can lead to chaos. Under Article 19 (1)(a), people often express free speech but when the limit is crossed, they are prosecuted. One such instance case which the majority of Indians supported was seen in the recent tweets by the Advocate Prashant Bhushan.
Freedom of Speech and Expression – Meaning and Scope
Article 19(1)(a) of the Constitution of India guarantees the right to freedom of expression and expression to all its citizens and the law states that ‘all citizens shall have the right to freedom of speech and expression‘ and also a reasonable restriction can be imposed on the exercise of this right for certain purposes under Article 19(2) of the constitution. Under Article 19(1)(a), if any of the limitation on the exercise of the right not falling within the four corners of Article 19(2) cannot be valid and it also includes the right to express one’s thoughts and opinions on any issue through any medium or communications, e.g., through words of mouth, writing, printing, picture, film, movie; etc. This right is available only to citizens of India and not to foreign nationals.
However, this right is not absolute and it allows the Government to frame laws to impose reasonable restrictions in the interest of India’s sovereignty, integrity and state’s security, friendly relations with foreign states, public order, decency, morality, and contempt of court, defamation, and abetment to an offense.
Thus, it also includes the freedom of communication and the right to propagate or publish opinion but this right is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be confused or equated with a license to make unfounded and irresponsible allegations against the judiciary and it is also important to note that this restriction on the freedom of speech of any citizen can be imposed due to an action of the State or as by its inaction. Thus, failure on behalf of the State to guarantee to all its citizens the fundamental right to freedom of speech and expression would also constitute a violation of Article 19(1)(a).
The fundamental right to freedom of speech and expression is considered as one of the most fundamental elements of a healthy democracy as it allows its citizens to participate completely and adequately in the social and political process of the country. The freedom of speech and expression gives greater scope and meaning to the citizenship of an individual, giving the person a political and social life by extending the concept from the level of original existence.
In the Preamble to the Constitution of India, the people of India announced a safe resolution to all their citizens for freedom of thought and expression. The Constitution affirms the right to freedom of speech and expression which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information, and the right to provide information. The Indian State is under an obligation to create conditions in which all the citizens can enjoy the above rights effectively and efficiently.
Inthe Romesh Thappar vs The State of Madras case, the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which are ensured by freedom of circulation of a publication because the publication is of little value without circulation.
Also, in this case, Patanjali Sastri, J., rightly observed that ‘Freedom of Speech and freedom of the Press are at the foundation of all democratic organizations, no public education without free political discussion, therefore necessary for the proper functioning of the process of Government, is possible’. However, Article 19(2) of the Constitution provides that this right is not absolute and ‘reasonable restrictions’ can be imposed on the exercise of this right for certain purposes and the right to freedom of expression includes the right to express one’s views, thoughts and opinions on any issue and through any medium whether it be in the form of writing or by word of mouth.
The phrase, speech and expression used in Article 19(1)(a) has a wide meaning which includes the right to communicate, print and advertise the information. In India, freedom of the press is implied or expressed from the freedom of speech and expression guaranteed by Article 19(1)(a). The freedom of the press is considered as a species of which freedom of expression is a genus. On the issue of whether ‘advertising’ would fall under the purview of the Article, the Supreme Court held that the right of a citizen to display films is a part of the fundamental right of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Indian law does not explicitly refer to commercial and artistic speech.
However, Indian Law is evolving and the Supreme Court has ruled that ‘commercial speech’ cannot be denied the protection of Article 19(1)(a) of the Constitution and held that ‘commercial speech’ is a part of the ‘right of freedom of speech and expression’ as guaranteed by our Constitution. The citizens of India have the right to receive ‘commercial speech’ and also have the right to read and listen to the same as well and this protection is available to the speaker as well as the recipient. Freedom of Speech and Expression also includes artistic speech which includes the right to paint, sing, dance, write poetry, literature, and is covered under Article 19(1)(a) of the constitution as the common basic features of all these activities is freedom of speech and expression.
Under the provisions of the Indian Constitution, the right to enforce the freedom of speech arguments is not limited to individuals only, corporations are also entitled to invoke such arguments. The two cases, Bennet and Coleman & Co. v. Union of Indiaand Indian Express Newspapers (Bombay) P. Ltd v. Union of India, are of great significance. In these cases, the corporations filed a writ petition challenging the constitutional validity of the notifications issued by the Government. After much deliberation, the Courts held that the right to freedom of speech cannot be taken away to ban the commercial activities of citizens. However, it is not valid to fall within the four corners of the limitation of 19(2) on the exercise of the right under Article 19 (1)(a).
Importance of such Freedom
Freedom of Speech is the rise of democratic government. This independence is necessary for the proper functioning of the democratic process. In a democracy, freedom of speech & expression opens channels of free discussion of issues. Freedom of speech has an important role in the formation of public opinion on social, economic & political matters. It embraces within its scope the freedom of propagation and exchange of ideas, dissemination of information which would help in the formation of one’s opinion & viewpoint & debates on matters of public concern.
This aspect of the right to freedom of speech and expression extending the concept of citizenship to include the socio-political participation of an individual is critical in the process of determining the scope of a citizen’s right to life under Article 21 of the Constitution. It is important to note that the scope of the ‘freedom of speech and expression‘ under Article 19(1)(a) of the Constitution has been expanded to include the right to receive and disseminate information. It includes the right to communicate and transmit information through any medium including print media, audio, television broadcast, or electronic media.
The judiciary has time and again opined that the right to receive information is another aspect of the right to freedom of speech and expression and the right to communicate and receive information without interference is an important aspect of this right. This is because, a person cannot form an informed opinion or make an informed choice and participate socially, politically, or culturally without any detailed information.
It was seen in the case of State of Uttar Pradesh vs. Raj Narain, the Supreme Court held that Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information about matters of public concern. Print media is a powerful tool for the dissemination and acquisition of information for any citizen. Thus, access to printed material is important for the satisfaction of a person’s right to freedom of speech and expression which is guaranteed under the Constitution.
An individual with print impairment does not have access to printed material in their normal format. Failure to make legislative provisions on the part of the state to enable individuals to access with print impairment of material in alternative accessible formats would constitute a denial of the right to freedom of speech and expression and such inaction on behalf of the State falls foul of the Constitution.
Given the same, the State must ensure that adequate provisions are made in the law, which enables persons with print impairment to access printed material in accessible formats. Before looking at the truth, one must be able to receive many different views and information and reflect many different perspectives. That is why freedom of expression is so fundamental and it is essential to the functioning of our pluralist society. Freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and self-fulfillment of every individual.
Need to protect Freedom of Speech and Expression
Freedom of speech and expression offers human beings to express their feelings to others, but this is not the only reason for the purpose to protect the freedom of speech. There could be more reasons to protect these essential freedoms. There are four important justifications for freedom of speech which are as follows:
For the discovery of truth by open discussion- According to this, if restrictions on speech are tolerated, society stops knowing and publishing accurate facts and valuable opinions. That is to say that it assists in the discovery of truth.
Free speech is an aspect of self-fulfillment and development – Freedom of speech and expression is an integral aspect of each individual’s right to self-development and self-fulfillment. Restrictions on what we are allowed to say and write or to hear and read will hamper our personality and its growth and it also helps an individual to achieve self-fulfillment.
For expressing belief and political attitudes- Freedom of speech and expression provides an opportunity to express one’s belief and show political attitudes and it ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a proper balance between stability and social change.
For active participation in democracy- Democracy is the most important feature in today’s world. Freedom of speech is to protect the right of all citizens to understand political issues so that they can participate in the smooth operation of democracy. That is to say, freedom of speech strengthens the ability of an individual in participating in decision-making.
Thus, we find that the protection of freedom of speech and expression is very much essential. Protection of freedom of speech and expression is important for the discovery of truth by open discussion, for self-fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy.
From an Indian perspective we can see the guarantee of Freedom of Speech and Expression under the following heads which are as follows:
Freedom of Press
Although Article 19 does not express a provision for freedom of the press but the fundamental right of the freedom of the press implicit in the right of the freedom of speech and expression. In the famous case, Express Newspapers (Bombay) (P) Ltd. vs. Union of India, the court observed the importance of the press in a very appropriate way and the court held that “In today’s free world freedom of the press is the heart of social and political intercourse. The press has now assumed the role of the public educator to create formal and non-formal education possible on a large scale particularly in the developing world, where television and other forms of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions, without which a democratic voter [Government] cannot make responsible judgments. Newspapers being purveyors of news and views have a great impact on public administration which will not be harmful to the Governments and other authorities.”
The above statement of the Supreme Court states that the freedom of the press is necessary for the proper functioning of the democratic process. Democracy means the Government of the people, by the people, and for the people; every citizen should have the right to participate in the democratic process, and enable him to wisely exercise his right to have a free and general discussion of public matters is essential. This explains the constitutional views of the freedom of the press in India.
Freedom of speech and expression, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the text of the Constitution of India explicitly prohibits obscenity. Freedom of speech guaranteed under Article 19(1)(a) of the constitution can be subject to reasonable state restriction in the interest of decency or morality. Obscenity in India is defined as “offensive to modesty or decency; lewd, dirty and repulsive” and it states that the test of obscenity is whether the publication, read as a whole, has a tendency to open and corrupt the minds of those who are exposed to such immoral influences, and therefore each work must be examined by itself.
In respect to art and obscenity, the Court stated that “the art must be so excessive as to throw obscenity into a shadow or the obscenity be so trivial and insignificant that it has no effect and can be ignored” and the Court concluded that the test for asserting community shores in India is that obscenity cannot have constitutional protection of free speech without any pre-determined social purpose or benefit.
Right to Information
Right to know, to information is another aspect of freedom of speech and expression. The right to know, to receive, and to provide information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of providing and receiving information and thus has access to telecast for this purpose.
However, the right to know is not to the extent of invalidating Section 5 of the Official Secrets Act, 1923, which prohibits the disclosure of certain official documents. Even, Right to Information Act 2005, which especially talks about peoples’ right to ask for information from Government officials, prohibits the disclosure of certain documents under section 8 of the Act. These exceptions are generally on the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1) of the Constitution of India. One can conclude that ‘right to information is nothing but a small part of the right of speech and expression.
Grounds of Restriction
In a democracy, it is necessary to maintain and preserve the freedom of speech and expression, so it is also necessary to impose some restrictions on this freedom for the maintenance of social order as no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State can enact a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression in the interest of the public on the following grounds: Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under following heads:
Security of the state
Friendly relations with foreign states
Decency and morality
Contempt of Court
Incitement to an offense
Sovereignty and integrity of India
From the above, it is clear that the grounds contained in Article 19(2) states that they all relate to the national interest or in the interest of society. The first set of grounds i.e. India’s sovereignty and integrity, State security, friendly relations with foreign states, and public order are all grounds for national interest whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation, and abetment to crime are all related to the interest of the society.
Freedom of Speech and Expression through speech is one of the basic guarantees provided by civil society. However, in the modern world, the right to freedom of speech and expression is not limited to express people’s views or opinions only through words, but in writing or through audio-visual means or advertisements and any other communication channel and it also includes the right to information, freedom of the press, etc. and it is also a right to express and self-realization. Two big democracies of the world i.e., America and India have significantly protected this right. As far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls under the category of fundamental rights.
Indian courts have always made a comprehensive interpretation of the value and content of Article 19(1) (a), subject only to the restrictions permitted under Article 19 (2). The term ‘in the interest of public order’, as used in Article 19, does not only includes the utterances which are directly intended to lead to disorder but also those that tend to lead to disorder and there should be a reasonable and proper nexus or relationship between the restriction and achievement of public order. It can be very well may be effortlessly reasoned that privilege to the right to speak freely of discourse and articulation is quite possibly the main essential rights. It incorporates circling one sees by words or recorded as a hard copy or through general media instrumentality, commercials, or through some other correspondence channel.
It likewise contains the right to data, opportunity of the press, and so forth. Consequently, this crucial right has a huge degree. From the above case law investigation, it is obvious that the Court has consistently positioned an expansive translation on the worth and substance of Article 19(1)(a), making it abstract just to the limitations passable under Article 19(2). Endeavors by prejudiced specialists to control or gag this opportunity have consistently been immovably repulsed, all the more so when public specialists have sold out domineering inclinations.