“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 the frontier.”
-United Nations, Universal Declaration of Human
Rights
Introduction:
Freedom of speech and expression is a natural
right, which a human being acquires on birth. It is regarded as the first
condition of liberty. In the hierarchy of the liberty, the freedom of speech
and expression occupies an important position. Therefore, freedom of speech and
expression is the mother of all the other liberties. The very first principle
of a free society is an untrammeled flow of words in an open forum.
Freedom of speech and expression is one of the
most important fundamental rights of the Constitution of India. India is a
democratic country; and it is said that in a democracy the right to free
expression includes the right of the community to be heard and be informed.
The freedom of speech and expression is not only
guaranteed by the Constitution of India or by the statutes of various states
but it is also guaranteed by various international conventions. Some of the
conventions are European Convention on Human Rights and Fundamental
Freedoms, International Convent on Civil and Political Rights, etc.
Origin
of Freedom of Speech and Expression:
The concept of freedom of speech and expression
is dated back to ancient Greece. They pioneered free speech as a democratic
principle. The ancient Greek word “Parrhesia” means free speech or to speak
candidly. The term first appeared in Greek literature around the end of the 6th
century B.C. England’s Bill of Rights in 1689, adopted freedom of speech as a
Constitutional Right.
In the Modern World for the first time, voice
raised for freedom of speech and expression during the French Revolution. In
August 1789 the Declaration of Rights of Man and Citizens was adopted
containing the Freedom of Speech and Expression in Article 11. It is one of the
historic document and its declarations embodied the true spirit of the Human
Revolution.
After World War II (1945), the United Nations
was formed to maintain peace and harmony in the world. In 1948 The Universal
Declaration of Human Rights was adopted. The freedom of speech and expression
was recognized as a human right under Article 19 of UDHR (Universal Declaration
of Human Rights) stating that everyone should have the freedom to express their
ideas and opinions. This article has now formed a part in the International and
Regional Human Rights Law.
The framers and the architects of the
Constitution of India borrowed the idea of freedom of speech from the
democratic ideas laid in the American Constitution. In the colonial era, the
liberties of the Indians were at a complete stake. The atrocities of the
British Empire curbed the freedom of speech and expression of the Indian
masses. From the Sedition laws imposed by the English in 1870 in Section 295A
of the Hate Speech Law, the British took every possible way to curb opinion-making
among the Indians in order to suppress the revolutionary sentiments, prevailing
the masses to an independent struggle. The prevention of the Sedition Meeting
Act, 1907 which prevented open discussions and formation of unions was also the
driving force behind the very fundamental right freedom of speech and
expression being guaranteed to the citizens, which they were earlier deprived
of.
Meaning of Freedom of
Speech and Expression:
The Fundamental Rights are enshrined in Part III
of the Constitution of India from Articles 12-35. These rights are guaranteed
by the Constitution to all persons without any discrimination.
Originally, the Constitution provided seven
Fundamental Rights viz,
- Right
to Equality (Article 14-18)
- Right
to Freedom (Article 19-22)
- Right
against Exploitation (Article 23-24)
- Right
to Freedom of Religion (Article 25-28)
- Cultural
and Educational Rights (Article 29-30)
- Right
to Property (Article 31)
- Right to Constitutional
Remedies (Article 32)
However, the Right to Property was removed from
the list of Fundamental Rights by the 44th
Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII
of the Constitution. So at present, there are only six Fundamental Rights.
Article 19(Right to Freedom) guarantees to all
citizens the six rights. These are:
- Right
to Freedom of Speech and Expression
- Right
to assemble peaceably and without arms
- Right
to form associations or unions or cooperative societies
- Right
to move freely throughout the territory of India
- Right
to reside and settle in any part of the territory of India
- Right to practice any
profession or to carry on any occupation, trade or business
These six rights are protected against only
state action and not private individuals. These rights are available only to
the citizens and to shareholders of a company but not to foreigners or legal
persons like companies or corporations, etc.
This research work closely concerns with Article
19(1) Freedom of speech and expression of the Constitution of India. Freedom of
Speech and Expression implies that every citizen has the right to express
his/her views, opinions, beliefs, and convictions freely by word of mouth,
writing, printing, picturing, or in any other manner. The Supreme Court held
that freedom of speech and expression includes the following:
a) Right to propagate one’s views as well
as views of others.
b) Freedom of Press.
c) Freedom of commercial advertisements.
d) Right against tapping of telephonic
conversation.
e) Right to telecast, that is, the
government has no monopoly on electronic media.
f) Right against bundh called by a
political party or organization.
g) The right to know about government
activities.
h) Freedom of silence.
i) Right against the imposition of
pre-censorship in a newspaper.
j) Right to demonstration or picketing
but not right to strike.
The people of India declared their solemn
resolve to secure each citizen’s liberty of thought and expression in the
Preamble of the Indian Constitution. The Indian States are under an obligation
to create conditions in which all the citizens can effectively and efficiently
enjoy aforesaid rights.
Importance of Freedom of
Speech and Expression:
The right to free speech and expression has that
power through which one can break any type of giant brick that comes in its
way. It was well said by Cicero, a Roman political as well as a lawyer that
“The people’s good is the highest law”.
Other rights that allow or help Indian society
to develop and progress are supported by freedom of speech and expression. An
opinion only carries intrinsic value to the owner of that opinion, thus
silencing the expression of that opinion is an injustice to a basic human
right.
There is a great saying by Benjamin Franklin-
“Without freedom of thought, there can be no such thing as wisdom and no such
thing as public liberty without freedom of speech”
Free debate and open discussion are the two
basic essentials of democracy and are the only corrective of government action
in a democratic setup.
Scope of Freedom of
Speech and Expression:
The judiciary has been enlarging the area
covered by the Fundamental Right to freedom of speech and expression. Freedom
of speech and expression is a vital feature that a democracy runs with. This
freedom comes in for the assumption times that rationality of men comes above
everything else, and every individual, by his/her own discretion and wisdom
knows what is good or bad.
While discussing the scope of freedom of speech
and expression the Supreme Court at many times has said that the words freedom
of speech and expression must be broadly constructed to include the freedom to
circulate one’s views by words of mouth or in writing or through audio-visual
instrumentalities. It, therefore, includes the right to propagate one’s views
through the print media or through any other communication channel e.g. the
radio and the television. The Court held that these rights are great and basic
rights and inherent in the status of a citizen in a free country.
First Amendment in the
Freedom of Speech and Expression:
The Constitution of India was fully introduced
in 1950. The First Amendment in the Constitution took place in the year 1951 by
the Constituent Assembly (Framer of the Constitution). There are two landmark
judgments by the Supreme Court which are responsible for changing the contours
of the freedom of speech and expression as it stands now.
There were two magazines from totally different
and distant parts of the country which changed the course of the restrictions
on freedom of speech and expression.
Cross Roads- It was a weekly journal which was printed and
published in Bombay by Romesh Thapar. Thapar was a known Marxist ideologue. In
this magazine, he published articles that criticized the Nehru’s policies.
Simultaneously, the communist movement was gaining power in the western part of
Madras state (Kerala). The Congress-led government was in a fear that the
magazine would ignite the communist ideology. This fear drove the government to
issue an order imposing a ban on this article (under Section 9(1A) of the
Madras Maintenance of Public Order Act, 1949) in March 1950.
Organizer- This magazine was started during the time of Partition by the
Rashtriya Swamesevak Sangh (RSS) with Brij Bhushan as its printer/publisher and
K.R. Halkani as its editor. At that time there was a large scale exodus of
Hindus and Muslims and riots. This magazine carried two articles under the
titles “Six Questions” and “Villains versus Fools” criticizing the government.
The government issued a notice in March 1950 under Section 7(1) (c) of the East
Punjab Safety Act, 1949. It was alleged in the notice that the Organizer was
publishing material that was communal in nature, and it directed the magazine
to submit all material to the government for prior censorship.
Both the editors approached the Supreme Court
and challenged the constitutional validity of the respective provisions of law.
The Supreme Court decided with a majority of 5:1 gave their judgment against
the Nehru government. The majority judgment held that a provision that
authorizes the imposition of restrictions for the wider purpose of securing
public safety or the maintenance of public order falls outside the scope of
authorized restrictions under clause (2) of Article 19. It was concluded that
‘public order’ was not an enumerated exception to the right to free speech, and
that a law which restricted speech on the ground that it would disturb the
public order was unconstitutional.
The Constituent Assembly amended the
Constitution in June 1951, which was within thirteen months of the two
judgments. The amendment was done in Article 19(2). Three new enumerated
reasonable restrictions were included to the right to free speech:
- Public
Order
- Friendly
relations with the Foreign States
- Incitement to an Offence
Protection of Freedom of
Speech and Expression:
Now the question arises that why do we need to
protect freedom of speech and expression. We imply that it’s valuable because
its restrain would undermine our freedom, which is a way of avoiding the
question. This disinterest in the value of free speech, sometimes amounting to
a refusal to define it, appears to be rooted in the principles of our
liberalism, which enshrines free speech as one right. In order to guard this
principle right, people must not specify the value that of how it will normally
be used. By this, the society starts destroying what it wants to protect.
Society that understands itself in terms of
rights must protect its boundaries in the definition of rights. In order to
grasp some ideas of worthy speech, or let’s say to know why free speech matters
one has to challenge our own liberalism for the sake of exposing its more than
simply-liberal aims and character.
Grounds for Restriction:
“Everyone is in favor of free speech. Hardly a
day passes without its being extolled, but some people’s idea of it is that
they are free to say what they like, but if anyone else says anything back,
that is an outrage.”
-Winston Churchill
It is true that some people cannot tolerate
others’ words and out of anger they hurt the other person by their words or
actions. Because of this intolerable nature of the human being, it becomes
mandatory to impose some curbs on this freedom for the maintenance of social
order. No freedom can be absolute or completely unrestricted. Article 19(2)
contains the grounds on which restrictions on the freedom of speech and
expression can be imposed-
1. Security of State: Under
Article 19(2) reasonable restrictions can be imposed on freedom of speech and
expression in the interest of the security of State. The term “security of state”
refers only to serious and aggravated forms of public order e.g. rebellion,
waging war against the State, etc. Thus speeches and expression which
encourages people to commit violent crimes undermine the security of State.
2. Friendly Relations with the
Foreign States: First Amendment Act, 1951 drove the Indian Constitution
to add this ground in Article 19(2). No similar provision is present in any
other Constitution of the world. The objective behind this provision is to
prohibit unrestrained malicious propaganda against a foreign-friendly state,
which may jeopardize the maintenance of good relations between India and the
state. It is to be noted that members of the commonwealth including Pakistan
are not a “foreign state”. The result is that freedom of speech and expression
cannot be restricted on the ground that the matter is adverse to Pakistan.
3. Public Order: This ground
was also added by the Constitution in the First Amendment Act, 1951. ‘Public
Order’ is an expression of wide connotation and signifies “that state of
tranquility which prevails among the members of political society as a result
of internal regulations enforced by the Government which they have
established.” Public Order is synonymous with public peace, safety, and
tranquility. It is a test to determine whether an act affects the law and order
or leads to the disturbances of the current life of the community. Anything
that disturbs public tranquility or public peace disturbs public order. Under
public order, the State would be entitled to prevent propaganda for a state of
war with India.
4. Decency or Morality:
Sections 292-294 of the Indian Penal Code restricts the freedom of speech and
expression in the interest of decency or morality. These sections prohibit the
sale or distribution or exhibition of obscene words, etc. in public places. The
standard of morality varies from place to place and from time to time.
5. Contempt of Court:
Restriction on the freedom of speech and expression can be imposed if it
exceeds the reasonable and fair limit and amounts to contempt of court.
According to Section 2(a) ‘Contempt of court’ may be either ‘civil contempt’ or
‘criminal contempt’.
6. Defamation: A statement,
which injures a man’s reputation, amounts to defamation. Defamation consists of
exposing a man to hatred, ridicule, or contempt.
7. Incitement to an Offence:
The word ‘offense’ is defined as any act or omission made punishable by law for
the time being in force. This ground was also added by the Constitution in the
First Amendment Act, 1951. Freedom of speech and expression cannot confer a
right to incite people to commit offenses.
Sedition: It should be noted that the sedition is not mentioned in Article
2(a) as one of the grounds on which restrictions on freedom of speech and
expression may be imposed. As understood by the English law, sedition embraces
all those practices whether by words, or writing which is calculated to disturb
the tranquility of the state and lead the ignorant people to subvert the
government.
Conclusion:
The Freedom of Speech and Expression is one of
the most important fundamental rights. This fundamental right has a vast scope.
It guarantees the citizens free speech which one can use to put forward his/her
view or opinion by various methods. In the present era, it is very important
for all individuals to open up. I would like to give rest to my words by
quoting an alluring statement given by George Washington-
“If the freedom of speech is taken away then
dumb and silent we may to led like sheep to the slaughter”.
References:
- Indian
Polity by M Laxmikanth
- www.legalserviceindia.com
- www.lawteacher.net
Mugdha Adhikary
B.A. LL.B.
Banaras Hindu University
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