Proper to Freedom of Speech and Expression
Through this article, the author seeks to understand the meaning of ‘Right to Freedom of Speech and Expression. This article has been authored by Sidharth Sabu, associated with the National University of Advanced Legal Studies
Article 19(1) (a) of the Constitution grants the freedom of speech and expression, of of the most essential rights a democratic state ought to offer to its citizens. To speak and express one’s feelings in various forms such as words, signs, art, etc without fear of sanction is indispensable as it ensures smooth participation of the citizens in political and social affairs pertaining to the state.
The preamble to the constitution echoes the principle of free speech and expression in the words-“Liberty of thought, expression, belief, faith, and worship”. Free speech and expression have been recognized under various international conventions such as the Universal Declaration of Human rights, the European Convention on Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights.
The makers of the constitution, besides including free speech and expression have also included the grounds on which the state may impose reasonable restrictions on speech and expression.
Free speech also covers press rights in India as unlike in the US, the constitution does not provide any special rights to the press. The concept of Free speech has evolved over time through various case laws to encompass a wide range of subsidiary rights which will be looked into in detail in the article.
In Romesh Thapar v Union of India the Supreme Court held that Freedom of speech and expression lay at the foundation of all democratic organizations without which free political discussions and political education would not be possible thereby making it impossible for the proper functioning of the popular government.
Hence only very narrow and stringent limits have been set to permissible legislative abridgment of free speech. Only those restrictions against free speech that could be detrimental to the sovereignty and integrity of India and the Security of the state would be permitted as reasonable restrictions.
Facets of Free Speech
Like stated earlier, Freedom of speech and expression is a multi dimensional concept which encompasses within its ambit a number of subsidiary rights which were later added on by case laws.
Right to Circulate and Publish
Unlike the US, the constitution of India does not treat press rights separately from free speech. In Sakil Papers v Union of India, the Supreme Court observed that freedom of the press is in fact the species of which freedom of expression is the genus. In Virendra v State of Punjab, it was held by the Supreme Court that freedom of the press should be subjected to the reasonable restrictions lai in the constitution so as to prevent the propagation of matter detrimental to the public interest.
In Sakal Papers v Union of India, the Supreme Court held that all citizens had the right to propagate ideas by way of publishing, disseminating, and circulating. Freedom of Speech and Expression also includes the volume of circulation and thus, a law intending to curtail the volume of circulation of a newspaper directly infringes freedom of speech and expression.
In MSM Sharma v Krishna Sinha, the Supreme Court held that a non-citizen running a newspaper shall not be covered within the ambit of freedom of speech and expression under Article 19(1)(a). In Bennet Coleman and Co v Union of India, it was held by the Supreme court that the newspaper shall be given the freedom to determine the number of pages and the volume of circulation. Government interference in this regard would mean direct infringement of free speech.
Right to Conduct Interviews
Press has another important right of conducting interviews with consenting individuals. However, this right limited such that there is no compulsion on any individual to provide information to the press.
The limited scope of the right of the press to conduct interviews was an aid in Prabha Dutt v Union of India wherein the court that a newspaper does have the right to conduct interviews but that does not mean that an interview can be conducted against the wish of the individual to be interviewed.
In this instant case, a newspaper reporter wanted to take interview two prisoners who were convicted of murder under the death sentence. They were denied the right to conduct this as the prisoners did not consent to it. This position of the Supreme Court was reiterated by the Delhi High Court in State v Charulatha Joshi.
Right to Broadcast
Right to Broadcast
The evolution of free speech has widened its scope to include the right to broadcast within its ambit.
In Odeyssey Communications (P) Ltd v Lokvidayan Sanghatana, it was held by the Supreme Court that every citizen had the rigt to exhibit films through Doordarshan. Here, the court held that the fil could not be denied broadcast grounds that it would promote superstitions.
In LIC v Manubhai D Shah, a documentary based on the Bhopal Gas Tragedy was denied broadcast on grounds that the subject had lost its relevance and that it criticized the government. the Court held that the onus was upon the party restricting the film to show that the film was not in conformity with the law.
Another important case that discussed the matter of broadcasting as a right was Secretary, Ministry of Information and Broadcasting v Cricket Assn. of Bengal in which the Supreme Court took a similar stand as mentioned in the above cases. This case also discussed another subsidiary of Free Speech, ie, the Right to entertain and to be entertained. This is limited, however, by the limited availability of airway, or the medium through which the matter is transmitted.
Right to Report Judicial Proceedings
Right to report judicial proceeding
Proceedings inside a court of law can be reported for the purpose of ensuring transparency of judiciary. This particular right is being practiced on a daily basis by media where proceedings of important cases are recorded and are reported in newspaper.
However, this right is not absolute. There are cases involving sensitive issues that need to be conducted in closed chambers denying entry to the press. The Supreme Court held in Naresh Shridhr Mirajkar v State of Maharashtra that the courts may restrict the publicity of proceedings in the interest of justice. However, this power ought to be used very cautiously.
Right To Advertise/ Commercial Speech
Right to advertise
The right to advertise or the right to commercial speech is also a recognized facet of free speech under Article 19(1)(a). In Tata Press Ltd v MTNL, the Supreme Court observed that commercial speech or advertisements are essential information about a product in the market. Being n economic information, it is published for the benefit of the general public and hence it shall be included within the ambit of Article 19(1)(a).
In the Sakal Papers case, the Supreme Court had held that imposing limitations on advertisements would directly affect the circulation of the newspaper resulting in the infringement of free speech and expression.
Right to Dissent
Right to Dissent
A democratic society shall work smoothly only when the government makes itself open to criticism. Government policies ought to be analysed, discussed and the flaws are to be pointed out and criticized. Expressing dissent to government policy should not be met with unreasonable state action as it is protected by free speech and expression under article 19(1)(a).
In Director General of Dooradarshan v Anand Patwardhan, it was held by the Supreme Court that the government shall not restrict free speech on grounds that it highly criticizes the government.
In Baldev Singh Gandh v State of Punjab,it was held by the Supreme Court that criticism of the government measure even by an elected representative shall not be considered misconduct. Dissent does not necessarily mean it should be aimed at the government. The dissent could be against something which is socially agreeable.
In Kushbu v Kanniamal, the Supreme Court upheld the right of an individual to have opinions that were unpopular or contrary to mainstream social practices.
In Srishti School of Arts Design and Technology v Central Board of Film Certification, it was held by the Supreme Court that the constitutional framework of the freedom of speech and expression as enshrined in Article 19(1)(a) of the Constitution provides democratic space to a citizen to put forth a view which may be unacceptable to others but does not on that score alone become vulnerable to excision by way of censorship.
Right to Portray Social Evil
In art forms such as cinema, there may be instances where the makers will have to show social evils in the film as it is happening in the society.
In K A Abbas v Union of India, the Supreme Court held that restriction cannot be imposed on a film merely on the fact that social evils such as violence, rape were portrayed in it. However, it is to be seen as to how the theme has been handled by the makers and whether the depiction of the evil is necessary for the development of the plot.
The Supreme Court in Bobby Arts International v Om Pal Singh observed that in the film Bandit Queen- the biopic of Phoolan Devi, there were extremely graphic sequences depicting the horrid experiences of Phoolan Devi including rape at a very young age.
The Court held that those specific scenes were needed to be portrayed in order to build the plot and that it is the gruesomeness of these scenes is that makes the audience feel for the protagonist.
Right to Portray Historic Events
Right to Portray Historic event
An artist or a film maker has the right to present a historical event and merely because of the possibility that the recall of the event cold result in tension in the society, it shall not be subjected to censorship.
In Srishti School of Art Design and Technology v Central Board of Film Certification, it was held by the Supreme Court that a documentary depicting the visuals of the Babari Masjid incident cannot be censored on the ground that the documentary had a difference of opinion with States’ version of the whole incident.
Right to Silence
Right to silence
In Bijoe Emmanuel v State of Kerala, a citizen’s right to remain silent when the National Anthem plays was upheld. It was held by the court that freedom of speech and expression also entailed the freedom to remain silent.
Reasonable Restrictions on Free Speech and Expression
It is known fact that fundamental rights are not absolute rights as they are limited by reasonable restrictions that could be imposed by the state from time to time in the interest of a number of factors like public order, national security etc.
This article shall discuss briefly, the grounds under which the state may impose reasonable restrictions on free speech and expression. Article 19(2) lays down the grounds under which reasonable restrictions may be imposed by the state. The Grounds are;
Sovereignty/ and Integrity of India
This ground was added as a result of the surging secessionist movements n several part of the country. Chinese insurgencies was gaining streingth around the North-East, strong demands for a separate Sikh homeland and demands for Dravida Nadu fir the South Indian states were also becoming stronger.
In 1963, a bill was introduced in the Parliament by the then Law Minister Ashoke Kumar Sen seeking to vest upon the Parliament powers to impose restrictions upon those individuals or organizations who were instigating secessionist movements in the country. N pursuant to the powers granted by this amendment, the government enacted the Criminal Law Amendment Act, 1961 and the Unlawful Activities (Prevention) Act, 1967 which criminalised forms of speech and expression that aided such secessionist movements.
Security of the State and Public Order
The term public order means public peace, safety and tranquility. It was added to the constitution as a ground to impose reasonable restrictions on free speech by the First Amendment Act, 1951 to bypass the decision of eth Supreme Court in Romesh Thopar v State of Madras where the court held that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the state or its overthrow, such a law cannot fall within the restriction under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.
After the first amendment, in the case Ramnji Lal Modi v State of UP, the Supreme Court observed that the phrase ‘ In the interest of public order’ had wider connotations. It is not limited to maintenance of public order alone as there could be enactments that did not directly result in the maintenance of public order but would still be in the interest of public order.
Further the Supreme court in Supdt. central prison v Ram Manohar Lohia held that there has to be a reasonable and rational relationship between the restriction to be imposed and the object sought to be achieved, not a far fetched or a remote connection.
Friendly Relations with Foreign States
There is no specific legislation with respect to this specific issue, but a number of statutes consist of provisions that imposes restrictions on forms of speech and expression that would have adverse effects on the friendly relationship with foreign countries such as Section 5 (B)(1) of the Cinematograph Act, 1952, Rule 6(1)(b) of eth Cable Television Network Rules, 1994 and section 8(1) (a) of the Right to Information Act,2001.
Decency and morality are two subjective notions which changes from person to person, from time to time and from country to country. Even within the same country, there may be different social strata who consider one thing to be indecent or immoral which another community or a social group might feel normal.
The Supreme Court itself has observed in Chandrakant Kalyandas Kakodkar v State of Maharashtra that such notions vary from country to country depending on the standard of morals of contemporary society. It is difficult to lay a general and concrete standard of decency and morality.
Obscenity is another concept that is often used in this context synonymously with indecent and immoral. The Indian Penal Code under section 292 defines obscenity as a book pamphlet, drawing, painting, representation, figure or any other object which appeals to the prurient interests or where it comprises two or more distinct items, the effect of any one of the item when taken as a whole tend to deprave and corrupt the persons who are likely to be exposed to such matter.
In Rajit D Udeshi v State of Maharashtra, the Supreme Court defined obscenity as offensive to modesty or decency, lewd, filthy, and repulsive.
The attitude if the Indian society towards sex and nudity in general and as a form of expression has drastically changed due to the elements of what is popularly known as the Victorian Morality where sex and nudity are considered a taboo. Courts have also discussed this matter in detail.
Court in K A Abbas v Union of India, observed that sex and obscenity are not always synonymous and that it was wrong to classify sex as essentially obscene or even indecent or immoral. Bobby Arts case too, the court made a clear distinction between nudity and obscenity. In that case, it was held by the Supreme Court that in the film, “Bandit Queen” scenes depicting frontal nudity was not to arouse prurient feelings but was aimed at the revulsion for perpetrators
Morevoer, Ranjit D Udeshi case, the Supreme Court distinguished between obscenity and pornography. It was held that while pornography denotes writings, pictures etc intended to arouse sexual desire, obscenity may include publications not intending to do so but which have that tendency. While both offend against public decency and morals, pornography is obscenity in more aggravated form.
Even though it is extremely difficult to set a uniform standard of morality and decency or obscenity, the Supreme Court have applied a number of tests to identify if something is obscene. The Hicklin test which originated in English Courts was based on the effect of the publication on the most vulnerable members of the society whether or not they are exposed to the publication. This was applied in Rnjit D Udeshi case.
The Likely audience test is an improvement on the Hicklin test where the effect of the publication on a person who could reasonably be expected to gain access to the publication. In other words, the effect of the matter on its target audience is what is looked into in this test.
This was applied in the Samaresh Bose v Amal Mitra case. Preponderating Social Purpose Test is the one which is applied when art and obscenity and mixed. In such cases, the courts will see whether the artistic, literary, or social merit of the work in question outweighs its obscene content. It was discussed in KA Abbas v Union of India.
Contempt of Court
In a democratic system, judiciary holds a very crucial position in the administration of justice and application of laws. The supreme position of the judiciary is indispensible for the smooth functioning of law and hence anything that would belittle the authority of the Courts shall be met with legal sanction on grounds of contempt of court.
The Contempt of Courts Act is the legislation enacted to impose restrictions upon actions including speech and expression that would scandalize the courts and jeopardize their position.
In Indirect Tax Practitioners Association v R K Jain it was held by the Supreme Court that truth based on facts should be allowed as a valid defense against contempt proceedings. Section 2 of the Contempt of Courts Act divides contempt into civil and criminal contempt.
Civil Contempt is the willful disobedience of a court order whereas criminal contempt is the publication of any matter or doing of any act which scandalizes or tends to scandalize or lower or tend to lower the authority of any court, prejudices or interferes or tends to interfere with the due process of a judicial proceeding, interferes or tend to interfere with the administration of justice.
Free Speech do not warrant an individual to defame another. A person knowingly makes a statements or publishes a matter to the public about another person that would tarnish the latter’s reputation shall be restricted on grounds of defamation. A defamatory matter in a permanent form such as a matter written or printed is labeled as Libel and the defamatory matter which is spoken is called slander.
Freedom of Speech and Expression is one of the most essential right that an individual by virtue of being born as a human being ought to possess in the modern society.
Free speech is indispensable for the smooth functioning of a democratic and the interference of state should be minimal and cautious so as to ensure that individuals are able to form their own opinions and also able to express them in whatever form they deem fit. It is one basic right that encapsulates several aspects, several forms of expression including that of remaining silent.
A proper balance has to be maintained between the exercise of free speech and also, the other individual rights such as privacy and integrity so that the exercise of the former would not abridge or tarnish the latter.
What does Article 19 of Indian Constitution say?
The Constitution of India provides the right of freedom, given in article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the freedom of speech and expression, as one of its six freedoms.
Is freedom of speech freedom of expression?
Freedom of speech, of the press, of association, of assembly and petition — this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression.
Is freedom of speech and expression absolute?
No it is not. Under Article 19(2), one can find the restrictions put upon the Freedom of Speech and Expression.
 Citation: AIR 1950 SC 124
 AIR 1962 SC 305
Citation: AIR 1957 SC 896
 All India Report 1959 SC 359
 Citation: AIR 1963 SC 106
 6 1982 SCR (1)1184
 63 (1996) DLT 90
 Citation: AIR 1988 SC 1642
 -AIR 1993 SC 171
 Citation: AIR 1995 Sc 1236
 1966 SCR (3) 744
 1996 8SCC 433
 (2002) 3 SCC 667
 (2010) 5 SCC 600
 2011 (123) D.R.J.
 AIR 1971 SC 481
 (1985) 1 SCC 641
 Citation : AIR 1987 SC 748
 – AIR 1950 SC 124
 Citation: AIR 1960 SC 633
 – AIR 1970 SC 1390
 Citation : AIR 1965 SC 881
 – AIR 1986 SC987
 (1983) 4 SCC 125