FREE SPEECH AND ITS IMPLICATION IN INDIA
Author: Manisha Dodani, III year of B.A.,LL.B. from BM Law College
INTRODUCTION
Free speech means that individuals have the right to put forward their views and ideas without any interference from the government. International law also protects freedom of speech, but it also legitimises some restrictions under the same law, if any person’s by her words violates the right of others or any speech that is against public interest and incites discrimination or violence in society.
The protection of free speech means protecting the press, the democratic process and diversity of thoughts.
The freedom to express oneself belongs to everyone... This freedom encompasses the freedom to hold and express any viewpoint without hindrance as well as the freedom to look for, gather, and use information through any medium, across all boundaries.[1]
India is a democratic country, and it can only exist if there is a right to free and fair exchanges of thoughts. India is a diverse country; different language, religion, caste and creed prevail in Indian Society, that’s why Right to Freedom of speech plays an important role and is essential for the citizens of India. Article 19(1) (a) of the Indian Constitution protects this right and is given a prominent place in the Constitution. Indian citizens are also guaranteed "liberty of thoughts, expression, belief, faith, and work," according to the constitution's preamble.
FROM WHERE THE IDEA OF FREE SPEECH CAME IN INDIA?
● During the time of the British Empire, Indian’s liberties were threatened because the British restricted their freedom of speech and expression.
● The British government enacted the sedition law in 1870, to prevent open discussions and to restrain opinions made by revolutionaries in order to prevent the formation of a multitude to fight for independent India.
● Queen Empress v Jogendra Chunder Bose[2] It was India's first case on sedition. In this case the editor, manager and printer of Bengali magazine ‘Bangobasi’ were tried for sedition for publishing an article against the British government regarding the raising of the age of consent for sexual intercourse.
● Bal Gangadar Tilak and Mohandas Karamchand Gandhi were also convicted for sedition under section 124A of IPC because they both spoke against the British government.
● From the above two instances, we can observe that the freedom of speech of individualsduring the British Empire was restricted and if someone spoke they were given imprisonment.
● Numerous unions were established to demand that the citizens, who were denied this right, be granted freedom of speech and expression.
● After independence, the framers of the constitution of India borrowed the idea of freedom of speech, which are guaranteed under article 19(1) (a) which they borrowed from the American constitution.
● Although the Indian Constitution guarantees the right to free expression, there are certain justifiable constraints on that right that have been imposed by the government.
RIGHT OF SPEECH AND EXPRESSION UNDER THE AMBIT OF INDIAN CONSTITUTION
All citizens are guaranteed the right to free expression under the constitution.[3]
This right has several constraints that are outlined in Article 19(2), which outlines the "reasonable restrictions" that the state may impose.
Important ingredients of Article19 (1) (a) are as follows
● This right is available for Indian citizens and not for foreign citizens.
●This right includes the expression of one’s ideas and opinions by words, writing, painting, visual, through signs, gestures or any other mode.
● It aids in the pursuit of truth.
● It provides a platform for individuals to create their own opinions and they are free to communicate.
●It imposes some reasonable restrictions for the security of the state, public order, decency, morality, defamation, friendly relation with foreign states, public order, incitement to offence, India’s integrity, and sovereignty.[4]
Scope of Article 19(1) (a)
With its numerous rulings, judicial ingenuity, and wisdom, the Supreme Court has expanded the scope of the right to free speech and expression protected by Article 19(1) (a) to include the various elements listed below:
1. Right to Information.
2. Right to Vote.
3. The Freedom to circulate and spread ideas.
4. Right to Broadcast.
5. Right of Commercial Advertisement.
6. Freedom of expression and speech beyond national boundaries.
7. Right to express gender identity
8. Freedom of Press.
Right to Information
Article 19(1) (a) not only grants the freedom to spread or publish the opinions of others[5], but it also includes that every citizen has the right to obtain and receive any information controlled by public authority.
In Raj Narain [6] case,it was decided by the Supreme Court that Article 19 (1) of the Indian Constitution will treat the freedom to information as a Fundamental right. According to the Court, the citizens are masters of the Indian democracy and have a right to know how it operates.
Right to Vote
In Association for Democratic Reforms[7]case, it was held that voters had a fundamental right to know about their candidates. The bench of three judges in this case delivered a judgement and directed a Election Commission to make available information about whom who are contesting elections, about their education, assets, liability and criminal antecedents and this information will be provided to every citizen and if election commission deny to provide such information, it will be breach of Fundamental Right protected under Article 19(1) (a).
The Freedom to Circulate and Spread Ideas
Again expanding the scope of ‘Freedom of speech and expression’, the court includes the ability to share a viewpoint verbally, in writing, or with audiovisual equipment. This freedom thus extends to the freedom to spread one's ideas through media including radio, television, social media, newspapers, magazines, journals, and other communicable thing. However, Article 19(2) again imposes "reasonable constraints" on the same.
Right to Broadcast
In Cricket Association of Bengal(CAB) case,[8] The Supreme Court considerably expanded the definition of freedom of speech and expression in this case by ruling that Article 19(1) (a) gave people the right to transmit to viewers and listeners via electronic media and that the government did not have a monopoly on electronic records .
Only the grounds listed in Clause (2) of Article 19(2) of the Constitution allow the Government to restrict such rights. Any other grounds are not permitted. The Government was instructed by the court to create an independent, autonomous broadcasting organisation that will free ‘Doordarshan’ and ‘Akashwani’ from the constraints of government control and to establish the circumstances necessary for everyone to enjoy freedom of speech and expression.
Right of Commercial Advertisement
Advertising is a form of speech , however not all forms of advertising are form of speech or form of idea expression.Commercial advertisements are not covered by Article 19(1)(a) of the Indian Constitution.. Such advertisements contain a commercial and trade component.
Article 19(1)(a) only protects commercial advertisements if they serve the public interest and are used to inform the general public, make announcements, or draw attention to certain information through the media or other channels. Commercial advertisements for tobacco products are not covered by this Article.
Freedom of Speech and Expression beyond National Boundaries
This right is exercisable both inside and outside of India, and any State action that erects a barrier to citizens freedom of expression abroad would be violation of Article 19(1)(a) in the same way that it would be a barrier to expression within the nation.
The freedom to free speech and expression is not geographically restricted. This right includes the freedom to learn, to talk and express oneself both domestically and internationally, and to interact with others both within and outside of India.[9]
Right to express Gender Identity
People who identify as transgender do not fit the usual gender conventions that only recognize male or female as genders. Due to society's rejection of their gender identification, individuals have experienced physical assault, social marginalization, and discrimination. Individuals who identify as transgender but do not belong to one of the socio-cultural groups known as Hijras, jogappas, Sakhi, Aradhis, etc. are nonetheless referred to as transgender people individually.
A transgender person has the freedom to express their preferred gender identification in a variety of ways, including through expression, speech, mannerism, clothes, and other means.Members of the transgender community have the basic rights of privacy, self-identity, autonomy, and personal integrity, according to Article 19(1)(a), and the State is bound to safeguard and preserve such rights.[10]
Freedom of Press
Political liberty and the smooth operation of democracy depend on press freedom, which is implied in the right to free speech and expression..
“The liberty of press” as defined by ‘Lord Mansfield’ , “consists in printing without a license and vulnerable to legal consequences[11]."
The right to print and publish anything without seeking permission is a key component of press freedom. Pamphlets, circulars, and any other type of publication that serves as a platform for information and opinion are also included.[12]
Article 19(2) – The following are the justifications listed in this article for legitimate limitations on the right to free speech and expression:
● India's sovereignty and integrity;
● State security.
● Friendly ties with other countries.
● Public peace.
● Morality or decency.
● Disrespect for the law.
● Defamation.
● Incitement to Commit a Crime
IS SEDITION LAW HURDLE TO RIGHT OF FREEDOM OF SPEECH AND EXPRESSION?
● Background
The Indian Penal Code, passed in 1860 while the British Raj was in power, is where the country’s history of sedition legislation begins. In 1870, it was incorporated into the Act as an amendment. The Wahabi Movement was put down by the British, who also imprisoned revolutionaries like Lokmanya Tilak and Mahatma G andhi.
The British employed the sedition legislation to repress dissent and arrest freedom fighters who opposed colonial government’s policies, including Mahatma Gandhi and Bal Gangadhar, Tilak.
After Independence, the drafters of the constitution spent a lot of time commenting on several facts of this colonial law.
In Kedar Nath case[13] ,Sedition law was deemed unlawful by the Punjab High Court because it infringed the freedom of speech protected by Article 19. The case was taken by Supreme Court when the Allahabad High Court followed suit. In the end, the Supreme Court maintained Section 124A’s constitutional validity in this case.
Many civil rights organisations and human rights activists have called for removal of Section 124A, arguing that this oppressive colonial law has no place in the democratic nation.
According to the law commission of India’s consultation document, which was issued on August 30, 2018, the crime of sedition must continue to exist in order to safeguard the nation’s integrity and should not limit the right to free expression provided by Indian Constitution Article 19(1).
● Issues with the laws against Sedition
The 1962, Kedar Nath decision stated that the sedition statute should only be used in exceptional circumstances where the nation’s security and sovereignty are at risk. Despite this, there is growing evidence that this provision has been used as a weapon against political opponents and to limit criticism and free speech.
The number of sedition cases dramatically rose (163 percent) from 47 in 2014 to 93 in 2019, according to the most current data published by the National Crime Bureau.
The main issue of sedition law is lack of clarity in its definition. The words "bring into hatred or contempt" and "attempt to create disaffection" can be interpreted in a number of different ways, allowing the government and the police the power to harass persons who live next door but are innocent. Sedition Law has a vague definition that makes it easy for the police to unjustly accuse people because it doesn’t specify which actions are seditious and gives a general description of what can be considered.
What is more worrying is that it can be quite challenging to obtain bail after being detained under the sedition statute because the trial process might drag on for a very long time. As a result, unwary individuals are persecuted and others start to fear criticizing the government.
To sum up. Sedition and the escalating abuse of them by all types of government including those run by the opposition are big problems. Sedition laws and their flagrant abuse underdetermine the entire basis of these liberties, which are guaranteed by the Indian Constitution, as well as personal liberty and the right to free speech, which are characteristics of liberal democracy. In India’s 75th year of Independence , India is strong and stable enough to decide if the crime of sedition is necessary and, if so, in what form with the strict rules to prevent its abuse and a clear explanation of the conditions in which it can be used.
CONCLUSION
Article 19(1)(a) of the Constitution grants the freedom to express one's opinions without interference from the government or cause, but it also places some limits in the public good and stipulates some acceptable limitations (2).
The scope of free speech and expression is widened by Supreme Court in certain ruling, As time has required, other rights including freedom of the press, informational freedom, the right to print advertisements, and the right to broadcast were included.
But in reality, people are not free to voice their opinions; instead, sedition laws are enforced, and anybody who criticizes the government faces legal consequences and punishment.Government initiatives are being taken in the direction of the repeal of the sedition law, which is actually necessary in a democratic country.
A lot of changes have been taken by government in the society, such as repeal of triple talaq, repeal of Article 370. Hope the government will take action as soon as possible for the abolition of sedition law
[1] Section 19 of the Universal Declaration of Human Rights(UDHR). [2]1892 ILR 19 Cal 35 [3] Article 19 (1) (a), Fundamental Rights, Part III, Protection of certain rights regarding freedom of speech, The Constitution of India, 1950. [4] Dr. J.N Pandey, Constitution Law of India, 57th Ed., 2020, 978-81-945686-4-3. [5] Srinivas v State of Madras, AIR 1931 Mad 70. [6]Raj Narain v/s State of Uttar Pradesh, AIR 1961 All 531. [7]Union of India v/s Association for Democratic Reforms , AIR 2002 SC 2112 [8]Secretary, Ministry of I &B V/S Cricket Association of Bengal(CAB) AIR (1995)2 SCC 161. [9] Maneka Gandhi v Union of India, AIR 1978 SC 597 [10]National Legal Services Authority v. Union of India, AIR 2014 SC 1863. [11] Dr.J.N Pandey, Constitution law of India, 57th Ed. Pg.no 223, freedom of Press, 2020, 978-81-945686-4-3. [12]Sakal Papers Ltd. V Union of India, AIR 1962 SC 305 [13]Kedar Nath v State of Bihar, AIR 1962 SCR 769