Introduction:
Without freedom of speech there is no modern world, just a barbaric one.
Ai Weiwei
Democratic countries, across the globe value freedom of speech and expression. It is a given note that freedom of expression is included in the form of fundamental rights in our country.
But the freedom of speech and expression also bears a huge responsibility of not being misused, and hence, we have certain limitations to it as well. These limitations are set in order to make sure that things are done and said in the name of freedom of speech and expression are not unlawful.
The framers of our constitution made sure that everybody’s voice is heard but, if that voice caused disruption to the societal growth, such wouldn’t be entertained at any cost. That’s how freedom of speech and expression in our country is backed by reasonable restrictions.
Freedom of speech and expression is indeed an important fundamental right, yet certain restrictions on such freedom create a balance of something not being overused or underused.
Freedom of Speech and Expression
Article 19 of the Constitution of India says:
Protection of certain rights regarding freedom of speech, etc.-
- All citizens shall have the right-
- Freedom of speech and expression;
- To assemble peaceably without arms;
- To form associations or unions [or co-operative societies]
- To move freely throughout the territory of India;
- To reside and settle in any part of the territory of India; and
- Omitted
- To practice any profession, or to carry on any occupation, trade or business.[1]
We can now say that freedom of speech and expression is the right of every citizen and that the constitution protects this right of ours.
Origin
Freedom of speech is a democratic ideal that dates back to ancient Greece. They pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech” or to “speak candidly”. In the United States, the First Amendment was adopted on December 15, 1791, as a part of the Bill of Rights- the ten amendments to the US constitution. This provided constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.[2]
One among the borrowed features of our constitution being the ‘fundamental rights”, from the US, freedom of speech and expression made a way into the “basic rights for the citizens”, because, after years of oppression, that was the one thing the framers of our constitution did not want to hold back on.
Limitations
As this goes, we, on the other hand, have reasonable restrictions clause also provided and protected by the constitution of India.
Article 19(2) says:
Nothing in the sub-clause (a) of clause (1) shall effect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [the sovereignty and integrity of India,] the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.[3]
Which means the government can restrict the freedom of expression right when it collides with any or the entire reasonable restrictions clause mentioned in the above article. The grounds on restrictions being;
- Security of the State
Security of the state is one of the prime objectives of any formed government. Achieving the fullest level of security, the government can lay down some restrictions as to what not to be said or done by the citizens.
The term “security” here refers only to grave situations where the last resort would be imposing of restrictions on freedom of speech and expression. Acts such as riots affray or disharmonizing the peace, unlawful assembly, etc lead to the restriction clause.
- Friendly Relations with Foreign States
Maintaining friendly relations with other states is how a country survives as an aspect of being dependent on each other. The more friendly relations a country has, the more are the chances of its safe survival. Any act done by citizens that jeopardizes the relations of India with other states will be restricted as this may lead to a grave situation that no country ever wants.
- Public Order
Another restriction mentioned in the article is public order. Public order has a wider meaning. It is to maintain peace and tranquillity in public, also at the same time curbing any public nuisances. And any act that disturbs the public order has to be restricted. And the government has the full right in such situations to restrict the freedom of speech and expression if the act committed has the capability of shaking the peace and tranquillity.
- Decency or Morality
Freedom of speech and expression is no doubt an excellent means of communication in order for our voices to be equally heard. And hence it has great importance in our constitution. But one must also remember that what is said and done in the name of freedom of speech and expression must be decent.
It is also true that the meaning of decency and morality changes with the shift in generation or society. The standard of such particular time must be taken into consideration and should be dealt with reasonable care as to what decency is and what is morality.
And any act done that goes against the prevailing decency and morality of the society is obstructed by the reasonable restrictions clause. The recent example of such an act can be taken from the case of “Rehana Fatima”. Activist Rehana Fatima in recent times has shared a video wherein her kids were seen painting all over her semi-nude body. A case under the POCSO Act was filed. She said that it was an attempt to teach her kids of sexuality and the female body. But it did obstruct the decency and morality clause of the present scenario and hence she was booked and surrendered.
- Contempt of Court
It is well known the high position played by the judiciary in our country. In such case maintaining respect towards the judiciary becomes an integral aspect. And naturally, any statement made against the courts or disrespecting may cause to contempt of court and thus, restrictions may be applied.
Lawyer and activist Prashant Bhusan being booked for contempt of court could be said as the recent case.
Prashant Bhusan also said that he only regretted a part of what he tweeted and asserted that criticism of the top judge does not lower the authority of the court.
The tweet in question accused chief justice SA Bobde of riding a motorcycle; he was photographed on a Harley Davidson in Nagpur last month without helmet and facemask while keeping the court in lockdown and denying the citizens their right to justice. The other tweet was about four previous chief justices of India when he accused of having a role in destroying democracy.[4]
- Defamation
One person’s freedom should not be another person’s degradation. One person’s freedom of speech and expression should not defame any other person. That being said if the defamation caused is the truth, it could take another turn but, just for the sake of causing defamation, if a person uses freedom of expression, such freedom has got some restrictions. A statement made to injure the reputation of a person publicly can be curbed under the reasonable restrictions clause.
- Incitement to an Offence.
Having the freedom of speech and expression doesn’t give a person an irresponsible card. This freedom, of course, has some responsibility attached to it. If this right is used to incite violence among people or hype about hatred then for sure these restrictions come to force.
- Sovereignty and Integrity
Any statements made, that questions the sovereignty and integrity also come under the close surveillance of the restrictions clause. It is so done in order not to break the unity of the citizens and that of our country, together.
Case Laws
- Anuradha Bhasin v. Union of India and ors[5]
The Supreme Court held the “freedom to access the internet” is a fundamental right and is protected under article 19(1) (a) – freedom of speech and expression of the constitution of India. The judgment was delivered by a three-judge bench comprising justices N V Ramana, R Subhash Reddy and B R Gavai, where the petitioner challenged the internet shutdown in the Union Territory of Jammu and Kashmir.[6]
- Emmanuel v. state of Kerala[7]
This case made a statement that freedom of speech also includes freedom of silence. This was the case where three children, belonging to a particular religion; Jehova’s witnesses were expelled from school because they chose to stay quiet during the national anthem. It also stated right o practice one’s own religion as a part of article 19(1).
- Hamdard Dawakhana v. Union of India[8]
The validity of the Drug and Magic Remedies Act, which put restrictions on the advertisement of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was challenged on the ground that the restriction on advertisement abridged the freedom. The SC held that an advertisement is no doubt a form of speech but every advertisement was held to be dealing with commerce or trade and not for propagating ideas.[9]
- Romesh Thappar v. state of Madras[10]
While quoting US Supreme Court’s view in “Lovell v. city of Griffin (1937) 303 U.S. 404 the apex court held that the freedom of speech and expression, guaranteed under Article 19(1) (a), means right to speak and to express one’s opinions by word of mouth, writing, printing, pictures or in any manner. It is to express one’s convictions and opinions or ideas freely, through any communicational medium or visible representation, such as gestures, signs and the like. This freedom is essential for the proper functioning of the democratic process.[11]
Current Situation
Freedom of speech and expression currently has taken a major change, if seen in the current situation of our country. Hate speech, derogatory comments, riots and etc have become so common that it feels wrong to use freedom in such a way. When the situation gets out of control the state is forced to restrict the freedom in order to stop the nuisances. At times we can also see the misuse of free speech and expression in the form of fake news which has affected enough of people’s minds; infiltrated the wrong use this freedom.
On the other hand, there are instances when this freedom has been put to use and achieved its ability. Social media has played a vital role in achieving free speech to its fullest. Circulating news that probably the media couldn’t cover; or fighting together against any injustice prevailing at that point of time, it has covered many components.
Comparisons
America is also a country known for its freedom of expression. And more or less it is similar to that of India’s rule. America has provided freedom of speech and expressions to its citizens along with reasonable restrictions.
The same also is the condition in the UK. Under article 10, of Human Rights Act 1988, “everyone has the right to freedom of expression” in the UK. But the law states that this freedom “may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary for a democratic society”.[12]
However, the situation in Mainland China is a little different. According to article 35 of the People’s Republic Of China, “citizens of People’s Republic of China enjoy the freedom of speech, of the press, of association, of the procession and of demonstration”. But there is heavy government involvement in the media, with many of the largest media organizations being run by / or affiliated with the ruling communist party of China, CPC. Many social media networking sites are banned and so are search engines.[13]
Protests by people in China proved very less or no results in a matter of change in such policies. The recent situation happening in China regarding the Uyghur Muslims; where people are forced into detention camps is an example where the country has denied the right to freedom of speech and expression to that particular ethnicity and gave a form of oppression.
Conclusion
Freedom of speech and expression is a basic right that provides the freedom to the citizens of our country. It is the backbone of a democratic nation and a tool of guidance if used right to the citizens. Freedom of speech and expression is as essential as the constitution for our country.
The reasonable restrictions clause in article 19(2) creates a balance and gives no chance for anyone intending to misuse the freedom. Speech and expression, if used responsibly, makes many changes in the society and also helps in raising the voice against anything unlawful.
Views and expressions could be of any use only if they do not cause a hindrance in the society. The power of freedom of speech and expression is vaster than mentioned, which used in a right and the responsible way can pave a way into many incredible changes that everyone positively hopes on. Considering the present scenario, this freedom should not be used to create hatred or incite any kind of violence, but must be used to let the people know regarding the happenings across the country; world.
The freedom of speech and expression comes along with a reasonable restrictions clause because with great right, comes great responsibility!
References:
[1] The constitution (One Hundred and Third amendment) Act, (w.e.f. 14-1-2019), article 19(1).
[2] History .com editors, “freedom of speech” history, (May 9th 2019).
[3] The constitution (One Hundred and Third amendment) Act, (w.e.f. 14-1-2019), article 19(2).
[4] A Vaidyanathan, “Prashant Bhusan won’t apologize: ‘would be contempt of my conscience’”. NDTV, (August 24th 2020, 2:48 pm, IST).
[5] Writ petition (CIVIL) No. 1031 of 2019.
[6] Nishanth Sirohi “right to freedom of speech and expression through the internet is a part of article 19(1) (a): Supreme Court of India” the leaflet. (may 1 2020).
[7] AIR 1987 SC 748.
[8] AIR 1960 SC 554.
[9] Anubhav Pandey, “five most important judgments on freedom of speech and expression” I pleaders, (May 17 2017).
[10] AIR 1950 SC 124.
[11] Anisha Gupta, “freedom of speech and expression article 19(1) (a) of the constitution of India, law finder live (11-5-2015).
https://www.lawfinderlive.com/Articles-1/Article2.htm?AspxAutoDetectCookieSupport=1
[12] “Hate speech vs. free speech: the UK laws”, the week, (February 12th 2020).
[13] https://en.wikipedia.org/wiki/Freedom_of_speech_by_country#People’s_Republic_of_China_(mainland)
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