Criticism is not new a new concept in society and people are constantly at the end of being reviewed and criticised people in the public eye even more so. It is easier to publish one’s thoughts to a wider platform due to the advent of social media. A person who feels anguish, uneasiness or maybe contentment, logs in to Instagram, Twitter, YouTube and publishes it in seconds however blind to the consequences it can ensue. Due to present social outreach, social freedom has often led to controversies and are bound to continue and people in public make statements about one another on social media coffee tables, interviews the list keeps growing. The right to freedom of speech and expression gave refuge to anyone who is restrained in expressing themselves. But this right is not absolute. The right has been protected under Article 19(1)(a) of the Constitution of India. The framers of the constitution were aware that there is a need to make room for free-floating ideas and criticism. But for the greater good of the society, they kept room for restrictions to such freedom.
IMPORTANCE OF FREEDOM OF SPEECH
Freedom of speech is the bulwark of democratic government and it is essential for the proper functioning of the democratic process. Freedom of speech and expression is regarded as the first condition of liberty and giving succour and protection to all other liberties. In a democracy, freedom of speech opens up channels of free discussion of public issues. It plays an important role in the formation of public opinion on social, economic and political matters. It has been described as a ‘basic human right’, ‘a natural right’ and the like it. it embraces within its scope the freedom of one’s opinion and viewpoint and debates on matters of public concern.
In Maneka Gandhi v. Union of India, BHAGWATI, J., has emphasized the significance of the freedom of speech and expression in these words:
“Democracy is based essentially on open debate and free discussion, for that is the only disciplinary of government action in a democratic set-up. If democracy means the government of the people by the people, it is understandable that every citizen must be entitled to contribute to the democratic process and to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is essential.”
In 1927, in Whitney v. California, Louis Brandeis, J., made a landmark statement on the freedom of speech in the context of the U.S. Constitution:
“Those who won our independence believed that the end of the state was to make men free to develop their faculties... They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that the freedom to think as you will and to speak as you think is meant indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile.... that public discussion is a political duty; and that this should be a fundamental principle of the American government.”
Talking about the 1st Amendment to the U.S. Constitution which guarantees freedom of speech in the U.S.A. The U.S. Supreme Court has observed:
“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market whether it be by the Government itself or a private licensee”.
EXPRESS, DO NOT MAKE NOISE
The right of freedom of speech and expression enables a citizen to express its opinions, views and beliefs. It helps in the formation of a healthy, progressive and democratic society in which the society will gain knowledge and find the truth. This freedom includes expressing one’s opinions and convictions by speaking, writing, printing, painting, caricaturing among others on varied topics including governments and governance. This freedom gives a platform for free political discussions. However, it is not absolute. it does not provide a right to say whatever, whenever and wherever. Nobody has a right to create noise and corrupt society. Even absolute restriction if found reasonable is valid. The right of freedom of speech has inherent restrictions which are valid grounds for limiting speech and expression. In society at large such right could not be necessary reins else they could more often than not infringe upon the rights of others.
Jeremy Bentham stated that the appropriate end of every law is to encourage the greatest happiness of the greatest number. due to this, the framers ensured to provide such restrictions to ensure maximum good for maximum people. A law restraining free speech and expression in the welfares of the autonomy and veracity of the country, the national security, friendly relations with allies, social order, civility or morality or to contempt of court, incitement or defamation to an offence. with valid restrictions shall not be anti-constitutional. It is important to develop receptivity and tolerance to keep up with the democratic setup and secure liberty.
This is a factor which makes a country good to great. But there is the requirement to pass a reasonable test to be a valid restriction.The test which allows such a synopsis of the right is a strict one. Certainly, such freedom carries its risks of abuse. However, the constitution agreed with James Madison that "it is better to leave a few of its harmful branches to their abundant growth, than, by pruning them away, to injure the potency of those yielding the proper fruits." The word ‘reasonable’ was added in Clause 2 in 1951 while it was mentioned in Clause 3 to 6 from the beginning. It can be said that the lawmakers soon understood that even for freedom of speech and expression the restraints must be rational and must be for reasons as point out under Clause 2 of Article 19. It is upon the judiciary system to determine if an imposed restraints eligible as reasonable or not and they must keep in mind the underlying purpose of it. The test is not rigid and varies with facts and circumstances. Though, the measure for deciding the reasonableness is not the one restricted to the influence on the public at large. The restriction is not attracted when ordinary breaches are made as they do not endanger the state. The reasonableness of the restriction is to be proved by the legislature once the invasion of rights is proved.
PROCESSIONS, DEMONSTRATIONS AND STRIKES
As long as the method of speech and expression is not excluded under any law which furthers the intentions under Article 19 (2) they cannot be held back. A peaceful demonstration to show its agony against the government is guarded by our constitution. From the protest Anna Hazare’s movement for Lokpal Bill to the protest against the Farm bill in 2020 the nation has seen quite protests in the past ten years. The constitution allows to demonstrate but it does not give the right to a strike or civil violence. However, the people have the right to go on a peaceful and orderly hunger strike which is covered under Article 19.
CONTEMPT OF COURT AND FREE SPEECH
In the last decade, there has been a bustle of petitions for contempt against citizens including lawyers, artists, comedians for their comments against the judiciary. According to the Contempt of Courts Act, 1971(Act No. 70 of 1971) contempt can be defined in the two following types
Civil Contempt: means deliberate disobedience to any judgment, direction, decree, writ, order or other procedure of a court or deliberate breach of an undertaking given to a court
Criminal Contempt: means the publication by words, spoken or written, or by signs, or by visible representations, or otherwise of any substance or the doing of any other act whatever which scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
The citizen has no right to publish any matter which leads to any of the above mentioned. But, impartial criticism of any judicial act does not amount to contempt. In the leading case of Ambard V. Attorney General for Trinidad and Tobago, the court observed that “Justice is not a protected virtue, she must be allowed to suffer the scrutiny and respectful, though candid, comments of ordinary men”. Judiciary cannot be scandalised but it can be subject to criticism. Morality must be preserved towards the judiciary at all times. It is one of the major pillars of our democracy is considered in the highest regard, it is the most well-regarded pillar of the system. The Court observed that freedom of speech must triumph unless the contempt of court is obvious, mischievous or substantial. The Court observed that the act of distributing scandalous pamphlets is calculated to demoralise the confidence of the citizens in the proper administration of justice in the State. As a result, such an act is guarded in the definition of criminal contempt. When a citizen is restrained from his rights and suffered injustice, then he turns to courts with hope and trust that the judiciary system will maintain justice in the society. This trust in the judiciary system enables the courts to deliver justice.
In the event, this trust fails or is allowed to be failed, then the working of the entire democracy would be harshly affected. Therefore, it becomes important to safeguard this trust and the tool of the law of contempt assigned with the courts for this very protection. The aim of bona fide criticism of the system or the institution is to inducing the administration of that organ to make a room for improvement. The Judiciary system does not like to assume its position that they are above criticism and their functioning require no improvement. The court observed that to establish bona fide the person should see all the circumstances including the one who is accountable for the statement or comment, his or her knowledge in the respected field regarding which the statement is made and the purpose he intended to be achieved. If a person with no knowledge makes an unregulated rant with a clear motive and malice then it is not bona fide. Imputing dishonesty in a judge is not an excuse, even if it is assumed that there were several errors in the judgement.
CONCLUSION: WHILE SPEECH IS SILVER, SILENCE IS GOLDEN
Every citizen does have the right to freedom of speech and expression, but the same is not unfettered. The right has its limitations. One may feel that these restrictions might be overbearing due to uncertain judicial check. Some topics have a free hand but there are some areas which need to tramp on carefully. There are rules and regulations which protect the national symbols as one has no right to speak ill about certain things including the national flag. There is no harm in safeguarding certain things from ridicule and profane remarks. The judiciary system must be given privilege for the establishment of an efficient democracy. But it depends on ‘who is the one criticising and ‘what’ language is being used. It is crucial to have a sense of trust in the law and order, and relentless rants against the judiciary must not be entertained and encouraged. The Indian judiciary system previously has with importance expressed its concern with minutest restrain to freedom of speech with symbolic punishments. However, this does not give a right to be disrespectful or scandalous towards. With every right there comes duty. These duties must not be ignored when we regard our rights so greatly. A sensible person should always think before speaking and more if you speak-ill and even more when you are expressing yourself on a social media
Report of the Second Press Comm, Vol I, 34-35.
Maneka Gandhi v. UOI, AIR 1978 SC 597: (1978) 1 SCC 248
Whitney v. California, 247 US 214
Associated Press v. US, 326 US 1.
M.B. Cotton Assn. Ltd. Versus Union of India, AIR 1954 SC 634 (India)
The Constitution of India Article 19 Clause 2
Dissent of Mathhew J in Bennett Coleman & Co. versus Union of India, AIR 1973 SC 106 (India).
Romesh Thapar versus State of Madras, AIR 1950 SC 124 (India
12th Edition, V.N. Shukla, Constitution of India, 2013, Page 127
Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC 731 (India)
Khyerbari Tea Company Ltd. v. State of Assam, AIR 1964 SC 925 (India).
Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 (India).
E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, AIR 1970 SC 2015 (India).
Sodhi Shamsher Singh v. State of Pepsu, AIR 1954 SC 276 (India).
P.N. Duda v. P. Shiv Shanker, AIR 1988 SC 1208 (India)
Re: Arundhati Roy v. Unknown, AIR 2002 SC 1375 (India)
C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132 (India).
Author: Ishan Gupta
College: Vivekananda Institute of Professional Studies, Delhi
Semester: IV Semester