If liberty means anything at all, it means the right to tell people what they do not want to hear.
Freedom of speech and expression generally means ‘free to speak' or free to express. Freedom of speech and expression is that theory of law which allows people both as individual or in a community to express their views, beliefs, concepts in forms of writing, spoken, visualising through print media, Internet or publishing in any newspaper or magazine without any fear, restraint, or punishment. The framers of the Indian constitution added freedom of speech and expression as a fundamental right under Article 19(1)a of Part III. However this right is subjected to some restrictions under Article 19(2). These restrictions can only be imposed when the state satisfies that such enjoyment of right hampers public peace and tranquillity. Besides that there are some International Standards of freedom of speech provide under Universal Declaration of Human Rights(UDHR), International covenant on Civil and Political Rights (ICCPR), European Convention for the Protection of Human Rights and Fundamental Freedoms and ASEAN Human Right Declaration.
Freedom of Speech and Expression under Indian Constitution:-
Indian Constitution as the largest constitution of the world come up with various rights and duties. One of such right is Freedom of Speech and Expression which is enshrined in the Article 19(1)a of the Constitution.
Following are some rights under Freedom of Speech and Expressions which are only available to the citizens of India and to any other people:-
Freedom of press:-
In the words Walter Cronkite, “Freedom of press not just important to Democracy, It is democracy”.
‘Press’ is the medium through which information are imparted to different parts of the world. Through the press one could comes to know about what are happening around him and get important information about political, social and economical situation of his own country. It work as stabilizer between state and individuals. Freedom of press as a fundamental right comes within the scope of Article 19(1)a. Press should be free from government influences in order to impart information without any fear or restraint. Freedom of press are subjected to certain limitations. Firstly it should not publish any defamatory sentence against the State. Secondly it should not publish or print or speak any sentence that would hampers one’s reputation. Thirdly it should not communicate false information or misinformation that would results in any public disturbance. In this context an important judgement was given in the case,
Indian Express Newspaper vs. Union of India & Ors.Etc.(1986 AIR 515, 1985 SCR (2) 287 The supreme court held that Press is the importance part of democratic system and it should be protected from another unfair means. Court invalidate all laws and provision that obstruct that Freedom.
Right to information:-
Right not only to receive but also to understand and communicate any information is an important right which comes in the ambit of freedom of speech and expression. One is free to gather information from various sources and communicate it to others through print media or any other visualising medium.
Right of Commercial speech:-
Commercial speech is a valid ground under Freedom of speech and expression. In the case,
Tata Press Ltd vs. Mahanagar Telephonic Nigam Ltd(3Aug1995, AIR 2438, SSC(5)139 ), The court held that Commercial Speech and Commercial Advertisement is a part of freedom of Speech and Expression under Article19 (1)a and that could be restricted under the grounds mentioned in Article 19(2) of The Indian Constitution.
Right to Broadcast:-
‘Broadcasting' is the spreading of Audio and Video content to their viewers through electronic and telecommunication medium like television and radio. Broadcasting and Freedom of Speech and Expression both are interrelated with each other. Freedom of speech means free to express one's view orally, in writing or in visualising through electronic or print media what broadcasting exactly means. Although Article 19 (1)a doesn’t contains any phrase as ' Broadcasting' but it comes in the ambit of Article 19( 1)a of Indian Constitution.
Case law:- In the case of Minister of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal (9 Feb,1995, AIR 1236, SSC(2)161), The Court held that freedom of speech and expression include right to disseminate information to as wide a section of population as possible, the access which enables such right to be so exercised is also an integral part of the said right.
Right not to Speak or Right to Remain Silence:-
Right to remain silence is a legal doctrine that protects individual’s interest by conferring on him the freedom to remain silence from any questions answers. Right to speech also include Right to silence. Article 20(3) of Indian Constitution contains provision that speaks about the Right of the accused person to remain silent. According to Article 20(3) No person access of any offence shall be compelled to be a witness against him.
The principle of Right to Silence decided by the judgement given by the court in the” National Anthem” case
Fact: Three students were expelled from the school because they refuse to sing the National Anthem, however they stood peaceful without any disturbance when the same was being sung. They challenged before the Kerela High Court the validity of the expulsion.
Judgement: The Kerela High Court held that the expulsion is valid on the ground that singing National Anthem is the fundamental duty of the Citizens. Further in an appeal to the Supreme Court, SC held that students didn’t commit any offence under the Prevention of Insults to National Honour Act, 1971.The Court further held that expulsion of the students from their school violate the right to silence under Article 19(1)a.
Freedom of Speech and Expression under International Standards:-
Article 19 of Universal Declaration of Human Rights provides that 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 frontiers.
According to Article 19 of International Covenant on Civil and Political Rights everyone has right to hold their opinion and free to seek, receive and communicate ideas either orally, writing or in print through print media or newspapers.
Article 10 of European Convention for the Protection of Human Rights and Fundamental Freedoms provide freedom of expression subjected to certain conditions, restrictions or penalties as prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.
ASEAN Human Right Declaration adopted a Human Rights Declaration, which proclaims freedom of expression as every person has the right to freedom of opinion and expression including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium.
Exceptions to freedom of speech and expression :-
Article 19(2) of Indian Constitution provide reasonable restrictions to the Freedom of Speech and Expression.
The grounds of restrictions provided under Article 19(2) are mentioned below-
Sovereignty and Integrity of India, Security of the State, friendly relations with Foreign States, Public Order, Decency or Morality, contempt of court, defamation, incitement to an offence. We’ll discuss it one by one…
Sovereignty and Integrity of India:-
The preamble of Indian Constitution proclaims India as a sovereign, social, secular democratic republic Nation. India as ‘Sovereign' nation have it’s own authority and it doesn’t depends on other nations in any law making process . The supreme authority make their own law with some restrictions. Any speech or publication that hampers the sovereignty and integrity of India would not come within the scope of Article 19(1)a of Indian Constitution.
Friendly relations with foreign States:-
In order to maintain a healthy society which is free from conflicts, wars and disturbance, we need to maintain a healthy relationship with foreign countries. The Constitution (First Amendment)Act,1951 added this as the ground of restriction. The state has power to withdraw the freedom of speech and expression as a fundamental right when it affects the friendly relations with other countries .
According to section 499 of IPC whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said to defame that person, which is also subjected to certain restrictions. Defamation is of two kind libel or slander . Impute anything true about a person if it’s good for the public it doesn’t amount to defamation. Defamation is also the ground of restriction to Article 19(1)a.
Case:- V. Illath v. k. keshavan(1900) I Weir 579, The Court held that Defamatory matter should be communicated to some person other than the person to whom it concerns. I.e dictating a letter to a clerk is publication of defamatory sentence.
Contempt of court:-
‘Criminal contempt' as described under Section 2(c) of the Contempt of Courts Act,1971 is the publication of any matter or doing of any act which scandalise the authority of any court, interfere in any court proceedings or obstruct administration of justice in any other manner. Although fair criticism of the judgement of the court is a part of the constitution, the person can’t exceed their rights to scandalise the government. Any opinion or view that scandalise the court would not comes under Article 19(1)a of The Constitution.
Decency or Morality:-
Decency and morality is the basic of democratic India. Both are interchangeable with each other. One’s Speech should be decent enough to protect the public morality. Nature of the speech should not hamper the morality of the society as a whole or as an individual.
Section 292 to section 294 explain specifically the connotation of the expression of Obscenity. The term ‘Obscenity' comes in the preview of Article19(2) as a ground of restriction under Decency and Morality. These sections speaks about the sale of obscene books, distribution or exhibition of obscene object which corrupt persons who are likely,
having regard to all relevant circumstances to read the matter contained or embodied in it.
Incitement to an offence:-
Section 505 of India penal code criminalize incitement of an offence . Any person who incite any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to six years, or with fine or with both. Any Speech which incite persons to commit an offence is the ground restriction under Article 19(2) of Constitution.
Right to Constitutional Remedies:-
The framers of The Indian Constitution provides Right to Constitutional Remedies for the protection of the fundamental rights of the Citizens of India. A person can directly approach supreme court under Article 32 and High Court under Article 226 of Indian Constitution when their fundamental rights get violated. This right provides a safeguard to all fundamental rights including freedom of speech and expression.
However these Fundamental Rights can be suspended in case of national emergency under Article 352. The six rights under Article 19 get automatically suspended in case of national emergency on ground of war and external aggression which are mentioned under Article 358 of Indian Constitution.
Section 118A of Kerela Police Act :-
According to this new provision makes any expression, publication or dissemination of threatening, abusive, defamatory or humiliating content made through any mode of communication punishable if the person does it knowing it to be false and damaging to reputation or mind of another person.
Punishment:- Anyone convicted under section 118Aof Kerela Police Act punished with three years of imprisonment and also liable to fine of Rupees Ten thousands.
This Amendment was challenged on the ground that it is against freedom of speech and expression which is a constitutional right. Hence Section 118A of Kerela Police Act is inconsistent with Article 19(1)a of Indian Constitution. The outlawed section spoke about vague notion ‘annoyance', ' humiliation', ' inconvenience' which is not defined in law anywhere. This Section was misused and false allegations were made that unnecessary hampers the life of common people. Section 118A of Kerela Police Act is a controversial section that is challenged before the High court of Kerela as it disturb public order and security.
Right to speak is a natural right that every man posses from his birth. Indian Constitution proclaims various fundamental rights to its citizens. Freedom of Speech and Expression is one of the precious right which was inserted in Indian Constitution by the framers of Indian Constitution. It is the duty of the state to protect the rights of the citizens and failures to do so results in violation of Constitution. Democracy can’t stand by itself without providing their followers different sets of right. For that reason our Constitution incorporated with certain fundamental rights which are also subjected to restrictions under certain conditions. There are certain grounds of restrictions which are essential to control human conduct. It is the need of the hour to protect our constitution from harmful indulgences of Politicians.
Thomas, Lydia Suzanne, Section 118A of Kerala Police Act: 5 grounds of challenge in 5 petitions before Kerala High Court ( 24th Nov, 2020 at 8:31 AM ) https://www.barandbench.com/amp/story/news/litigation/kerala-hc-section-118a-petitions-challenge-grounds.
Mishra, S.N, Indian Penal Code, Seventeen Edition( Reprint) 2010
Unesco, International Standards on Freedom of Expression
Name:- Srimayee Mohapatra
College:- University Law College, Utkal University, Bhubaneswar
Course:- B.A.LLB (H)