THE RIGHT TO FREEDOM OF SPEECH AND IT’S LIMITATIONS
Freedom of Speech and Expression occupies an essential position in the Indian Constitution. The Preamble to the Constitution guarantees to its citizens the “Liberty of thought, expression, belief, faith, and worship.” The framers of our constitution decided to enshrine freedom of speech and expression because democracy can strive only when there is a free flow of ideas in the society.
Free speech does not mean that an individual has the right to say anything to any person, group, or institution. The speech should be in such a way that it does not influence the minds of the people to commit any sort of offence that disturbs the public order or creates a sort of hatred towards people belonging to a particular community or tarnishes the image and reputation of one person in the eyes of other. This freedom gives greater horizon and sense to the citizenship of a person, thus broadening the idea from the level of mere existence to giving the person a social and political life.
Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that “all citizens shall have the right to freedom of speech and expression”.
Under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes.
Any limitation on the exercise of the rights enshrined under Article 19(1) (a), not falling within the ambit of Article 19(2) shall not be valid.
WHAT ALL DOES FREEDOM OF SPEECH INCLUDES
The court has legally interpreted Article 19 to include the following:
The privilege to express one’s feelings, opinions, and sentiments without any dubiety by using words both spoken and written, composing, printing, etc.
This includes the liberty to propagate and express one's views as well as the view of others. This also includes the right to propagate the views in published form.
Article 19 includes the idea of publication and distribution as well as circulation and the right to receive the published matter. This was decided in the Supreme Court of India in the case Romesh Thapar vs. The State of Madras(1950).
Freedom to hold opinions, to seek, receive and impart information and ideas, either by words written, oral, printed matter, or by legally operated visual or auditory devices such as the radio, cinematography, gramophone, loudspeaker, etc is also included in Article 19.
The right to speech also includes the right to silence. It also includes the privilege to not listen and not being compelled to listen. The right understands the freedom to be free from what one desires to be free from.
In the case of Bijoe Emmanuel vs. State of Kerala(1986), the school authorities punished some students for not singing the National Anthem. The children belonged Jehovah’s Witnesses sect. They worshipped only Jehovah, the Creator, and no one else. They refused to sing the National Anthem. This was because they thought it was against their religious faith, according to their religion. But they showed respect to the national anthem by standing. They kept quiet when it was sung, and never showed any disrespect toward it. Hence, it was held that the action of the school authorities of suspending the students amounted to the violation of rights enshrined under Article 19(1) (a).
The right to criticize public affairs, the right to criticize the Government, including its defense policy and conduct of Armed Forces is also an intrinsic part of freedom of speech and expression. Free political discussion is essential for the proper operation of a democratic government. In the case, Brij Bhushan vs. The State of Delhi(1950), the Supreme Court held that-
“Everyone in the land is free to have their thoughts, opinions and they must own the right to give voice to them, both in public as well as private, as long as he does not speak ill of his neighbor. He/She is free also to criticize the Government or any party or group of people, as long as he does not invite anyone to violence.”
FREEDOM OF PRESS
Freedom of the Press is not explicitly raised in the Constitution. However, it is present as a right under Article 12 of the Constitution which gives the freedom of speech and expression. Democracy means the Government of the people, by the people, and for the people. Hence, each individual needs to be accredited to participate in the democratic process. Free debate and open discussions are an important part of a democracy as it plays an important role in facilitating the democratic ideals in a democratic State.
Thomas Carlyle said that ‘Press is the fourth pillar of democracy and indeed lies at the foundation of democratic organization. It has been held so by the Supreme Court of India that the freedom of the press is a part of the Freedom of Speech enshrined under Article 19(1)(a). Therefore it has been rightly explained that although the Press is considered to be a medium through which people can express their views to the masses yet it has to stick to the restrictions which are imposed upon them by Article 19(2) of the constitution.
FREEDOM OF SPEECH ON SOCIAL MEDIA
The Internet and Social Media have become an intrinsic part of our lives. Through this, people can practice their privilege to exchange their thoughts and information. In the previous years, individuals around the globe are upholding change, equity, harmony, affinity, and regard for human rights. In such developments, social media and the internet have frequently assumed a vital task by empowering individuals to connect and exchange information within seconds and also by bringing about a feeling of unanimity. It is seen that the right to freedom of speech and expression is recognized as a fundamental right under the Constitution of India in whatever method it is exercised. Furthermore, in the light of the developing employment of the web and online life, this has been a mode of exercising the right to speech. Therefore, access to this medium has been recognized as a fundamental human right.
In the case of Anuradha Bhasin v. Union of India, the internet shutdown in the state of Jammu and Kashmir was challenged by the petitioner. The Court said that the “freedom to access the internet” is a fundamental right and is thus protected under the freedom of speech and expression of the Indian Constitution, Article 19 (1) (a). The requests of suspending the internet were put on hold under the Internet Suspension Rules, dependent upon judicial review. The court, however, avoided considering internet shutdown in the Union Territory as illegal.
RESTRICTIONS TO FREEDOM OF SPEECH
Security of the State: Under Article 19(2) reasonable restrictions have been imposed on the freedom of speech with regards to the security of the state. The government is authorized to restrict certain activities which might be detrimental to the internal security of the State. Similarly, restrictions can be put on an individual if his/her speech is inciting the public to commit some offence which may disrupt the public order. In the case of P.U.C.L v. Union of India, the PIL was filed under Article 32 of the Indian Constitution regarding phone tapping. The validity of Section 5 (2) of the Telegraph Act was also disputed during this case. Section 5 (2) talks about the crucial elements which need to be fulfilled for the enactment of this Section, in the interest of public safety and any affair of public safety. The government does not have a right to exercise its power in the above-mentioned Section if any of the two conditions are unfulfilled. Phone tapping is violative under Article 19 (1) of the Indian Constitution, until and unless it comes under the grounds of restrictions under Article 19 (2)
Friendly Relations with the Foreign States: A State may impose restrictions on citizens if it affects the relations of the state with foreign countries. It was added to the constitution via the First Constitutional Amendment Act, 1951. No other constitution in the world has such a provision.
Public Order: In the case of Romesh Thapar v. the State of Madras, the Supreme Court held that public order is different from the security of the state and the law and order. This provision was originally added to the constitution via the 1st constitutional amendment of 1951. The Supreme Court held that public order is an expression of public peace, public safety, and tranquility. According to the facts of this case, there was a ban on a Journal in the State of Madras. The court held that the restrictions imposed by the government were only in the interest of public order on the grounds mentioned in Article 19(2). Hence, in this case, the decision was taken by the Supreme court and the term “public order” was added to Article 19 (2) to impose certain restrictions on the freedom of speech and expression
Decency and Morality: The terms decency and morality are defined in section 292 to Section 294 of IPC This section restricts the sale of obscene books in public, etc.
Contempt of Court: This right does not allow anyone to contempt of court. Contempt is defined under Section 2 of the Contempt of Courts Act, 1971. It covers both civil and criminal contempt. Civil contempt of court refers to behavior which disobeys the authority of a court during a civil proceeding. Criminal contempt of court is a criminal charge which is put forth to punish behavior that intervenes with the proceedings or orders of a court. Criminal indirect contempt of court is based on violation of the court orders, whereas criminal direct contempt of court is based on conduct during the court proceedings. The Indian Contempt Law was amended in the year 2006 and it added truth as a defence.
Defamation: Section 19(2) restricts any person from making any statements that tarnish the image of another person in the eyes of the general public. Defamation is a crime under Section 499 and 500 of the IPC. The right to freedom of speech does not give the right to one person to hurt the reputation of any other person.
Incitement to Offence: This ground was added via the First Amendment Act of the Indian Constitution, 1951. The word ‘offence’ has been defined in the General Clause Act which states that offence is “an act or omission done by a person and is punishable by any law for the time being in force”.
Integrity and Sovereignty of India: This provision was added by the 16th Constitution Amendment Act, 1963. It states that it is the foremost duty of a citizen to maintain the sovereignty and integrity of the citizen. It puts restrictions and
limitations on the freedom of speech when the speech challenges the sovereignty and is a threat to the integrity of the state.
It is accepted from the above research that the grounds accommodated in Article 19 (2) are concerned with the interest of society and the national security of India. Sovereignty, security, public order, friendly relations are valid grounds that are concerned with national security. On the other hand, decency and morality, contempt, defamation, incitement, etc are related to interests of the society
Every citizen of India enjoys the right to freedom of speech guaranteed under Article 19(1) of the Indian Constitution. Expressing one's opinions or views through different mediums is the fundamental right of every individual. The right to freedom of speech also includes the right to information, the right to broadcast, the right to press, the right to commercial speech, etc. Reasonable restrictions can be imposed on the right to speech under article 19(2) of the constitution. Hence, the rights under article 19 are not absolute and can be restricted under special circumstances on the account of the security of the nation and the interest of the state
Acts and Statues – IPC, The general clause act of 1977, Contempt of Courts Act of 1971, The Indian Telegraph Act of 1885, The constitution of India 1950
Ba llb (H)
University School of law and legal studies, GGSIPU