DEMUR AND CARP OF FREEDOM OF SPEECH AND EXPRESSION: UNRAVELLING THE MYTH

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BY PRANAV KUMAR KAUSHAL FROM BAHRA UNIVERSITY

PROLOGUE

Without freedom of thought, there can be no such thing as wisdom, and no such thing as public liberty without freedom of speech”- Benjamin Franklin

India is the democratic country which follows the principle of rule of law which is ineradicable principle of the civilised society. Liberty and security of the individual have always been at loggerheads. The question is what we need more liberty or more security? It is not easy to forte to answer whether it is better to be free than secure or be secure rather than free. To explain this condition let’s take an example of a pendulum. Pendulum of preference should not swing in either extreme direction so that one preference compromises the other. A democracy which is sworn to transparency and accountability necessarily mandate the production of orders as it is the right of individuals to know. Fundamental rights guaranteed under Part III of the Indian Constitution is itself a qualitative connote wherein state has to act in the responsible manner to uphold the rights of the individuals guaranteed therein and not to take away those rights and freedom in an implied fashion or in casual and cavalier manner. Democracy in itself entails the free flow of information and there is normative expectation of every individual under the constitution as well under the natural law that no law should be passed in a clandestine manner.

 In a democratic form, one side provides us with the scenario where the government is elected by the people of the nation. The other side include the word dissent in the democratic form of the government. It is essential that the dissent and criticism shall not be curbed, but if such thing is curbed then it will be coercive to the democratic setup. But at the same time, reasonable restrictions are imposed when such dissent falls within the ambit of Article 19 (2) of the Indian Constitution. Democracy everywhere is always founded on the basis of two important principles. Firstly, the right of every citizen is to elect the government of their own choice and when they are not satisfied with their performance to vote out of power. Secondly, any form of public action to challenge the government proposal is constitutionally valid as long it has been done peacefully.

The people of the nation act as watchdog and constantly monitor the laws and action that is taken by the government which provides feedback to their inaction and at the same time put a restrain on their arbitrary power. This Article highlights the importance of free speech in a democratic society.

INTRODUCTION: DEFINING THE CONTEXT OF FREEDOM OF SPEECH

Democracy is based essentially on free debate and discussions for that is the only corrective of government action in a democratic set up. If democracy means government of the people and by the people it is very obvious that every citizen must be entitled to participate in the democratic process and in order to enable him intelligently exercise his rights of making a choice, free and general discussion of the public matters is absolutely essential.”[i]

Freedom of speech and expression is an essential ingredient of democracy.  In order to know the exact ambit of democracy Gopalkrishna Gandhi was of the opinion that, “I mean to diminish no individual, no society, no association in the history of India when I say that India all round the world is valued for many great things but the most important three things for which India is known all round the world is The Taj Mahal, Mahatma Gandhi and India’s democracy” The essence of free speech and expression is the ability to think, evaluate and speak freely and right to express one’s own conviction and opinions freely either by words spoken orally or in writing. The very first principle of a free society is an untrammelled flow of words in open forum. Liberty to express opinions and ideas without any hindrance and without any fear of punishment plays a very significant role in the development of that particular society. It is the fundamental right guaranteed under Article 19 of the Indian Constitution which allows us to speak our minds, have different opinion and to criticise every action of the government which is arbitrary in a reasonable manner. Free speech and expression are the hallmark of free and democratic society whose logic demands that the voice of the people of the nation should be heard by those who are in power.[ii]  Justice D.Y Chandrachud is of the opinion that, “employment of state machinery to curb dissent instils fears and creates a chilling atmosphere on free speech which violates the rule of law and detracts from the constitutional vision of a pluralist society.” It is the duty of the state to create space which is conducive for deliberate expression. Citizens of the nation should be allowed to express their opinion with the reasonable framework of the constitutional scheme.[iii]

DEMUR AND SCHISM OF FREE SPEECH

The character of every act depends upon the circumstances in which it has been done. The most stringent protection of a protest would not protect the man in falsely shouting fire in a theatre and causing panic. It does not even protect a man from an injunction against uttering words that have all the effect of force the question in every case is whether the words used in such circumstances are of the nature that expressly refers to one’s man freedom.”[iv]

Freedom of speech and expression is a human characteristic which has become the part of human nature to communicate. As a part of society, it is important to develop these qualities without any hindrances in a democratic setup. The people in the democratic country like in India have the right to raise their voice against the decisions and the actions of the central government or state government or even to show and express their resentment over the actions of the government on any subject related to the social, public and national importance.[v] The government by virtue of the Fundamental Rights guaranteed under Part III of the Indian Constitution cannot restrict the rights of the citizen only in case if there acts follow under the reasonable restrictions under Article 19 (2) of the Constitution of India. If reasonable restrictions are not imposed on the freedom of speech and expression this will lead to a situation of conflict with the rights and liberties of others. Thus, it is important to have subtle demarcation between the freedom of speech and expression and reasonable restrictions.

TWO INTERPRETATIONS OF RIGHTS

“If the maintenance of democracy is the foundation of free speech and protest, society is equally entitled to regulate freedom of speech and expression by any democratic action. The reason is very obvious that if society accepts protest against any inaction of the government so society can put reasonable restriction on the fundamental freedom guaranteed under Article 19(2) if such protest is with the reasonable restriction.[vi]

Interest of the people involved in the acts of expression should be looked not only from the perspective of speaker but also at the place which he speaks, the scenario, the audience, the purpose of protest and the forum in which citizens exercise their right of freedom of speech and expression.  Every right has a corresponding duty and there is correlative duty not to interfere with the liberty of the others.[vii]

Every citizen of the nation must be grateful to the courts for having reiterated in much judicial precedent that right to protest is a fundamental right. But many of us will examine it that the word ‘protest’ is missing under Article 19 from the Constitution of India. The right to free speech and expression may be taken to mean that each and every person has the right to express their own personal opinion, right to associate them, right to form peaceful assembly. On the one hand rights under Article 19(1) (a) have been exercised largely by the people for the private purposes free from any interference by the government. But on the other hand, the same fundamental right under Article 19 has been exercised to influence and gain power and are therefore fundamentally political right which are very essence of democratic kind of society. Justice Frankfurter with regard to the two interpretations of rights has applied the principle of balancing of interest which emphasised the freedom of speech and expression and right to protest is not itself a touchstone. Thus, it is significant to note that the freedom of speech and expression is the bulwark of the democratic government. The freedom is essential for the proper functioning of the democratic process. The freedom guaranteed under Article 19 has been considered as the first condition of liberty and by this way it has been considered as the mother of all liberties. Freedom of speech plays a crucial role in the formation of the public opinion on social, economic and political matters.[viii]

Any action that is taken by the public authority has to be tested on the basis of two reasonable standards. First the action taken must be within the reasonable scope conferred by law, Second it must be reasonable. The court in the case of Maneka Gandhi v Union of India[ix] the court observed that “the principle of reasonableness which is legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive.”

FREEDOM OF SPEECH AND EXPRESSION v. REASONABLE RESTRICTIONS

The right of freedom of speech and expression includes the right to disseminate information to the wide section of the population in the best possible manner. This wider range of circulation of information cannot restrict the content of right nor can justify its denial. The jurisprudence of protecting the medium of information and expression can be traced to the case of Indian Express v Union of India[x] wherein the court had declared that freedom of print medium is covered under the freedom of speech and expression. In Odyssey Communications Pvt. Ltd.v. Lokvidayan Sanghatana[xi] it was held that the right of the citizens to have the fundamental right of freedom of speech and expression is guaranteed under Article 19(1) (a) of the Indian Constitution which can be curtailed only under certain circumstances set out under Article 19(2) of the Indian Constitution.

In Secretary, Minister of Information and Broadcasting Government of India v. Cricket Association of Bengal[xii] the apex court have recognised free speech as a fundamental right and has recognised the freedom of speech and expression over different media of expression. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1) (a) and accordingly any restriction must be in the accordance of Article 19(2). At the outset, the term ‘reasonable’ is limited to the situation such as interest of sovereignty, integrity, security, friendly relations with the foreign country, public order, decency or morality, contempt of court, defamation or incitement to an offence. At this juncture law points out three important propositions which emerge to be set out with respect to Article 19(2) of the Indian Constitution.[xiii]

  1. Restriction on free speech and expression must include cases of prohibition.
  2.  There should not be excessive burden on free speech if a complete prohibition is imposed and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate with regard to the same.
  3. Whether restriction amounts to a complete prohibition is a question of fact which is required to be determined by the court with regard to the facts and circumstances of the case.

PRINCIPLE OF PROPORTIONALITY AND FREEDOM OF SPEECH: NEED TO ESTABLISH THE BALANCE BETWEEN THE SAME

The notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that the constitutional licence to limit those rights is granted where such limitation will be justified to protect public interest or the rights of others. The phenomena of both right and its limitation in the Constitution exemplify the inherent tension between democracy’s two fundamental elements

It goes without saying that the government is entitled to restrict the freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with requirement under Article 19 (2). When the nation is facing such adversity, an abrasive statement with the imminent threat may be restricted, if the same impinges upon the sovereignty, integrity of India or creates threat to the public security. Thus, the requirement is to have the balancing considerations which bring us to the principle of proportionality. In the case of K.S Puttaswamy v. Union of India[xiv] the court observed that, “Proportionality is an essential facet of the guarantee against the arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of law. The doctrine of proportionality is not a foreign to the Indian Constitution, considering the use of the word ‘reasonable’ under Article 19 of the Indian Constitution. Reasonable restrictions are indispensable for the realisation of freedoms enshrined under Article 19 as they are what ensure that enjoyment of rights is not arbitrary or excessive as to affect the public interest. The apex court in the case of Chintaman Rao v. State of Punjab[xv]held that the phrase reasonable restrictions connotes that the limitation imposed on a person in the enjoyment of rights should not be arbitrary or of an excessive nature beyond what is required in the interest of public. The court in State of Madras v. V.G Row[xvi]  held that the nature of right alleged to have been infringed, the underlying purpose of the restriction imposed the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, and the prevailing conditions at the times, and should all enter into the judicial verdict.

In Modern Dental College and Research Centre v. State of Madhya Pradesh [xvii]the court held that no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other and limiting some rights in public interest must therefore be justified.

In Shreya Singal v Union of India[xviii] the apex court upheld the validity and further observed that the aim of the section is not to restrict or block the internet as a whole but only to block accesses to the particular website on the Internet. There is no doubt that freedom of press and internet is a valuable and sacred right enshrined under Article 19(1) of the Indian Constitution. Thus, the same right is required in modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society.

The Supreme court of Canada in R. v. Oakes[xix], Chief Justice Dickinson was of the opinion that, “there are in my view three important components of the proportionality test. First the measure adopted must be rationally connected to the objective. Secondly the means should impair as little as possible, the right or freedom in question. Thirdly there must be proportionality between the effects of measure which are responsible for limiting the charter right or freedom and the objective which have been identified as of sufficient importance.

CONCLUSION

No man can be grateful at cost of his honour; no women can be grateful at cost of her chastity and no nation can be grateful at the cost of his liberty”. – Daniel O Connell

If the maintenance of democracy is the foundation of free speech and expression, society is equally entitled to regulate freedom of speech and expression by democratic expression. There is a correlative duty not to interfere with the liberty of others. Each person is entitled to maintain its dignity and reputation. Nobody has the right to denigrate other person dignity and reputation. Therefore, the freedom of speech and expression is tolerated as long it is not libellous or malicious to one’s freedom. If such free speech and expression is untrue and is so reckless to cause violence then it does not get protection of the constitutional right. The right to free speech is always been considered as one of the core principles on which democracy survives and thrives.

REFERENCES


[i] Maneka Gandhi v Union of India A.I.R. 1978 S.C. 597 (India)

[ii] Drishti, Right to protest in a free society” (February 14, 2020)  https://www.drishtiias.com/daily-updates/daily-news-editorials/right-to-protest-in-a-free-society.

[iii] Tanu Priya, “Freedom of Speech and Expression”  Academike (ISSN:2349-9796)  2nd September 2014 https://www.lawctopus.com/academike/freedom-of-speech-and-expression/

[iv] Schenck v. United States (249 U.S. 47 1919).

[v] Arun Jaitley, “Can the State Restrict A Citizen’s Right to Protest” Outlook, (28th February 2012) https://www.outlookindia.com/website/story/can-the-state-restrict-a-citizens-right-to-protest/280083.

[vi] Saxena v. Honourable Chief Justice of India (1996) 5 SCC 216. (India)

[vii] Mayank Shekhar, “Article 19:Right to Freedom” Legal Bites, (September 15, 2016) https://www.legalbites.in/article-19-right-freedom/.

[viii] Siddhi Yadav, “Free Speech: Does it protect or Attack Nationalism” Legal Bites (March 13th 2020) https://www.legalbites.in/free-speech-does-it-protect-or-attack-nationalism-by-siddhi-yadav-and-soumya-shandilya/.

[ix] Maneka Gandhi v Union of India A.I.R. 1978 S.C. 597 (India)

[x] Indian Express v Union of India (1985) 1 S.C.C 641

[xi] Odyssey Communications Pvt. Ltd.v. Lokvidayan Sanghatana (1988) S.C.C 410

[xii] Secretary, Minister of Information and Broadcasting Government of India v. Cricket Association of Bengal (1995)2 S.C.C 161

[xiii] State of Gujarat v. Mirzapur Moti Khureshi Kassab Jamat (2005) 8 S.C.C 534.

[xiv] K.S Puttaswamy v. Union of India (2017) 10 S.C.C. 1

[xv] Chintaman Rao v. State of Punjab A.I.R 1951 S.C 118

[xvi] State of Madras v. V.G Row A.I.R 1952  S.C 196

[xvii] Modern Dental College and Research Centre v. State of Madhya Pradesh (2016) 7 S.C.C 353

[xviii] Shreya Singal v Union of India (2015) 5 S.C.C. 1

[xix] R. v. Oakes (1986) 1 S.C.R 103

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