Freedom of Speech and Expression

Submitted by: Shivam Kumar, HNLU

“We have to uphold a free press and freedom of speech. Because in the end, lies and misinformation are no match for the truth’’ – Barack Obama

Freedom of Speech is given to citizens of most countries to enable them to share their ideas and provide their opinion on different matters. It is considered to be essential for the growth of an individual as well as the society. While most countries provide this freedom to its citizens, many refrain from it. The freedom of speech and expression is a very important fundamental right under the Constitution. It is indispensible for the development of one’s own individuality and for the success of parliamentary to democracy. It is said that in a democracy the right to free expression is not only the right of an individual but rather a right of the community to hear and informed.
The freedom of speech and expression is not only guaranteed by the Constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European Convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talks about freedom of speech and expression.

Speech is God’s gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” proclaims the Universal Declaration Of Human Rights (1948). The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1) (a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.

Origin of Freedom of Speech and Expression

The concept of freedom of speech originated long back. England’s Bill of Rights 1689 adopted freedom of speech as a constitutional right and still in effect. The French Revolution in 1789 adopted the Declaration of Rights of Man and of Citizen. The Universal Declaration of Human Rights that was adopted in the year 1948 also states that everyone should have the freedom to express their ideas and opinions. The freedom of speech and expression is recognized as a human right under Article 19 and has now formed a part of the international and regional human rights law. In International human rights the freedom of speech and expression is recognized in International Covenant on Civil and Political Rights (ICCPR)

Freedom of Speech and Sedition

The offence of sedition, in India, is defined under Section 124-A of the Indian Penal Code as, “whoever by words either spoken or written, or by signs, or by visible representation or otherwise brings into hatred or contempt or excite or attempts to excite disaffection towards the government established by law in India shall be punished”.

In the recent case of Kanhaiya Kumar v. State of Nct of Delhi, students of Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru, who was hanged in 2013. The event was a protest through poetry, art, and music against the judicial killing of Afzal Guru. Allegations were made that the students in the protest were heard shouting anti-Indian slogans. A case therefore filed against several students on charges of offence under Sections [124-A, 120-B, and 34]8. The University’s Students Union president Kanhaiya Kumar was arrested after allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya Kumar was released on bail by the Delhi High Court as the police investigation was still at nascent stage, and Kumar’s exact role in the protest was not clear.

Decided Cases Which Explained Freedom of Speech and Expression

• Freedom of Press- Democracy can thrive through vigilant eye of Legislature but also care and guidance of public opinion and press par excellence. Freedom of speech include right to propagate one’s views through print media or any other communication channel e.g radio, television subject to reasonable restrictions imposed under Article 19(2).Romesh Thappar v. State of Madras, was amongst the earliest cases to be decided by the Supreme Court declaring freedom of press as a part of freedom of speech and expression. Patanjali Sastri, J, rightly observed that-‘Freedom of Speech and of Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible’.

• Freedom of Commercial speech– In Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd., the Supreme Court held that a commercial advertisement or commercial speech was also a part of the freedom of speech and expression, which would be restricted only within the limitation of Article 19(2). Supreme Court held that advertising, which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product-advertised. Public at large are benefited by the information made available through the advertisements. In a democratic economy, free flow of commercial information is indispensable.

• Right to Broadcast– The concept speech and expression has evolved with the progress of technology and include all available means of expression and communication. This would include the electronic and the broadcast media.
  In Odyssey Communications (P) Ltd .v. Lokvidayan Sanghatana, the Supreme Court held that the right of a citizen to exhibit films on the State channel – Doordarshan is part of the fundamental right guaranteed under Article 19(1)(a). In this case, the petitioners challenged the exhibition on Doordarshan of a serial titled “Honi Anhonion” on the ground that it encouraged superstitious and blind faith amongst viewers. The petition was dismissed as the petitioner failed to show evidence of prejudice to the public.

• Right to information– The freedom of ‘speech and expression’ comprises not only the right to express, publish and propagate information, it circulation but also to receive information. This was held by the Supreme Court in a series of judgements which have discussed the right to information in varied contexts from advertisements enabling the citizens to get vital information about life-saving drugs, to the right of sports lovers to watch cricket and the right of voters to know the antecedents of electoral candidates.
  The Supreme Court observed in Union of India v. Assn. for Democratic Reforms, “One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.

• Right to criticize– In S. Rangarajan v.P. Jagjivan Ram, everyone has a fundamental right to form his opinion on any issues of general concern. Open criticism of government policies and operations is not a ground for restricting expression. Intolerance is as much dangerous to democracy as to the person himself. In democracy, it is not necessary that everyone should sing the same song

• Right to expression beyond national boundaries– In Maneka Gandhi vs Union of India, the Supreme Court considered whether Article 19(1)(a) of Indian Constitution was confined to Indian territory and held that the freedom of speech and expression is not confined to National boundaries.

• Right not to speak or Right to silence is also included in the Right to speech and expression- In the case of Bijoe Emmanuel v. State of Kerala (National Anthem), three students were expelled from the school for refusal to sing the national anthem. However, the children stood up in respect when the national anthem was playing. The validity of the expulsion of the students was challenged before the Kerala High Court and they upheld the expulsion of the students on the ground that it was their fundamental duty to sing the national anthem. However, on an appeal being filed against the order of the Kerala High Court before the Supreme Court, it was held by the Supreme Court that the students did not commit any offence under the Prevention of Insults to National Honour Act, 1971. Also, there was no law under which their fundamental right under Article 19(1) (a) could be curtailed.

Need and Purpose of Freedom of Speech and Expression

Not only freedom of speech and expression allows the persons to communicate freely with others regarding their feelings, ideas, views, opinions etc but it serves a broader purpose. The need and purpose of freedom of speech and expression are classified into the following –

• It helps an individual to attain self- fulfillment;
• It assists in the discovery of truth;
• It strengthens the capacity of an individual to participate in the decision-making process;
• It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

Foundation of any democratic country is based on the freedom of speech and expression of the press for without free political discussion no public education, so essential for the proper functioning of the popular government is possible.

What is the need to protect Freedom of Speech and Expression?

There are four important justifications for freedom of speech :

Transparency:

If restrictions on speech are tolerated, society tends to keep silent about accurate facts and valuable opinion.

Personality and its growth:

Freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment, restrictions on which will hamper personality and its growth.

One’s belief and show political attitudes:

Freedom of speech provides opportunity to express one’s belief and show political attitudes which ultimately results in the welfare of the society and state.

Democracy:

Freedom of speech is important to understand political issues and participate in smooth working of democracy and decision-making.

What is the need to restrict Freedom of Speech and Expression?

For a positive and healthy environment the right requires certain restrictions. Some of the major reasons are as follows:

• Security of State:

Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State.

The term “security of state” refers only to serious and aggravated forms of public order g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray.

• Friendly relations with foreign states:

Unrestrained malicious propaganda against a foreign friendly state needs to be restricted at some level because something which has potential to affect such relationship should be checked by government.

• Public Order:

‘Public order’ is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order.

Thus, a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid for such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace.

• Decency or morality:

The way to express something or to say something should be decent one. It should not affect the morality of the society adversely.

Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality.

• Hate speech:

The Supreme Court of India had asked the Law Commission of India to make recommendations to the Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of, whenever made.

But the Commission recommends that the several factors need to be considered before restricting a speech, like, the context of the speech, the status of the victim, the status of the maker of the speech and the potential of the speech to create discriminatory and disruptive circumstances.

“If Liberty Means anything at all, It Means the Right to Tell People what they do not Want to Hear” George Orwell

From this article it can be easily concluded that right to freedom of speech and expression is one of the most important fundamental right. It includes circulating one’s views by words or in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. Thus this fundamental right has a vast scope. It can also be comprehended that public order holds a lot of significance as a ground of restriction on this fundamental right. But there should be reasonable and proper nexus or relationship between the restriction and achievement of public order. The words ‘in the interest of public order’ include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder It can also be concluded from the essay that right to freedom of speech and expression is one of the most important fundamental rights. It includes circulating one’s views by words or in writing or through audio-visual instrumentality, advertisements or through any other communication channel. It also comprises of right to information, freedom of press etc. Thus, this fundamental right has a vast scope.