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Legopedia

Freedom of Speech and Expression

If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter” – George Washington

Freedom of Speech and Expression

Freedom of Speech is the mother of all liberties. It is a natural right given to a person by birth to freely express his opinions. Freedom of Speech and expression means the right to express one’s own ideas and opinions freely by words of mouth, writing, printing, pictures or any other mode.[1] Article 19 of Universal Declaration of Human Rights (1948) provides “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.”.[2] Freedom of Speech is one of the essential human rights. Hence, many international conventions and national constitutions enumerate it as a fundamental right of the people.

Meaning, Purpose, and Scope

The Preamble of the Constitution of India resolves to secure to all its citizens’ liberty of thought and expression. This is reflected in Article 19(1) (a) of Part III of the Constitution of India which says “All citizens shall have the right to Freedom of Speech and Expression”.[3] Free debate and open discussion are essential for any vibrant democracy. Free speech contains the right to put forward one’s nonpartisan view and not to take part in a chorus or sing the same song. Right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction.

Freedom of speech and expression has four broad special purposes to serve:

1) In attaining self-fulfilment;

2) In the discovery of truth;

3) In citizens’ participation in a democracy and in a decision-making process;

4) In establishing a reasonable balance between stability and social change.

In the 21st century, no one questions the importance of freedom of speech and expression. Freedom of speech is thought to be indispensable worth and basic right for the realization of other rights. The essence of free speech is to think and speak freely. It helps in getting information from others. In modern time, it is widely accepted that the right to freedom of speech is the essence of a free society and it must be safeguarded at all time.

In Romesh Thappar v State of Madras[4], the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas. Justice Patanjali Sastri rightly observed that “Freedom of Speech and of Press are at the foundation of all democratic organizations, without free political discussion no public education is possible.”

Freedom of speech and expression helps in attaining a rational mindset resulting in the holistic development of an individual. It has been enshrined in Article 19 of International Covenant on Civil and Political Rights (ICCPR) and Article 10 of European Convention on Human Rights (ECHR).

Reasonable Restrictions under Article 19(2)

Freedom of speech is not an absolute right. International instruments such as ICCPR and ECHR has stated possible grounds where the right to freedom of speech and expression can be limited. Similarly, national constitutions also make provisions for such limitations. The law which may be made under Article 19(2) to regulate the exercise of the right to the freedoms guaranteed by Article 19(1) must be ‘a law’ having the statutory force and not a mere executive or departmental instruction.[5] Article 19(2) of the Constitution of India contains following grounds on which restrictions on the freedom of speech and expression can be imposed:

1) Security of the State: Any speech supposed to endanger the security of the state or supposed to overthrow the government, waging war against the state of rebellion against the state, maybe restricted in the interest of the security of the state. However, it does not include ordinary breaches of public order or public safety such as unlawful assembly, riots.[6]

2) Friendly relations with foreign states: The first constitution (Amendment) Act, 1951 added this ground in Article 19(2). India is the only country in the world to have such provision in its Constitution. Any speech or utterance which may jeopardize the maintenance of good relations of India with any other State can be restrained. However, Commonwealth countries are not regarded as “Foreign State”, hence freedom of speech cannot be restrained on the ground that matter is adverse to Pakistan.

3) Public Order: The first constitution (Amendment) Act, 1951 added this ground in Article 19(2). Any speech or utterance supposed to guide or have an inclination to guide to disorder could be restricted in the interest of public order. Public Order signifies public peace, safety, and tranquillity.

4) Decency or morality:  The terms “decency or morality” haven’t been outlined anywhere. These terms have a very wide and ambiguous meaning. The offences regarding decency and morals are contained in Section 292 to Section 294 of Chapter XIV of Indian Penal Code. These sections prohibit the sale, distribution, exhibition, or import or export, advertising of obscene books, pamphlets, paintings or the doing of any obscene act or the singing or reciting or uttering of any obscene songs, ballads or words in public places. There is no fix commonplace to put down as to what is immoral and indecent.

5) Contempt of Court: The expression contempt of court is defined in Section 2 of the Contempt of Courts Act 1971. Contempt refers to scandalize or tends to scandalize, or lowers or tends to lower the authority of any court. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise.[7]

6) Defamation: The aim of defamation law is to prevent a person from making any statement that injures the reputation or honour of another. Defamation can be of civil or criminal in nature. Section 499 of Indian Penal Code criminalizes defamatory statement and Section 500 of IPC provides punishment for two years of imprisonment or fine or both.

7) Incitement to an offence: The first constitution (Amendment) Act, 1951 added this ground in Article 19(2). A person or group cannot be allowed to incite others to commit any offence just because he has a right to freedom of speech and expression.

8) Sovereignty and Integrity of India: The 16th Constitution (Amendment) Act, 1963 added this ground. The intention behind inserting the provision in Article 19(2) is to restrict anyone from making any such statements which challenge the integrity and sovereignty of India.

Conclusion

We can conclude that the right to freedom of speech and expression is the bulwark of democratic government. It is accepted as one of the fundamental liberties around the world. Freedom of press and right to information spring from the freedom of speech and expression. Free speech is valuable because it leads to the discovery of truth. Hence, the expression of opinions must receive full protection. Then only the public will be able to exchange error for the truth.

Free Speech is an integral part of the self. The expression should receive full protection as it is necessary for the self-realization of the person who is expressing that idea. The Indian Courts of law have always placed a broad interpretation of Article 19(1) (a), making it subjective only to the restrictions permissible under Article 19(2).

[1] Dheerendra Patanjali, “Freedom of Speech and Expression, India v America – A Study” (Indian Law Journal) <http://www.indialawjournal.org/archives/volume3/issue_4/article_by_dheerajendra.html> accessed 8 December 2018.

[2] Universal Declaration of Human Rights 1948 s 19 <http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf> accessed 8 December 2018.

[3] Constitution of India Art 19 (1) (a) <https://indiankanoon.org/doc/1218090/> accessed 8 December 2018.

[4] AIR 1950 (SC) 124.

[5] Bijoe Emmanuel v State of Kerala 1987 AIR 748.

[6] Supra (n 5).

[7] In Re: Arundhati Roy [2002] 3 SCC 343.

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