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This article was written by Aditya Bansal, a student of Jindal Global Law School.
Most modern constitutions of the world have a clause for the protection of the right to free speech, which is not surprising considering that a guarantee to free speech allows political debates, questioning of state authority and acknowledgment of the popular and suppressed voices of a nation. Two methods of understanding this right are a.) the two models under which the right is guaranteed in various constitutions, and b.) the three generations of rights wherein we look at whether such a right is a positive or negative right.Further, by studying the phrases of relevance used in Article 19, such as ‘public order’, ‘morality’ and ‘safety’ we understand the balance between absolute right and restricted right.I would be leaning towards a state centric view of the article i.e., identifying the state imposed interpretations.This will be achieved with the help of case law, wherein I would be studying and critiquing the method adopted by the courts in defining the article. The progression of case law will also introduce an aspect of historical analysis to the whole paper.
Till now, the approach has been an objective one, focusing on factual records of events, debates and discussion. The latter half of the paper will be more subjective as we attempt to study various other interpretations but in the American context. By reviewing the American Constitution and the First Amendment, under which the freedom of speech is guaranteed, we see the contrast between the almost immunizing protections granted by the same versus thesubdued Indian rights. Our Constitution is known to have an imperial past and while I will not explore the links between the imperial heritage, it is a point to be kept in mind. The imperial past would explain the causal links between state and society within our nation. The right to freedom of speech and expression being so intertwined with the state and society requires us to focus on the state’s perspective, which is achieved via case law, and the societies, which is achieved through PIL’s and articles.Summarising the paper into an objective and subjective perspective, will allow me to critique factually correct sources while staying true to the current free speech discourse.
Discourse of Free Speech in India
Step one of the exercise to define Article 19 begins with mapping out the protections it offers as well as the limitations imposed on the article itself. With reference to the first method i.e. two models of the constitution, this method looks at the degree of limitation imposed on the article. The first model is a more positive method, which provides for protection of the right to free speech and a general limitation. An example of this can be found in the first few articles of Part III. Since this model promotes free speech rather than curtailing it, we see that the intention of the drafters is focused on introducing less restrictions as well as ensuring the constitutional validity of these restrictions.To keep a check on the restrictions imposed, the courts employ the test of reasonableness and proportionality among others. Essentially the test of reasonableness is one where restrictions are inspected to ensure that they are just and fair as compared to arbitrary. While reasonableness has been mostly read with article 14 it is one of the tools of judicial review. It is a crucial test, which illustrates the rules, such as transparency, non-discriminatory, unbiased etc., for restrictions as well as enactments. Since Article 19 is commonly associated with the right to religion and assembly, this test given under article 14 becomes relevant to the right to free speech as well.The test of proportionality on the other hand focuses on fairness and justice.Moving onto the second model, here rather than focusing on the general limitations, the intention of the clauses in these constitutions is to introduce restrictions in the context of other rights. India, fits into the latter model, and examples of this include defamation laws and censorship of media. These two models provide us an easy way of reading articles and their restrictions.
The next method we will look at is the three generations of rights. The first generation rights offer protections against the state or avoiding state supremacy. They are generally negative as they bar certain activities altogether or regular day-to-day rights imitating the intention as presented in the second model mentioned above. Second generation rights are positive, in the sense that they grant us the freedom to conduct certain socio-political and economic activities such as the Directive Principles of State Policy. Finally the third generation rights consist of environmental rights. Going back to the first generation right, under which the freedom of speech and expression falls, these rights are most civil and political rights and therefore also the most regulated. Again emphasizing on the state centric and imperial past of the country, we see courts struggle to maintain the balance between state and society. Starting with cases from the early 20th century, we see the State defending restrictions/regulations citing the defence of public order and safety.Accordingly ‘public order’ is considered to be a state of peace among members of a society (especially a political one) following the imposition of certain regulations by the governing authority. Public safety falls under the umbrella of public order. The courts do realize the relevance of context when the expression is used. For example, in certain acts public order is considered to maintain the “security of the state”. However if we refer the Indian Penal Code Chapter XIV, we see public safety includes health, decency and morals. The Court however in the above mentioned case held that restrictions for the security of the state, should too be regulated and not arbitrarily passed, as clause (2) of article 19 doesn’t necessarily envision the imposition of restrictions to protect the state.Lastly on this point a very importantdecision made by the Constitutional Assembly members at the time of drafting was the decision to remove sedition from clause 2 of the article. Taking into consideration the “obnoxious” previous regime the drafters realized the importance of providing citizens the opportunity to question the government without the threat of being called out for sedition.
Coming to the point of morality, a case study into modern advertising and press censorship will also allow us to question the interpretation of public order and morality. Three popular products I can think of are beauty products, condoms and alcohol. The advertisements for these products are points of controversy, resulting in litigation claiming discrimination, promotion of immorality and public harm. Commercial advertisements fall under Article 19(1)(a), and the extent of the protection provided to them is subject to judicial interpretation. Advertisements are forms of speech but also require to be determined by the product or object they are promoting. The article attempts to provide protection to an expression of ideas but by introducing an element of commerce, such advertisements fall out of the concept of freedom speech, as they are no longer looking at public interest.However the apex court has reviewed its decisions by giving importance to economic interest of advertisers. Further deviating from the state centric view of ‘morality’ the Supreme Court, defends the rights of the advertisers by putting forth the right of the public to access the information distributed by such medial outlets.While there are reasonable restrictions and various other acts (under the guidelines of article 19(2))preventing the misuse of the freedom of speech, the question arises as to which sentiments must the courts pay heed to? While an argument can be made to support state supremacy as a mode of regulating the numerous ideologies of the diverse societies of our nation, the contrary and somewhat controversial argument highlights the question of which ideologies definition of morality is to be followed. The article is subject to political discourse and we see this most commonly in censorship of press and political party conflicts during elections. More on this topic can be found in a few excerpts from the International Centre on Censorship Report 1990.
Freedom of Speech and Expression: An American Context
The right to free speech in the United States is guaranteed under the First Amendment to the Constitution. The wording of the amendment is comparatively small and brief. It is similar to India in the sense that it is a first generation right and it is a negative right. The degree of limitation however varies drastically. While Article 19 has a multitude of clauses as well as specific restrictions to each, the American constitution provides a broad space for a various interpretations. Rather than defining the numerous situations that maybe covered by the right, the drafters of the American Constitution allowed room for growth rather than limitation. The evolution of case law regarding the free speech discourse in the U.S. has similar origins to India as it starts with concerns of the state security. Instances of abuse of the right to free speech are most commonly found in the form of sedition. The absence of terms such as public order and morality, promotes the American courts to decide each case on merit, giving importance to the surrounding circumstances. For example, a judgment of the Supreme Court focused on the circumstances and nature of the words used as well as the immediate possibility of danger to the State.While negative rights usually indicate inaction of the state, it is clear that the detailed Indian constitution has required to be subject to regular judicial review. The short and liberal American constitution has not only given judicial review a great power but it has also severely limited the paramouncy of the state.This is in stark contrast to the Indian scenario, where there is a battle between state centric interpretations and society driven litigation. The sequence of American case law shows us that the focus is repeatedly put on protecting the rights of the public. The adaption of rules and tests to be employed by courts in the U.S. informs us of their intention to lay down a fair mechanism for judicial scrutiny.While there is scope for improvement in the Indian context, proposing an amendment at the current moment would be unwise. While there is confusion regarding the meaning of public morality, safety and order it is not up to the legislation to clarify the same as it would merely lead to more controversy. The Courts have done a commendable job in interpreting the clauses of the article in spite of the limited powers of review they hold. The responsibility now lies on the public to take up and question the unsatisfactory points of legislation.
 Wen-Chen Chang, Li-ann Thio, Kevin YL Tan and Jiunn-rong Yeh, Constitutionalism in Asia (originally published 2014, Hart Publishing) 642
 Karel Vasak, ‘A 30 Year Struggle: The Sustained efforts to give force of law to the UDHR’ The UNESCO Courier (November 1977) 29
 Wen-Chen Chang, supra note 1
Maneka Gandhi v UOI, 1978 1 SCC 248
 Karel Vasak, supra note 2
Romesh Thapar v State of Madras, AIR 1950 SC 124
Madras Maintenance of Public Order Act 1949, s 9(1-A)
 M. Ananthasayanam Ayyangar, http://cadindia.clpr.org.in/article/AVsOq1mO7SXahIyw4bzk–constituent-assembly-of-india-debates-proceedings-volume-v?categories=Freedom%20of%20Speech&project_name=Constituent%20Assembly%20Debates&p=144
Hamdard Dawakhana v UOI, AIR 1960 SC 554
Sakal Papers Ltd v UOI, AIR 1962 SC 305
Bennett Coleman and Co. v UOI, AIR 1973 SC 106
Schenck v. United States, 249 U.S. 47; 1919 U.S. LEXIS 2223