A Comparative study on Freedom of Speech & Expression between Australia and India
THIS ARTICLE WAS WRITTEN BY ANUPAM TEWATIA, A STUDENT OF MACQUARIE UNIVERSITY, SYDNEY
Introduction:
Freedom and rights of an individual can be used to mark the status of a nation and how it treats it citizens. These rights give the citizens a sense of liberty, in which freedom of speech and expression is considered to be the topmost liberty in the hierarchy. Every human being must be allowed to express his ideas and exercise his freedom. Freedom of speech and expression provides the ideological foundation of individuality.[1] The right of freedom of speech and expression allows any individual to express their view and belief freely through words, writing, pictures etc. It is accepted and considered to be the essence of a free society, which can express their views to help or keep a check on the government powers and other parliamentary regulations.[2]
The freedom to express can have different justifications and the most crucial one is that the freedom of speech and expression provides the citizens, a sense of engagement in the political issues and also some contribution in the smooth working of democracy. It also gives the individuals a change to exhibit their beliefs and understanding of a concept which result in self-fulfilment.[3]
It is widely acknowledged that in a well-ordered society, freedom of speech does not imply the ability to say or do whatever one wants. Not only must restrictions be imposed on what is said or done, but also on where, where, and how it is said or done. In practise, balancing conflicting public interests is still a part of freedom of speech.[4]
The essay would provide a basic idea on how the right of freedom of expression is dealt in Australian and Indian constitution and in the latter half, the essay would make a comparative analysis between the two jurisdictions. At the end, it would conclude by identifying the ideal way of incorporating the right in the constitution which would maintain a balance between the exercising of the right and the basic restriction on exercising the right.
Australian Law Perspective
The Australian Constitution has recognised the freedom of expression as an implied freedom rather than a general right. Despite its significance, Australian law only provides minimal express protection for freedom of expression. In every jurisdiction, there is no formal protection of free expression. Freedom of expression regulations are more concerned with controlling speech rather than facilitating and protecting it. There is no Bill of Rights in the Australian Constitution. In 1988, a referendum to introduce certain human rights was largely rejected.[5]
Nonetheless, Australian courts have recently discovered that the Australian Constitution contains implicit rights and freedoms related to freedom of speech. These are the protections that are consistent with the democratic values that underpin the entire Australian Constitution.[6] Two recent High Court decisions receive special mention in this regard.
The first is Australian Capital Television Pry Ltd v The Commonwealth also known as the Freedom of Political Expression case. This case was concerned with a challenge made by a television broadcaster to the constitutional amendment of the broadcasting legislation. The amendment imposed a prohibition on the paid political broadcasting and advertisement. It was a measure, so that the wealthy people do not take advantage of it. The legislation did not breach any provision of the constitution; however, it was struck down as unconstitutional by the High Court of Australia on the basis of implied guarantee of free expression which was said to be derived from the core of the Australian Federal Polity.[7] In the Second Case of Nationwide News Pty Ltd v Wills, the provisions in the Federal Industrial Relations Act which prohibited pubic to criticise the Commonwealth Industrial Relations Commission (IRC) were also concluded as unconstitutional.[8]
The majority of the High Court of Australia in both cases started by providing that the Australian Constitution clearly states that the Commonwealth is to be a representative of democracy. In both cases, the Court held that in a representative democracy, there was an implicit right to enjoy and engage in freedom of communication regarding governmental and political affairs.
The Constitution of Australia is considered to be a structural document which does not include any entrenched bill of rights. Since 1992, the High Court of Australia has recognised that expressions or views related to government and political matters would be impliedly protected by the constitution, to the necessary extent that the institution of the representatives and responsible government is not injured.[9]
The cases of Lange v Australian Broadcasting Corporation [10](‘Lange’), Coleman v Power[11]and McCloy v New South Wales [12] (‘McCloy’) made some important developments and provided with a framework for assessing that whether a certain law exceeds the implied freedom established in the case of Australian Capital Television Pry Ltd v The Commonwealth.[13] The test provided in these cases the courts will determine,
(1) Whether a law restricts freedom;
(2) Whether the law’s objective is consistent with the constitutionally prescribed system of representative government;
(3) If the law is fair, necessary, and adaptable to achieve that goal.
However, it was difficult to point out what constituted Fair, Necessary and adaptive. Therefore, in 2015 the High court adopted a three- part proportionality test as a tool to inquire about the ‘reasonably appropriate and adapted’.[14]
- Suitable – whether there is a rational connection with the purpose.
- Necessary – There is no other option or an alternative way to achieve the same goal that less restricts the freedom.
- Adequate in its balance – This criteria should determine the balance between the importance of the restrictive measure’s purpose and the extent of the restriction it imposes on freedom through a judicial pronouncement.[15]
The High Court of Australia has inferred the freedom of political communication from the Section 7 and Section 24 of the constitution that require the candidates to be chosen directly by the people. It was held by the High Court that to make informal decisions, access to free political information is required. The implied freedom can be restricted if the laws that that restrict them are reasonable and serve a valid end in a way that is consistent with Australia’s representative and responsible government structure.[16]
Indian Perspective on Right to Freedom of Speech & Expression
Freedom of speech and expression has a special position in the Indian constitution. India has had numerous cases and incidents where the freedom of speech was respected. The essence of the right of expression can be traced back in the preamble of constitution of India, which ensures liberty of thought expression, belief, faith and worship. Under the Article 19(1)(a), right of freedom of speech and expression is included as a fundamental right in the Indian Constitution. While providing the scope of the fundamental right, the Supreme Court has held that the words ‘freedom of speech and expression’ must be used when a person is presenting their views or opinion on a certain agenda orally or in written or through technological instruments.[17]
The right of freedom of speech and expression allows a person to express their views and opinions freely by writing, painting, pictures, words or any other way through which they can express themselves. It also includes expression of one’s idea through a visible representation such as gestures, hand actions, sighs etc[18]. Over the years, judicial activism and craftsmanship has widened the scope of freedom of expression and included it in many other areas of the society.
The Newsprint Control Order was challenged in the case of Bennet Colman and Co. v Union of India. The Order set a limit on how many pages a newspaper could print, which was deemed to be in violation of Article 19(1)(a) of the Indian Constitution. The government argued that fixing the price of newsprint would help small newspapers expand and avoid monopolies in the industry. It also justified its page-reduction order by claiming that because big dailies devote a large percentage of their space to ads, the reduction in pages would have little effect on them. The newsprint policy was found to be an unconstitutional limitation by the Court, which stated that it infringed the complainant’s right to freedom of speech and expression. The Court also held that imposing a page cap would have two effects: first, it will deprive petitioners of their economic viability, and second, it will restrict freedom of expression by reducing distribution and area of coverage for news stories.[19]
Another important case which delt with the freedom of expression was A. Abbas v. Union of India. This was the first case in which the Supreme Court of India considered the question of previous censorship of films under Article 19(2). Films are classified into two groups under the Cinematograph Act of 1952: ‘U’ films for free screening and ‘A’ films for adult-only viewing. The petitioner questioned the legality of censorship as a violation of his constitutional right to freedom of speech and expression after his film was denied the ‘U’ certificate. He claimed that no other type of speech or expression was subjected to such restrictions, and as a result, he requested that they be treated equally. However, it was held by the court that the motion pictures stir a deep emotions than any other form of art.[20]
Freedom of speech and expression is necessary to maintain the democracy of a nation, however it is also important that some restrictions are placed on these rights for the maintenance social order. Article 19(2) of the Indian Constitution provides that the state can impose reasonable restrictions on the exercise of the right of freedom of speech and expression in the interest of public on the following ground, (1) Security of State (2) Friendly relations with foreign states (3) public order (4) decency or morality (5) contempt of court (6) defamation or incitement to an offence.[21]
Comparative study
Both the countries being a commonwealth and a democracy in nature, it is necessary for them to develop and enhance the right of freedom of expression for their citizens to express their views so that the democracy is upheld.
The right of freedom of speech and expression is more defined and clarified in the Indian constitution in Article 19(a) as compared to that of in the Australian constitution where it is implied rather than expressed as freedom of political communication. Although both the countries provide with a definitive structure for defining what constitutes a freedom of expression, Australia lags in inculcating it and has a narrow scope as it more bent toward the political issues and not to general issues. [22]
The Australian constitution does not include the words ‘freedom of expression’ which make it more difficult to regulate as the courts decide the cases on facts whereas in Indian constitution which has mentioned expressly the term along with the reasonable restrictions. As the freedom of expression is implied in Australia, it gives the courts a chance to interpret the right based on the facts which gives the courts an open hand.
India in its constitution has provided for a specific right to freedom of expression with inclusion of specific right to Information and freedom of press, however the Australian constitution has freedom to political communication which is implied therefore making it more complex and indiscriminate.
The Indian constitution adhere to the international laws and regulation for maintaining the right to freedom of expression. The International Covenant on Civil and Political Rights (ICCPR) in its Article 19, provide that everyone shall have the right to express themselves and hold an opinion without any inference although some restrictions have also been placed and this right includes the freedom to search, obtain, and transmit knowledge and ideas of any sort, regardless of borders, orally, in writing, or in print, in the form of art, or by any other medium of his choosing.[23] However, in Australia the implied status of the right does not coordinate with the ICCPR which they are a member of, since 1980.
Freedom of expression is a fundamental right in the constitution of India, which makes it one the supreme most rights and Article 13(2) of the constitution provides that any law made against the fundamental rights will be deemed as void.[24] This gives the fundamental rights the supremacy they deserve. However, in Australia the constitution does not include the freedom of expression as a right in the constitution and is not protected by it, making it more prominent to be misused or breach.
Conclusion
Both Australia and India have the made efforts to make their rights and freedom available to all and have tried to make them indispensable. However, each law and regulation need to be altered with the changing time and technology. The researcher believes that even though the freedom of expression in Australia is implied and implicit, it could take some of the regulations from the Indian constitution and broaden their scope of freedom of political communication to freedom of expression analogous to the Indian position. The implied status of freedom of expression in Australia could give more interpretive powers to the court which could be misused.
Even though the Australian constitution provide implied freedom of political communication which is not as consistent as the article 19(1)(a) of the Indian Constitution which includes freedom of press and right to information giving it a wider and broader scope; it is something that the Australian law lacks as it is more concentrated towards political issues. This gap between the freedom of political communication of Australia and freedom of expression of India could be bridged by including other issues in the freedom of political communication to make it more helpful in safeguarding the opinions, outlook and expressions of individuals.
[1] Michael Kirby, ‘Freedom of Expression – Some Recent Australia Developments’ (1993) 19(4) Commonwealth Law Bulletin 1778.
[2]Dheerajendra Patanjali, ‘Freedom of Speech and Expression
India v America – A study’ 3(4) India law journal.
[3] Ibid.
[4] Neil F Douglas, ‘Freedom of Expression under the Australian Constitution’ (1993) 16(2) University of New South Wales Law Journal 315.
[5] Michael Kirby (n 1).
[6] Ibid.
[7] Australian Capital Television Pry Ltd v The Commonwealth (1992) 177 CLR 106.
[8] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
[9] Jemimah Roberts, ‘Constitutional ‘borrowing’ and freedom of expression: Can Australia learn from the US First Amendment?’ (2019) 44(1) Alternative Law Journal 56.
[10] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[11]Coleman v Power (2004) 220 CLR 1.
[12] McCloy v NSW (2015) 257 CLR 178.
[13] Jemimah Roberts (n 9).
[14] Jemimah Roberts (n 9).
[15] ‘Spotlight: free speech and media freedom in Australia’ Lexology (Web Page, 12 January 2021)
https://www.lexology.com/library/detail.aspx?g=6839ce2c-5a0b-4ad1-932b-5e7fb01e40d9.
[16] ‘Right to freedom of opinion and expression’ Australian Government (Web Page)
[17]Dheerajendra Patanjali, ‘Freedom of Speech and Expression
India v America – A study’ 3(4) India law journal.
[18] Ibid.
[19] Bennet Colman and Co. v Union of India AIR 1973 SC 106.
[20] A. Abbas v. Union of India AIR 1971 SC 481.
[21] The Indian Constitution art 19(2).
[22]‘Australian Freedom of Speech Laws’ (Web Page) http://www.hrcr.org/safrica/expression/freedom_speech.html.
[23] International Covenant on Civil and Political Rights art 19.
[24] The Indian Constitution art 13 (2).
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