EXAMINING THE FREEDOM OF SPEECH AND EXPRESSION

This article was written by Siddhi Suman a student of Hidayatullah National Law University.

Evolution of the Right

The constitutional guarantee of the freedom of speech and expression as one of the seven basic “freedoms” was not just based on the past bitter experiences of the colonial rule, but also based on the needs of an emerging democracy. As Historian Bury^[1] observed, freedom of expression is “a supreme condition of mental and moral progress.”

The freedom of speech and expression has had a long standing in the world history and through political movements throughout the world.

The recognition for freedom of speech came into constitutional existence in the American constitution by way of the 1^st amendment, which proclaimed that “The congress shall make no laws…abridging the freedom of speech or of the press.”^[2] The Supreme Court of the United States then incorporated and expanded it in various judgments, starting with Thornhill vs. Alabama^[3] where the court noted that, “Safeguarding these rights to the ends that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion in essential to free government. Those who won our independence had confidence in the power of free and fearless reasoning and communications of ideas to discover and spread political and economic truth. Abridgement of freedom of speech and of the press however impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government.”

This principle of freedom of speech has been time and again emphasized by the members of the judiciary, by the members of the constituent assembly and by world leaders. The pre eminent position of the freedom of speech in the bill of rights was elaborated upon in Palko vs. Connecticut^[4] as “of that freedom one may say that it is the matrix, the indispensible condition, of nearly every other freedom.” It was held as the foundation of government.^[5] For it is only through free speech and ideas that the government remains responsive to the will of people and peaceful change is effected.^[6]

Freedom of speech and expression is based on some fundamental rationale, the first being that in any democracy self governance is the assumption, and unfettered exchange of ideas is necessary for self governance, it has been held that the widest possible dissemination of information from antagonistic and diverse sources is essential for the welfare of the public.^[7] The second, being the search of truth principle which has been glorified in the Abrams v United States,^[8] “The best test of truth is the power of thought to get itself accepted in the competition of the market.”Thirdly, it has also been held to cultivate tolerance and self restraint, J. Holmes noted that free speech does not mean “free thought for those who agree with us but freedom for the thought we hate.”^[9] And lastly autonomy which lies on the principle that the proper end of man must be realization of his character and potential as a human being.^[10]

These were the precedents set before our constituent assembly when they sat down to draft the freedoms to be granted to the citizens of India, and thus followed considerable debates in the constituent assembly^[11] and finally the Article 13 (as article 19 was, in the draft constitution) read as: the fundamental right to ‘freedom of speech and expression’ subject to the qualifiers in clause 2; the government’s authority to legislate concerning libel, slander, defamation, contempt of court, any matter offending decency and morality, or which undermines the security of or tends to overthrow, the state.’^[12]

There was one prime difference however between the US constitutional guarantee and its Indian counterpart; that while the US constitution does not specify any restrictions and the restrictions have been judicial constructions through the doctrine of police power,^[13] under which the states were given the inherent powers to impose restrictions on fundamental rights to promote and protect public good, the Indian constitution contained the specific restrictions that could be imposed on the freedom granted. It was reasoned that by constitutionally recognizing the limitations we could overcome executive or legislative over-reach and truly protect the freedom from any encroachment.

However strong the spirit of democracy maybe, it is always wrought with challenges of everyday governance, even in India, though the freedom of speech and expression was granted and upheld as one of the foremost freedoms but protection of national integrity and preserving political stability often conflicted with the fundamental rights of freedom of speech and expression.

During the Nehruvian era, these conflicts often lead to courts and the courts pronounced judgments quite contrary to the government, consequently legislature sought to overcome them through amendments.

The first challenge arose when three state governments used these restrictions to curb freedom of speech and expression. In Madras, the journal ‘Crossroads’, primarily a communist publication was banned by the government by an order under the Madras Maintenance of Public Safety Act, this was challenged by the publishers in the Supreme Court ^[14] which ruled the act as unconstitutional and opined that unless a law restricting freedom of speech and expression is solely directed against undermining the security of the state or the overthrow of it, such law cannot fall within the purview of 19(2) and cannot be saved.

In Punjab, The East Punjab Public Safety Act was struck down by the Supreme Court because the government had imposed a pre censorship in the name of maintenance of public safety; it was held that pre censorship restricted the liberty of the press.^[15]

 In Bihar, the government imposed a penalty for circulation of a pamphlet called ‘Sangram’ under the Indian Press( Emergency Powers) Act and the Patna High Court was called upon to decide, and it set aside the government order, leading to a supreme court challenge, which was again upheld by the supreme court.^[16] This decision of Patna High Court was however condemned by the Supreme Court and used by Nehru to defend the first amendment because in the judgment J. Sarjoo Prasad had opined that ‘if a person were to go on inciting murder or other cognizable offences either through press or by word of mouth he would be free to do so with impunity’ because he would be saved by the freedom of speech and expression.^[17]

With three pronouncements against it the government saw the regulation of press getting out of its hands and therefore the first amendment was brought in, by way of which article 19(2) was substituted by:

“Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.^[18]”

Further by the sixteenth amendment brought in 1963, the words “sovereignty and integrity of India” were inserted. Granville Austin opines that perhaps it was panic arising out of the recent Chinese intrusion and secessionist cries from different parts of the country that brought forth this amendment.^[19]

Thus the present form of the article evolved, through debates, discussions, judicial precedents and finally amendments. The second part of this paper looks at the construction and interpretation of the article itself.

Construction and Interpretation of the Article 19(1)(a)

The Article 19(1) (a) reads: All Citizens shall have the right to freedom of speech and expression.

The construction of the article seems pretty simple, the first part being that the right is only extended to citizens and the second part being the phrase “freedom of speech and expression”.

The first part specifies that only the citizens have the right.^[20] Even though these rights are Fundamental or natural our country does not confer it to non citizens. This stand means that the fundamental right cannot be conferred upon:

1. Any person whose citizenship has been validly terminated, since citizenship itself is not a fundamental right.^[21]
2. A foreigner.^[22]
3. Any juridical person: A deity^[23], a company^[24], a municipal corporation^[25] or any association of persons apart from the citizens composing the association^[26].

The second part, the ‘freedom of speech and expression’, seems simple but it is expansive, and no term can be simple enough for the judiciary. It may be noted that it is the right to “freedom” of speech and expression which lays down the emphasis to the freedom which is granted.

Speech and expression means the right to express one’s views, opinions and convictions freely, by word of mouth, writing, printing, and picture or in any other manner.^[27] Thus it includes freedom of press^[28] but expression of ideas by visible representation such as by gestures and the like and by carrying banners and signs^[29] and through radio, television, cinema and the like.^[30] Thereby the article protects like an umbrella, the entire copyright regime.

It also includes the right to propagate one’s own views as well views of others, otherwise freedom of press could not have been included in this right.^[31] Expression includes the idea of “publication” and “distribution”^[32] or circulation^[33] or to receive such matter.^[34]

Further, it also includes the right to be informed.^[35] And the dissemination of knowledge, so long as it does not infringe commercial interests. The right also includes the right to broadcast and most obviously and importantly, the right to not know, or the right to silence.^[36] Nobody can be forced to hear anything.

Freedom of speech and expression has such wide connotation as it can cover the right to paint, sing and dance or to write poetry, literature as the basis of all the activities is the right to freedom of speech and expression.^[37]

After knowing the vast expanse of the right to freedom of speech and expression and its all encompassing nature, in all fields, not only political but in the common day to day lives, and in  scientific endeavours, artistic experiments, political leanings, international relations, business dealings and every other field known to man, it becomes all the more important to place effective restrictions, lest individual rights lead to public discomfort or more importantly public disorder because at the end the origin and implementation of all laws is to ensure effective social control and management and to let people live in harmony.

Interpretation of Terms used in the ARTICLE 19(2)

Article 19(2) starts with a non obstante clause, and gives the power to the state to impose reasonable restrictions, the term reasonable being very subjective, has given rise to numerous cases and opinions as to what could be reasonable.

1. REASONABLE:

Reasonability cannot be understood by the judges’ perspective rather it has to be understood as the reasonability of a common prudent man. It has been previously mentioned that in the United States, the restrictions were placed through the doctrine of police power, evolved by the judiciary, however the police power can be exercised only if there is a ‘clear and present danger’ to justify the curtailing of liberty.^[38] So in order for the courts to rule upon the legislation abridging such right, the courts will check if there is a ‘substantive evil which must be extremely serious and the decree of imminence extremely high.’^[39] India however finds this test very strict and even though in the earlier years India rejected the doctrine, it has recently begun to gain more acceptance.

Reasonable in Indian context comes with its own jurisprudence, the foremost being the criteria set by the court in Chintaman Rao vs. State of Madhya Pradesh,^[40] “The courts while adjudging the reasonableness of a restriction would consider factors such as, the duration and extent of the restrictions, the circumstances under which, and the manner in which, that imposition has been authorized. The nature of the right 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, the prevailing conditions at the time.” It was further held and emphasized that there could be no abstract standard or general pattern to be laid down for all cases to be followed.^[41]

Even though there can be no strait jacket formula for determining reasonableness of a legislation, the supreme court laid down certain guidelines for determining the constitutionality of a legislation on the basis of reasonableness of the restriction imposed by it in Papnasam Labour Union v. Madura Coats Ltd.^[42], “The restriction must not be arbitrary or of an excessive nature; there must be a proximate and direct nexus between the restriction imposed and the object sought to be achieved, no abstract or fixed principle can be laid down, the court should presume that the legislature is the best judge of the societal needs, the judicial approach should be dynamic, pragmatic and elastic, the social control being effectuated should be considered, the social welfare should be kept in mind, the reasonableness shall be tested on both procedural and substantive grounds, the reasonableness should not be arbitrary ex hypothesi, should be consistent with Article 14 of the constitution,  the directive principles should be kept in mind, and any restriction which seeks to push forward the directive principles or to effectuate them, they would be presumed to be reasonable.”

All the reasonable restrictions should be placed on the grounds specified in the article thereafter.

1. SOVEREIGNTY AND INTEGRITY OF INDIA:

Inserted by the sixteenth amendment to combat the cries of secession rising from the south and to overcome the challenges from Kashmir, the clause makes it evident that any call for secession or for joining a foreign state shall not be tolerated; it was also made into a penal offence.

1. SECURITY OF THE STATE:

The freedom of speech is based on the foundation of an organized government of a secure state. “Security of state” refers to serious and aggravated forms of public disorder as distinguished from ordinary breaches of ‘public safety or public disorder’ which may not involve any danger to the state itself. It would cover any violent attempt to overthrow the government, and would comprise of both internal and external security of the state.^[43] State can impose restrictions on the freedom of speech to prevent advocacy of enemies of the state or such activity as the publication of movement of troops during war, will come within the scope of the phrase.

The Supreme Court has decided that security of the state would mean the absence of serious and aggravated forms of public disorder, as distinguished from ordinary breaches of public safety or public order which may not involve any danger to state itself. Thus the security of the state would be endangered by crimes of violence intended to overthrow the government^[44], levying of war and rebellion against the government, external aggression or war, but not by minor breaches of public order or tranquility, such as unlawful assembly, riot, affray, rash driving, promoting enmity between classes and the like.

1. FRIENDLY RELATIONS WITH FOREIGN STATES:

The expression being very wide, and very unique in the sense no other constitution in the world has this as a valid ground for restriction of freedom of speech, the term encompasses the libel of foreign dignitaries, inducement of foreign establishment but also media propaganda for war with a state at peace with India. It would include international relations and defence, where the executive is granted with immense power. It is to be noted however that members of the Commonwealth of Nations including Pakistan are not foreign states for the purposes of the constitution,^[45] so freedom of speech can’t be restricted on the ground that the matter is adversarial to Pakistan.

1. PUBLIC ORDER:

We have already discussed how the phrase of public order was incorporated into the article, “public order”, would mean a state of social order, where peaceful life of individuals would prevail. In Romesh Thapar, courts said that ‘it is a word of wide connotation and signifies the state of tranquility which prevails among the members of a political society resulting from the internal regulations enforced by the government which they have established.’[46]

Public order has to be differentiated from ‘the security of state’, ‘law and order’ and ‘public safety’, which are co-related terms but have different scope and extent. Public order comes within the phrase ‘law and order’ which is supreme, and includes the term ‘public safety’ (freedom from danger, external or internal).  Public safety implies an orderly state of life.

1. DECENCY OR MORALITY:

The ground tends to deal with speeches and actions that are against the current standard of behavior, raises a lot of questions as to the age, culture and changes in the society and what would be the extent of something (especially speech) before it is considered obscene. The ground being very subjective has come under harsh criticism from all corners.

The Hicklin test[47]  which emphasized on the effect of the material on susceptible masses, was rejected in the United States although has been recognized in India.  India thus, considers those publications obscene which when read as a whole has a tendency to deprave and corrupt those whose minds are open to the immoral influence.[48] The reader for whom the material has been prepared matters and not the intention of the writer, in the existing social situation.

1. CONTEMPT OF COURT:

Contempt of court has been divided into civil contempt and criminal contempt, civil contempt means willful disobedience to any court judgment and criminal contempt would mean publication which scandalizes/ tends to scandalize, or lowers or tends to lower the authority of court or prejudices/ tends to prejudice the judicial proceedings, or interferes with the administration of justice in any manner.[49]

In India, the contempt of Court is largely on the judges’ discretion, there have been cases which have been ignored and there have been cases which have been taken into cognizance. In Arundhati Roy’s case,[50] the fact that she made a direct attack on the judiciary and gave affidavits while protesting for the Sardar Sarovar Dam, questioning the judges’ intention, she was found guilty of criminal contempt.

1. DEFAMATION:

The injury to a man’s reputation has always been an issue of great legal importance, any speech, by any mode, if it injures the reputation of a man in any manner is defamation and is punishable. Free speech does not guarantee absolute freedom to say anything, which injures the dignity of a man or tends to do so. It is punishable as a tort and under section 499 of Indian Penal Code. In EMS Namboodiripad v. N. Nambiyaar[51] it was established that no man under the garb of freedom of speech had the right to injure anyone’s reputation.

I.INCITEMENT TO OFFENCE:

Incite means to move, to stir up, to arouse as per the webster’s dictionary, it distinguishes itself from mere advocacy which is not a crime, rather tends to restrict only those speeches which have the tendency to stir violence and disrupt public order. Offence would also include any act or omission made punishable by any law for the time being in force and not just violence. However instigation is a necessary element in the restriction.

This sums up the essentials of the fundamental right to speech. And even though a lot of sections can be minutely explored and examined the paper tends to demarcate the boundaries of the right to freedom of speech and expression and its restrictions. It is important here to note that whenever a fundamental right such as this is violated, a fixed parameter can never be applied, a case to case analysis will have to be done. And even though in the modern era, the importance of protecting the freedom of speech is supreme, it is equally important to exercise the right reasonably so as to maintain harmony and order in the pluralistic state of India. The onus lies on the public and the leaders making and exercising the right to take the necessary precautions.

[1] Bury, History of freedom of thought, 1913, p.239.

[2] First amendment to the constitution of the United States, 1791.

[3] (1940) 310 US 88.

[4] (1937) 302 US 319.

[5] Schneider v Irvington, (1939) 308 US 147 (160).

[6] Terminiello v Chicago, (1949) 337 US 1.

[7] Associated press v U.S., (1945) 326 US 1.

[8] 250 US 616 (1919).

[9] United States v Schwimmer, 279 US 64 (1929).

[10] D D Basu, “Commentary on the constitution of India”, Vol. 2, 8^th ed., 2012, 2370.

[11] CONSTITUENT ASSEMBLY DEBATES, Vol. VII, 1^st December, 1948.

[12] Granville Austin, “Working of a democratic Constitution-A history of Indian experience”, Oxford University Press, New Delhi, 1999, 40.

[13] Gitlow v New York, (1925) 168 US 652.

[14] Romesh Thapar v. State of Madras, 1950 (1) SCR 602.

[15] Brij Bhushan v State of Delhi, AIR 1951 SC 129.

[16] State of Bihar v Shailabala Devi, AIR 1952 SC 329.

[17] ‘In Re Bharati Press’ AIR 1951 Patna 21.

[18] Subs. By the Constitution (First Amendment) Act, 1951. (with retrospective effect.)

[19] Granville Austin, “Working of a democratic Constitution-A history of Indian experience”, Oxford University Press, New Delhi, 1999, 51.

[20] Hans Muller Of Nuremburg v. Supdt., Presidency Jail, Calcutta, (1955) 1 SCR 1284.

[21] Izhar Ahmed v Union Of India, AIR 1962 SC 1052.

[22] Hans Muller Of Nuremburg v. Supdt., Presidency Jail, Calcutta, (1955) 1 SCR 1284.

[23]Deity v. chief commr, AIR 1960 Mani. 20.

[24] B.I.S.N v Jasjeet, AIR 1964 SC 1451.

[25] Bhagat v. Asst. registrar, AIR 1968 Pat 211.

[26] H. T. Workers Union vs HP government, AIR 1967 HP 21.

[27] AIDAMK v. K. Govindam Kutty 1996 AIHC 4509 AP HC.

[28] Romesh Thapar  v. State of Madras, AIR 1950 SC 124.

[29] Lovell vs. Griffin, (1938) 303 US 444.

[30] Romesh Thapar v. State of Madras, AIR 1950 SC 124.

[31] Express Newspapers v. Union of India, AIR 1958 SC 578.

[32] Martin v. Struthers, 1943 319 US 141.

[33] Romesh Thapar  v. State of Madras, AIR 1950 SC 124.

[34] Express Newspapers v. Union of India, AIR 1958 SC 578.

[35] Hamdard Dawakhana v. Union of India, 1960 2 SCR 671.

[36] In Re Noise Pollution, AIR 2005 SC 2136.

[37] Maneka Gandhi  v. Union of India, AIR 1978 SC 597.

[38] Schnek v. U.S., (1919) 249 US 47.

[39] Bridges v. California, (1941) 314 US 252.

[40] AIR 1951 SC 118.

[41] AIR 1952 SC 196.

[42] AIR 1995 SC 2200.

[43] Constitutional Assembly Debates, p.457.

[44] Santokh Singh v. Delhi Admn., AIR 1973 SC 1091.

[45] Declaration of Foreign States Order, 1950.

[46] AIR 1950 SC 124.

[47] R v. Hicklin (1868) LR 360 QB.

[48] State v. Ramanand, AIR 1956 Pat 188.

[49] Section 2(c), Contempt of Courts Act, 1971.

[50] In re Arundhati ray, AIR 2002 SC 1375.

[51]