Freedom of Speech: a democratic achievement or a chaos

This article was written by Ashutosh Jain a student of Institute of Law, Nirma University.

Recently two administrative officers of Ashoka university resigned in mysterious ay just after they signed Kashmir petition by the students.[1] In February, 2016, JNUSU president Kanhiya Kumar was arrested on the charges of sedition, for raising anti-national slogans.[2] Then started the crucial debate over right of freedom of speech and expression, which is guaranteed by the Constitution.[3] The whole debate was about the extent and curbing of ‘freedom of speech and expression right’ where one side of the story support constitutional mandate, the other side support the state’s mechanism to control the ‘Anti-national sentiments’. There has been a great divide between the two opinions and much has been said and debated regarding the same, with no one loosing the ground. Therefore, in order to have a deeper insight, one must understand what ‘freedom of speech and expression’ is and what is the meaning of ‘sedition’.

Article 19 (1) (a), of the Constitution of India states that, “All the citizens have right to freedom of speech and expression”. The freedom of speech and expression means propagation of ideas and thoughts, that every citizen can propagate their thoughts freely. The rationale behind incorporating the same in the constitution is the concept of self governance. Self governance is considered as to be the founding stone of a true and healthy democracy. The same has been interpreted by the apex Court in the case of Romesh Thapar,[4] where the Court stated that:-

“……freedom of speech and of the press lay at the foundation of every democratic organizations, for, without free public discussion no education, so essential for the proper functioning of the process of popular government, is possible. A freedom of such amplitude might involve risks of abuse.”

In the case of S. Rangarajan,[5] the Supreme Court reiterated that “freedom of speech is the foundation of a democratic society. The democratic form of government itself demands by its citizens an active and intelligent participation in the affairs of the community…..The democracy can neither work nor prosper unless go out to share their views.” But the question remains, “is the right to freedom and speech and expression is absolute?” How far can one go to exercise his freedom of speech and expression? Whether, any person can, criticizing the state or raising slogans such as overthrowing the democratic elected government, and take shield before the Article 19 1 (a). Section 124 A of Indian Penal Code states that

      “Whoever by words, either spoken or written, or by sign, or by visible representation, or otherwise, brings or attempt to bring in to hatred or contempt, or excite disaffection towards the Government established by law in India, shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may added, or with fine.”

The Indian Penal Code was drafted by Thomas Macaulay, and with the intention to curb freedom struggle movement. Mahatma Gandhi, who  was charged under section, said that the “law was designed to suppress the liberty of the citizen”[6] and he The above said section talks about sedition. It talks about overthrowing a democratically elected government by unlawful means or disturbing law and order situation, which includes hate speech.

 Here the word ‘disaffection’ means disloyalty and feeling of enmity.[7]  But again it is again a debatable topic, what amount to hate speech and what amount to sedition. Supreme Court in the case of Romesh Thaper v. State of Madras[8], held that, mere excitement of disaffection or bad feelings against government or even unsuccessful attempt to excite bad feelings may also not undermine the security of state. The law ever since has been a hot topic of debate with successive government not willing to repeal it, but used it to suppress it the liberty of speech and expression.

The respective governments and there opponents have time to time have criticized the law but have not repeal it. And many a times it has been used as tool to suppress the diverse views and ideologies. A democracy can not stand without the divergent ideas, debate and disagreements because only these divergent ideas, disagreements make the democracy strong. But can democracy be strong by hate speeches or by feeling of enmity? Both article 19 (1) (a), and section 124 are in conflict with each other. And the conflict is what amounts to ‘freedom of speech’ and what not. And no law can actually decide what is hate speech and what is Anti national sentiments. This is a grey area where everyone applies his/her own interpretation of law and understand the way they want to. But one thing should be understood very clearly that no one is allowed to break the country. Criticizing government, judiciary and legislation for their action or inaction may lead to debate over the rights guaranteed under article 19. But the nation comes above the these organs of state, which gives everyone a unique identity, that is of an Indian and no one can destruct that identity.

[1] Ritika Chopra, “’Liberal’ Ashoka University crackdown: 2 staffers quit after signing student petition on J & K.” Indian Express, http://indianexpress.com/article/india/india-news-india/ashoka-university-crackdown-student-petition-jammu-kashmir-3079850/

[2] Vikas Pathak, Shiv Sunny & Kritika Sharma Sabastian, ‘Govt. Acts Tough, JNU student leader charged with sedition’, http://www.thehindu.com/news/cities/Delhi/jnusu-president-arrested-under-sedition-charges/article8227527.ece

[3] Article 19 (1) (a) provides every citizen right to freedom of speech and expression.

[4] Romesh Thappar v. State of Madras, (1950) SCR 594 (602)

[5] S. Rangaranjan v. P. Jagjivan Ram, (1989) 2 SCC 574

[6] Soutik Biswas, “Why India need to get rid of its sedition laws”, BBC News, http://www.bbc.com/news/world-asia-india-37182206

[7] Durga Das Basu, “Commentry on the Constitution of India”, Edition 8, Volume 2, pg 2543

[8] Supra note 3.