LIMITATIONS AND CONTRADICTIONS IN FREEDOM OF SPEECH AND EXPRESSION IN INDIA

This article was written by Nithika Elizabeth Rebello, a student of School of Law, Christ University.

Introduction

Freedom of speech and expression[1] is the essence of a democratic society providing liberty to individuals to demonstrate their point of view without hindrance. Freedom of press to propagate and publish thoughts and opinions falls within the ambit of freedom of speech and expression in India. However, this freedom of press is subject to restriction under the Constitution. This essay focuses on the validity of the limitations on freedom of speech and expression in India, the duty of the government to eliminate any barriers hindering this freedom and the need to achieve a balance between the restrictions and complete enjoyment of the right.

Restrictions on freedom of speech and expression

The freedom of speech and expression is not absolute but comes with restrictions in order to prevent the misuse of this freedom which ultimately leads to any violent behaviour. Restrictions on freedom of speech and expression[2] is imposed in cases of safety and security of a nation, defamation, sedition, contempt of court, decorum or morality, sovereignty and integrity of India and incitement to an offense. All these acts are crimes and damages can be claimed by the aggrieved. Section 292 and 294 of the Indian Penal Code provides restrictions on the freedom of speech and expression on the basis of decency and morality. Without restrictions, the rights will lose their true value due to its infringement.

Freedom of press

Freedom of press can be regarded as a vehicle of communication which gives people the liberty to access, publish and circulate information. The freedom of press is only implicitly present as a right under the meaning of freedom of speech and expression. The case of Romesh Thapar v. State of Madras[3] held that freedom of propagation of ideas via circulation falls within the ambit of the fundamental right of freedom of speech and expression. Although the press serves as a means of reaching information to the masses, it has to stick to the limitations imposed under article 19(2).

Provision of advertisements and broadcasts

In a case that arose in Andhra Pradesh[4], the actions of the government were challenged for withdrawing advertisements from the newspaper of a Telugu daily. The High Court held that the government cannot exercise this privilege in favour of newspapers or show its displeasure against another section of the press. The fundamental right of freedom and expression includes the right to communicate through the media in the form of advertisements as well as broadcasts through broadcast media and electronic media. The Supreme Court held that commercial speech or commercial advertisement was also a part of freedom of speech in the case of Tata Press Limited v. Mahanagar Telephone-Nigam[5].

Provision of custom duty on newsprint

In the case of Express Newspapers Ltd. v. Union of India[6], the court stressed on the importance of the press and how it facilitates the democratic process. However, the steep customs duty on newsprint was also challenged. The Court observed that the imposition of a tax such as customs duty on newsprint is an imposition on knowledge…, within the guarantee of Article 19(1) (a) therefore commercial advertisements are entitled to constitutional protection.

Issue of censorship of the press

Censorship is used to suppress expression and the question at hand is whether this restraint is unconstitutional. There have been several landmark judgements where the court has challenged the imposition of censorship. In Brij Bhushan v. The State of Delhi[7], the court struck down the provision under the East Punjab Safety Act, 1949[8] that directed the editor and publisher of a newspaper to submit news for scrutiny before publication. The ground for this action was that it was a restriction on the liberty of the press.  In another case, Bennett Coleman and Co. v. Union of India[9], the court struck down the validity of the Newsprint control order holding its provisions to be violative of the fundamental right of freedom of speech and expression and is not a reasonable restriction. Therefore, we can conclude that the censors must make a substantial allowance in favour of freedom.

Role at present to be maintained and the way forward

Reasonable restraint must be maintained to prevent social intolerance. The institution of press and media leaves a scope for error.  The government should ensure people that they have the right to invoke redressal mechanisms under the existing legal framework. Government  intervention needs to be in accordance with societal standards of acceptability. Content hosting platforms must ensure that transparency is maintained with regard to political advertising. Social media platforms must ensure that their internal policies are not arbitrary. A proper nexus needs to be maintained between the restriction and achievement of public order.

Conclusion

Just as held in the case of Indian Express Newspapers v. Union of India[10], the freedom of speech and expression forms the foundation of  a democratic organisation and press freedom is included in this. It serves as a boon to the citizens of India. The case of Maneka Gandhi v. Union of India[11] emphasises on the importance of freedom of speech and expression. However, the right as well as the restrictions have been misused over time and the only solution to this is by achieving a balance in approach. Extreme measures such as removing the restrictions or making the restrictions more stringent will not have any positive result.[12] Instead, striking a balance on these restrictions by keeping in mind the constitutional provisions and legal implications while enjoying the freedom of this right is the only way forward.

[1] INDIA CONST. art. 19, cl. 1(a).

[2] INDIA CONST. art. 19, cl. 2.

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

[4] V. Govindu, Contradictions in freedom of speech and expression, Vol. 72, 2011, https://www.jstor.org/stable/41858840.

[5] Tata Press Limited vs Mahanagar Telephone-Nigam, 1995 AIR 2438.

[6] Express Newspapers Ltd. V. Union of India, 1986 AIR 872.

[7] Brij Bhushan v. The State of Delhi, AIR 1950 SC 129.

[8] East Punjab Safety Act, 1949, § 7, Acts of Punjab State Legislature, 1949 (India).

[9] Bennett Coleman and Co. v. Union of India, 1973 AIR 106.

[10] Indian Express Newspapers v. Union of India, 1986 AIR 515.

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

[12] LATEST LAWS, https://www.latestlaws.com/articles/freedom-of-speech-and-expression-exigency-for-balance/#:~:text=Our%20Constitution%20provides%20every%20citizen,19(1)(a).&text=It%20is%20time%20we%20reduce,and%20giving%20too%20little%20freedom (last visited April 10, 2021).