The Paradox of Liberty: An Assessment of Freedom of Speech and Expression in Contemporary Times

THIS ARTICLE WAS WRITTEN BY SAKSHAM SHARMA, A STUDENT OF HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA.

INTRODUCTION

“I disapprove of what you say, but I will defend to the death your right to say it.”

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. People could come together to achieve political influence, to strengthen their morality, and to help others to become moral and enlightened citizensthrough free speech. Speech is God’s gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others.

Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” proclaims the Universal Declaration Of Human Rights (1948). The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1) (a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.

Man as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. The right to freedom of speech and expression is subject to limitations imposed under Article 19(2).

Public order as a ground of imposing restrictions was added by the Constitution (First Amendment) Act, 1951. Public order is something more than ordinary maintenance of law and order. Public order in the present context is synonymous with public peace, safety and tranquility.

MEANING  AND  SCOPE –

Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. The freedom of speech and expression includes liberty to propagate not one’s views only but ,it also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press. [1]

Freedom of expression has four broad special purposes to serve:

• It helps an individual to attain self-fulfillment.
• It assists in the discovery of truth.
• It strengthens the capacity of an individual in participating in decision-making.
• It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
• All members of society would be able to form their own beliefs and communicate them freely to others.

In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters of concerning newspaper industry than while levying taxes on other matters.

In India, the right is granted by ARTICLE 19(1)(a). However, this right of freedom to speech and expression is not completely  unchecked.  ARTICLE 19(2) allows for reasonable restrictions to be imposed on all fundamental rights, including that of freedom to speech and expressions.

In ROMESH THAPPAR v UNION OF INDIA, Justice Patanjali has rightfully held that article19(1)(g) is vey basic and essence of the constitution and our democracy. Reasonable restrictions, however, he noted, should be such that others right should not be hindered or affected by the acts of one man , in the case of MENAKA GANDHI v. UNION of INDIA[2].

Definition  as distinct by LASKI,

“Democracy is a government by discussion ”could  be successful only when there is effective participation of  the people in the government. For this people need to be educated.

In the words of KRISHNA IYER J.

“This freedom is essential because the censorial power lies in the people over and against the government and not in the government over and against the people”.The freedom of expression has been considered as a necessary condition for a democratic polity.[3]

According to KANT,

’The fundamental postulate of  liberty , is that , no man can be used as a means as man is an end to him as well as to the others’.

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. In fact, the freedom of speech and expression gives better scope and meaning to the citizenship of a person extending the idea from the level of basic extension to giving the person a political and social life. The social interest in free expression is based on the idea that without expression, there is no society at all, because communication is the very essence of social life.[4]

This right is existing only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows Government to frame laws to wreak reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, courtesy and morality and contempt of court, defamation and incitement to an offence.

• FREEDOM OF PRESS

The fundamental right of the freedom of press implicit in the right the freedom of speech and expression, is essential for the political liberty and proper functioning of democracy. The Indian Press Commission says that “Democracy can thrive not only under the vigilant eye of legislature, but also under the care and guidance of public opinion and the press is par excellence, the vehicle through which opinion can become articulate.” Unlike the American Constitution, Art. 19(1)(a) of the Indian Constitution does not expressly mention the liberty of the press but it has been held that liberty of the press is included in the freedom of speech and expression.[5]

• RIGHT TO INFORMATION

The right to know, ‘receive and impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose.

• GROUNDS OF RESTRICTION

There are certain restrictions on the freedom of speech and expression which is stated under CLAUSE (2)of ARTICLE 19.

1. SECURITY OF STATE– Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term “security of state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.
2. FRIENDLY RELATIONS  WITH  FOREIGNSTATES- This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India, and that state. No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government.
3. PUBLIC ORDER– This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”
4. DECENCY OR MORALITY – The words ‘morality or decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.
5. CONTEMPT OF COURT – Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’
6. DEFAMATION–  A statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
7. INCITEMENT TO AN OFFENCE – This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force.
8. SEDITION – As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. It should be noted that the sedition is not mentioned in clause (2) of Article 19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed.

• MEDIA AS  AN INSTRUMENT  OF  EXPRESSION

Exercise of freedom of expression  is expected to convey the contemplation, sees, thoughts, theory and exercises. The correspondence keeps society together and cohabitate with each other. Every individual is a medium of articulation. An individual communicates through the media to contact different people and establishments. The privilege to the right to speak freely however has a place with each person, foundation and association it turns out to be importantly essential in the media world. Media world fills in as the best communicator of information and the best instrument of articulation. Exercise of right of flexibility of articulation is the expert obligation and character work of media, regardless of whether it is print or electronic media. The media serves  as a mass communicator. The legal has turned out to be especially part of the issue. Laws delay and the breakdown of control of law have pushed our general public into near chaos , with around 25 million cases pending in courts, a considerable lot of them for quite a long while and decades, a very much created advertise has produced for criminals and musclemen to gives harsh and ready justice .[6]

Therefore media is important pillar to lend its valuable support to the system and hence is regarded as “Fourth Estate”. The “Fourth Estate” performs its multi-Pronged functions in linking the three main systems and correlating them with the social needs to connect the gulf between the governors and the governed.

Re-examination of Defamation and Sedition can be easily explainedthrough case studies and the especially through the JNU incident which deals with this particular issue.

• A CASE   STUDY   ON   JNU   INCIDENT

 In 2016 , a case of sedition was filed on the month of February when the students of Jawaharlal Nehru University (JNU) held a protest on their campus against the capital punishment meted out to2001 Indian Parliament attack convict Afzal Guru, and Kashmiri separatist Maqboolbhat .

BACKGROUND:

Jawaharlal Nehru University (JNU) one of the INDIA’s highest ranked universities known as one of the country’s best graduate schools in the Social Sciences. The university itself has mobilized around a number of Political Issues. The administration of the university is answerable to the union government; in 2016 , the government was controlled by the

HINDU – NATIONALIST  BHARTIYA  JANATA  PARTY.

FACTS  OF  THE  CASE:

On 9^th February 2016, Left – Wing students’ organization democratic students union (DSU) held a protest at Jawaharlal Nehru University (JNU) campus against the CAPITAL  PUNISHMENT to the 2001 Indian Parliament Attack. The event saw clashes between various students groups.

After later investigations, it was described that outsiders (small group of individuals) wearing marks to the University shouted “ANTI – INDIA ” slogans .The slogans were criticized by many individuals including students of JNU and Political Leaders .After four days of the event, JNU’S students’ union President Kanhaiya Kumar was arrested by the Delhi police and charged with  SEDITION and CRIMINAL CONSPIRACY , under section 124 of the Indian Penal Code.

Following the arrest of Kanhaiya Kumar, massive protests broke out among students, staff and faculty at JNU. Thousands of individuals attended the demonstrations. On 14 February 2016, students of the university issued a “shutdown call”, and stated that they would not allow further classes to take place until Kumar was released. And after that Two other students were also arrested. This arrest drew heavy criticism from many sections of society on the grounds that the BJP Government was attempting to silence political dissent.

As the high-level inquiry committee of Jawaharlal Nehru University had found out that provocative slogans at the controversial February 9 event inside the campus, were raised by a group of outsiders who were wearing masks. Various News channels  reported that some of the students from Democratic Students’ Union (DSU) raised slogans such as “Bharat Ki Barbadi” (“Destruction of India”) and “Pakistan Zindabad” (“long live Pakistan”).

Several videos which seemed to bear witness to the raising of anti-India slogans appeared to be doctored, and objectionable words were put in the videos. The supreme court of india agreed to hear a plea on 16^th February, 2016 seeking “free and fair access to Justice” to KanhaiyaKumar , following the acts of violence against journalists and JNU students & lectures . Kanhaiya Kumar was granted six month interim bail by the High Court, on 2 March 2016.[7]

Kanhaiya Kumar gave a speech to a packed auditorium on the JNU Campus on 3^rd  March ,2016 in which he said that he was seeking not freedom from India , but freedom within India. He appealed to his fellow students to free the nation from the clutches of the RashtriyaSwayamsevakSangh, which he said was trying to divide the nation. Referring to the ABVP, whose members were instrumental in bringing about his arrest, he called them his “opposition”, not his enemy. He urged his supporters to keep raising the slogans of azadi(freedom).[8]

Through this , the following conclusion can be drawn that ,it is when freedom of speech isn’t freedom of speech that the problem arises. “Hate Speech” is freedom of speech to the extent that the language used does not incite or encourage violence or violation of the law.

Every right is followed by duty . Right to freedom of Speech and Expression is also followed by duty and is restricted , not absolute.

Restricted  for reasons of sovereignty and integrity of India the security of the state,  friendly relations and with others Public order , preserving decency , preserving morality , in relation to contempt of court , defamation or incitement to an offence . These grounds are surely not trivial   in nature. The JNU incident proves that exemption must be there. Slogans like “ KitnaiAfzalMarogyHarGhar  se  AfzalNikalogy ”.  Not only endanger sovereignty and integrity of India but one can also say this as contempt of court .

Afzal Guru is conflict of 2001 Indian Parliament attack and melted out the CAPITAL  PUNISHMENT .

We are not against having people screeching at the top of their lungs like petulant children over non-issues. After all, having such hateful people is just something we need to accept in having the right to say whatever we want in return. With that said, though, we do believe we need to hold people answerable whenever they spread misinformation. Lies and unconcealed anti-national statements are something we simply shouldn’t ever tolerate, even under free speech. People, including students, should always be held accountable for what they say .

One should keep a balance between Freedom of Speech with the Protection of Religious Sentiments. In recent defamation case of  GAURI LANKESH , basic fundamental rights have been violated and and she died due to fatal gunshot .

FACTS OF THE CASE –

GauriLankesh, working for a Calcutta-based English weekly in Delhi, took to writing almost exclusively in her mother tongue Kannada. She took the job voluntarily because she knew that in the handling of a language weekly with a rock solid reputation for defying power in the pursuit of truth, she would see different things, meet different people.

Based on the truth she faces daily , often under dangerous circumstances, she wrote her column, ‘Kanda Hagey’, As I see It. Her last column was about Fake News and the vast propaganda of the ruling Party that churn out lies and then seeded both the mainstream media and the social media with it. She did this because as a restless journalist, like the one in AndrezejWajda’s film ‘Rough Treatment’, she found the stories about a Party mercilessly murdering truth compelling, not necessarily because she was waging a political war against individuals (though she did call the great Party leader ‘BoosiBasiya’, someone who opened his mouth only to utter an untruth).

On  September 5, Gauri was shot dead by assailants, but widely suspected to belong to ultra right-wing groups whose lies she had long been criticizing and highlighting with unquestionable proof. In her death ,Gauri has become a part of the story about the State oppressing whistle-blowers and honest journalists probing corruption, stories that she had been working on for so long. Her tragic death even as it is being mourned, gives her column ‘Kanda Hagey’ its coherence: it makes us understand what happens when the forces close in upon an investigative journalist walking alone and in a dark alley, and drown out the questioning once and for all. The pretensions then begun. The post-truth social media corridors are abuzz calling her a bitch, some saying let’s mourn her today, the enquiries can begin at a later day, while others snigger and raise questions about the ideological colour of a few political people seen at the protest meeting in the Press Club in Delhi and media is making there own perceptions.

But anyone who saw the spontaneous solidarity the media expressed against the murder of this seasoned and battle-scarred journalist, realized that journalism is more than a vocation. It is a mission.

The wheels of justice will shake, or be shown to be churning, no doubt, especially as the CBI has already confessed (in 2015) to the Supreme Court that it is simply overwhelmed with case work, while 16% of its Bureau posts lie vacant. It is probing some 1200 cases while 9000 others are pending . And more than half its cases, registered between March 2007 and 2016, deal with assaults against journalists who have been probing charges of political corruption. Almost every year in the world’s largest democracy, new leaders pop up, naïve and mystical. A liberation struggle of sorts has pushed them to the top: they are leaders by virtue of the longings of an electorate which needs a Great Name.

The leader then constantly feeds and enchants the young , building visions of all sorts of colorful dreams about the great life that is being created for them. The trolls, the spin doctors, the publicity-makers have never had it so good.

Gauri was given a state funeral with a gun salute on 6 September, after her body was kept for a few hours at RavindraKalakshetra for the public to pay tribute. She was buried in accordance with Lingayat customs. Her family did not follow any religious customs for her as she identified as a rationalist.

 The BBC described as the most high-profile journalist murdered in recent years.

Living in the United States we enjoy many wonderful freedoms and liberties. Even though most of these freedoms seem innate to our lives, most have been earned though sacrifice and hard work. Out of all of our rights, freedom of speech is perhaps our most cherished, and one of the most controversial. Hate speech is one of the prices we all endure to ensure our speech stays free. But with hate speeches becoming increasingly common, many wonder if it is too great of a price to pay, or one that we should have to pay at all.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press: or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

When the framers of the constitution penned these 45 words could they have known the extent that they would be studied and scrutinize? Are the words meant to be taken literally or is it the “spirit” to them that is most important? Many views exist and are hotly debated, but most agree that this amendment has enabled some of the best things in the history of our country to be said; and ultimately done.

However, it has also enabled some of the worst.

It is rightly said that,  Expression through speech is one of the basic guarantees provided by civil society. However in modern world Right to freedom of speech and expression is not limited to express ones’ view through words but it also includes circulating one’s views in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. It is a right to express and self realization. Two big democracies of world i.e. America and India have remarkably protected this right.

In the country like India where the statutory body i.e., our Indian Constitution says in article 19(1)(a) that every person has FREEDOM OF SPEECH AND EXPRESSION but the right is only on the records and no person understands the implementation of that.Freedom of speech is not the ability to say whatever you feel like when you feel like it where you feel like it. Yelling “bomb” in a theatre is not freedom of speech.

The same thing happened recently when a journalist named GAURI LANKESH uses her right to Freedom of speech and expression and publishes an article in relation with Defamation but the person who was involved in the defamation didn’t let GAURI LANKESH to publish her article and when by descending her right of freedom of speech and expression and when the article was published. The politician with the help of his supported killed her.

• What’s the use of a right not even a right but a fundamental right which can’t protect a person from expression his/her views and if the person expresses it, he /she gets murdered. Every individual has the right to speech and express his /her own views.
• Rights and opportunities have been provided for all of us in the Constitution and it is also gaining prominence. Additionally ,women have taken the centre stage by gradually moving into the workforce and getting career –oriented.

Therefore a proper right should be made and  amendment needs to be done so that person can freely express his/her views.

[1] INDIA. CONST. art XIX (1) (a)

[2] 1978 AIR 597

[3] Immanuel Kant, “Meta Physics of Morals”. [Cited in Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad (2007)]

[4]Lon L. Fuller, “The morality of Law”, 184-186 (1963). [Cited in Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for Media 20 (Asia Law House, Hyderabad (2007)].

[5] Ernest William Hocking, “Freedom of the Press: A Framework of Principle” (A Report from the Commission on Freedom of the Press, 88-89, 1947). [Cited in Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for Media 19 (Asia Law House, Hyderabad (2007)].

[6]Dr. Madhabhusi  Sridhar, The Law of Expression, An Analytical Commentary on Law for Media 22 (Asia Law House, Hyderabad, 2007).

[7]Ushy Mohan Das,  JNU row: Freedom of speech + misinformation, that is where we need to draw the line, The Indian Express

[8] Express News Service, JNU sedition case: Police special cell asks 31 students to join probe, Indian Express