Explained: Freedom of expression in India

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The Indian Constitution grants varied fundamental freedoms to the citizens of India. Right to freedom is one of the most fundamental freedoms enshrined in the Indian Constitution. The right to freedom ensures rights for people to lead a life with dignity. It is the existence of these freedoms that brings meaning to democracy. Freedom is a state under which individuals can speak, act and seek pleasure without undue external restrictions. Freedom is crucial because it results in enhanced forms of imagination and original thought, increased productivity and a high standard of life overall. The right to freedom often propagates an individual in social and political life. Articles 19, 20, 21A and 22 consist of provisions concerning the right to freedom. Six freedoms are granted to any citizen in the country, as provided in Article 19. They are:

1. Freedom of speech and expression
2. Freedom to assemble peacefully without arms
3. Freedom to form associations or unions
4. Freedom to move freely throughout India
5. Freedom to reside and settle in any part of India
6. Freedom to practice any profession or to carry on business, occupation or trade

Evolution of freedom of expression in India

 In the colonial era, the freedom of Indians was fully at stake. Indeed, the British Empire’s actions curtailed the Indian masses’ freedom of expression and speech. The British took every practicable step, from the Sedition laws introduced by the English in 1870 to curtailing opinion-making among Indians in order to counter the nationalist feelings that exist among the masses to an independent battle. Freedom of speech and expression is a vital aspect of the American Constitution.

Other than that, the International Declaration of Human Rights, which was introduced in 1948, says that all should have the freedom to express their thoughts and opinions. Under Article 19, freedom of speech and expression is recognized as a human right, which has now become part of international and regional human rights law. Freedom of speech and expression is also recognized in International Covenant on Civil and Political Rights (ICCPR) of International Human Rights.

Constitutional provisions

As mentioned earlier, the Indian Constitution provides different fundamental rights for an Indian citizen. The freedom of speech and expression provided for in Article 19(1)(a) of the Constitution is one such privilege. Freedom of speech and expression enables an individual to openly share his or her views, with some reasonable restrictions. It is an essential right in a democracy, and is granted by Article 19(1)(a) of the Constitution of India to the people of India.  It upholds the ‘liberty of thought and expression’ principle provided in the preamble.

Freedom of speech and expression grants Indian citizens the right to communicate their thoughts and views without apprehension, by means of words either written or spoken, pictures or some other visual or communicable representation such as gestures or signs. It contains the freedom to propagate one’s own opinions, and the opportunity to publish other people’s views. Free expression cannot be equated or confused with a license to make accusations against the judiciary that are unfounded and are irresponsible. Therefore, the right to speech and expression is not an absolute right, and the State can enforce reasonable restrictions under Article 19(2) of the Constitution. Every constraint on the practice of the right referred to in Article 19(1)(a) which does not come within the four corners of Article 19(2) might not be applicable.

Reasonable restrictions

By enforcing Article 19(2) of the Constitution, the State can enforce reasonable restrictions on the exercise of the right to freedom of speech and expression based on eight grounds. These are:

1. Defamation:  Refers to statements which injures a man’s reputation.
2. Contempt of court: Restriction may be instituted on the freedom of speech and expression if it surpasses the reasonable limit and amounts to contempt of court.
3. Decency or morality: Sections 292 to 294 of the Indian Penal Code provide for situations where freedom of speech and expression is limited in the interests of dignity or morality.
4. Security of the state: Under Article 19(2), fair limitations on the freedom of speech and expression can be placed in the context of State’s security.
5. Friendly relations with other states: The intention behind the provision is to prevent unrestricted malicious publicity against a foreign friendly state that can disrupt India’s good ties with that state.
6. Incitement to an offence: Added through the 1951 Constitution (First Amendment) Act. Freedom of speech and expression cannot provide citizens with a privilege to incite people in committing offence.
7. Sedition: Sedition supports all those activities, whether through words or writing, determined to disrupt the State’s tranquility and drive misguided individuals to subvert the government.
8. Public Order: Introduced by the Constitution Act (first amendment). That which perturbs public peace or tranquility perturbs public order. ‘In the interest of public order’ involves not only utterances meant explicitly but also those which appear to contribute to disorder.

In addition to the above 8 limitations, the rights to freedom under Article 19 of the Indian constitution are revoked during the time of National Emergency proclaimed by the President of India. Furthermore, during the time of action of the National Emergency, the President is authorized to suspend citizens’ right to move to the Supreme Court to implement their personal freedom

Landmark judgements

Freedom of press

Freedom of the press is essential to freedom of expression, which forms the backbone of politicalfreedom and genuine functioning of democracy. In the case of Romesh Thappar v. State of Madras, the court affirmed that the enforcement of pre-censorship on a journal constituted an infringement on the freedom of the press, which is an essential part of Article 19(1)(a). The judgment added that free political dialogue is necessary if a democratic government is to work properly

In Indian Express Newspapers v. Union of India, The Court confirmed that freedom of the press plays a very important role for the proper functioning of democracy, deriving its roots from Article 19(1)(a) and that it is the duty of the courts to uphold freedom of the press.

In Benet Coleman and Co. vs. Union of India, according to the Supreme Court of India, the constraint of the permissible number of pages in the newspaper was found to be in violation of Article 19(1)(a) and is not a reasonable restriction under Article 19(2).

In the case of Prabhu Dutt vs. Union of India, it was claimed that the right to know about the news and details related to government’s administration is included in the freedom of press.

Right to Broadcast

By the introduction of technology, Courts have acknowledged the modern aspects of freedom of speech and expression. That is, the right to broadcast and advertise.  In Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana, The Supreme Court ruled that the privilege of a person to display films on the Doordarshan- State Channel is part of the fundamental right provided by Article 19(1)(a). In this case, the petitioners challenged the displaying of a serial named “Honi Anhonion” in Doordarshan on the basis that it prompted the audience to believe in superstition and blind faith. The claim was rejected as the plaintiff became unsuccessful in showing evidence of detriment caused to the public.

Right to information

After the enactment of the Right to Information Act 2005, in the case of Secretary-General, Supreme Court of India v. Subhash Chandra Agarwal, the court reiterated that, according to Article 19(1)(a), the right to information is not a legislation but a constitutional guarantee.

The Supreme Court in Union of India v. Assn. for Democratic Reforms stated that the freedom to transmit and acquire information pursuant to Article 19(1)(a) is necessary. It is to guarantee that people are aware and that one sided information or misinformation will not render democracy a farce.

In the case of Dinesh Trivedi, M.P. and Ors. v. Union of India, The Supreme Court affirmed that, in a modern democratic society governed by the Constitution, it is obvious that citizens are entitled to know about the affairs of the government which they elect.

Right to criticize

In the case ofS. Rangarajan v. P. Jagjivan Ram,it was affirmed that it is appropriate to form and convey an opinion in a manner which does not cause defamation to the other individual to whom such critique is addressed and is secured under the freedom of speech and expression. The decision added that democracy calls for open discussion and policy criticism.

Right to expression beyond national boundaries

In the case of Maneka Gandhi v. Union of India, the Supreme Court confirmed that freedom of speech and expression was not limited by geographical limitations or boundaries and claimed that Article 19(1)(a) encompasses both the right to speak and the freedom to express in India and also in abroad.

Right to refuse to speak or Right to silence

In the case of Bijoe Emmanuel v. State of Kerala, the school dismissed three students for their denial to sing the national anthem. Yet when the national anthem was playing, the children took a stand in respect. The legality of the students ‘expulsion was questioned at the Kerala High Court, and they confirmed the student’s dismission on the basis that singing the national anthem was their fundamental duty. Yet, on an appeal brought before the Supreme Court against the order of the Kerala High Court, the Supreme Court held that the students had committed no offence under the Prevention of Insults to the National Honour Act of 1971 and further stated that the dismissal of school children for not singing the national anthem created a violation of their right to freedom of expression.

Conclusion

Democratic government provides the people with one of the most fundamental rights i.e. freedom of speech and expression. Indian courts have defined the meaning and content of Article 19(1)(a) broadly, rendering it subjective only to the limitations allowed under Article 19(2). Besides the favour, there is also criticism about the application of this freedom of expression.

Freedom of expression is a fundamental human right which needs to be upheld in democratic societies. Yet there is a worrying global trend among governments that unjustifiably restricts freedom of speech by targeting journalists, protesters and other people who are considered to be dissenting from government views. In Western democracy also, laws curtail opposition movements and through mandatory metadata retention schemes, impede the freedom of the press and free speech. Civil societies across the world will be proactive in protecting freedom of speech. This is important for improving people’s lives and for preserving healthy democratic societies.

Author: Chidige Sai Varnitha from Damodaram Sanjivayya National Law University.

Editor: Avani Laad from Symbiosis Law School, Pune.