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Freedom of Speech – under the light of Rule of law

Written by: Dushyant Mittal and Anubhav Kumar, Students, Vivekananda Institute of Professional Studies, Pitampura, Delhi

Introduction

Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. Freedom of expression is recognized as a human right under article 19 of the Universal Declaration of Human Rights (UDHR) and recognized in International Human Rights Law in the International Covenant on Civil and Political Rights (ICCPR). It states that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers; either orally, in writing or in print, in the form of art, or through any other media of his choice”.


The right to freedom of speech and expression in India is not absolute. Article 19(f) India’s constitution guarantees the right “to freedom of speech and expressions.” However, the constitution also allows the government to limit freedom of expression "in the interests of the sovereignty and integrity of India, 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."[1]

Can Dissent be portrayed as Anti Nationalism?

“The blanket labelling of dissent as anti-national or anti-democratic strikes at the heart of our commitment to protect constitutional values and the promotion of deliberative democracy”. -Justice D.Y. Chandrachud.


Shreya Singhal vs Union of India[2], the Supreme Court struck down Section 66A of the Information Technology Act, which criminalized “grossly offensive" or “menacing" online speech. Drawing together various threads from previous judgements, the court distinguished between “advocacy" and “incitement", and held that only the latter could be constitutionally prohibited. In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

Accessibility of Internet is a Fundamental Right?

The freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys Constitutional protection under Article 19(1)(a) and Article 19(1)(g) respectively, ruled the three-judge bench headed by Justice NV Ramana. “The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality,” the court said.


The apex court also ruled that repetitive orders under Section 144 of the Criminal Procedure Code amount to an abuse of power. The power under Section 144, CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

“The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what’s actually necessary to combat an emergent situation,’’ said the judgement by the top court bench headed by Justice Ramana.


A bench of justices N V Ramana, R Subhash Reddy and B R Gavai said, "We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (right to practise any profession, or to carry on any occupation, trade or business)."


In a significant ruling which was a result of the petition filed by a college student in Khozikode challenging restrictions on usage of mobile phones in girls' hostel, the Kerala High Court declared that the right to access to Internet is a fundamental right forming part of right to privacy under Article 21 of the Constitution. The right to Internet access also forms part of right to education, added a single bench of Justice P.V. Asha.

Is Intolerance prejudicial to emancipation?

In the case of Rangarajan Vs. P. Jagjivan Ram, 1989, the Supreme Court held that: "The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group of people.”[3]


Today, anyone who feels offended can complain to restrict the offender’s right to express herself under Section 153(A) of IPC[4], saying that the speaker is “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc”, and doing acts prejudicial to maintain harmony. And the state has made it a criminal offence to “outrage religious feelings” with malicious intent under Section 295(A) of IPC.


A case in point is the free articulation of one's sexual identity. The third gender was covered under the threat of prosecution and persecution for centuries. The social stigma is so unnerving that only a few rich and famous have dared to articulate their sexual preferences. The "I am right, you are wrong" infection has taken a virulent form during this free speech fever. Tolerance for other's right to free speech is dwindling fast.[5]

In Hate Crime, a voice still feeble

The term ‘hate speech’ eludes a universal definition. It derives its significance from the particular context it operates in formed through the influence of peculiar sensibilities, “identities” and “assessments” in particular contexts.[6] Therefore, it can be said that hate speech is “speech that is, broadly speaking, derogatory towards someone else”.[7]


Recently, while examining the scope of hate speech laws in India, the Law Commission in its report published in 2017 recommends further introducing new provisions within the penal code that specifically punish incitement to violence in addition to the existing ones.[8]


Though the term “hate speech” does not find mention anywhere but its different forms are identified across the laws that address this kind of speech. Most importantly and primarily the Indian Penal Code under Sections 153A, 153B, 295A, 298, 505(1) and 505(2)[9] declares that word, spoken or written, or employing signs or any kind of visual representation that ‘promotes disharmony, enmity, hatred or ill-will’ or ‘offends’ or ‘insults’ on basis of religion, ethnicity, culture, language, region, caste, community, race etc., is a punishable offence.


Mob Lynching is a kind of violent act that involves „violence against individuals by mobs‟, often on the pretext of racial discrimination, inter-faith relationships and at present more often on the pretext of cow protection. In simple words it means, "Killing someone for an alleged offence without a legal trial.”


On Jul 17, 2018, the Supreme Court “recommended” that Parliament formulate “a separate offence for lynching and provide adequate punishment”. Also, one of the important guidelines was that the state and police must use data in order to locate hotspots and address case for mob lynching among other such guidelines.

To what extent can the Media be controlled and restricted?

In the case of Brij Bhushan v. State of Delhi[10], the validity of censorship previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the further orders , all communal matters all the matters and news and views about Pakistan, including photographs, and cartoons”, on the ground that it was a restriction on the liberty of the press.


In India, the press has not been able to exercise its freedom to express the popular views. In Sakal Papers Ltd. v. Union of India[11], the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2).


Similarly, in Bennett Coleman and Co. v. Union of India[12], the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down the plea of the Government that it would help small newspapers to grow.

Conclusion

From perusal of this article we came to a conclusion that right to freedom of speech and expression is one of the most important fundamental right. It includes circulating one’s views by words or in writing or through audio-visual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. Thus, this fundamental right has a vast scope.


It can also be comprehended that public order holds a lot of significance as a ground of restriction on this fundamental right. But there should be reasonable and proper nexus or relationship between the restriction and achievement of public order. The words ‘in the interest of public order’ include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder.


A restriction on Freedom of speech and expression is badly needed but there should be a reasonable and proper nexus or relationship between the restriction and freedoms because this freedom is the bulwark of democratic government and is essential for the proper functioning of democratic process and is regarded as the first condition of liberty.


References

[1] The Constitution of India [2] 12 S.C.C. 73 [3] 1989 SCR (2) 204 [4] Indian Penal Code, 1860 (Act 45 of 1860) Section 153(A) [5] Devang Singh, Rising Intolerance and Freedom of Speech, Leaf Today [6] Marcello Maneri (ed.), “#Silence Hate : Study on hate Speech Online in Belgium, Czech Republic, Germany and Italy”, BRICKS Building Respect on the Internet by Combating Hate Speech Project available at : https://www.bricks-project.eu/wp/wp-content/uploads/2016/10/relazione_bricks_eng2-1.pdf (last visited on March 25,2020) [7] Gautam Bhatia, Offend, Shock or Disturb: Free Speech Under the Indian Constitution 139 (Oxford University Press, Delhi, 1st Edn. 2016) [8] Law Commission of India, 267th Report on Hate Speech (March 2017). [9] The Indian Penal Code, 1860 (Act 45 of 1860). [10] AIR 1950 SC 129 [11] 1962 AIR 305, 1962 SCR (3) 842 [12] 1973 AIR 106, 1973 SCR (2) 757

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