ANALYSIS OF FREEDOM OF SPEECH AND EXPRESSION IN RELATION TO DEFAMATION

Published On: 1st September, 2024

Authored By: Imrah Fatima Farooqui

Jamia Millia Islamia

ABSTRACT

This article analyzes the concepts of freedom of speech and expression and the law of defamation, which is a significantly important topic given the country’s commitment to democratic ideals and individual rights. As the constitution of India provides the right to freedom of speech and expression which is crucial for fostering open dialogue and democratic government. However, the boundaries of freedom become contentious when the speech potentially defames the reputation of an individual.

The article also examines the balance between freedom of speech and defamation, citing various case laws and judicial decisions on the topic to provide clarity on the subject, which is important to protect the interest of the individual and framework of the democracy.

INTRODUCTION

“If freedom of speech is taken away, then dumb and silent we may led, like sheep to slaughter.”

-George Washington

The cornerstone of every democratic community is the right to speak and express oneself freely. The essence of free speech lies in the capacity to communicate openly and to gather knowledge from others. It is considered to be the first requirement for freedom. It is one of the most essential basic freedoms that protects against encroachment or control by the state. It is crucial for the state to uphold this fundamental freedom and avoid any attempts to revoke it. According to John Milton’s reasoning, free speech is a complex liberty that goes beyond merely conveying information and thoughts.

However, free speech does not give someone the right to say anything without limits. There are reasonable restrictions on freedom of speech and expression, one of which is defamation. This conflict between the fundamental freedom of speech and defamation law is significant. In India’s diverse democratic landscape, balancing the preservation of free speech with protecting individual reputations is a subject of intense debate. It is vital to maintain this delicate balance to ensure that the right to express one’s thoughts does not infringe upon another’s dignity and respect.

FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech and expression is the foundation stone of the Indian democracy. It enjoys a special place in the constitution as the preamble ensures all citizens’ liberty of thought, expression, belief, and, worship, along with that the constitution of India protects the freedom of speech and expression under Article 19(1)(a) of the fundamental right. It is the most basic freedom provided to the citizens of India.

Article 19(1)(a) guarantees the right to freedom of speech and expression to all citizens of India and is not available to a person who is not a citizen of India, e.g. foreign nationals.

Freedom of speech and expression means the right to express your thoughts and opinions freely through mouth, writing, pictures, gestures, signs, or any other means.

The concept of freedom of speech and expression encompasses the following elements:

The right to freely convey one’s thoughts and feelings through various mediums, such as oral communication, writing, and printing.
It also includes the publication of the views and opinions which means the freedom of the press is also included under it.

Article 19(1)(a) implies the right to press, even though it is not expressly mentioned. The Supreme Court of India has consistently upheld the notion that freedom of the press is an integral part of the freedom of speech and expression in many cases such as the famous case Express Newspaper (Bombay)(P) Ltd. v. Union of India[1], in this case, the court observed that the press serves as a conduit for disseminating the opinions of the public that is why it is an important part of Freedom of speech and expression.

The expressions encompass the aspects of publication and distribution, as well as the right to receive the material distributed as held by the honorable Supreme Court in the case, Romesh Thapar V. State of Madras[2]. Here, it was held that the freedom of speech and expression and the press lay at the foundation of the democratic society because, without political discussions, public education is not possible, which is important for the proper functioning of the government.
It further includes not only the right to express but also to acquire and assimilate the information from others on the matter of public interest which means it also covers the right to be informed. In the case, State of Uttar Pradesh v. Raj Narain[3], the Supreme Court held that the right to information will be treated as the fundamental right under Article 19(1)(a) of the constitution.

In Prabhu Datt v. Union of India, the Supreme Court determined that the right to access information about the functioning of the government is encompassed within the freedom of the press.

The right to speech also extends to the right to silence. It encompasses the freedom to be free from what one wishes to be free from.

Right to silence can be observed in the case, Bijoe Emmanuel v. State of Kerala[4], popularly known as The National Anthem case. In this case, the school authorities penalized some students for not singing the national anthem. The students abstained from singing the national anthem, citing that it is contrary to their religious beliefs. However, they showed respect for the national anthem by standing silently. It was held that the act of punishing the students by the school authorities is in violation to Article 19(1)(a) of the Indian constitution as–the right to speech also impliedly includes the right to silence.

It also includes the right to criticize public affairs, including the freedom to critique the government.

In a democratic society, public discourse is not merely a right but a civic duty, as the greatest threat to freedom is a passive populace. That’s why the freedom to criticize the government for effective operation is necessary.

In the case, Brij Bhushan v. State of Delhi[5], journalist Brij Bhushan faced charges of sedition for publishing an article criticizing the government. The Supreme Court held that restrictions on the fundamental right of speech and expression can only be imposed if there is danger to the public order and incitement of violence. Therefore, the detention was held unconstitutional.

RESTRICTIONS AS MENTIONED IN ARTICLE 19(2)

The fundamental right to freedom of speech and expression is not an absolute right, it is controlled by some reasonable restrictions, as it is necessary to place some curbs for maintaining the order.

Article 19(2) specifies certain grounds for which the freedom of speech and expression can be restricted.

Security of the state

The term ‘security of state’ refers to the absence of severe and aggravated form of public disorder in the state. E.g. Rebellion, war against the state, spying, insurrection etc., therefore if any speech or form of speech is endangering the security of the state, then article 19(2) places restrictions on such.

In the case, People’s union of civil liberty v. Union of India[6], it was held that telephone tapping is an infringement of an individual right to privacy as it interferes the persons private telephonic conversations and is violative of Article 21 of the fundamental rights, therefore the argument that it is done under the reasonable restriction under 19 (2) is not right.

Decency and morality

One of the constitutional grounds upon which the freedom of expression may be limited is ‘decency’ and ‘morality’. The concepts are ambiguous, with the criteria for defining them may vary across different societies.

Section 292 to 294 of IPC deals with this restriction and section 286 to 297 under the BNS act.

In the case, Ranjit D. Udeshi v. State of Maharashtra[7], Supreme Court upheld the legality of section 292 of the Indian Penal Code, asserting its purpose was to safeguard societal decency and ethical standards. The decision recognized that obscenity was not legally safeguarded by the right to free speech and expression, as it did not qualify as protected speech.

Public order

Maintenance of the public order is very necessary for the smooth functioning of the government, therefore Article 19(2) places restrictions on any such speech or forms of speech that disrupt the public order.

This ground was added through the First Constitutional Amendment 1951, the decision was taken through the famous case of Romesh Thapar v. State of Madras.

In the case, Kishori Mohan v. State of Bengal[8], the Supreme Court held it that public order is different from law and order and security of the state. It is a sense of public peace and harmony.

Friendly relations with the other states

The first constitutional amendment 1951, added this ground of reasonable restriction on freedom of speech and expression. Therefore,If the freedom of speech and expression hampers the friendly or peaceful relations of India with other states then restrictions can be imposed on such freedom.

This ground aimed to limit unbound hostile propaganda that opposes a friendly foreign state that could threaten the friendly relations of India with it.

Sovereignty and Integrity of India

After two centuries of foreign domination, India achieved its independence and became a sovereign nation fully accountable for its governance. Therefore, citizens are restricted from expressing such views that may challenge the country’s sovereignty and integrity.

This ground was added through the sixteenth constitutional amendment, 1963, also known as the ‘anti-secession bill’.

In the case, N.T. Rama Rao v. Telugu Desam[9], the court held that any legislation proposed under section 19(2) must be thorough and powerful enough to prevent various violations, including the burning of the Constitution, the refusal to pledge loyalty, or the display of flags in a manner that incites violence, among others.

Contempt of court

If any speech and expression crosses the line and disrespects the court, it could be restrained. Contempt of court can be either civil or criminal as outlined in the Contempt of Court Act,1971. The power to punish for contempt of the court is prescribed in articles 129 and 215 of the constitution by the Supreme Court and High Court, respectively.

Incitement to an offence

This ground of restriction was added through the First Constitutional Amendment Act, 1952. The restriction can be applied under this ground if free speech incites people to commit an offense, as the freedom of speech does not permit causing incitement to commit offenses.

Defamation

It is well-established that freedom of speech is not an absolute right. It does not mean that people have the freedom to hurt the reputation of others, as it is safeguarded under article 21 of the Constitution. Therefore, this ground restricts those remarks which may tarnish the reputation of others.

In the case, Subramanian Swamy v. Union of India[10], addresses the balance between freedom of speech and protection of reputation, emphasizing that defamation laws are not disproportionate restrictions on the freedom of speech.

DEFAMATION

Defamation is the damage to a person’s reputation by the means of any statement, gestures, etc. It is an act of harming a person’s good name through the means of false satements that is shared with any third party.

The law of defamation is divided into two categories: civil and criminal.

In India, civil defamation laws are frequently influenced by the English common law. For example, under English common law, a person cannot seek damages for harm to their character if they do not possess it, nor for damages related to a reputation they have no legitimate claim to. Similarly, making a fair and truthful comment without ill intent and concerning a matter of public interest can serve as a powerful defense in a libel suit.

The key elements of the civil defamation law include:

– Defamation as a tort involves the dissemination of a statement about a person (the plaintiff) to a third party, which leads to hatred, ridicule, contempt, ostracism, avoidance, or negatively affects the person’s reputation in their job, profession, or role.

– In a defamation case, the focus is on the damage suffered by the plaintiff, rather than the defendant’s intent to defame. Therefore, it is irrelevant whether the defendant intended to defame the plaintiff.

– The statement must be made by the defendant to a third party. Simply making the statement to the plaintiff when no third party could have heard it or read it is not sufficient.

– The statement must be false. A true statement cannot lead to civil liability.

The criminal liability of defamation was previously ruled by Sec 499 of the Indian Penal Code , currently ruled under Sec 356 of BNS which states-

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.[11]

The offence of defamation is now addressed under Sec 354(1) of the Bhartiya Nyaya Sanhita. Further Sec 354(2) outlines the punishment of the crime of defamation, which also includes the punishment of community service.

Section 356 of BNS provides certain exceptions to criminal defamation –

Exception 1 states that even if imputations are true, they are not considered defamation if they serve the public interest.
Exceptions 2 and 3 safeguard statements of opinion regarding public servants or on public questions made in good faith.
Exception 4 exempts substantially accurate reports of court proceedings from defamation claims.
Exception 5 protects opinions made in good faith about the court decisions.
Exception 6 allows opinions on the merits of performances submitted to the judgment of the public.
Exceptions 7 and 8 offer protection for criticisms by authorities or accusations made in good faith.
Exception 9 permits imputations made in good faith to protect interest.
Exception 10 exempts cautionary statements made in good faith for the benefit of the recipient.

However, this provision of defamation is considered to be restrictive of Article 19(1)(a) of the Fundamental Rights which gives the freedom of speech and expression.

There are certain exceptions or reasonable restrictions to freedom of speech and expression, and defamation is one of them. Therefore, the heart of the issue is discovering a balance between freedom of speech and defamation such that free speech does not cross the line into harmful defamation, making sure that the right to speak doesn’t unfairly damage someone’s image and reputation.

BALANCING BETWEEN THE FREEDOM OF SPEECH AND DEFAMATION

The crux of the matter considered by the court is whether the reputation of another person, a group, or a group of people was, in fact, temporary and would disqualify the prosecution under defamation laws from interfering with the right to free speech and the expression of opinions.

To address this, the Supreme Court delved into the interpretation of the freedom of speech and expression under section 19(1)(a), section 19(2), and the right to reputation in relation to section 21.

After thorough examination and study of numerous cases on these topics, the court resorted to the principle of reconciling conflicting rights and embraced the concept of balancing these rights. Regarding the legality of criminal defamation, the Court noted that it could be evaluated based on the principles of unity and duty as outlined in the Constitution’s Preamble. Yet, the Court struggled to determine definitively whether criminal defamation was inherently harmful to freedom of speech and expression, but ultimately decided that it did not contravene any constitutional articles and therefore its presence did not represent an unreasonable limitation.

Various cases involved the issue that defamation law unfairly imposes restrictions on the freedom of speech, such as-

Subramaniam Swamy vs. the Union of India[12]

In this case, the petitioner claimed that trying to limit the sharing of public views, thoughts, and critiques through criminal legal actions would harm the functioning of the democratic system. Nonetheless, the Supreme Court maintained that the legal right to free speech does not permit an individual to tarnish the reputation of another by defaming them.

Rajagopal v. State of Tamil Nadu[13]

In this case, the issue of whether civil defamation laws were constitutional and their compatibility with the right to free speech was explored. The court determined that the concept of common law defamation is limited under Article 19(1)(a) due to the undue benefit it provided by shifting the burden of proof to no fault. The primary criticism of Section 499 was that by making a private matter a criminal offense. This law thus imposed a restriction on the freedom of expression. To hold an individual responsible for civil defamation, it is necessary to demonstrate that the accused acted with a complete disregard for the truth in committing defamation.

Shreya Singhal v. Union of India[14]

In this case, the Supreme Court of India has attempted to strike a balance between the rights protected in Article 19(1)(a) and the justifiable limitations allowed under Article 19(2). In its judgment remarks, the Supreme Court has accurately and distinctly stated that “in democracy, the freedom of thought and expression is a fundamental principle that holds great importance within our constitutional framework.”

Moreover, the Court has made it clear that there is a difference between discussions, advocacy, and incitement. The court has determined that justifiable limitations on free speech and expression under Article 19(2) can only be applied when there is clear evidence of incitement.

Sakal Papers (P) Ltd. & Ors. V. Union of India[15]

In this case, it was held that the freedom to express one’s views cannot be limited to control the business operations of an individual. This freedom can only be curtailed when it is necessary for the State’s security, fostering good relations with other countries, maintaining public order, decency, or morality, or in cases involving contempt of court, libel, or incitement of an offence.

CONCLUSION

The right to free speech is essential for the operation of a democratic society. It enables people to share their thoughts, views, and critiques openly, creating a space conducive to open conversation and advancement. Nonetheless, this freedom is limited and must balance with the necessity to safeguard people and society against damaging, incorrect, or harmful remarks.

On the other hand, the concept of defamation is complex and continues to divide opinions, affecting both those who use it and those who suffer from it significantly. Despite efforts by the courts to clarify the situation and address some of the difficulties, there are still significant constitutional concerns regarding both the criminal and civil aspects of defamation, which have yet to be fully settled. Striking a balance between defamation laws and the right to free speech is crucial. One should not be the price the other has to pay.

Finding the perfect middle ground between safeguarding the right to free expression and preventing false statements is both crucial and difficult. It’s vital that the legal frameworks neither become excessively oppressive nor too permissive to keep the balance maintained.

REFERENCES :

[1] Express Newspaper (Bombay)(P) Ltd. v. Union of India,(1985)1scc 641(India)

[2] Romesh Thapar V. State of Madras,(1950) SC 124(India)

[3] State of Uttar Pradesh v. Raj Narain,(1975)SCR 333(India)

[4] Prabhu Datt v. Union of India,(1982) SCC 1(India)

[5] Brij Bhushan v. State of Delhi,(1950)SCR 605 (India)

[6] People’s union of civil liberty v. Union of India,(1997) SC 568 (India)

[7] Ranjit D. Udeshi v. State of Maharashtra,(1965) SCR 65 (India)

[8] Kishori Mohan v. State of Bengal,(1972) 3 SCC 845 (India)

[9] N.T. Rama Rao v. Telugu Desam,(1995) ALT 929 (India)

[10] Subramanian Swamy v. Union of India,2016 SC (India)

[11] Section 356, Bhartiya Nyaya Sanhita Act, 2023

[12] Rajagopal v. State of Tamil Nadu,1994 SCC (6) 632 (India)

[13] Shreya Singhal v. Union of India,(2013) 12 SCC 73 (India)

[14] Sakal Papers (P) Ltd. & Ors. V. Union of India,(1962) 3 SCR 842 (India)