Published On: 13th September, 2024
Authored By: Arshita Vashisht
University of Petroleum and Energy studies
Introduction
The right to freedom of speech and expression is universally recognized as one of the most fundamental human rights, essential for the proper functioning of a democratic society. It forms the bedrock of democratic governance, enabling citizens to participate actively in the political process, express their opinions, and hold their governments accountable. In India, this right is enshrined in Article 19(1)(a) of the Constitution, which guarantees to all citizens the freedom of speech and expression[1]. This constitutional protection reflects India’s commitment to democratic values and individual liberty.
This article examines the constitutional framework, judicial interpretations, and contemporary challenges surrounding this vital freedom in India. It explores how the Indian judiciary has interpreted and expanded the scope of this right over the years, balancing it with other constitutional imperatives and societal interests. Furthermore, it delves into the emerging challenges posed by technological advancements and changing social dynamics, analyzing how these factors are reshaping the contours of free speech in the world’s largest democracy.
Constitutional Framework
1. Article 19(1)(a) and its Scope
Article 19(1)(a) of the Indian Constitution provides that all citizens shall have the right to freedom of speech and expression[2]. This provision is part of the fundamental rights guaranteed under Part III of the Constitution, which forms the conscience of the Indian Constitution. The placement of this right among the fundamental rights underscores its importance in the constitutional scheme.
The Supreme Court has interpreted this right broadly, encompassing not only verbal expression but also various forms of non-verbal communication[3]. This expansive interpretation includes the right to express oneself through various media, including print, electronic, and digital platforms. It also covers artistic expressions, symbolic speech, and even commercial speech to a certain extent.
The scope of Article 19(1)(a) extends beyond mere individual expression. It is understood to include the right to receive information, the right to disseminate information, and the right to access information. This comprehensive understanding of free speech aligns with the idea that a well-informed citizenry is crucial for the functioning of a democracy.
2. Reasonable Restrictions under Article 19(2)
While Article 19(1)(a) guarantees the freedom of speech and expression, it is not an absolute right. The framers of the Constitution recognized the need to balance individual liberty with social interests and national security. Consequently, Article 19(2) allows the state to impose reasonable restrictions on this freedom in the interests of:
- Sovereignty and integrity of India
- Security of the State
- Friendly relations with foreign States
- Public order
- Decency or morality
- Contempt of court
- Defamation
- Incitement to an offence[4]
These restrictions must be “reasonable” and imposed by law, ensuring a balance between individual liberty and social interests. The requirement of reasonableness serves as a safeguard against arbitrary state action and ensures that any restriction on free speech is proportionate to the aim sought to be achieved.
A strong body of precedent has been established by the Supreme Court around the notion of “reasonable restrictions.” According to the court’s ruling in Chintaman Rao v. State of Madhya Pradesh, the term “reasonable restrictions” means that a person’s ability to exercise their right shall not be restricted in any way that goes beyond what is necessary to protect the public interest [5].
Judicial Interpretations and Expansions
The Supreme Court of India has played a crucial role in interpreting and expanding the scope of freedom of speech and expression through various landmark judgments. These judicial pronouncements have shaped the contours of free speech in India, often filling gaps in the constitutional text and adapting it to changing social realities.
1. Freedom of Press
Although not explicitly mentioned in Article 19(1)(a), the Supreme Court has consistently held that freedom of the press is implicit in the freedom of speech and expression[6]. This interpretation recognizes the vital role that a free press plays in a democratic society, serving as a watchdog and facilitating the free flow of information.
In Express Newspapers (Bombay) (P) Ltd. V. Union of India, the Court eloquently articulated the importance of press freedom:
“In today’s free world, social and political discourse revolves around press freedom. These days, the press plays the function of the public educator, enabling large-scale formal and non-formal education, especially in developing nations where not all segments of society still have access to television and other forms of modern communication. The mission of the press is to advance the public interest by publishing information and opinions without which a democratic electorate cannot make responsible judgments.”[7]
This judgment underscores the Court’s recognition of the press as a “fourth estate,” essential for the functioning of democracy. Subsequent judgments have further reinforced this view, extending protection to various aspects of press freedom, including the right to report court proceedings, protection of sources, and freedom from prior restraint.
2. Right to Information
The Supreme Court has recognized the right to information as an integral part of the freedom of speech and expression. This interpretation is based on the understanding that meaningful exercise of free speech requires access to information.
In State of U.P. v. Raj Narain, the Court held that the right to know is derived from the concept of freedom of speech[8]. Justice K K Mathew observed:
“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.”
This judicial interpretation laid the groundwork for the enactment of the Right to Information Act, 2005, which has since become a powerful tool for ensuring transparency and accountability in governance.
3. Commercial Speech
The Court has extended protection to commercial speech, holding that it also falls within the ambit of Article 19(1)(a). This interpretation recognizes that commercial information can be valuable to consumers and contributes to the marketplace of ideas.
In Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd., the Court observed that commercial speech cannot be denied the protection of Article 19(1)(a) merely because it is issued by businessmen[9]. The Court held:
“The freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution includes commercial communication. The commercial speech is entitled to be heard by the general audience. In addition to ensuring freedom of speech and expression, Article 19(1)(a) safeguards a person’s right to hear, read, and receive the stated speech.”
This judgment marked a significant departure from earlier views that commercial speech was outside the purview of constitutional protection.
4. Freedom of Expression through Various Media
The Supreme Court has interpreted Article 19(1)(a) to include the right to express oneself through various media. This broad interpretation has become particularly relevant in the age of digital communication.
In Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, the Court held that the right to impart and receive information through electronic media is a part of the freedom of speech and expression[10]. The Court observed:
“The right to freedom of speech and expression includes the right to receive and impart information. To ensure the free speech rights of the citizens of this country, it is necessary that the citizens have the benefit of the plurality of views and a range of opinions on all public issues. A successful democracy posits an ‘aware’ citizenry.”
This judgment was particularly significant as it recognized the importance of diverse media platforms in ensuring a plurality of voices in the public sphere.
Contemporary Challenges and Emerging Issues
As society evolves and new technologies emerge, the freedom of speech and expression faces new challenges and complexities. These emerging issues often test the boundaries of existing legal frameworks and require careful balancing of competing interests.
1. Internet and Social Media
The advent of the internet and social media has revolutionized communication, presenting both opportunities and challenges for free speech. While these platforms have expanded the scope for individual expression, allowing voices that were previously marginalized to be heard, they have also raised concerns about the spread of misinformation, hate speech, and cyberbullying.
The Supreme Court, in Shreya Singhal v. Union of India, struck down Section 66A of the Information Technology Act, which criminalized sending “offensive messages” through communication services[11]. The Court found the provision to be unconstitutionally vague and capable of being used to restrict protected speech. This judgment was hailed as a victory for online free speech.
However, the challenge of regulating online content without infringing on free speech remains. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which aim to regulate social media platforms and digital news media, have sparked debates about the balance between free speech and the need to curb harmful online content[12].
2. Sedition Laws
The continued existence of colonial-era sedition laws in India has been a subject of intense debate. Section 124A of the Indian Penal Code, which criminalizes sedition, has been criticized as a tool to stifle dissent and infringe upon the freedom of speech[13].
While the Supreme Court in Kedar Nath Singh v. State of Bihar read down the provision to apply only to speeches that incite “violence” or “public disorder,” concerns about its misuse persist[14]. Critics argue that the very existence of the law has a chilling effect on free speech, particularly political dissent.
3. Defamation and Strategic Lawsuits Against Public Participation (SLAPP)
The use of defamation laws, both criminal and civil, to silence critics has been a growing concern. In particular, Strategic Lawsuits Against Public Participation (SLAPP) have emerged as a threat to free speech, especially for journalists and activists[15].
While the Supreme Court in Subramanian Swamy v. Union of India upheld the constitutionality of criminal defamation, it emphasized the need for courts to be cautious in its application[16]. The challenge lies in striking a balance between protecting reputations and ensuring that defamation laws are not used to suppress legitimate criticism and public debate.
4. Hate Speech and Fake News
The proliferation of hate speech and fake news, particularly on social media platforms, has led to calls for stricter regulation. However, defining hate speech and distinguishing it from protected speech remains a complex task.
The Law Commission of India, in its 267th Report, recommended specific laws to punish hate speech[17]. However, critics warn that overly broad hate speech laws could be misused to suppress legitimate expression, particularly of marginalized groups.
The issue of fake news presents its own set of challenges. While there’s a clear need to combat misinformation, any attempt to regulate “fake news” must be carefully crafted to avoid infringing on protected speech or being used as a tool of censorship.
International Perspective
The right to freedom of speech and expression is recognized in various international human rights instruments. Article 19 of the Universal Declaration of Human Rights states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[18]
Similarly, Article 19 of the International Covenant on Civil and Political Rights guarantees this right, subject to certain restrictions[19]. While India is a signatory to these instruments, the implementation and interpretation of this right vary across jurisdictions.
The European Convention on Human Rights, in Article 10, provides for freedom of expression but also allows for restrictions “as are prescribed by law and are necessary in a democratic society.”[20] The European Court of Human Rights has developed a rich jurisprudence around this provision, often balancing free speech with other rights and societal interests.
In the United States, the First Amendment to the Constitution provides robust protection for free speech, with very limited exceptions. The U.S. Supreme Court has generally been skeptical of content-based restrictions on speech, leading to a jurisprudence that is more protective of free speech than in many other jurisdictions[21].
Comparing these approaches with India’s can provide valuable insights into different models of protecting free speech while addressing societal concerns.
Conclusion
Freedom of speech and expression remains a cornerstone of Indian democracy, essential for the development of individual personality and the functioning of a free society. The Indian judiciary has generally adopted a liberal approach to interpreting this right, expanding its scope to encompass various forms of expression and media.
However, the challenges to free speech in the 21st century are multifaceted and complex. The rise of digital platforms, concerns about national security, and the need to combat hate speech and misinformation all present new frontiers in the ongoing struggle to protect free expression while maintaining social harmony and public order. As India navigates these challenges, it must strive to uphold its constitutional commitment to free speech while addressing legitimate societal concerns. This will require careful legislative crafting, judicious interpretation by the courts, and a robust public discourse on the value and limits of free speech in a diverse and dynamic society.
The path forward lies in striking a delicate balance – one that preserves the essence of free speech as a fundamental right while adapting to the realities of a rapidly changing world. As Justice Brandeis famously observed, “Sunlight is said to be the best of disinfectants.”[22] In the Indian context, ensuring that the light of free expression continues to shine brightly will be crucial for the health and vitality of its democracy.
References:
[1] Constitution of India, Art. 19(1)(a).
[2] Ibid.
[3] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[4] Constitution of India, Art. 19(2).
[5] Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
[6] Romesh Thappar v. State of Madras, AIR 1950 SC 124.
[7] Express Newspapers (Bombay) (P) Ltd. V. Union of India, AIR 1958 SC 578.
[8] State of U.P. v. Raj Narain, AIR 1975 SC 865.
[9] Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139.
[10] Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236.
[11] Shreya Singhal v. Union of India, (2015) 5 SCC 1.
[12] Ministry of Electronics and Information Technology, Government of India, “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”.
[13] Kunal Majumder, “India’s Sedition Law: A Weapon of Repression”, The Diplomat, February 28, 2020.
[14] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
[15] Prashant Reddy T., “The Menace of Strategic Lawsuits Against Public Participation”, The Wire, July 15, 2019.
[16] Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
[17] Law Commission of India, 267th Report on “Hate Speech”, March 2017.
[18] Universal Declaration of Human Rights, Art. 19.
[19] International Covenant on Civil and Political Rights, Art. 19.
[20] European Convention on Human Rights, Art. 10.
[21] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
[22] Louis D. Brandeis, Other People’s Money and How the Bankers Use It (1914).
