Freedom of Speech & Expression in India

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

                            – S.G. Tallentyre, The Friends of Voltaire

Abstract

This article analyses about the freedom of speech and expression in India.
Speech is considered a divine gift through which individuals convey their thoughts, sentiments, and feelings to others. Freedom of speech and expression is therefore seen as a natural right inherent to every human being from birth, making it a fundamental and basic right. It is regarded as the primary condition of liberty and holds a significant position in the hierarchy of freedoms, often being referred to as the “mother” of all liberties. This freedom encompasses the right to express one’s opinions and convictions through various mediums such as speech, writing, printing, or any other form of communication. In modern times, it is widely acknowledged that safeguarding the right to freedom of speech is essential for maintaining a free society. An unrestricted flow of words in an open forum is considered the first principle of a free society.

Keywords

Legality, International covenants, Media rights, Principal liberty, Democratic standpoint.

Introduction

‘Free Speech’ is often referred to as the “mother” of all other freedoms, for they birth on the superstructure of the ability to express oneself without the fear of being objected or oppressed. It is thereby, reckoned as one of the most crucial civil liberties safeguarded against government repression or restriction. Freedom of speech and expression essentially refers to the liberty to state one’s state of mind and opinions freely via written or spoken words, signs gestures, pictures, or through any other viable mode. It is well acknowledged in this positivist day that the right to free speech is essential to a free society and must always be protected.  The ‘Constitution of India’ guarantees the ‘Right to Freedom of Speech and Expression’ to its citizens through Article 19(1)(a)[1], thus, affirming its substantiality within the legal framework of the country. Though, it holds an important place in the ambit of ‘individual’s rights’, it is not an absolute right. Article 19(2)[2] of the Indian Constitution prescribes certain limitations that can be imposed on this right, subject to the prescription of law. These limitations however, must be vigilantly balanced to ensure that they do not infringe upon individual’s ability to exercise their freedom of speech and expression.

Freedom of Speech and Expression

There had been a pressing demand for a written Bill of Rights for the people of India which included the guarantee of free speech, throughout India’s struggle for freedom. The Founding Fathers, as a result of the experiences carved out of the oppressive measures during the British rule, attached great importance to the freedom of speech and expression. The drastic repression of the Britishers convinced them of this substantiality of this right in the new sovereign India. They affirmed that the freedom of expression is indispensable to the operation of a democratic system. They were completely aware of the fact that, once the doorway to free speech is closed, the government by the consent of the governed will soon be foreclosed. The Founding Fathers of the Indian Constitution endorsed the ideology of Jawaharlal Nehru who said, “I would rather have a completely free speech and expression with all dangers involved in the wrong use of that freedom than a suppressed of regulated speech and expression”[3]

Liberty of Speech as granted by the Indian Constitution

Under Part III of the Indian Constitution, several Fundamental Rights have been conferred to the people of India. Under this umbrella, Freedom of Speech and Expression is guaranteed as a fundamental right by Article 19(1)(a)[4] of the Constitution. Freedom of expression, similar to other fundamental rights, is also not an absolute right. It can be restricted provided three distinct and independent prerequisites are satisfied.

1. The restriction on the liberty of speech and expression must be backed by a substantial law.
2. The law must fall decisively within one or more heads of limitations specified in Article 19(2)[5].
3. The restriction, along with the manner of imposition of the restriction must be just, fair, and reasonable.

Freedom of speech and expression is the spirit of a democratic government. This freedom is crucial for the smooth execution of the democratic process. The liberty of free speech provides protection to all other liberties, truly the “mother” of all other liberties.

Freedom of speech and expression, in a democracy, open up channels of free deliberation of causes and issues. Freedom of speech plays a pragmatic role in the formation of public opinion on social, political and economic matters. Freedom of speech and expression has been variedly described as a “basic human right”, “a natural right” and the like. It not only includes the liberty to propagate one’s views but also the right to propagate the views of other people as well, otherwise this freedom will not incorporate the freedom of the press.

The idea behind such freedom is to be able to express one’s thoughts and opinions freely without censorship. Speech, as it comes naturally to every person, is considered to be one of the most basic faculties of the human nature. This right includes the liberty to receive, seek and impart information and ideas of all sorts, regardless of frontiers, either in writing, orally, in print or any other media of choice.

International References

The importance of free speech as a basic and valuable characteristic of society cannot be overlooked. Freedom of speech serves a number of functions. One of its most highlighted feature is that decision-making at all stages is the outcome of a wide array of differing views, this is very helpful in the establishment of a fundamental democracy. The freedom of speech and expression, which has been accorded as a natural right has been solemnized under a number of international and regional instruments:

1. Article 19 of the Universal Declaration of Human Rights provides for the freedom of opinion and expression[6].
2. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) elucidates the freedom, as protected under the UDHR. It explicitly provides how the States can restrict the freedom of expression of individuals in accordance with laws and situations suitable thereof[7].
3. The European Union (EU) Convention for the Protection of Human Rights and Fundamental Freedom, 1950, safeguards the individual’s freedom of expression in Article 10. A restriction provided under this Article is that states can’t be barred from requiring licenses for broadcasting, television or cinema enterprises[8].
4. The American Convention of Human Rights incorporates the freedom of thought and expression in Article 13, which also deals with the restrictions thereof. The liberty of expression can’t be curbed by indirect methods or sanctions of government over media bodies[9].
5. The African Charter on Human and Peoples’ Rights entails the right of every person to receive information, as well as express and circulate his opinions within the law[10].

Media’s Role

In numerous cases, the apex court has reiterated upon the pressing need of protecting the fundamental right of freedom of speech and expression. With the advent of positivism in the social structure, electronic media has gained a hierarchy of significant importance. However, there needs to be some deliberation whether these media houses truly represent the sentiments of people or whether they are governed by some interest groups. ‘Sting operation’ by using electronic bugs while interviewing a person may be a bonafide attempt in their attempt to bring out the truth; but the same can be used for the purpose of blackmailing a person. But it is worth noting that there are websites devoted to bringing out the truth of incidents of human right violations.

The freedom of press has always been a cherished right on all democratic countries. The newspaper not only mediates news but also ideas, opinions and ideologies. They are supposed to guard public interest by shedding light on the failings and misdeeds of the government and other bodies functioning on the mechanism of government. The year 2015 witnessed several developments in the sphere of the freedom of speech and expression.

Freedom of speech and expression are fundamental pillars of a strong democracy and a healthy society. In democratic systems, where governance is by and for the people, the right to free expression is considered essential and indivisible. Often referred to as democracy’s fourth pillar, it ensures that power remains in the hands of the public. Without this right, democracy loses its meaning, as it is through open expression that individuals can live with dignity rather than mere animals.

While safeguarding this right is crucial, it’s also necessary to maintain balance, as some may misuse their freedoms. In the United States, the First Amendment protects free speech and expression, closely tied to democratic principles. Similarly, the European Convention on Human Rights guarantees free speech as a core principle, vital for the functioning of democracy. Overall, free and unrestricted speech allows individuals to express themselves without fear, contributing significantly to democratic societies.

Conclusion

Free speech serves as the cornerstone of democratic civilizations worldwide, facilitating the exchange of ideas and information essential for autonomy. It is considered the foundation of all other freedoms and is safeguarded from state repression or restrictions. In India, Article 19(1)(a) of the Constitution guarantees this fundamental right. Internationally, the right to free speech is recognized under the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). However, this right is not absolute, and certain limitations are in place under Article 19(2). These limitations can only be imposed through legislation. Additionally, the freedom to disseminate, publish, and market material is encompassed within this right.

References

[1] INDIA CONT. art.19, cl. 1(a)

[2] INDIA CONT. art.19, cl. 2

[3] Sedition in respect of freedom of speech and expression: Indian Legal Perspective (no date) Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-8774-sedition-in-respect-of-freedom-of-speech-and-expression-indian-legal-perspective.html (Accessed: 04 August 2024).

[4] Supra note 1

[5] Supra note 2

[6] Universal declaration of human rights (no date) United Nations. Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights (Accessed: 04 August 2024).

[7] International Covenant on Civil and Political Rights | Ohchr. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights (Accessed: 04 August 2024).

[8] European Convention on Human Rights – Article 10 (2022) European Union Agency for Fundamental Rights. Available at: https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-10#:~:text=Article%2010%201.,authority%20and%20regardless%20of%20frontiers. (Accessed: 04 August 2024).

[9] American Convention on Human Rights. Available at: https://www.oas.org/en/iachr/mandate/Basics/3.AMERICAN%20CONVENTION.pdf (Accessed: 04 August 2024).

[10]  African charter on human and peoples’ rights. Available at: https://au.int/sites/default/files/treaties/36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf (Accessed: 04 August 2024).