FREE SPEECH AND ITS IMPLICATION IN INDIA

Author: Yassar Pervaiz

KIIT School of Law

ABSTRACT

The fundamental requirement of liberty is defined under Indian Constitution[1]. The freedom of expression is sometimes referred to be the mother of all other freedoms since it has a prominent and significant place in the hierarchy of rights. Today, it is well known that the freedom of expression is crucial to society and must always be maintained as such. The fundamental principle of a free society is the uninhibited interchange of ideas in a public setting. The development of any particular society and, ultimately, the state, depends on the unrestrained expression of ideas and opinions, especially without regard to the consequences. This is one of the most important fundamental freedoms that is shielded from government persecution or control. This paper covers all the aspect of freedom regarding speech[2] under Constitution such as how the law came into existence under Constitution, essentials of the right, scope of the freedom, reasonable restriction imposed on the right for better governance and enactment of sedition law to curtail the voice of the people. This paper will try to inform the readers about the most significant rights available to them as their fundamental right.

KEYWORDS

Constitution, Article, Government, Right, Freedom, Sedition

INTRODUCTION

Free speech refers to the ability of people to express their opinions and ideas without interference from the government. International law also defends the right to free speech, but it also justifies some limitations on that right if someone uses their words to violate the rights of others or if they promote discrimination or violent behaviour in society. The preservation of free speech entails the preservation of the press, the democratic process, and intellectual diversity.

Everyone has the freedom to speak freely without any interference from anyone. The freedom to look for, acquire, and use knowledge through any media, across all frontiers, is included in this freedom, as is the ability to hold and express any perspective without restriction.

India is a democratic nation, and democracy depends on the freedom and equality of opinion. India is a varied nation; there are many distinct languages, religions, castes, and creeds present in Indian society. As a result, the right to freely express their thoughts is crucial for every individual. The Indian Constitution's under[3], gives significant importance to individual to express their thoughts and opinions.

HISTORY OF THE RIGHT IN INDIA

Indian freedoms were at danger under the British Empire because of limitations on their ability to express themselves freely. The Sedition Act, which prohibited free speech and constrained the opinions of revolutionaries, was established by the British government in 1870 in an effort to stop the growth of a large-scale movement to fight for an independent India.

● Queen Empress v Jogendra Chunder Bose[4]It was India's first case on sedition. In this case the editor, manager and printer of Bengali magazine ‘Bangobasi’ were tried for sedition for publishing an article against the British government regarding the raising of the age of consent for sexual intercourse.

● Bal Gangadar Tilak and Mohandas Karamchand Gandhi were also convicted for sedition under[5] because they both spoke against the British government.

● From the above two instances, we can observe that the freedom of speech of speech of individualsduring the British Empire was restricted and if someone tried to spoke against their atrocities, they were held liable under the sedition law.

● After independence, the creators of the constitution of India borrowed the idea of freedom of speech, which are guaranteed under[6] which they borrowed from the American constitution.

● Although the Constitution protects the freedom of speech., there are certain justifiable constraints on that right that have been imposed by the government.

RIGHT UNDER THE AMBIT OF CONSTITUTION:

All citizens are guaranteed the right to free expression under the constitution.[7]

This right has several constraints that are outlined in[8], which outlines the "reasonable restrictions" that the state may impose.

Important ingredients of[9] are as follows:

• This right is available for Indian citizens and not for foreign citizens.

• This right includes the expression of one’s ideas and opinions by words, writing, painting, visual, through signs, gestures or any other mode.

• It aids in the pursuit of truth.

• It provides a platform for individuals to create their own opinions and they are free to communicate.

• It imposes some reasonable restrictions for the security of the state, public order, decency, morality, defamation, friendly relation with foreign states, public order, incitement to offence, India’s integrity, and sovereignty.[10]

Scope of the right under Indian Constitution:

With its numerous rulings, judicial ingenuity, and wisdom, the Supreme Court has expanded the scope of the right to free speech and expression protected by[11] to include the various elements listed below:

1. Right to Information.

2. Right to Vote.

3. The Freedom to circulate and spread ideas.

4. Right to Broadcast.

5. Right of Commercial Advertisement.

6. Freedom of expression and speech beyond national boundaries.

7. Right to express gender identity

8. Freedom of Press.

1- Right to Information:

Constitution[12] not only grants the freedom to spread or publish the opinions of others[13], but it also includes that every citizen has the right to obtain and receive any information controlled by public authority.

In Raj Narain [14] case, it was decided by the Supreme Court that[15] of the Constitution will treat the freedom to information as a Fundamental right. According to the Court, the citizens are masters of Indian democracy and have a right to know how it operates.

2- Right to Vote:

In Association for Democratic Reforms[16]case, it was ruled that voters had a basic right to know about their candidates.

The bench of three judges in this case delivered a judgement and directed an Election Commission to make available information about whom who are contesting elections, about their education, assets, liability and criminal antecedents and this information will be provided to every citizen and if election commission deny to provide such information, it will be breach of Fundamental Right protected under Indian Constitution[17].

3- Freedom to Circulate and Spread Ideas:

The court once further broadened the definition of[18] by defining it to encompass the right to express one's opinions orally, in writing, or via the use of audio-visual technology. Thus, this freedom also includes the ability to disseminate ideas via radio, television, social media, newspapers, magazines, journals, and other communicable materials. Yet again, "reasonable limits" are placed on the same.

4- Right to Broadcast:

In Cricket Association of Bengal (CAB) case,[19] The Supreme Court considerably expanded the definition of[20] in this case by ruling that[21] gave people the right to transmit to viewers and listeners via electronic media and that the government did not have a monopoly on electronic records.

Only the grounds listed in[22] of the Constitution allows the Government to restrict such rights. Any other grounds are not permitted.

The Government was instructed by the court to create an independent, autonomous broadcasting organisation that will free ‘Doordarshan’ and ‘Akashwani’ from the constraints of government control and to establish the circumstances necessary for everyone to enjoy freedom of speech and expression.

5- Right of Commercial Advertisement:

Advertising is a form of speech, however not all forms of advertising are form of speech or form of idea expression. Commercial advertisements are not covered by [23]of the Indian Constitution. Such advertisements contain a commercial and trade component.

It[24] only protects commercial advertisements if they serve the public interest and are used to inform the general public, make announcements, or draw attention to certain information through the media or other channels. Commercial advertisements for tobacco products are not covered by this Article.

6- Freedom of Speech and Expression beyond National Boundaries:

This right is exercisable both inside and outside of India, and any State action that erects a barrier to citizens freedom of expression abroad would be violation of[25] in the same way that it would be a barrier to expression within the nation.

The freedom to free speech and expression is not geographically restricted. This right includes the freedom to learn, to talk and express oneself both domestically and internationally, and to interact with others both within and outside of India.[26]

7- Right to express Gender Identity:

The typical gender norms, which exclusively acknowledge male or female as genders, do not apply to those who identify as transgender. People have been physically assaulted, marginalised in society, and discriminated against as a result of society's rejection of their gender identification. Individuals who identify as transgender but do not belong to one of the socio-cultural groups known as Hijras, jogappas, Sakhi, Aradhis, etc. are nonetheless referred to as transgender people individually.

A transgender person has the freedom to express their preferred gender identification in a variety of ways, including through expression, speech, mannerism, clothes, and other means.Members of the transgender community have the basic rights of respect for one's privacy, sense of identity, independence, and morality, according to[27], and the State is bound to safeguard and preserve such rights.[28]

8- Freedom of Press:

Press freedom, which is entailed in the right to free expression, is essential to political liberty and the efficient operation of democracy.

“According to Lord Mansfield, " freedom of the press " is the ability to publish without a permit and subject to repercussions.

A crucial aspect of press freedom is the ability to print and disseminate anything without getting permission. In addition, pamphlets, circulars, and any other kind of publication that provides a forum for news and opinion are included.[29]

Article 19(2) – The following are the justifications listed in this article for legitimate limitations on the right to free speech and expression:

● India's independence and integrity

● State security

● Cordial relations with neighbouring nations.

● Public harmony.

● Morality or decent conduct.

● Disrespect for the law.

● Defamation.

● Incitement to Commit a Crime

IS SEDITION LAW HURDLE TO THIS RIGHT?

Background:

The Indian Penal Code, passed in 1860 while the British Raj was in power, is where the country’s history of sedition legislation begins. In 1870, it was incorporated into the Act as an amendment. The Wahhabi Movement was put down by the British, who also imprisoned revolutionaries like Lokmanya Tilak and Mahatma Gandhi.

The British employed the sedition legislation to repress dissent and arrest freedom fighters who opposed colonial government’s policies, including Mahatma Gandhi and Bal Gangadhar, Tilak.

After Independence, the drafters of the constitution spent a lot of time commenting on several facts of this colonial law.

In Kedar Nath case[30] ,Sedition law was deemed unlawful by the Punjab High Court because it infringed the freedom of speech protected under Indian Constitution[31]. The case was taken by the Supreme Court when the Allahabad High Court followed suit. In the end, the Supreme Court maintained constitutional validity in this of this section[32].

Many civil rights organisations and human rights activists have called for removal of[33], arguing that this oppressive colonial law has no place in the democratic nation.

According to the law commission of India’s consultation document, which was issued on August 30, 2018, the crime of sedition must continue to exist in order to safeguard the nation’s integrity and should not limit the right to free expression provided by Indian Constitution[34].

Issues with the laws against Sedition:

According to the judgement delivered in Kedar Nath, the sedition act should only be employed in extraordinary situations where the country's security and sovereignty are at jeopardy. Despite this, there is mounting evidence that this clause has been used to stifle criticism and free expression as well as political opponents.

According to the most current data published by the[35], the number of sedition cases dramatically rose to 163% from 47 in 2014 to 93 in 2019,

The fundamental problem with sedition legislation is that its meaning isn't very clear. It is possible to construe the phrases "bring into hate or contempt" and "try to engender disaffection" in a variety of different ways, giving the government and the police the right to harass innocent people.

Sedition Law has a vague definition that makes it easy for the police to unjustly accuse people because it doesn’t specify which actions are seditious and gives a general description of what can be considered.

What is more worrisome is that the judicial process may go on for a very long period, making it very difficult to secure bail after being held under the sedition legislation. As a result, innocent people who criticise the government are prosecuted and others begin to feel uncomfortable.

There are severe problems with seditious behaviour and the increasing abuse of it by all types of governments, including those led by the opposition. These rights, which are protected by the Constitution, as well as individual freedom and the right to free expression, which are features of liberal democracy, are all undermined by seditious laws and their gross misuse. In its 75th year of independence, India is strong and stable enough to determine if the crime of sedition is required and, if so, in what form, with stringent regulations to avoid its misuse and a clear description of the circumstances in which it can be employed.

CONCLUSION

The Indian Constitution[36] guarantees the ability to communicate one's thoughts without interference from the government or another party, but it also sets some restrictions for the sake of the common good and specifies what restrictions are appropriate.

In several decisions, the Apex Court broadened the definition of free speech and expression. As time has demanded, additional rights, such as press freedom, informational freedom, the right to publish ads, and the right to broadcast, have also been incorporated.

In contrast, sedition laws are implemented, and anybody who opposes the government is subject to legal repercussions and punishment. In actuality, individuals are not free to express their thoughts. The government is moving through with measures to remove the sedition statute, which is truly required in a democracy.

Many social reforms have been made by the government, including the Indian Government's abolition of the triple talaq and Article 370. The government should take the appropriate actions to repeal or change the legislation in a way that does not undermine the legitimacy of the current system of governance or stifle public discourse.

REFERENCES [1] Article 19(1)(a) of Indian Constitution [2] Article 19(1)(a) of Indian Constitution [3] Article 19(1)(a) of Indian Constitution [4] 1892 ILR 19 Cal 35 [5] Section 124A of Indian Penal Code, 1860 [6] Article 19(1)(a) of Indian Constitution [7] Article 19 (1) (a) of Indian Constitution [8] Article 19(2) of Indian Constitution [9] Article 19(1)(a) of Indian Constitution [10] Dr J.N Pandey, Constitution Law of India, 57th Ed., 2020, 978-81-945686-4-3. [11] Article 19(1)(a) of Indian Constitution [12] Article 19(1)(a) of Indian Constitution [13] Srinivas v State of Madras, AIR 1931 Mad 70. [14] Raj Narain v/s State of Uttar Pradesh, AIR 1961 All 531. [15] Article 19(1)(a) of Indian Constitution [16]Union of India v/s Association for Democratic Reforms, AIR 2002 SC 2112 [17] Article 19(1)(a) of Indian Constitution [18] Article 19(1)(a) of Indian Constitution [19] Secretary, Ministry of I&B V/S Cricket Association of Bengal (CAB) AIR (1995)2 SCC 161. [20] Article 19(1)(a) of Indian Constitution [21] Article 19(1)(a) of Indian Constitution [22] Clause 2 of Article 19(2) of Indian Constitution [23] Article 19(1)(a) of Indian Constitution [24] Article 19(1(a) of Indian Constitution [25] Article 19(1)(a) of Indian Constitution [26] Maneka Gandhi v Union of India, AIR 1978 SC 597 [27] Article 19(1)(a) of Indian Constitution [28] National Legal Services Authority v. Union of India, AIR 2014 SC 1863. [29] Sakal Papers Ltd. V Union of India, AIR 1962 SC 305 [30] Kedar Nath v State of Bihar, AIR 1962 SCR 769 [31] Article 19 of Indian Constitution [32] Section 124A of Indian Penal Code, 1860 [33] Section 124A of Indian Penal Code [34] Article 19(1) of Indian Constitution [35] National Crime Bureau Records [36] Article 19(1) of Indian Constitution