Explained: Freedom of speech in India

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 “I disapprove of what you say, but I will defend to the death your right to say it.” So well, what do you think this quote means or say what does it signify!! Yes you guessed right it’s about right to freedom of speech. So basically, the right to freedom of speech and expression is a right to express our opinion freely and is granted to all the citizens of India as a fundamental right under Article 19 of the Constitution of India, 1949.

Recently, a similar issue on the topic, right to freedom of speech raised in which the Supreme Court Judge, Justice Deepak Gupta, in response to the amid protests at various parts of the country against the Citizenship Amendment Bill( CAB), National Population Register(NPR), and National Registrar of Citizens(NRC) ruled that “A dissenter is not an anti-national” which means that when one has dissent with the government or proposes some policy contrary to the policy of the government or have some view different to that of government, then he is not to be regarded as an anti-national.

As the person doing so enjoys his right of freedom of speech and expression which means that he may have his own opinion, and can articulate his idea or views without the fear of retaliation. He further said that it’s the right of every citizen, to question, to challenge, to verify, and to ask for accountability from the government and criticism of the executive, the judiciary, the bureaucracy or the armed forces cannot be termed as anti-national. 

There have been incidents where the people showing dissenting voices have been designated by the term anti-nationalists. He further said that “Majoritarianism is an anti-thesis to the democracy” which means that the it is not always necessary that the government is correct, and therefore the citizens have the rights to express their opinion and discontents against the same. Similarly a party who wins the election by 51% of the votes is not the only one who will rule and the other party with 49% of the votes’ is ought to keep silent or has no voice in ruling the country for the next 5 years. He stated that the “superior courts were the protectors of the right of the people and have a duty to ensure that the powers that be do not suppress dissent”.

In a democracy, the right to dissent is the most precious right one can have and the government in such a case has no powers or rights to stifle peaceful protests. It is not necessarily always, that the government should be right, there are some times at which the government may be wrong and thereby the people have the right to protest peacefully and express their opinion. Also having or expressing a contrary opinion does not always mean disrespecting the government or the country.

Further, he opines that Dissent and disagreement are human as well as the constitutional right of the citizens in a democracy and no one should be deprived of that right, especially for the holistic development of the society, where along with the economic rights, civil rights of the citizens have also been protected.  He concluded by his remarks “A free country is one where there is freedom of expression and governance by the rule of law”.

In India, a right to express one’s own opinion, ideas, and convictions freely by spoken words, by writing, through visual representation, or through any other mode can together be said as exercising the right to Speech and expression. When we see the hierarchy of liberty; freedom of speech and expression comes at the first and foremost place, it is the essence of a free and liberal society and therefore must always be safeguarded. Also it’s one of the most important fundamental liberties guaranteed against the suppression of the state.  Liberty to express one’s opinions, expressions and ideas freely without the fear of punishment plays a significant role in the development of a society and ultimately of the state.

Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression to every citizen of India and is the most essential article which embodies the basic freedom of the state. Apart from guaranteed freedom of speech under the constitution and statutes of various states, it is also guaranteed by various international conventions which explicitly talks about the protection of freedom of speech. Some of them are the Universal Declaration of Human Rights(UDHR), the European Convention on Human Rights(ECHR) and fundamental freedoms, International Covenant on Civil and Political Rights(ICCPR), etc.

Article 19 of the Universal Declaration of Human Rights, 1948 states that: “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”. Freedom of Speech is also required for the discovery of truth through the way of open discussion, fulfillment, and development of self, for expressing personal beliefs and political attitudes, along with active participation in the democracy.                                       

The right to freedom of speech which is enriched in the Preamble under Article 19(1)(a) is not without limitations and is not absolute. If the speech in India is given an uncontrolled license, it would tend to lead to disorder and anarchy in the country.

Thus, the right to free speech and expression can never be confused with a license to make unfounded and irresponsible allegations against the judiciary. Some reasonable restrictions are being imposed on some purposes on the exercise of this right under Article 19(2) of the Indian Constitution which is stated as ” Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 concerning contempt of court, defamation or incitement to an offense”.  In the modern world, freedom of speech also includes the press. The reasonable restrictions would include internet information and censorship, which is an extension of speech and expression the only difference is the medium, which here is the internet.

The case of Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124), was one of the earliest cases to be decided by the Supreme Court in which it declared freedom of the press as a part of freedom of speech and expression. In which Justice Patanjali Sastri,  rightly observed that “Freedom of Speech and Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible”.

In the case of Indian Express v. Union of India, (1985) 1 SCC 641, it has been ruled that the Press plays a very significant role in the democratic machinery of the country. The courts have to uphold the freedom of the press and invalidate all laws and administrative actions that abridge that freedom.

In the recent case of Kanhaiya Kumar v. State of NCT of Delhi, an event was organized by the students of Jawaharlal Nehru University, on the Parliament attack convict Afzal Guru, who was hanged in 2013. There were protests made in the event by various means i.e. through poetry, art, and music against the judicial killing of Afzal Guru. Several allegations were made regarding the students shouting anti-Indian slogans. Therefore there was a case filed against several students on charges under offenses of Sedition. After which Kanhaiya Kumar, the President of the Student Union of the University was arrested after allegations of shouting anti-national slogans. But was later released on bail by the Delhi High Court because of the unclear role and lack of reasonable evidence.

Therefore, in an independent country like India, it is really important for the holistic and healthy development of our country that one should have the right to express his/her dissent by peaceful means. There are 3Ds important in a democracy to run smoothly i.e. discussion, disagreement, and dialogue. One of the basic rights guaranteed in a civil society is the freedom to speak and express our opinion and ideas freely. Freedom and speech are being described as the bulwark of democratic government and is vital in the proper functioning of the democracy.

It is rightly said by Justice P N Bhagwati in the landmark judgment of Maneka Gandhi v. Union of India, that “Democracy is based essentially on free debate and open discussion, for that, is the only corrective of government action in a democratic setup. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is essential.” It emphasized on the significance of the freedom of speech & expression in a democratic country like India. Thus, it is a human as well as a constitutional right which should never be taken away from the citizens.

Author: Bhakti Rathi from NMIMS Kirit P. Mehta School of Law.

Editor: Tamanna Gupta from RGNUL, Patiala

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