Expanding Horizons of Freedom of Speech and Expression and the Judicial Review

  • By: Pari Agrawal
    Abstract:
    Freedom of Speech and Expression is deemed to be a vital part of the broad sphere of human rights. However, the extent to which it can be practiced has been changing drastically. This article seeks to analyse article 19 of the Indian Constitution which talks about the Freedom of Speech and Expression as a fundamental right available to the citizens of the country.
    It also explains the changing dimensions of freedom of speech and expression under the ambits of commercial advertisements and social media. Further, it highlights the freedom of press available to the journalists and reporters of the social medias.
    Right to Information is another fundamental right available to the citizens of the country which gives them the right to receive and impart knowledge and information. And finally, it discusses the grounds of restrictions on freedom of speech and expression.
    KEYWORDS: Freedom of Speech and Expression, Indian Constitution, Article 19, Right to Information, Fundamental Rights.
    Article 19 of the Indian Constitution:
    The right to express one’s own ideas, thoughts, and opinions freely through any mode of communication such as writing, printing, picture, gestures, spoken words, or any other mode is the essence of freedom of speech and expression . It includes the expression of ideas through gestures, signs, and other means of the communicable medium.
    Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides the freedom to seek, receive, and convey information and all kinds of ideas irrespective of boundaries. It can either be orally or in the form of writing, print, and art or through any other media of their choice.
    In India, freedom of speech and expression is granted under Article 19 (1) (a) of the Indian Constitution . This is available only to the citizens of India and not to foreign nationals. Freedom of speech includes the right to express one’s views through any medium, which can be by way of writing, speaking, gesture, or in any other form. It also includes the rights to communicate and the right to propagate or publish one’s opinion.
    The above-mentioned right, guaranteed by our constitution, is regarded as one of the most basic elements of a healthy democracy because it allows citizens to participate in the social and political process of a country very actively.
    New Dimensions of Freedom of Speech and Expression:
    Government has no monopoly on electronic media:
    The Supreme Court widened the scope and extent of the right to freedom of speech and expression and held that the government has no monopoly on electronic media. Consequently, a citizen, under Article 19 (1) (a) has a right to telecast and broadcast to the viewers/listeners any important media through electronic media television and radio. The government can impose restrictions on such right only on grounds specified in clause (2) of Article 19 and not on any other ground. A citizen has the fundamental right to use the best means of imparting and receiving communication and as such have access to telecasting for the purpose.
    Commercial Advertisements:
    The court held that one part of freedom of speech and expression is commercial speech . Although the court made it clear that the government could regulate commercial advertisements, which are deceptive, unfair, misleading, and untruthful. After examining from another angle, the Court said that the public at large has a right to receive the “Commercial Speech” . Article 19(1) (a) of the constitution not only guarantees freedom of speech and expression, but also protects the rights of an individual to listen, read, and receive the said speech.
    Freedom of Press:
    The fundamental right of freedom of the press under the right the freedom of speech and expression is essential for political liberty and the proper functioning of democracy. Unlike the American Constitution, Article 19 (1) (a) of the Indian Constitution does not expressly mention the liberty of the press but it has been held that liberty of the press is included under the freedom of speech and expression. The editor of a press is merely exercising his rights of expression, and thus, no special mention is necessary of the freedom of the press. Freedom of the press is the heart and soul of social and political intercourse . The main duty of the courts is to sustain the freedom of the press and nullify all laws or administrative actions, which interfere with it contrary to the constitutional mandate.
    Right to Information:
    The right to information, ‘receive and impart information/ knowledge has been recognized within the right to freedom of speech and expression . A citizen has a fundamental right to use the best means of transferring and receiving information and as such to have access to telecasting for the purpose. The right to information, however, has not yet extended to the extent of nullifying Section 5 of the Official Secrets Act, 1923 which prohibits disclosure of certain official documents. It can thus be concluded that ‘right to information is nothing but one small limb of the right of speech and expression.
    Grounds of Restrictions:
    It is essential to preserve the freedom of speech and expression in a democratic country. It is also necessary to curb this freedom in order to maintain social order otherwise some people might misuse this freedom. Clause (2) of Article 19 poses some restrictions on freedom of speech and expression on certain grounds. It contains the grounds on which restrictions on the freedom of speech and expression can be imposed-
    1) Security of State:
    Article 19 (2) imposes reasonable restrictions on freedom of speech and expression in the interest of the security of the State. The term “security of the state” refers to serious and aggravated forms of public order , for example, rebellion, waging war against the State, insurrection, and not ordinary breaches of public order and safety, such as unlawful assembly, riot, and affray. Thus, speeches or expressions on part of an individual, which provokes or encourages the commission of violent crimes, such as, murder are matters, which would undermine the security of the State.
    2) Friendly relations with foreign states:
    In the present world, a country has to maintain good and friendly relationships with other countries. The government should check something which has the potential to affect such relationships. Keeping this in mind, this ground was added through Constitution (First Amendment) Act, 1951 . The idea behind this provision is to prohibit unrestrained malicious propaganda against a foreign-friendly state, which may jeopardize the maintenance of good relations between India and that state.
    3) Public Order:
    This ground was added by the Constitution (First Amendment) Act, 1951. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established .”
    ‘Public order’ is something beyond ordinary maintenance of law and order. It is the same as public peace, safety, and tranquillity. The test for determining whether an act affects law and order, or public order is to see whether the act leads to disturbances of the current life of the community so as to amount to disturbance of the public order or whether it affects merely an individual being the tranquillity of the society undisturbed.
    4) Decency or morality:
    The words ‘morality or decency’ have wide meanings. Sections 292 to 294 of the Indian Penal Code (IPC) provide examples of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the distribution or exhibition of obscene words in public places. No fixed standard is laid down till now as to what moral and indecent is. It varies from place to place and time to time.
    5) Contempt of Court:
    Restriction on freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to Section 2 of The Contempt of Courts Act, 1971 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’
    6) Defamation:
    An untrue statement, which injures someone’s reputation, amounts to defamation . Defamation consists of exposing a man to hatred, mockery, or disrespect. The civil law related to defamation is still uncodified in India and subject to certain exceptions.
    7) Incitement to an offence:
    This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offenses. The word ‘offense’ is defined as any act or omission made punishable by law for the time being in force .
    8) Sedition:
    As understood by English law, sedition embraces all those practices whether by words, or writing which is calculated to disturb the tranquillity of the State and lead an ignorant person to subvert the government. It should be noted that the sedition is not mentioned in clause (2) of Article 19 of the Indian Constitution as one of the grounds on which restrictions on freedom of speech and expression may be imposed.
    Conclusion:
    Freedom of speech and expression is the mother of all liberties. Whereas freedom of press can be regarded as the very essence of a democratic form of government. Richard M. Schmidt rightly said, “our freedom depends in large part, on the continuance of a free press, which is the freedom of speech and expression of individual or press” . But it is not unfettered. Such freedoms are subject to reasonable restrictions and one such restriction is censorship.
    Article 19 (2) of the Indian Constitution provides the basis for the imposition of restrictions in the form of censorship. Subsequently, so many laws have been enacted which provide for censorship such as the Press Council of India Act,1978 , the Press (Objectionable Matters) Act,1951 , the Indian Cinematographic Act, 1952 , etc. These laws are of such a nature that if not used with caution, they may lead to total deprivation of freedom of speech and expression.
    Thus, it becomes mandatory upon the judiciary to strictly scrutinize restrictions in the form of censorship and allow such restrictions only in cases where there is no other option left with the Courts. Often the grounds on which censorship is imposed are vague in nature. So, Courts should give a narrow interpretation of those terms. By doing so it may be able to protect such a noble and cherished value as freedom of speech and expression.

Image Source: https://freedomhouse.org/report/freedom-press/2017/press-freedoms-dark-horizon

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