The freedom of speech and expression is regarded as first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all the other liberties. In modern time it is widely accepted that the right to freedom of speech is the essence in the society and it must be safeguarded all the time. The first principle of a free society is an untrammeled flow of words in a open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of the particular society and ultimately for the state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.
The freedom of speech and expression is a very important fundamental right under the Constitution. It is indispensible for the development of one’s own individuality and for the success of parliamentary to democracy. It is said that in a democracy the right to free expression is not only the right of an individual but rather a right of the community to hear and be informed.
The freedom of speech and expression is not only guaranteed by the Constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European Convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talks about freedom of speech and expression.
Origin of Freedom of Speech And Expression
The concept of freedom of speech originated long back. England’s Bill of Rights 1689 adopted freedom of speech as a constitutional right and still in effect. The French Revolution in 1789 adopted the Declaration of Rights of Man and of Citizen. This further affirmed the Freedom of Speech as an undeniable right. The Declaration of Freedom of Speech in Article 11 states:
“The free communication of ideas and opinions is one of the most precious of the right of man. Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”.
The Universal Declaration of Human Rights that was adopted in the year 1948 also states that everyone should have the freedom to express their ideas and opinions. The freedom of speech and expression is recognized as a human right under Article 19 and has now formed a part of the international and regional human rights law. In International human rights the freedom of speech and expression is recognized in International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that-
“Everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of speech and expression ; the right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers either orally or the form of writing or print, in the form of art, or through any other media of their choice”.
Meaning of Freedom of Speech And Expression
The Constitution of India guarantees various fundamental rights to its citizens. One such important right is right to freedom under Article 19. This includes right to freedom of speech and expression, right to assemble peacefully and without arms, freedom to form associations and unions, right to move freely throughout the territory of India, right to reside and settle in any part of the territory of India and right to practice and profession or to carry on any occupation, trade or business.
Under this research work, it closely concerns with the Article 19(1)(a) of the Constitution of India. Article 19(1)(a)guarantees that all the citizens have the right to freedom of speech and expression . This right is available only to the citizens of India and not available to any person who is not a citizen of India i.e. foreign nationals.
Freedom of speech and expression means the right to express one’s own conviction and opinions freely by means of words of mouth, writing, printing, picture or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representations such as gesture, signs and the like. The expression connotes also publication and thus the freedom of press is included in this category .The Freedom of press is regarded as a species of which the freedom of expression is a genus. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press.
In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizen liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart information. The Indian state is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy aforesaid rights. In Romesh Thappar v State of Madras, the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by the freedom of circulation of a publication is of little value without circulation.
Importance of Freedom of Speech Amd Expression
“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. – John Milton.
John argued that without human freedom there can be no progress in science, law or politics, which according to him required free discussion of opinion. Mill’s on Liberty, published in 1859 became a classic defense of the right to freedom of expression.
John argued that truth drives out falsity, therefore, the free expression of ideas, true or false should not be feared. The truth is not stable or fixed but evolves with time.
John also argued that free discussion is necessary to prevent the “deep slumber of a decided opinion”. The discussion would drive the onwards March of truth and by considering false views the basis of true views could be re-affirmed.
An opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which sped can justifiable suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech.
“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 government of the people by the people and for the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential”.
In 1927, in Whitney v. California, Louis Brandies J, made a classic statement on the freedom of speech in the context of the U.S Constitution:
“Those who won our independence believed that the final end of the state was to make men free to develop their faculties. They believed liberty to be secret of happiness and courage to be the secret of liberty. They believed that the freedom to think as you will and to speak and assembly discussion would be futile… that public discussion is a political duty; and that this should be a fundamental principle of the American government.”
The Right to freedom of speech and expression as per as Indian Constitution mean the right to express one’s own convictions and opinions freely. The word “freely” means including by words of mouth, writing, printing, banners, signs, and even by way of silence.
The supreme court of India has held that hosting the National Flag by citizens is a form of freedom of speech and expression in Union of India v. Naveen Jindal and Anr.
The Right to Information (RTI) emerges as a fundamental right under Article 19(1)(a), as a freedom of speech and expression are meaningless without access to information.
Under freedom of speech and expression, there is no separate grantee of freedom of press and the same is included in the freedom of expression, which is conferred on all the citizens in Virender v. State of Punjab and Sakal Papers v. Union of India. It has also been by this judgment that freedom of press under the Indian Constitution is not higher than the freedom of an ordinary citizen.
Need To Protect Freedom of Speech And Expression
Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. These are four important justification for freedom of speech:
1. To discover truth: Historically the most durable argument for a free speech principle has been based on the importance of open discussion to the discovery of truth. It is evident from the famous funeral address given by pedicles as back in 431 BC Athenians, he pedicles out, did not consider public discussion merely something to be put up with; rather they believed that the best interact of the city could not be served with a full discussion of issue before the assemble. If restrictions as speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. The best test of truth is power of the thought to get it accepted in the competition of market. The truth would emanate from a ‘free trade in ideas’ on intellectual competition.
2. Non self- fulfillment: A second major theory of free speech sees it as integral aspect of each individual rights to self development and fulfillment. Restrictions inhibit our personality and its growth. The reflective mind, conscious of options and the possibilities for growth, distinguished human beings from animals. Freedom of speech is also closely linked to other fundamental freedoms. Thus, for full- fulfillment development of personality, freedom of speech and expression is highly essential.
3. Democratic value: Freedom of speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. It is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succor and protection to all other liberties. It has been truly said that it is mother of all other liberties.
In a democracy, freedom of speech and expression open up channels of the discussion of issues. Freedom of speech plays a critical role in the formation of public opinion in social, political and economic matters.
4. To ensure pluralism: Freedom of speech reflects and re in force pluralism, ensuring that different types of lives are validated and promote the self esteem of those who follow a particular life- style. The French Council Constitutional and Italian Constitutional court have ruled that the free speech rights of media corporations may be limited to ensure that the Constitutional value of pluralism is safeguarded.
So, it can be concluded that the freedom of speech enables the discovery of truth, is crucial to the working of a democratic Constitution is an aspect of human self fulfillment or autonomy. It is the speaker’s interest of audience in receiving ideas and information.
Grounds For Restriction
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some curbs on this freedom for the maintenance of social order. No freedom can be absolute or completely unrestricted. Article 19(2) specifies the grounds to which reasonable restrictions on the freedom of speech and expression can be imposed:
a) Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term ‘security of state’ refers only to serious and aggravated forms of public disorder e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. While, speeches or expressions on the part of an individual, which incite to or encourage the commission of violent crimes, such as murder, are matters which would undermine the security of State. The expression ‘security of the state’ in Article 19(2) does not merely mean as danger to the security of the entire country, but endangering the security of a part of the State would also involve a threat to the security of the State.
b) Friendly relations with Foreign stat: This ground was added by the Constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardy the maintenance of good relations between India and that State. No similar provision is present in any other Constitution of the World. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government. It is to be noted that members of the Commonwealth including Pakistan is not a ‘foreign state’ for the purposes of this Constitution. The question arises before the Supreme Court whether a restriction can be imposed on the freedom of speech and expression on the ground of its prejudicial to a Commonwealth country. The Court stated that a country may not be regarded as a foreign State for the purpose of the Constitution, but may be regarded as a foreign power for other purposes. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.
c) Public Order: This ground was also added by the Constitution (First Amendment) Act, 1951. The concept of ‘public order’ is wider than ‘security of state’. ‘Public order’ is an expression of wide connotation and signifies that state of tranquility 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 more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus, communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus, implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Thus, creating internal disorder or rebellion would affect public order. However, mere criticism of Government does not necessarily disturb public order. In its external aspect ‘public safety’ means protection of the country from foreign aggression. Under public order the State would be entitled to prevent propaganda for a state of war with India. The words ‘in the interest of public order’ includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder.
Thus, a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some cases those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.
d) Decency or Morality: These are terms of variable content having no fixed meaning for ideas about decency or morality; vary from society to society and time to time depending on the standards of morals prevailing in the contemporary society. Thus, words ‘morality’ or ‘decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. The Apex Court123 ruled that the words ‘decency and morality’ is not confined to sexual morality alone. The ordinary meaning of the ‘decency’ indicates that the action must be in conformity with the current standards of behavior or propriety. The Court has cited with approval the following observations from an English case.
“….Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting or revolting….”
e) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. It cannot be held as law that in view of the constitutional protection of freedom of speech and expression, no one can be proceeded with for the contempt of court on the allegation of scandalizing or intending to scandalize the authority of any Court. Section 2(a) of the Contempt of Courts Act, 1971, provides that ‘contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt’.
f) Defamation: A statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. According to Winfield, defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in estimation of right thinking members of society generally or tends to make them shun or avoid him. The civil law relating to defamation is still un codified in India and subject to certain exceptions. Section 499 of the Indian Penal Code, 1860, defines the offence of defamation. It recognizes both slander and libel.
g) Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, s1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offences. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force. The incitement to an offence does not refer to incitement to break a law. Thus, an incitement to a breach of every civil law is not necessarily contemplated by Article 19(2).
h) Sovereignty and Integrity of India: This ground was also added to Article 19(2) by the Constitution (Sixteenth Amendment) Act, 1963. The main purpose is to guard the freedom of speech and expression from being used to assail the sovereignty and territorial integrity of the Country.
Sedition: It should be noted that the sedition is not mentioned in clause (2) of Article 19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed. As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. The Supreme Court held that section 124-A of the Indian Penal Code, 1860 was limited to acts involving an intention or a tendency to create disorder or disturbance of law and order or incitement to violence and was not violative of Article 19(1)(a) read with Article 19(2) of the Constitution.
It can be easily concluded that right to freedom of speech and expression is one of the most important fundamental rights. It includes circulating one’s views by words or in writing or through audio-visual instrumentality, advertisements or through any other communication channel. It also comprises of right to information, freedom of press etc. Thus, this fundamental right has a vast scope. From the above case law analysis, it is evident that the Court has always placed a broad interpretation on the value and contents of Article 19(1)(a), making it subjective only to the restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or choke this freedom have always been firmly repelled, more so when public authorities have betrayed tyrannica