Freedom of Expression
“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by 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 rights of making a choice, free & general discussion of public matters is absolutely essential.”
– Justice Bhagwati in Maneka Gandhi v. Union of India, 1978
Under Article 19 of the Indian Constitution, all citizens shall have the Fundamental Right:
- to freedom of speech and expression
- to assemble peaceably and without arms
- to form associations or unions
- to move freely throughout the territory of India
- to reside and settle in any part of the territory of India
- to practice any profession, or to carry on any occupation, trade or business
This was expanded to include the right to receive and disseminate information in.
International conventions including the Universal Declaration of Human Rights, European convention on Human Rights and fundamental freedoms, and International Covenant on Civil and Political Rights also guarantee freedom of speech and expression and its protection.
Significance of Freedom of speech and expression
It is considered first condition of liberty.
It is essential for all democratic functions and processes, and for active participation in democracy.
It plays a crucial role information of public opinion on social, economic & political matters.
Free speech is an inviolable aspect of fulfilment.
Restrictions on Freedom of Speech and Expression
Article 19(2) of the Constitution authorises the government to impose, by law, reasonable restrictions upon the freedom of speech in cases concerning:
Interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
The incitement to an offence was added through the 1951 Constitution (First Amendment) Act wherein freedom of speech and expression cannot provide citizens with a privilege to incite people in committing offence.
In addition to the above, the rights to freedom under Article 19 are revoked during the time of National Emergency proclaimed by the President. During this time, of the President is authorised to suspend citizens’ right to move to the Supreme Court to implement their personal freedom.
In Romesh Thappar v State of Madras, 1950 the Supreme Court held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication. Moreover, freedom of speech and of Press was declared to be the foundation of all democratic organisations.
The cases of Bennet and Coleman & Co. v. Union of India, 1973 and Indian Express Newspapers (Bombay) P. Ltd v. Union of India, 1986 extended freedom of expression to corporations and the SC declared that limitations on the right outside the purview of Article 19(2) are not valid.
In Maneka Gandhi v. Union of India, 1978 the SC ruled that freedom of speech and expression was not limited by geographical limitations or boundaries and claimed that Article 19(1)(a) encompasses both the right to speak and the freedom to express in India and also abroad.
In Bijoe Emmanuel v. State of Kerala, 1986, where three school students in Kerala were dismissed for not singing the national anthem even though they stood respectfully the SC held that they had not committed any offence under Prevention of Insults to the National Honor Act of 1971. Moreover, the right to silence was declared part of right to freedom of speech.
In Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana, 1988 the SC acknowledged the right to broadcast and advertise as modern aspects of freedom of speech and expression.
In People’s Union for Civil Liberties (PUCL) v. Union of India, 1997 the SC declared that telephone tapping, violates Article 19(1)(a) unless it comes within the grounds of reasonable restrictions under Article 19(2).
In Shreya Singhal v. Union of India, 2015 - SC, on the issue of online speech and intermediary liability in India. ➤ struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a). ➤ The Supreme Court also read down Section 79 and Rules under the Section. It held that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority. The case is considered a watershed moment for online free speech in India.
In Anuradha Bhasin vs Union of India and Ors, 2020 the SC ruled that freedom to access the Internet is a fundamental right and is protected under Article 19(1)(a).
Right to Protest
The Right to Protest is enshrined in the constitution – Article 19(1)(b) assures citizens the right to assemble peaceably and without arms.
Public order as a reasonable restriction under Article 19(2) was added by the Constitution (First Amendment) Act, 1951. Public order implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. It also includes public safety. However, criticism of the government does not necessarily disturb public order.
A broader interpretation of Article 19 includes the right to freely express opinion on the conduct of the government. The right to association becomes the right to associate for political purposes. The right to peaceably assemble also allows political parties and citizenship bodies such as university-based student groups to question and object to acts of the government by demonstrations, agitations and public meetings, to launch sustained protest movements.
Important Judgment: In Ramlila Maidan Incident v. Home Secretary, Union of India & Ors., 2012, the SC stated, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”
Reasonable restrictions on freedom of speech and expression under Article 19(2) include sedition – all those activities, whether through words or writing, determined to disrupt the State’s tranquility and drive misguided individuals to subvert the government.
For an act to constitute sedition, it must be done an intention to cause disorder/disturbance of the public peace or law by resort to violence, and must incite violence.
The 1962 SC judgment in Kedar Nath Singh versus State of Bihar upheld the restrictions imposed on Article 19 by Section 124A (sedition) of the Indian Penal Code. But, comments, however strongly worded, critical of actions of the government and which shun violence are not sedition.
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.
The first Indian statute on the law of contempt, i.e., the Contempt of Courts Act was passed in 1926. It was later replaced by the Contempt of Courts Act, 1952. The 1952 Act was subsequently replaced by the Contempt of Courts Act, 1971.
According to the 1971 Act, Contempt of court may be either ‘civil or ‘criminal.’ Civil contempt is 'wilful disobedience to any judgment/ decree/ direction/ order/ writ or other process of a court or wilful breach of an undertaking given to a court.’ Criminal contempt includes the publication (in any form) of any matter or the doing of any other act whatsoever which scandalises the court or lowers its authority, or prejudices or interferes with courts proceedings or administration of justice in any manner.
Indian contempt law was amended in 2006 to make “truth” a defence. The qualification however is that such defence should not cover-up to escape from the consequences of a deliberate effort to scandalise the court.
However, even after such amendment, a person can be punished for the statement unless they were made in public interest.
In Het Ram Beniwal v. Raghuveer Singh, 2017 judgment the SC held that the power of contempt has to be exercised sparingly and in cases when there is a calculated effort to undermine the judiciary, and not in a routine manner.
Unfeasibility of content verification has led to growing vulnerability of the unfettered flow of speech to the peddling of unverified (and false/fake) information.
Fake news or disinformation in India usually takes three forms:
Targeting a minority and spreading false news implicating them in violent activities.
Targeting particular individuals and spreading false news to tarnish their credibility and reputation.
Spreading fake news about public personalities and their supposed heroics that increases their standing and influences political outcomes.
Another form of fake news is malicious fake news designed to spread paranoia and mistrust among people.
Reasons for prevalence:
It is increasingly used as a political tool by parties to influence and polarise opinion.
Proliferation of technology, cheaper devices and affordable access to internet has reduced the cost of spreading fake news.
Increased use of private encrypted messaging apps and social media platforms whose business models thrive on “viral content” and number of views.
Judgment: In Alakh Alok Srivastava v. Union of India, 2020 the SC recognized the problem of infodemics in India and passed an order asking the state governments to comply with the directions issued by the Centre to curb the menace of fake news.
Conflation of Free Speech and Curbing Fake News in Legislation:
Information Technology Act, 2008 (IT Act) – Contrary to 2011 rules under the Act which provided immunity to social media platforms as ‘intermediaries’ for inception, transmission and reception of fake content through their networks, they are now directed to proactively censor content by the government. This is detrimental to free speech.
Disaster Management Act, 2005 (DMA) – Section 54 of the DMA purports to deal with ‘false alarm or warning as to disaster or its severity or magnitude, leading to panic’. The offence is punishable with imprisonment up to 1 year and the imposition of a fine. The provision is limited to the period of the disaster.
Indian Penal Code (IPC) – Section 505(1)(b) deals with the spreading of false and mischievous content that results in fear or alarm to public, or to any section of the public whereby any person may be induced to commit an offence against the state or public tranquility. Its application to fake news is however dubious as the latter is disguised as real news and more importantly, its source is often difficult to trace
Recommendation: the government must consistently invest in increasing voter awareness, voter literacy, a robust fact-checking environment and critical thinking among the masses. Social media platforms — through which fake news spreads so rapidly — on their part, should take up efforts to identify and combat such news.