December 7, 2021

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Freedom of speech : mother of all other liberties

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This article is written by Astitva Kumar, a student at JIMS, School of Law (An Affiliate of Guru Gobind Singh Indraprastha University). This article deals with the importance of Freedom of Speech and its impact on us currently.  

Table of Contents

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Speech is a gift of God to mankind. A human being conveys his opinions, emotions, and feelings to others through speech and expression; hence, it is a natural right that an individual acquires at birth. It is said that Freedom of speech is the mother of all liberties. It is widely acknowledged in contemporary days that the right to free expression is the cornerstone of a free society and must be protected at all times.

India paints a jumbled image of free speech laws and events. Throughout India’s independence struggle, there was a consistent demand for a written Bill of Rights for the people of India, which included a guarantee of free speech. The Indian Constitution’s founding fathers placed a high value on freedom of speech and expression. The message of Mahatma Gandhi was imprinted in their hearts and minds: democracy cannot evolve unless one is willing to listen to the other side. They agreed with Jawaharlal Nehru when he said, “I would rather have free speech and expression with all the dangers that come with the wrong use of that freedom than restricted or regulated speech and expression”

Part III of the Indian Constitution guarantees a broad range of judicially enforceable fundamental rights that largely equate to the civil and political rights provided by the 1966 International Covenant on Political Rights (ICCPR). Freedom of speech and expression is granted as a constitutional right by Article 19(1)(a) of the Constitution of India.

To address the freedom of speech as the topic of this article, it is important to first define rights. Rights are legal, social, or ethical concepts of freedom or entitlement; they are the basic moral rules governing what people are allowed or owed. Rights are often regarded as existing foundations of community and culture, and the history of social struggles can be found in the history of each right and its creation. So, in the most fundamental sense, rights are those necessary conditions of social life without which no one can generally realize his or her best self. People can only grow their personality and contribute their best services to society when they have and enjoy rights.

Definition of ‘Right’ through the lens of different scholars

In a nutshell, rights are the basic claims of citizens that any cultured society is expected to adhere to as necessary claims for their development and that are therefore enforced by the state.

1. John Austin:  According to him, “A party has a right when another or other is bound or obliged by law to do or forbears towards or in reward of him.”

John Stuart, on the other hand, did not embrace Austin’s meaning, believing that the act referred to by Austin should be in the best interests of the individual who can be said to have the rights.

2. Laskim He says, “Rights are all those conditions of social life without which no person can aspire, in general, to be himself at his best”.

3. John Salmond – Salmond defines right as- It is a legal right to protect one’s interest. To be interesting, it should not only be acknowledged but also legally recognized.

Each legal right, according to Sir John Salmond, has five basic elements, as follows:

  • The person of inherence – The subject is referred to as the Person of Inherence. In layman’s words, it refers to who has the right. There cannot be any right if there is no subject. The person of inherence involves not only an entity but also society as a whole.
  • The person of incidence – A person of Incidence is someone who owes it to another person to respect their rights. In general, it implies that if anyone has broken their duty, the other party has the right to sue them.
  • Contents of the right – The individual is obligated to perform an act, which is one of the contents of rights.
  • The subject matter of right – It is something to which the act or omission relates that is the thing over which a right is exercised. This may be called the object or subject matter of the right. Some writers, although argue that certain rights have no objects.
  • Title of the right – Each legal right has a title, which is a set of facts or events from which it was obtained from its previous owner.

4. T. H. Green – He stated that “Rights are powers necessary for the fulfillment of man’s vocation as a moral being.”

5. Rudolf Von Jhering Jhering defined rights as “legally protected interests”.

6. Holland – Legal rights were described by Holland as the “capacity residing in one man of controlling, with the assent and assistance of the state and the actions of others.” He adhered to Austin’s concept of rights.

In the case of State of Rajasthan v. Union of India, AIR (1977) SC 1361: The Supreme Court of India also interprets the concept of right:Legal rights are correlatives of legal duties and are characterized as interests that the law protects by enforcing corresponding duties on others.” However, in a broader context, the term “freedom” refers to immunity from the legal power of another; immunity is an exemption from the power of another in the same way as liberty is an exemption from the right of another.  

Constitutional democracy is a method of coordinating ties between the government and citizens within national states. It is fundamentally defined by the adoption of a written or unwritten constitution that acts as higher law and ensures, even against governmental powers, certain human rights that, according to historical and logical consensus, citizens should never be stripped of, such as life, independence, property, equality, due process, and the right to vote. Free speech is most likely the brightest star in the constellation of fundamental rights.

The right to free speech and expression is the bedrock of democratic government because freedom is essential for the democratic process to operate effectively. It is regarded as the first condition of democracy. It has a favorite place in the freedom hierarchy, assisting and protecting all other freedoms. Free speech is one of the most prized human rights of western democracies. It is enshrined in the majority of modern constitutions as well as universal human rights treaties. It is sometimes referred to as a “first-generation right” – a right that protects individuals from state intervention.

It is regarded as fundamental to liberal politics in the sense that it is required for the life of a liberal polity and/or that it is inextricably linked to liberal values such as autonomy, dignity, and liberty. At the same time, the scope of what defines speech, what speech should be shielded, the weight or meaning assigned to speech protection in comparison to other rights or policy considerations, and the reasons for its protection are all highly contentious. These controversies have significant political and legal ramifications, and they are reflected in the varying levels of protection afforded to expression in various jurisdictions.

Hence, in the first instance, freedom of speech may be described as a concept under which individuals have to have the liberty to hold and convey ideas by oral language and writing, symbolic gestures or pictures, on any medium and a variety of subjects, from politics to religion, economy to history, beyond fear of censorship or retribution. Some criminal acts, through the use of words such as intimidation, defamation, false alarms, assault, conspiracy, or extortion, are deemed unworthy of legal protection. They don’t seem to be able to fit into a suitable definition of speech. 

But there are some other kinds of speech that raise serious controversy. Is it legal for the government to prohibit so-called hate speech, flag burning protests, disclosure of sensitive documents, civil disobedience action, and comments opposing gay marriage? Or will such a prohibition unconstitutionally restrict free speech? These are the dilemmas that any democracy faces.

Freedom of speech and expression is established in Indian democracy by Article 19(1)(a) of the Indian Constitution, which states that all people of India have a right to free speech and expression. The theory underlying this Article can be found in the Preamble to the Indian Constitution, which states, “Where a solemn resolve is made to secure to all its citizens, their liberty of thought and expression.” The exercise of this right, however, is subject to fair restrictions for certain purposes imposed by Article 19(2) of the Indian Constitution.

The latest version of the law is based on Section 295(A) of the Hate Speech Law passed by the British Administration in India. This act occurred against the backdrop of a series of murders of Arya Samaj leaders who opined against Islam. 

The Supreme Court of India in a landmark decision of Maneka Gandhi v. Union of India, held that freedom of speech and expression has no geographic boundaries and brings with it the right of a person to gather knowledge and share ideas with others not only in India but also abroad.

In Mahesh Bhatt v. Union of India, the Supreme Court ruled that freedom of speech and expression is one of the foundations of India’s constitution and that it is essential to the country’s democratic foundation. Part III of the Indian constitution provides a wide variety of strictly enforced fundamental rights that are broadly consistent with the civil and political rights enshrined in the 1966 Universal Declaration of Human Rights (ICCPR). Article 19(1)(a) of the Constitution guarantees freedom of speech and expression as a fundamental right. Freedom of expression, like other fundamental rights enshrined in the Indian Constitution, is not absolute.

The Supreme Court in the case of Union of India v. Assn. for Democratic Reforms, 2002 observed that one-sided facts, disinformation, misinformation, and non-information all lead to democracy is a farce.” The right to freely communicate and express oneself includes the right to impart and receive information, as well as the right to hold opinions.

The Supreme Court in the case of  State of Uttar Pradesh v. Raj Narain, 1975 AIR 865, ruled that Article 19(1)(a) of the Constitution guarantees all people the freedom of speech and expression, as well as the right of citizens to know and obtain information about matters of public concern.

The Supreme Court introduced a new dimension to freedom of speech and expression in Rakeysh Omprakash Mehra & Anr. v. Govt. of NCT of Delhi, 2013 (197) DLT 413: That our written Constitution guarantees not only freedom of speech but also freedom after speech. It went on to say that freedom of speech has incalculable importance in a democratic society founded on the rule of law.

In the case of S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204, it was stated that everybody has a constitutional right to express his or her views on matters of public concern. Open criticism of government policies and operations is not a reason to limit freedom of speech. Intolerance is as harmful to democracy as it is to the individual.

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Importance of freedom of speech

So, there are three top factors why free speech is important regardless of the substance of the ideas. This can be summed up as follows: 

Truth 

It believes that free debate encourages the exploration of reality and the advancement of knowledge. The argument is that the clash of ideas is the most possible source of reality and wisdom. 

Democracy 

It proposes that free speech facilitates democracy’s functioning, which is founded on the principle of self-government. Citizens must be able to speak and listen freely to properly practice their sovereign functions. 

Autonomy 

It suggests that free speech encourages individual liberty, primarily by allowing individuals to access knowledge and viewpoints necessary for them to shape their own opinions rather than live by the dictates of others.

Indeed, the issue of how much to protect and how much to limit free speech is crucial for democracy. It can be constrained if three distinct and separate prerequisites are met, which are as follows:

  1. The constraint must be rational. It must not be exaggerated or disproportionate. The mechanism and manner in which the restriction is imposed must also be just, equitable, and logical, as stated in, Chintamani Rao v. State of Madhya Pradesh, AIR 1951 SC 118
  2. The restriction must have the authority to be enforced by statute. Executive orders or administrative acts that are not sanctioned by statute cannot limit free speech. The legislation must come squarely under one or more of the restrictions outlined in Article 19 (2). 
  3. Restriction on free speech cannot be applied on broad grounds like “in the general public’s interest,” which is permissible in the case of fundamental freedoms like commerce and free enterprise.

Rationales for protecting speech

Of course, the extent of the right to free expression is debatable. Normative considerations often affect the scope of what constitutes “expression.” However, the word “speech” is far too limited to include all of the practices historically protected by the right to free expression.

The right to free speech safeguards communicative behavior, that is, activity that conveys thoughts, communicates feelings or sentiments or conveys attitudes. However, not all communicative conduct is protected; even though it is a communicative activity, physically assaulting others as an expression of hate is not protected by the right to free speech.

There are two reasons for defending free speech:

  • Under the first class, speech is protected to protect an individual from restrictions, even though such restrictions are beneficial to the individual’s welfare. This group includes questions about dignity and autonomy; their supporters often argue that expression should be preserved even though it jeopardizes essential social values. 
  • In the second group, protecting expression is justified because it promotes social security in the long run. The argument that protecting speech promotes the pursuit of facts is an influential example of a rationale of the second category; it is based on the hypothesis that protecting speech benefits society as a whole. 

As explained in Radha Mohan Lal v. Rajasthan High Court (2003) 3 SCC 427: Free speech cannot be equated or confused with a license to make baseless and reckless allegations against the judiciary.

The word “speech and expression” used in Article 19(1)(a) has a general meaning. This right includes the ability to contact, print, and publicize the facts. In India, freedom of the press is implied by Article 19(1)(a), which guarantees freedom of speech and expression.

Freedom of press

The freedom of the press has been considered as a “species of which freedom of expression is a genus”- Sakal Papers V. Union of India AIR 1962 SC 305

Unlike in American Constitution, Article 19(1)(a) does not explicitly address press freedom.

The freedom of the press extends beyond newspapers and periodicals to include pamphlets and circulars, among other things. In Express Newspaper v. Union of India, AIR 1958 SC 578, the Supreme Court stated that no law could be enacted that had the effect of imposing pre-censorship, curtailing circulation, restricting the choice of employment or unemployment in the editorial force, preventing newspapers from being stated, or undermining its independence by driving the pre-censorship.

Furthermore, imposing pre-censorship on a journal before its release would be a violation of Article 19(1)(a). For the first time, the issue of the legality of censorship was raised in the case of Bri Bhushan v. State of Delhi.

The Supreme Court in Brij Bhushan v. the State of Delhi, AIR 1950 SC 129 ruled that imposing pre-censorship on a newspaper is a limitation on press freedom. Prohibiting a newspaper from publishing its own or the opinions of its correspondents on a controversial subject is a significant infringement on the valuable right to free speech and expression.

According to the Washington-based organization’s “Freedom in the World” survey, the world’s largest democracy fell in rankings this year, India received a score of 67, and its status in 2020 has been downgraded to ‘Partly Free’ from ‘Free.’ According to a recent report, “the Hindu nationalist government and its allies have presided over increasing violence and oppressive policies over a multi-year period.” It identified several 2020 incidents, including religious protests in Delhi, the use of sedition laws against critics, and the difficulties faced by migrant workers following Modi’s announcement of a sudden lockdown to contain the coronavirus pandemic.

In 1941, Freedom House was formally founded in New York to support American participation in World War II and the fight against fascism. Freedom House’s programs support the human rights and democracy advocates in their efforts to foster open government, defend human rights, strengthen civil society, and encourage the free flow of information and ideas. Freedom House mainly assists with training, foreign exchange programs, grantmaking, and networking. Furthermore, it provides symbolic and moral assistance to peers around the world through advocacy and tangible displays of solidarity. With fourteen offices around the world, it provides services in over thirty countries. 

The key sources of funding for Freedom House’s programs are grants from USAID and the US State Department, as well as grants from other democratic governments—Canada, the EU, the Netherlands, Norway, and Sweden—and private foundations such as the John D. and Catherine T. MacArthur Foundation and the Ford Foundation.

India was downgraded along with 73 other countries for the exploitation of political and civil liberties, affecting three-quarters of the world’s population. Not only authoritarian states like China, Belarus, and Venezuela were affected, but also troubled democracies like the United States and India. Finland, Norway, and Sweden are the freest countries,’ with a ranking of 100. Finland, Norway, and Sweden are the freest countries with a ranking of 100. 

The line of limitation 

India depicts a picture in which much secrecy legislation still exists, limiting the free flow of information. Without a doubt, freedom of expression, like any other fundamental right, is not absolute and can be fairly restricted; however, the only restrictions that can be placed under Article 19(1)(a) are those permitted by Article 19(2) and no others. However, several Indian laws contain objectionable material and invite disciplinary action.

The Official Secrets Act, 1923

The Act forbids the indiscriminate disclosure of official information.

Section 3 of the Act establishes punishment for spying and disclosing official information for any reason that jeopardizes the protection or interests of the state.

Section 5 forbids the disclosure of any information deemed classified by the government. The section holds both the creator and the receiver of the information accountable.

The Act does not describe the term “secret.” Even if the information is obtained for the public good, liability under the Act can arise. As reported in State of Punjab v. Sodhi Sukdhev, AIR 1961 SC 493, this Act brings the legacy of the British Monarchy into the democratic and sovereign republic.

The Indian Evidence Act, 1872

Non-disclosure of information is being protected under the Indian Evidence Act, 1872.

Section 123 states that no one shall be allowed to give proof from unpublished official documents relating to any State affairs unless the Head of the Department gives or withholds such permission as he deems appropriate.

The same right is extended to sensitive official correspondence under Section 124. It gives the administration unrestricted powers and prohibits the disclosure of information except in the interests of justice and fair play.

The Indian Penal Code, 1860

Indian Penal Code, 1860 has placed several limits on the right to free expression and expression.   

The rule of sedition is addressed in Section 124A of the IPC. These recently introduced sections are so vast that the “right to free speech and expression” has almost been made null and void. Section 153A of the IPC makes it a crime to “promote enmity between different groups based on faith, ethnicity, place of birth, residence, language, etc.” and to commit actions “prejudicial to the preservation of harmony.” Section 153B of the IPC deals with imputations and assertions that are detrimental to national integration.

Sections 292294 include examples of limitations on free speech and expression in the name of decency and morality. These sections forbid the selling, dissemination, or display of obscene words, symbols, or images in public places, but the IPC does not provide a test for determining obscenity. Sections 295, 295A, and 298 of the IPC are solely concerned with “religious harmony”.

The Contempt of Courts Act, 1971

The law of contempt of court was enacted to secure the integrity of the courts and to maintain the rule of law. However, this does not exclude judicial judgments from being scrutinized. The higher judiciary in India has the power of contempt.

Section 3 of the Contempt of Courts Act of 1971 limits freedom of speech and expression, including freedom of the media, both print and electronic. Scandalizing the courts is a kind of “judicial contempt” (wherein the complainant is also a judge); it has long since fallen out of favor in most civilized countries around the world, but not in India. 

There are no laws or specific conditions that define whether the administration of justice is called into question.

The right to free speech is not absolute. Article 19(2) restricts the right to free speech and expression. Such limitations are justified in the interests of:

  1. Sovereignty and integrity of the country.
  2. Friendly relations with foreign countries.
  3. Public order.
  4. Security of the State.
  5. Decency or morality.
  6. Defamation.
  7. Contempt of court.
  8. Incitement to an Offence.

Security of the state  

It denotes the absence of severe and aggravated forms of public disorder, as opposed to ordinary breaches of public safety or public order, which may or may not pose a threat to the State itself. Thus, the stability of the state is jeopardized by violent crimes intended to destabilize the government, this was described in Santosh Singh v. Delhi Administration, AIR 1973 SC 1093.

The Supreme Court ruled in State of Bihar v. Shashibala Devi, AIR 1952 S.C. 329, that the word “defense of state” refers only to extreme and escalated forms of public disorder, such as insurrection or war against the Indian government.

Friendly relations with foreign countries 

This provision aims to prohibit unrestrained malicious propaganda against a foreign-friendly country that may jeopardize India’s good ties with that country.

Public order 

This involves both the absence of overt intention to lead disorder and the absence of a propensity to lead disorder. A law banning these disorderly acts is legitimate because it limits the right to free expression in the interest of public order.

The First Constitutional Amendment Act of 1951 added ground in response to the condition created by the Supreme Court’s decision in Romesh Thappar’s case.

The Supreme Court held in Kishori Mohan v. State of West Bengal, that any violation of laws must necessarily affect order but not public order, and an act can affect public order but not necessarily state security.

Decency or morality

The words “morality and decency” have a broad range of interpretations. Sections 292294 of the IPC, demonstrated instances of limitations on free speech and expression in the interest of decency or morality. However, no test for assessing obscenity was developed. This test was first developed in an English case, R. v. Hicklin. The Supreme Court approved the test set out in the English case of R. v. Hicklin to judge the obscenity of a matter in Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.

Contempt of Court

Nobody is permitted to interfere with the due course of justice or lower the dignity or legitimacy of the court in the exercise of his right to free speech and expression, even though he is criticizing a decision. The Supreme Court and High Courts have the authority to prosecute people for contempt of court, according to Article 125 and Article 215 of the Constitution. 

In the case of C.K. Daphtari v. O.P. Gupta, AIR 1971 SC 1132, the Supreme Court ruled that a contempt law imposes fair limitations on the right granted by Article 19 (1)(a).

 Incitement to an offense

Citizens’ right to freedom of speech and expression does not allow them to invite others to commit a crime. On this basis, rights will be limited, and incitement to commit an offense will be criminalized.

Defamation

Every individual has the right to his or her name, which is treated as property, just as they do to their freedom of speech and expression. It does not imply that it is permissible to damage another’s reputation, which is covered under Article 21 of the Constitution. Civil defamation is specified in the IPC under Sections 499 and Section 500.

Integrity and sovereignty of India

The 16th Amendment to the Constitution incorporated this ground as a ground for restricting freedom of speech. This is intended to make it illegal for anyone to make comments that undermine India’s sovereignty and integrity.

In the case of Devi Saren v. State, AIR 1954, it was held Sections 124-A and 153-A of the Indian Penal Code impose fair restrictions in the interest of public order and are covered by Article 19(2).

The Supreme Court found the constitutional validity of Section 124-A, IPC. in the case of Kedar Nath v. State of Bihar, AIR 1962 SC 955. The Court further held that the gist of the offense of sedition is that the words written or spoken have the tendency or intention of causing public disorder and held the section constitutionally valid.

The Hon’ble Supreme Court of India correctly observed in the case of Romesh Thappar v. State of Madras (1950) that freedom of speech and expression lies at the base of all democratic organizations. As a result, freedom of expression is critical in a democracy. As a result, we may infer that the Constituent Assembly bestowed upon us the gift of freedom of expression in India. However, in the present situation, the boon that has been bestowed upon us is being used in such a way that it is causing a hindrance in the lives of the people. The use of social media and other platforms to send messages to people must be scrutinized because there is a risk that freedom of expression could be used for harmful purposes. 

The nature of a democratic nation lies in public forums and debates that can assist the government and authorities in improving their methods of operation so that people can have the impression that the State is indeed a welfare state that works for the welfare of its citizens. As a result, making careful and informed us of the right to talk and disseminate accurate information would contribute to the creation of a healthier society and the realization of the dream of a Welfare State. 


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