Law and You > Constitutional Law > Freedom of Speech and Expression
Through the ages, man has expressed his ideas through several media like symbols, signals, speech, script and print, and now computer language. Man’s greatest invention is language. The invention of the script has helped mankind to preserve human thought and learning. It has helped society to conquer both space and time. A language is in many ways responsible for creating social realities. Words are employed to create understandings of social phenomena which can differ and therefore shape thoughts and actions in a variety of ways. In this article, we shall discuss freedom of press with respect to freedom of speech and expression under Indian Constitution in the light of article 19(1)(a).
Freedom of Speech and Expression:
Freedom of speech and expression of the press lays at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the popular government is possible. Since information and ideas are so important for the growth and survival of a free and democratic society, such a goal cannot be achieved unless every citizen has a fundamental right to give expression to his ideas and opinions. This came to be known as the right to free speech and expression. With the advent of printing technology, freedom of the press was included in the freedom of expression.
Freedom of expression has been humanity’s yearning in times ancient and modern. Similarly, censorship or reasonable restrictions are also ancient and universal phenomenon. The founders of Indian constitutions are aware about co-existence of conflicting Right and Restrictions and enacted Article 19 with clear mention of Reasonable restrictions. This has further evolved with progressive judgements of Indian Judicial System.
Freedom of speech is guaranteed not only 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 talk about protection of freedom of speech and expression.
The Article 19 (1) of Indian constitution provides fundamental rights. Article 19 (1) of the Indian Constitution says that All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) to practice any profession, or to carry on any occupation, trade or business
Article 19(1) (a) of the Constitution of India states that, all citizens shall have the right to freedom of speech and expression. The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc. It thus includes the freedom of communication and the right to propagate or publish opinion. The exercise of this right is, however, subject to “reasonable restrictions” for certain purposes being imposed under Article 19(2) of the Constitution of India. Free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary. This right is available only to a citizen of India and not to foreign nationals.
Objects of Right of Speech and Expression:
Object of Freedom of speech and expression Freedom of speech not only allows people to communicate their feelings, ideas, and opinions to others, rather it serves a broader purpose as well. These purposes can be classified into four:
- It helps individuals in self- realization.
- Is help in discovery of truth.
- It help in the decision-making process;
- It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change
In Maneka Gandhi v. Union of India, AIR 1978 SC 597 case, Bhagwati J., has emphasized on the significance of the freedom of speech & expression in these words: “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.”
Ambit of Article 19(1)(a):
Freedom of Press:
Freedom of press or media refers to the rights given by the Constitution of India under the freedom and expression of speech in Article 19(1)(a). It encourages independent journalism and promotes democracy by letting the people voice their opinions for or against the government’s actions. The press have a variety of rights including the right to publish, right to circulate, right to receive information, right to advertise, right to dissent, etc.
In Romesh Thappar v. State of Madras, AIR 1950 SC 124 case, where the petitioner was a well-known communist of his time and was very sceptical of the policies of the then Prime Minister Pt. Jawaharlal Nehru, especially his foreign policy. He published a few articles in his weekly English magazine called Crossroads that expressed his scepticism in this regard. In the month of March 1950, the Government of Madras by virtue of an order issued pursuant to Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 imposed a ban on the entry and circulation of the magazine in these areas for the purpose of ensuring ‘public safety’ or preserving ‘public order. The Court highlighted the importance of media being the fundamental basis of all democratic organizations and held that the freedom of speech and expression includes freedom of propagation of ideas that can only be ensured by circulation.
In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, AIR 1986 SC 515 case, Venkataramiah J. of the Supreme Court of India stated: “In today’s free world, freedom of the press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible on a large scale, particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate (Government) cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”
Right not to Speak or Right to Silence:
The freedom of speech and expression involves the right to express by word of mouth, writing, printing, pictures or any other manner. It includes the freedom of communication and the right to propagate or publish one’s view. The only restrictions available under the Constitution which can be imposed on this right are those given under Article 19(2), which constitute reasonable restrictions, on grounds of — the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, or in relation to contempt of court, defamation or incitement to an offence.
In Bijoe Emmanuel v. State of Kerala, 1986 3 SC 615 case, where three children were expelled from the school for not singing the national anthem although they respectfully stood when the others were singing the national anthem. they approach the H.C. of Kerala against the said order, but H.C. upheld the expulsion valid by imposing the fundamental duty. On appeal, the Supreme Court held that the students did not commit any offence under the Prevention of Insults to National Honour Act, 1971. Also, held that freedom of speech and expression also include the right to silence itself.
Sedition and the Right to Dissent:
Freedom of speech and expression under Article19(1)(a) of the press also covers the right to criticize the government as well as the right to hold unpopular or unconventional views. The law commonly used to curtail such criticism is known as the sedition law under Section 124-A of the Indian Penal Code, 1860. Under Section 124A of the Indian Penal Code, when anyone tries to bring hatred or contempt or excites disaffection towards the government through speech, words or gestures, they have committed an act of sedition. The punishment for sedition is three years jail time which can extend to jail for life, along with the fine.
Even though FIRs are commonly filed using the sedition law against the press, Courts have held that commenting in strong terms upon the measures or acts of Government, or its agencies is not the same as disloyalty towards the Government. As long as the words used by a person do not lead to people feeling enmity and disloyalty towards the Government and public disorder or use of violence, it is not an act of sedition.
In Kanhaiya Kumar v. State of NCT of Delhi, 2 March, 2016 case, where students of Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru, who was hanged in 2013. The event was a protest through poetry, art, and music against the judicial killing of Afzal Guru. Allegations were made that the students in the protest were heard shouting anti-Indian slogans. A case therefore filed against several students on charges of offence under Sections 124- A, 120-B, and 34. The University’s Students Union president Kanhaiya Kumar was arrested after allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya Kumar was released on bail by the Delhi High Court as the police investigation was still at nascent stage, and Kanhaiya Kumar’s exact role in the protest was not clear.
In Vinod Dua v. Union of India case, where Mr Vinod Dua, in his YouTube programme, allegedly made unsubstantiated and odd charges against the Prime Minister Narendra Modi during start of lockdown due to Corona. Mr Vinod Dua, according to the F.I.R., generated terror among the population by making such false allegations. The FIR also stated that the programme would merely stir up public dissatisfaction, resulting in panic and individuals disobeying the lockdown to come out and stockpile supplies, which is completely unneeded. The rumours were distributed to induce fear or anxiety in the general public or any portion of the general public, to induce anybody to commit an offence against the state or public calm. The Supreme Court observed that the activities that are intended or have the potential to cause disruption or disturbance of public peace by resorting to violence, are to be criminalised. Based on the facts of this case, the Court concluded that the words used by Vinod Dua may best be described as expressions of disapproval of measures taken by the government and its officials for the current crisis to be resolved swiftly and efficiently. They were not created to incite others or demonstrate a proclivity for causing trouble or disturbing public peace through the use of violence.
Right also Available to Corporation:
The Constitution of India vests the fundamental right to freedom of speech and expression only to the citizens, excluding the corporations or companies out of the scope of Article 19.
But in Bennet and Coleman & Co. v. Union of India case, the corporation filed a writ petition challenging the constitutional validity of notifications issued by the Government. After much deliberation, the Courts held that the right to freedom of speech cannot be taken away with the object of placing restrictions on the business activities of citizens. However, the limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of 19(2) is not valid.
Right to Information:
Any citizen, including the press can make an application for information and can access information such as details of project budgets, implementation status, the status of any complaint/application they have made to any government body. Such an application is commonly referred to as an RTI or RTI application. The Supreme Court through various cases has discussed the right to information in various contexts including the right of voters to know the antecedents of electoral candidates, the right of sports lovers to watch cricket, the right of citizens to get vital information about life-saving drugs etc.
In State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 case, the Supreme Court held that Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information regarding matters of public concern.
In Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236 case, wherein it was held that Article 19(1)(a) includes the right to acquire and disseminate information.
In Dinesh Trivedi, M.P. v. Union of India, 20 March, 1997 case, the Court observed: “in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare.”
In Secretary-General, Supreme Court of India v. Subhash Chandra Agarwal, 2 January, 2010 case,the Delhi High Court re-affirmed that the right to information is not the legislation but the Constitutional freedom of speech and expression. Further, it was held in Union of India vs. Association for Democratic Reforms, that to ensure that the citizens are informed and 10 one-sided information or misinformation does not make democracy a farce, it is essential to include the right to impart and receive information under Article 19(1)(a).
Right to Criticize:
A citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government or with the intention of creating public disorder. This right also includes the right of a political rival, like anyone else, to criticise the government, and it cannot be curtailed on the charge of defamation.
In Vijaykant v. City Public Prosecutor, 28 July, 2016 case, the Supreme Court held that the right to criticise the Government, essential for maintaining accountability, is also a part of the freedom of speech and expression. Dissent and criticism have been hailed as crucial elements for a democracy.
In S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204 case, the Supreme Court held that everyone has a fundamental right to form his opinion on any issues of general concern. Open criticism of government policies and operations is not a ground for restricting expression. Intolerance is as much dangerous to democracy as to the person himself. In democracy, it is not necessary that everyone should sing the same song. The right to form an opinion and to express it in a manner that does not cause defamation to the other person to whom such criticism is directed is protected under the freedom of speech and expression. Democracy allows for open discussion and criticism of policies.
Right to Broadcast/Communicate:
In accordance with Article 19(1)(a) of the Constitution, broadcasting is a part of the fundamental right to freedom of expression and may only be restricted within the terms of Article 19(2) that is reasonable restrictions on Article 19(1).
In Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana, AIR 1988 SC 1642 case, the Supreme Court held that the right of a citizen to exhibit films on the State channel – Doordarshan is part of the fundamental right guaranteed under Article 19(1)(a). In this case, the petitioners challenged the exhibition on Doordarshan of a serial titled “Honi Anhonion” on the ground that it encouraged superstitious and blind faith amongst viewers. The petition was dismissed as the petitioner failed to show evidence of prejudice to the public.
In People’s Union for Civil Liberties (PUCL) v. Union of India, AIR 1997 SC 568 case, public interest litigation (PIL) was filed under Article 32 of the Indian Constitution by PUCL, against the frequent cases of telephone tapping. The validity of Section 5(2) of The Indian Telegraph Act, 1885 was challenged. It was observed that “occurrence of public emergency” and “in the interest of public safety” is the sine qua non for the application of the provisions of Section 5(2). If any of these two conditions are not present, the government has no right to exercise its power under the said section. So, Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2).
In A. Abbas v. Union of India, AIR 1971 SC 481 case, the issue of prior censorship of films under Article 19(2) came into consideration of the Supreme Court of India. Under the Cinematograph Act, 1952, films are divided into two categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that can be shown to adults only. The petitioner’s film was refused the ‘U’ certificate, and he challenged the validity of censorship as violative of his fundamental right of freedom of speech and expression. The Court, however, held that motion pictures are able to stir emotions more deeply than any other form of art. Hence, pre-censorship and classification of films between ‘U’ and ‘A’ was held to be valid and was justified under Article 19(2) of the Constitution.
Freedom of Commercial Speech:
The freedom of speech and expression under Article 19(1)(a) of the Constitution of India, 1950 also includes the right to advertise or the right of commercial speech.
In Tata Press Ltd. v MTNL, (1995) 5 SCC 139 case, where Mahanagar Telephone Nigam Limited (MTNL) is a government company which is under the control of Government of India. It had a license under the Indian Telegraph Act to establish, maintain and control the telecommunication service within the territorial jurisdiction of the Union Territory of Delhi and the Municipal Corporations of Bombay, New Bombay and Thane. MTNL used to publish and distribute the telephone directory consisting of white pages. It did the task itself till the year 1987. From the year 1987 it hired contractors to publish the directory. It allowed the contractors to earn revenue for themselves by the way of advertisements and publish the advertisements as “Yellow Pages”. Thus, the telephone directory published by MTNL contained “white pages” which had the list of telephone subscribers and “yellow pages” which had advertisements obtained by the contractors to meet the expenditures and to earn revenue.
“Tata Press Yellow Pages” were published and distributed by Tata Press Ltd which contained paid advertisements procured from businessmen, professionals and traders. So, Mahanagar Telephone Nigam Limited and the Union of India filed a civil suit against the Tata Press Limited contending that they solely has the right to print and publish the list of telephone subscribers under the Indian Telegraph Act and thus Tata Press Limited has no such right to print and publish the same.
The Hon’ble Supreme Court held that advertisement which comes under commercial speech forms a part of the freedom of speech and expression which is given under Article 19(1)(a) of the Constitution of India and it is subject to the reasonable restrictions mentioned in clause (2) of Article 19. Article 19(2) mentions that in the interest of sovereignty and integrity of the nation, its security, its friendly relations with other states, for maintaining public order, decency, morality, defamation, incitement of offence Article 19 of the citizens can be restrained.
The Government is empowered to regulate and check the commercial advertisements that are deceptive, unfair, untruthful and misleading so that advertisements which have the power to spread information and awareness doesn’t disturb public order and peace. The Apex Court held that the Government of India and Mahanagar Telephone Nigam Limited does not have the right to constrain the Tata Press Limited from publishing and distributing “Yellow Pages”. It held that through the advertisements and with that the information contained in it the public is getting benefitted.
In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 case, the validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases was challenged on the ground that the restriction on advertisement abridged the freedom. The Supreme Court held that an advertisement is no doubt a form of speech but every advertisement was held to be dealing with commerce or trade and not for propagating ideas. So Advertisement of prohibited drugs would, therefore, not fall within the scope of Article 19(1) (a).
Right to Interview:
The right to conduct interviews is a limited right of the press and can only be exercised if there is willing consent from the person being interviewed. There are several cases of the Supreme Court where the right of the press to interview convicts or undertrials has been examined.
In Prabha Dutt v. Union of India, AIR 1982 SC 6 case, where the petitioner, Smt. Prabha Dutt Chief reported of Hindustan Times filed a petition under Article 32 of the Indian Constitution asking for a writ directing the respondent, the superintendent of Tihar Jail, to allow her to interview the two convicts named Billa and Ranga who are charged with death sentence for an offence under Section 302 of the Indian Penal Code and the petitions filled by them to the President of India for communication of the sentence are reported to have been rejected by the President recently. The Supreme Court in this case directed the Superintendent of the Tihar Jail to allow the representatives of a few newspapers to interview two death sentence convicts under Article 19(1)(a) as “the right under Article 19(1)(a) is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information”. Thus, the Court held that the press does not have an absolute or unrestricted right to information and an interview may be conducted only if the prisoners give their consent.
Conclusion:
Therefore, it can be said that Freedom of Speech and Expression gives the citizens of India the right to express one’s opinions and beliefs without any fear, by modes of words, written or spoken, pictures, or any other communicable or visual representation like gestures or signs. It includes the liberty to propagate one’s own views as well as the right to publish the views of other people. However, the right to speech and expression is not an absolute right and reasonable restrictions may be imposed by the State under Article 19(2) of the Constitution.