Freedom Of Speech In India

Published on 20 Jul 2017 by Team

In India, our constitution has guaranteed ‘Freedom of expression and speech’ under Article 19(1) (a) subject to certain restrictions. The current scenario is that "there are criminal laws in a provision that put little restraint on this right to maintain public order and individual/ national privacy." These laws are imposed by the constitution under Article 19(2) but only on print media or electronic media. Interestingly, social Media is presently out of any regulatory scope of any such related laws/provisions.

How free are we Indians to express ourselves?

Article 19(1)(a) of the Constitution makes the “right to freedom of speech and expression” a fundamental right. But it is not an absolute right; there are qualifiers.

What are those qualifiers?

The First Amendment to the Constitution, made on June 18, 1951, states that “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” will be paramount and freedom of expression will not be unconditional.

What Led to the Amendment?

"Journalist Romesh Thapar’s left-leaning magazine Cross Roads had been banned for being critical of Nehru’s policies in Madras. Thapar challenged the ban in the Supreme Court, which lifted the ban in May 1951. After that, independent India’s first government added the caveat to the right to freedom of speech and expression".

How does the constitutional position get reflected in laws?

The Indian Penal Code has several clauses that make it contingent upon the person “expressing” himself or herself not to hurt sentiments or cause public discord, something that is open to interpretation.

Section 153A: Deals with words, spoken or written, or representations that promote disharmony and feelings of enmity, hatred or ill-will between groups. The penalty is 3 years in jail and/or fine.

Section 292: Makes obscene publications (book, paper, pamphlet, writing, drawing, painting, representation, figure or any object) an offence. The penalty is 2 years (first conviction) or 5 years (second conviction), and/or fine.

Section 295A: Criminalises “deliberate and malicious acts, intended to outrage religious feelings, including words, signs, visible representations”; entails 3 years and/or fine.

Section 298: Penalises the “utterance of words” that might hurt the religious feelings of any person; the penalty is 1 year and/or fine.
There are other laws including the Indecent Representation of Women (Prohibition) Act of 1986, and the SC and ST (Prevention of Atrocities) Act enacted to protect specific sections from representations and speech which they find offensive or which mocks or insults them.

Freedom of speech vis-a-vis Constitution of India

Freedom of speech is one of the six fundamental rights conferred to the citizens of India under Part III of the Constitution. It is one of the most important aspects of the hierarchy of personal liberties provided under Article 19 to Article 22 of the Indian Constitution.

Article 19(1) (a) states that all citizens shall have the right to freedom of speech and expression. But this right is subject to limitations imposed under Article 19(2) which empowers the State to put ‘reasonable’ restriction on various grounds, namely, security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement of offence, and integrity and sovereignty of India.

Land Mark Judgments

In a National Anthem case, three children belonging to Jehovah’s Witnesses were expelled from the school for refusing to sing the national anthem, although they stood respectfully when the same was being sung. They challenged the validity of their expulsion before the Kerala High Court which upheld the expulsion as valid and on the ground that it was their fundamental duty to sing the national anthem.

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, there was no law under which their fundamental right under Article 19(1) (a) could be curtailed.Accordingly, it was held that the children’s expulsion from the school was a violation of their fundamental right under Article 19(1) (a), which also includes the freedom of silence.

Hamdard Dawakhana v. Union of India

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. Advertisement of prohibited drugs would, therefore, not fall within the scope of Article 19(1) (a).

 Abbas v. Union of India

The case is one of the firsts in which 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 to freedom of speech and expression. He contended that no other form of speech and expression was subject to such prior restraint, and therefore, he demanded equality of treatment with such forms.

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’ were held to be valid and was justified under Article 19(2) of the Constitution.

Maneka Gandhi v. Union of India

The Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thoughts with others not only in India but abroad also.

How does the law address new, technology-enabled forms of expressing oneself?

The IT Act of 2000 has been the subject of much debate. Its Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device such as a mobile phone or a tablet, a conviction fetching a maximum of three years in jail and a fine. What is offensive, however, is subject to interpretation.

The Supreme Court has been looking at the section’s constitutional validity for nearly a year now and said last month that it lacks clarity and is open to misuse. Cases under this recently include the arrest of two girls by Thane police in 2012 over a Facebook post, the arrest of Jadavpur University professor Ambikesh Mahapatra for forwarding a caricature on Mamata Banerjee on Facebook, and the arrest of Aseem Trivedi for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness.

Use/Misuse of Right of freedom of speech on Social Networking Sites

Indeed, Social Media is not bound to any limitations and is free from all kinds of restrictions. This virtual premise stores countless personal information as well as data in digital form and gives open access or visibility to everyone. Nowadays, it has become a part of daily routine of people to interact, share or get aware. Nevertheless, it comes with both merits and demerits. It’s time to envisage the impact of its positive effect or negative impact on the society.

Undeniably, it opens the door of awareness and interface, where people get the chance to learn deep about the cultures, traditions, aura, attributes, the lifestyle of others. Moreover, social media sites allow everyone to voice their thoughts and discuss openly. It can unite the perceptions and perspective of people at one hand, where on the other hand, it gives open privilege to devious minds to allegedly post offensive material of one or another.

People capriciously or responsibly make use of social media by way of tweeting, video-sharing, blogging or interacting. In most democratic countries like India, such posts/interactions are often scrutinized with an intention to ensure that right to freedom of speech, the expression is not illicitly used. Also, that it doesn’t violate the individual right to privacy and data protection.

Another perspective is, that, such new face of interaction is restrained by several internet regulations and thus, strangles the constitutional right of Indian democracy i.e. freedom of speech. Judgments and case studies exhibiting the ‘Status-quo’ of India- on violation of constitutional right on social media sites.

On 20 November 2012, Police arrested two girls in ‘Bal Thackeray Facebook incident’, whereby, a girl Shaheen Dhada posted a comment on their Facebook wall on the demise of Shiv Sena Chief Bal Thackeray about his death. Her friend ‘liked’ her comment and later, ignited controversy. They were arrested under Section 295(a) of IPC and Section 64(a) of IT Act, 2000. Later, they were granted bail on a surety of Rs.15,000 each and a written apology by them.

Another judgment as issued by Supreme Court, in view of public outrage over people being arrested for making comments or liking posts on Facebook, on January 9 was applicable to all states and UTs. It has advised and directed them not to arrest a person in any such case without prior approval of a senior police officer.

In India, every citizen has the right to freedom of speech and expression without any unjustified interference by public authority. Social Media is one such way for a common man to opinionated without any fear of frontiers and after Supreme Court verdict finds their human rights protected. Though, the Government and Public Authorities may think differently. As per their opinion, they find social media an unregulated medium in the hands of citizens to voice and thus, carry an ample amount of untruthful, offensive and hurtful content.

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