Democracy is the essence of a system of government where the will of the people is supreme. It naturally follows that in a democracy, the freedom of speech and expression is a basic right that is guaranteed to every citizen of the country.
The main point here is that the right of freedom of expression of the people is a corner stone of a healthy democracy. This point is ably elucidated in the words of Mr. George Washington, the first President of the most powerful democracy in the world that read as follows:
"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter."
Freedom of Expression in India
Part III of the Constitution of India bestows upon the people the right to Freedom of Speech. Article 19 of the Constitution states that, "all citizens shall have the right to freedom of speech and expression, subject to reasonable restrictions".
As we know, every right comes with a corresponding duty. Therefore, the right to freedom of expression although universal is not absolute. The law imposes reasonable restrictions on the right to freedom of expression in order to uphold the sanctity of this law. This means that the freedom of expression is subject to certain checks and balances that are placed on it in the interest of the sovereignty and integrity of the nation, the security of the nation, relations with foreign states, public order, decency and morality or to prevent defamation or public incitement.
Now, in this article we will look at the relationship between the right to freedom of expression and the incitement of public as an offence.
In a parliamentary democratic set up as in India, it is not possible to read any law in isolation. There may be different laws and statutes governing different issues and matters but often multiples laws have to be read in consonance in order to fulfill their true intent and effect.
For instance Article 19 of the Constitution of India when read together with certain Sections of the Indian Penal Code, makes the incitement of public through any expressed form, an offence punishable with fine and/or imprisonment.
Section 505 of the IPC inter alia States that:
Whoever makes, publishes or circulates any statement, rumour or report, with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment or with fine, or with both. It also states that any one who makes a statement that promotes enmity, hatred or ill-will between classes, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different reli¬gious, racial, language or regional groups or castes or communi¬ties, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
What does not amount to an offence is, when a person making, publishing or circulating any such statement, rumor or report, has reasonable grounds for believing that such statement, rumor or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.
It is clear from the above the Freedom of Speech and Expression is integral to a democracy but this right to be effective has to be used responsibly.
All liberal political thinkers have heralded the right to freedom of speech and expression and it is supposed to guarantee the right to express one's opinion unhindered and unfettered by the fear of retribution in order to maintain the health of a dynamic democracy. The right to freedom of speech and expression allows people to freely participate in the social and political developments in the country and express their satisfaction or dissent with administration.
As we have seen above, in India, the right to freedom of speech and expression is granted by Article 19(1)(a) of the Constitution and Article 19(2) allows for reasonable restrictions to be imposed on this right to keep it relevant.
Today, India is counted as one of the largest democratic nations in the world. Considered in light of the sheer diversity and demographic of the country it is commendable that all through her existence India has been able to maintain her democratic nature. For each ethnic and cultural group to thrive and survive in such a large country it is imperative that there be a climate of mutual trust, co-operation and mutual respect. Such a sentiment of trust and respect can only be allowed if everyone is given the opportunity to be heard, and this is why the freedom of speech and expression is so important.
To properly understand the impact of Article 19(2) on the right to freedom of speech and expression as guaranteed under Article 19(1) of the Constitution, it is beneficial to break down the sub-clause to get to the depth of its meaning.
The said Article highlights 3 main parts i.e. "reasonable restrictions", "in the interests of" and "public order".
In the case of Ramji Lal Modi v. State of U.P.1, the issue of freedom of speech and expression and religious sentiments was put to test. The main contentions in this case were Article 19 of the Constitution and Section 295A of the Indian Penal Code, which makes insulting religious beliefs with an intent to outrage religious feelings of any class a crime.
In this case it was argued that while some instances of outraging religious beliefs would lead to public disorder, not all would, and consequently, the Section was unconstitutional. The Hon'ble Court rejected this argument and upheld the Section with a focus on the phrase "in the interests of", allowing the government a wide leeway in restricting speech.
This rationale was upheld in Virendra v. State of Punjab2, where provisions of the colonial era Press Act, which authorised the government to impose prior restraint upon newspapers, were challenged. The Supreme Court upheld certain procedural safeguards and upheld the imposition of prior restraint itself, on the ground that the phrase "in the interests of" bore a very wide ambit.
From the above two cases it is clear that the phrase "in the interests of" is extremely wide in its scope and ambit and therefore there need not always be a close link between a particular speech or expression and the disturbance of public order. This gave the State very wide powers in curtailing any form of speech and expression that threatened public peace and order.
In the case of Superintendent, Central Prison v. Ram Manohar Lohia3, the Supreme Court changed its position, and held that there must be a "proximate" relationship between speech and public disorder, and that it must not be remote, fanciful or far-fetched. This places a high burden of proof, along with evidence on the State before infringing the right to freedom of speech and expression as hailed by the Constitution of India. It was thus clarified that for the right to freedom of speech and expression to be questioned, there had to be a proximate link between the prohibition and the likelihood of public disorder.
This criterion of proximity between an act of expression and public disorder was once again upheld in S. Rangarajan vs P. Jagjivan Ram4. In this case the Hon'ble Supreme Court proclaimed that the proximity between the speech or expression and the incitement of public order must be akin to a "spark in a powder keg".
Article 19 in the Recent Times
The recent years have seen an Internet and Social Media revolution that has made the Freedom of Speech and Expression even more relevant. With the click of a mouse, a single piece of information can reach the minds of millions of people all over the country and the world.
In 2015, for the first time we saw the application of a restriction of online speech. At the time of Hardik Patel's Patidar agitation for reservations in Gujarat, despite the fact that website blocking is specifically provided for by Section 69A of the I.T. Act, and its accompanying rules, the Gujarat High Court upheld the state action.
It can be said that the following conclusions emerged from the said case:
- "Public Order" under Article 19(2) is a term of art, and refers to a situation of public tranquility/public peace, that goes beyond simply law-breaking:
- Prior restraint in the interests of public order is justified under Article 19(2), subject to a test of proximity; by virtue of the Gujarat High Court judgment in 2015, prior restraint extends to the online sphere as well;
- The proximity test requires the relationship between speech and public order to be imminent, or like a spark in a powder keg.
We hope that the above article sheds enough light on the right of freedom of expression and its scope as provided for under the Constitution of India and related laws. We can conclude that no right is absolute and every right has a corresponding duty. The right to freedom of expression may be a fundamental right that is basic to a democratic of government but it is also an extremely onerous right. The right to expression without appropriate checks can lead to havoc especially in a country like ours that is so culturally diverse and volatile. The right to expression in India is absolute but carries certain necessary checks to make sure that law and order is maintained and this cardinal right is not taken for granted or abused by anyone.
1Ramji Lal Modi v. State of U.P., MANU/SC/0101/1957
2Virendra v. State of Punjab, MANU/SC/0023/1957
3Superintendent, Central Prison v. Ram Manohar Lohia, MANU/SC/0058/1960
4S. Rangarajan vs P. Jagjivan Ram, MANU/SC/0475/1989