FREEDOM OF SPEECH AND EXPRESSION
‘I disapprove of what you say, but I will defend to the death your right to say it.’ – Voltaire
Introduction–The freedom of speech is regarded as the first condition of liberty.It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speechthat it is the mother of all other liberties. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation. Freedom of speech is guaranteed not only by the constitution or statues of various state but also various international conventions like Universal Declaration of Human Rights, European Conventions of Human Rights and Fundamental Rights, International Covenant on Civil and Political Rights.
Protection of Freedom of Speech– Speech is the medium of ones expression; it is the way of for human being to express his/her thoughts, ideas. There are many contradiction between human rights and constitutional rights but the freedom of speech and expression concentrates both the areas. Freedom of speech is the way of sharing one’s human being feelings to other, but this is not the only reason or purpose to protect freedom of speech and expression. There could be more essentials to protect it.
There are four important justification to protect it-
- for discovery of truth by open discussion
- free speech as an aspect of self-fulfillment and development
- for expressing belief and political attitudes
- for active participation in democracy
Thus we that protection of freedom of speech is very much essentials. The present study is intended to present the provisions of the American and Indian Constitution which recognize the freedom of speech and expression, the basic fundamental rights of human being.The study also covers the comparison between the approaches of both countries as far as freedom of speech is concerned.
Meaning and Scope– Freedom is guaranteed by article 19. Clause 1 of article 19 guaranteed 6 freedom to citizens, such freedoms are as following-
- freedom of speech and expression
- freedom to assemble peacefully and without arms
- freedom to form an association
- freedom to move freely throughout the territory of India
- freedom to reside and to settle in any part of India
- Right to property (This freedom is removed by 44th amendment of the constitution presently right to property is given as constitutional right in under article 300A)
- Freedom of profession, occupation, trade or business.
Importance of freedom of speech and expression– This freedom is very important for the citizens and country. This freedom is constitute as a breakdown of constitution. This is recognized as very essentials for healthy democracy. This freedom opens the channels for free discussion regarding the functioning and policy of government. Thus, this freedom plays very vital role in information of public opinion on social, political and economic matters. By this freedom the citizen get an opportunity to criticize and oppose the bad policy of the government and similarly to appreciate good policies of the government.
Case- Menka Gandhi vsUnion of India
Justice Bhagwati said democracy is based essentially on free debate and open discussion for that is only corrective of government actions in a democratic setup.
Thus for healthy democracy this freedom is not only necessary but indispensable.
Scope and ambit of freedom of speech and expression-
Freedom of speech and expression includes all those rights which are necessary for its effective use. Thus the following rights are include in this freedom-
- Freedom of propagation and circulation- the freedom of speech and expression includes the freedom of propagation, circulation and publication of view, ideas etc.
- Right to silence- In the case of
Bijoe Emmanuel vs state of Kerla-The Supreme Court said that the freedom of speech and expression includes freedom of silence also.
- Right to decline to listen- In the case of
Re-noise pollution case- The Supreme Court said that the one is right to listen or right to decline to listen, the speech of others. Thus, right to decline is a part of freedom of speech and expression.
- Right to fly national flag- In the case of
Union of India vs Naveen Jindal- The right to fly the national flag is a Fundamental Right. This right can be permitted so long as it expresses love and affection for the nation but it can not be permitted if it results in dis-honour of the national flag. It can not be used for commercial purposes or other purposes.
- Picketing, demonstration and strike- In the case of
Kameshwarsinghvs state of Bihar- The Supreme Court said that the peaceful and orderly picketing, demonstration is a part of freedom of speech.
- Telephone Taping- In the case of
PUCL vs UOI- The Supreme Court has held that telephone taping is violation of the article 19(1).
- Right to Information- In the case of
State of UP vs Raj Narayan- The SC’s said that people of India are entitled to know the particulars of every transaction.
S.P. Gupta vs UOI- The SC’s said that RTI is implicit in the article 19(1).
- Right to vote- In the case of
PUCL vs UOI- The SC has held that right to vote is not a fundamental
Right but it is a statutory right.
Grounds of Restriction-
Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed:
- Security of State:
Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term “security of state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.
- Friendly Relations with Foreign States:
This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardies the maintenance of good relations between India, and that state. No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government.
It is to be noted that member of the commonwealth including Pakistan is not a “foreign state” for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.
- Public Order:
This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”
Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or
whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In its external aspect ‘public safety’ means protection of the country from foreign aggression. Under public order the State would be entitled to prevent propaganda for a state of war with India. The words ‘in the interest of public order’ includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there
must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.
- Decency or Morality:
The words ‘morality or decency’ are words of wide meaning.
Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.
- 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. According to the Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’
A statement, which injures a man’s reputation, amounts to defamation.
Defamation consists in
exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
- Incitement to an Offence:
This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force.
As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. It should be noted that the sedition is not mentioned in clause (2) of Article 19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed.
Conclusion-Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. Moreover, it is important to note that liberty of one must not offend the liberty of others. PatanjaliShastri,J. in A.K. Gopalan case, observed,“man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”.
From this article it can be easily conclude that right to freedom of speech and expression is one the most important fundamental rights. It includes circulating one’s views, opinion and idea through any mode of communication. It also comprises of RIT, freedom of Press etc. Thus this fundamental right has a vast scope.
2ND YEAR BBA LLB