There is in force in the city of Patna an order under Section 144 of the Code of Criminal Procedure.....Discuss whether A can successfully...Article 19 of the Constitution of India

Question: There is in force in the city of Patna an order under Section 144 of the Code of Criminal Procedure prohibiting speeches in a specified public place, A, a citizen, disobeys the order and is prosecuted. Discuss whether A can successfully invoke the guarantee of freedom of speech and expression contained in Article 19 of the Constitution of India.[BJS 1978]

Find the answer to the mains question only on Legal Bites. [There is in force in the city of Patna an order under Section 144 of the Code of Criminal Procedure prohibiting speeches in a specified public place, A, a citizen, disobeys the order and is prosecuted. Discuss whether A can successfully invoke the guarantee of freedom of speech and expression contained in Article 19 of the Constitution of India.]

Answer

There is no doubt that the freedom of speech and expression is a valuable and sacred right enshrined under Article 19(1) (a) of the Constitution. This right is required in any modern democracy without which there cannot be a transfer of information or requisite discussion for a democratic society.

Expression through speech is one of the major means of information diffusion. Therefore, the freedom of speech and expression through any medium including speech in a specified public place is an integral part of Article 19(1) (a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.

In the recent 2019 case of Anuradha Bhasin v. Union of India and Ors, the Apex Court has stated that: “the power of magistrate under Section 144 of CrPC cannot vanquish legitimate expression of opinion or grievance or exercise of any democratic rights.

This section can only be imposed in case of an emergency and not for the prevention of instruction or injury to any lawfully employed. Therefore mere disturbance in the law and order of the state may not necessarily lead to a breach of public order. Only the magistrate and the state have the right to decide whether there is a likelihood of threat to public peace. No person should be deprived of his liberty unless it is dangerous and therefore repetition of the imposition of such orders would be a clear abuse of power.”

The type of speech that can be restricted was clarified by the Supreme Court in the recent landmark judgment of Shreya Singhal v. Union of India (2015) 5 SCC 1. While highlighting the subtle difference between discussion, advocacy, and incitement, it was held that only speech that may lead to ‘incitement’ can justifiably be curtailed under Article 19(2). Therefore, when this right is restricted, firstly, there has to be surety of a looming danger that has a ‘direct and proximate nexus with the expression being curtailed, secondly, this expression needs to qualify as ‘incitement’ and not mere advocacy of one’s opinion, and thirdly, the measure imposed should be the last resort and unavoidable.

The Supreme Court in the Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. case [(2012) 5 SCC 1], held that “the degree of threat involved for the use of this provision need not be ‘quandary, imaginary or a merely likely possibility, but a real threat to public peace and tranquillity.” Therefore, A can successfully invoke his guarantee of freedom of speech and expression contained in Article 19 of the Constitution of India.

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