Freedom of Speech And Expression: An Antidote To Elected Autocracy

Read this article by Rana Banu ob Freedom of Speech And Expression as an Antidote to Elected Autocracy only on Legal Bites.

Introduction

“Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved and tyranny is erected on its ruins”-Benjamin Franklin

It is very evident from the Preamble of the Indian Constitution that people’s voice stands on a higher pedestal in a democracy. They are given the liberty of thought and expression and Part III radiates the fundamental rights granted to all the citizens of India. Among them, the most significant is the “Freedom of Speech and Expression” enshrined under Article 19(1)(a).

This liberty allows each individual to express one’s own opinion by way of mouth, writing, printing, pictures or any other mode and includes freedom of press, right to criticize the government, right to remain silent in certain situations, right to information and a plethora of other rights. Like every other right, these rights are not absolute and are subject to the reasonable restrictions imposed by the State under Article 19(2) of the Constitution.

Article 105 and 194 enshrines two privileges granted to the Union and State Legislatures, i.e.,

1. Freedom of Speech and,
2. Right of publication of its proceedings

But these rights are independent and not subject to the restrictions under Article 19(2).

Recently there have been attacks on this very basic right of citizens on various circumstances and this article stresses on whether those circumstances fall under reasonable restrictions or are the voices of people suppressed by the tyrannical rule of democracy.

Grounds of Restrictions

Respecting other’s rights while exercising one’s own right in a civil society means that anything and everything that the individual wanted to convey cannot be expressed blindly. For example, the offence of defamation.

Section 499 of The Indian Penal Code criminalizes defamatory statements made against an individual which injures one’s reputation addressed to the ear or eyes, which means it penalizes both slander and libel. However, the truthfulness of the statement, innocence, fair criticism etc. are defences in a case of defamation.

Hence, it is pertinent to note the reasonable restrictions imposed by the State under Article 19(2). The grounds can be summed up as follows:

1. Sovereignty and Integrity of India
2. Security of the State
3. Friendly Relations with the Foreign States
4. Public Order
5. Decency or Morality
6. Contempt of Court
7. Defamation
8. Incitement of an offence

Hence it becomes clear that any act of the individual in expressing opinion fall under any of these heads then the person cannot claim the protection under Article 19(1)(a).

Freedom Of Press: Censorship, Media Trial

“The liberty of press consists in printing without any license subject to the consequences of law”-Lord Mansfield

In Indian Express Newspapers v. Union of India[1] the Supreme Court concluded that Freedom of Press shall include-

• Freedom to access all sources of information
• Freedom of Publication
• Freedom of Circulation

In the landmark judgement of R. Rajagopal v. State of Tamil Nadu[2] popularly known as the Auto Shanker’s Case, the Supreme Court held that prior restraint on the publication of a defamatory material (in the instant case the autobiography of Auto Shanker, who had been charged and tried for as many as 6 brutal murders) cannot be imposed and the remedy can be sought by the officials who apprehend that they might be defamed, only after the publication.

In Sanjay Leela Bhansali v State[3],an FIR was filed for banning the release of the movie ‘Padmavat’ for it portrayed the main character in a manner so as to hurt the feelings and sentiments of a section of community. The Supreme Court held that freedom of speech and expression is sacrosanct and the right should not be ordinarily interfered with.

Also, the Courts are to be extremely slow to pass any kind of restraint order in such a situation and should allow the respect that a creative man enjoys in writing a drama, a play, a book on philosophy, or any kind of thought that is expressed on the celluloid or theatre etc. It is significant to note that prior censorship of movies is not an encroachment upon the fundamental right of free speech and expression as being held by the Supreme Court in the leading case of K.A. Abbas v. Union of India[4].

Media Trial is a phrase which gained immense importance recently where a controversial topic is taken for debate by the media houses and they themselves become the judge and jury in deciding the finality of the matter at dispute. By bringing the topic to the limelight they create a wave where the public is made to think in a biased manner and sometimes would even lead to selective outrage. An example of this can be seen in Rhea Chakraborty’s case. The sudden and unexpected suicide of the eminent Bollywood actor Sushant Singh has shaken the entire nation in the month of June 2020 and in this scenario, the actor’s girlfriend was character assassinated and harassed by the so-called media.

On the other hand, they play a significant role in raising questions against the government on its various policies, propaganda and measures. Free press is an important pillar of democracy and journalism should be unbiased and transparent putting forth the real facts before the public so that they could develop an opinion of their own.

Right To Remain Silent And Right To Information

Free speech also includes freedom of silence. In a landmark case, popularly known as National Anthem Case[5] the Supreme Court held that children’s expulsion from school on account of not singing the National Anthem was violative of their fundamental right under Article 19(1)(a) as they did not commit any offence because they stood up respectfully when the National Anthem was being sung.

The Right to Information Act, 2005 was passed with an objective to make the public authorities more accountable and transparent in administration. The fundamental principle involved is the people’s ‘right to know’. In Union of India v. Association for Democratic Reforms[6] the Supreme Court held that the Parliament cannot pass any law which is violative of a citizen’s right to know under Article 19(1)(a) and in the instant case the voters have got the right to know about all the information regarding the candidates contesting for elections, be it their education, assets, liabilities and criminal antecedents.

Recent Attacks On Free Speech

Now it has become a trend to designate anybody as ‘anti-national’ and charge them under the Unlawful Activities (Prevention) Act (UAPA), National Security Act and Sedition laws if they give a dissenting opinion against the government. Under Section 124A of the Indian Penal Code,1863 the gist of sedition is incitement to violence. So, it means that people do have a right to criticize the government if its policies and measures are discriminatory or against the public well-being.

Giving a dissenting opinion has now become equivalent to becoming anti-national after the JNU Sedition case[7]. The mixture of religion and politics have been utilized by the media to increase their TRP rates. It is so ironic that individuals who criticize the government and politics through satirical and stand-up comedy are charged for contempt of court and sedition while those who air pure hate speech are not even termed as accused as in the case of Arnab Goswami[8].

Munawar Farooqui, a stand-up comedian is under judicial custody along with four other men for a joke he didn’t make and the police admit that they don’t have any evidence to support this, which gives a clear-cut idea on how free speech is encroached upon by the political influencers.

There has been widespread protest in different parts of the country regarding the Citizenship Amendment Act in 2019. Groups of student communities were carrying out peaceful protests but they were brutally beaten up by the communal forces and many were arrested under UAPA for causing public disorder. But the political leaders who openly incite violence through their hate speeches are scot-free and the fact that they don’t fit in any of the hate speech laws is so devastating.

Blockading the internet has been another instrument used by the Union Government to address the so-called issue of dissent. The longest Internet shutdown (18months) has been faced in regions of Jammu & Kashmir during the protest against abrogation of Article 370 of the Constitution and recently again the government restricted internet facility in the Delhi region in the wake of farmer’s protest. It is justified to control and restore public order but the government’s continuous action to suppress dissent in a democratic setting will not be tolerated by the people in the long run.

Contempt Of Court; Prashant Bhushan’s Case

Contempt of court is a barricade to free speech though it falls under reasonable restriction. In India the Contempt of Courts Act,1971 defines criminal as well as civil contempt. Civil contempt means willful disobedience of the order, decree, judgement, etc. of court whereas criminal contempt amounts to the publication (written, oral or in any other form) which scandalizes or brings down the authority or Court’s reputation. But again, all publications or acts will not amount to contempt such as innocent publication, fair and constructive criticism, complaint against presiding officers made in good faith etc.

What makes Bhushan’s case significant is that he was convicted by the Supreme Court Suo moto for posting tweets about Chief Justice S.A. Bobde as well as about his lack of confidence in the judiciary. He was sentenced to pay a fine of Rs.1 for contempt.

This judgement is the most criticized one by lawyers, academicians and other institutions. Firstly, it was heard and the judgement was passed in haste during the Covid-19 pandemic where a number of other important cases were in queue for a verdict. Secondly, the entire case was closed within a month thereby not providing sufficient time for the contemnor a reasonable opportunity to establish the truthfulness of the tweet as the court itself admitted that it didn’t want to look into its politics or truthfulness.

Contempt laws are penal and restrict or suppress dissent. This law is ancient and made at a time where Britishers wanted to suppress the voices of people and hence it is the need of the hour that criminal contempt be struck down as it stifles and obstructs free speech.

Conclusion | Freedom of Speech And Expression: An Antidote To Elected Autocracy

“If liberty means anything at all, it means the right to tell people what they do not want to hear”-George Orwell

Free speech is the backbone of democracy. Suppressing dissent will prove lethal to the free working of a democratic institution. For this, the judiciary must be transparent and impartial. It should not lean over the shoulders of the ruling party nor its decisions. The Supreme Court judges must not be a puppet and must act independently and judiciously.

The independence of the judiciary is the only check on the arbitrariness of laws. The Supreme Court is the ultimate judge and the protector of the Constitution where any individual can take recourse if fundamental rights are under threat. Free speech being the mother of all the fundamental rights must be protected at any cause as the people of India believes in the supremacy of the Constitution.

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[1] Indian Express Newspapers v. Union of India (1985) 1 SCC 641.

[2] R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632.

[3] Sanjay Leela Bhansali v. State AIR 2018 SC 86,87,88.

[4] K.A. Abbas v. Union of India AIR 1971 SC 481

[5] Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615

[6] Union of India v. Association for Democratic Reforms AIR 2002 SC 2112

[7]Kanhaiya Kumar v. State of NCT of Delhi P. (CRL)558/2016

[8] Arnab Goswami v. Union of India P. (CRL)130/2020

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