Simone Lawson
The Constitution of India guarantees freedom of speech and expression to all its citizens. This right is recognised by Article 19(1)(a) of the Constitution, which states that all citizens shall have the right to freedom of speech and expression. The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizens the liberty of thought and expression. This freedom is not absolute, as Article 19 (2) of the Constitution provides a safeguard to this freedom, allowing the state to impose reasonable restrictions on the exercise of this right for certain purposes.
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What You'll Learn
Freedom of speech and expression
The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restrictions, or repression by the government. The right to freedom of speech and expression includes the right to impart and receive information, as well as the freedom to hold opinions. This right is available only to citizens of India and not to foreign nationals. It includes the right to express one's views and opinions on any issue through any medium.
The Constitution of India does not specifically mention the freedom of the press. However, freedom of the press is implied from Article 19(1)(a) of the Constitution. The press is subject to the restrictions provided under Article 19(2) of the Constitution. Freedom of the press is recognised as a basic and indivisible right for a democratic polity. In Romesh Thappar v. State of Madras, Patanjali Shastri, C.J. observed:
> Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.
However, the freedom of speech and expression in India is not absolute. Article 19(2) of the Constitution provides a safeguard to this freedom, allowing the state to make laws that restrict freedom of speech and expression for certain purposes. These restrictions are imposed in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign nations, public order, decency or morality, contempt of court, defamation, incitement to an offence, or the sovereignty and integrity of Parliament. The Constitution also does not protect speech that offends against decency or morality or undermines the authority or foundation of the state.
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Freedom of the press
The history of freedom of the press in India has been tumultuous, with various amendments and restrictions imposed over time. The Indian Amendment to the Constitution, enacted in 1950, provides legal protection for press freedom. This amendment ensures that journalists can express their concerns and criticisms of the government without fear of censorship or retribution. However, it is important to note that this freedom is not absolute and is subject to certain restrictions outlined in Article 19(2) of the Constitution. These restrictions are in place to protect national interests, such as the sovereignty and integrity of India, the security of the state, friendly relations with foreign nations, and public order. Additionally, there are restrictions in place to protect societal interests, including decency, morality, contempt of court, defamation, and incitement to offence.
The role of a free press in a democracy is crucial. It promotes transparency and enables citizens to access reliable information about their government and other organisations. A free press also fosters independent thought and critical examination of issues, allowing citizens to form informed opinions about their nation and its leaders. However, India's ranking on the World Press Freedom Index has been declining over the years, slipping to 161 out of 180 countries in 2023, according to Reporters Without Borders. This decline is attributed to various factors, including violence against journalists, restrictions on news media, and censorship in certain regions.
The Indian government has also faced criticism for its relationship with the press. While the constitution protects freedom of speech and the press, critics argue that the government only encourages speech that aligns with its own agenda and that of the ruling party. There have been instances of journalists facing harassment campaigns for their criticism of the government, as well as concerns about media ownership concentration and political alignment. Despite these challenges, the press in India continues to play a vital role in upholding democratic values and keeping the public informed.
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Censorship
The Constitution of India guarantees freedom of speech and expression to all its citizens, but these freedoms are not absolute. The right to freedom in Article 19 of the Constitution of India, 1950, guarantees the freedom of speech and expression as one of its six freedoms. The law in its current form has its roots in the Hate Speech Law Section 295(A), enacted by the British Administration in India. This act was brought about in the backdrop of a series of murders of Arya Samaj leaders who polemicized against Islam. Koenraad Elst argues that "Section 295b was not instituted by Hindu society, but against it. It was imposed by the British on the Hindus in order to shield Islam from criticism".
Article 19(2) of the Indian Constitution allows the state to make laws that restrict freedom of speech and expression so long as they impose any restriction on the state's security, such as rebellion, waging war against the state, insurrection, and not ordinary breaches of public order and public safety. The interest in the integrity and sovereignty of India was added by the 16th Constitutional Amendment Act under tense situations prevailing in different parts of the country. Its objective is to give appropriate powers to impose restrictions against those individuals or organizations that want to secede from India.
The phrase "decency or morality" used in Article 19(2) has long enabled the state to engage in widespread moral policing of mass media, the film and entertainment industry, and the press. Religious groups often object to liberal ideas and deem all progressive values as indecent. Freedom of speech and expression enable individuals to participate in public activities. The constitution of India does not specifically mention the freedom of the press, but it is implied from Article 19(1)(a) of the Constitution. Thus, the press is subject to the restrictions provided under Article 19(2).
The Supreme Court of India has played a significant role in shaping the censorship board's approach to the westernization of Bollywood films. The court has shown a more liberal outlook toward creative expression in Indian cinema and has intervened when the censorship board's decisions were deemed excessive or arbitrary. This has led to a more nuanced approach to westernization in Bollywood, with the court balancing the need to preserve Indian culture and values with the need to allow filmmakers to freely express themselves.
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Reasonable restrictions
The Constitution of India guarantees freedom of speech and expression to all its citizens. However, these freedoms are not absolute, and reasonable restrictions can be imposed on the exercise of this right for certain purposes. The reasonable restrictions are outlined in Article 19(2) of the Indian Constitution, which allows the state to make laws that restrict freedom of speech and expression in the interest of:
- The sovereignty and integrity of India: This includes restrictions on making statements that challenge India's integrity and sovereignty or advocate for secession from India.
- The security of the State: This includes restrictions related to rebellion, waging war against the state, insurrection, and breaches of public order and safety.
- Friendly relations with foreign nations: Restrictions under this category aim to maintain amicable relationships with other countries.
- Public order: This includes restrictions on incitement to an offence and ordinary breaches of public order.
- Decency or morality: The vague phrase "decency or morality" has enabled the state to engage in widespread moral policing of the mass media, film, and entertainment industry.
- Contempt of court: This involves restrictions on statements or actions that show a disregard or disrespect for the authority and dignity of the court.
- Defamation: Defamation laws aim to protect individuals and organizations from false and damaging statements or publications.
The Constitution of India does not explicitly mention "freedom of the press". However, it is implied in Article 19(1)(a) and has been upheld by the Supreme Court of India in several judgments, including Romesh Thappar vs. State of Madras and Brij Bhushan v. State of Delhi. The freedom of the press includes the right to print and publish without interference from the state or any public authority.
The reasonable restrictions outlined in Article 19(2) are subject to judicial review, and the judiciary has the obligation to ensure that the restrictions imposed by law on freedom of speech and the press are reasonable and related to the specified purposes.
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International statutes
Freedom of speech is a right protected by international law. The right to freedom of opinion and expression is enshrined in Article 19 of the Universal Declaration of Human Rights (UDHR), which states:
> "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
This article forms the basis of what later became Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by 169 out of 197 countries as of June 2017. The rights contained within the ICCPR's Article 19 are:
- Freedom of opinion
- Access to information
- Freedom of expression
The right to freedom of expression is also protected by the European Convention on Human Rights and Fundamental Freedoms, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD).
While international law protects free speech, it is not an absolute right and can be restricted in certain circumstances, such as when it violates the rights of others, or advocates hatred and incites discrimination or violence. Governments have a duty to prohibit hateful and inciteful speech, but many abuse their authority to silence peaceful dissent, often in the name of counterterrorism, national security, or religion. The rise of the internet and the spread of misinformation have also led to governments increasingly regulating online speech, sometimes to the detriment of freedom of expression.
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Frequently asked questions
The Constitution of India guarantees freedom of speech and expression to all its citizens. This includes the freedom to express oneself through speech, writing, printing, visual representations, or any other means. However, reasonable restrictions can be imposed on this right in the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign nations, public order, decency or morality, contempt of court, defamation, incitement to an offense, or the sovereignty and integrity of Parliament.
Here are some notable court cases regarding freedom of speech and expression in India:
- Romesh Thappar v. State of Madras (1950): The Supreme Court observed that freedom of the press is fundamental to all democratic organizations.
- Abbas v. Union of India (1970): The Supreme Court upheld the constitutional validity of film censorship as a reasonable restriction on freedom of speech.
- Bennett Coleman and Co. v. Union of India (1972): The Supreme Court struck down the Newsprint Control Order, which limited the number of pages, as a violation of freedom of speech and not a reasonable restriction.
- Maneka Gandhi vs Union of India (1978): The Supreme Court held that freedom of speech and expression transcend national boundaries, affirming the right to gather information and exchange thoughts globally.
- Union of India v. Assn. for Democratic Reforms (2002): The Supreme Court asserted that misinformation and disinformation hinder democracy by creating an uninformed citizenry.
- Superintendent, Central Prison v. Ram Manohar Lohiya (AIR 1960 SC 633): The Court upheld the validity of the U.P. Special Powers Act, 1932, which punished individuals for inciting others to withhold or defer payment of government dues.
There are several justifications for freedom of speech and expression in India:
- Discovery of Truth: Open discussion and freedom of expression are essential for seeking truth and promoting transparency.
- Self-Fulfilment and Development: Free speech enables individuals to pursue self-development and fulfil their potential without restrictions that may inhibit their growth.
- Pluralism: Freedom of speech reflects and reinforces pluralism, validating diversity and promoting the self-esteem of individuals with different lifestyles.
- Democratic Functioning: In a democracy, people must be able to express their opinions about the government, criticize it if needed, and have their voices heard. Without this freedom, the government may become too powerful and serve only a select few.
