CRITICALLY ANALYSES THE SCOPE OF FREEDOM OF SPEECH AND EXPRESSION

By-Vanshika Sharma

“The Constitution is not an instrument for the Government to restrain the people, it is an instrument for the people to restrain the Government.” – Patrick Henry (1736-1799)

The article will explore both the aspects of the Freedom of Speech and Expression and will critically examine the scope of freedom of speech and expression. The article will also sketch the advent of social media. We as the people of India are guaranteed by the fundamental rights enlisted under article 19. While words are harmless but the words could be used to encourage masses. Freedom of speech and expression is perhaps the most basic of all human rights. It is truly said about freedom of speech and expression that it is the mother of all the liberties. It is a fundamental foundational value that precedes and transcends the constitution. The freedom of speech is not the constitutions gift to citizens the constitution merely recognizes this fundamental right. There has always been a tussle between those who feel the freedom of speech and expression cannot be absolute and should come with certain restrictions. Freedom of speech and expression that was a right ultimately converted into a liability of society and government.

INTRODUCTION

In time of pandemic when the world is trying to evolve and trying to maximize social distance, we are not actually socially distanced we are still able to communicate, thanks to technology. Human beings are considered as social animals who are gifted with the unique ability to communicate with each other. The preamble to our constitution expresses the highest aspirations of the people of India, the people of India promise to themselves liberty, justice, equality, and FRATERNITY.


The question that should concern everyone who believes that freedom of speech and expression should be absolute, what would be these values without absolute liberty? Granting freedom constitutionally would mean nothing without liberty. There has always been a tussle between those who feel that the freedom of speech and expression should be absolute as it is in the United States of America.

India has been ruled by many countries but the country that impacted India the most is Britain, under the colonial era there was no word like liberty for Indians. The Britishers curbed down the freedom of speech and expression of every Indian. The roots of the idea of freedom of speech and expression without governments restrain can be traced back to ancient Greece. The right to express an opinion without any governmental restrain in a democracy is a democratic ideal from ancient Greece.

ARTICLE 19:

Part 3 if Indian Constitution talks about the fundamental rights of Citizens. Article 19 is the most important part of Part 3, it states that-Right to Freedom.

19. (1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions [or co-operative societies];

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; [and]

(g) topractice any profession, or to carry on any occupation, trade or business”[1].

U.S.1stAmendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”[2].

U.S.1st Amendment v. Article 19(1) (a): In the American bill of Rights, there is an absolute declaration of freedom of speech. Dr.Ambedkar explains that it was a misnomer to describe the fundamental right under the U.S. Constitution as being absolute because on the face of it, of course, there was a declaration of absoluteness but in practice the scenario is different. Rights when without restriction becomes a miserable and hence there is no wrong is saying that “Absolute liberty is a dream of Utopians”

FREEDOMS WITH RESTRICTIONS:

Article 19(1) (a) of the constitution states that “all citizens shall have the right to freedom of speech and expression”, and Article 19(2) states the grounds on which freedom of speech and expression can be restricted. In the name of creative freedom framers of the constitution cannot allow citizens to do whatever they want. The framers thought that the freedom of speech and expression should come with certain riders. Presently, there are 8 grounds on which freedom of speech and expression can be restricted but when the constitution came into force there were largely only 4 restrictions:


1. Liable slander and defamation,

2. Contempt to court

3. Any matter which offends morality and decency, and

4. Undermining security or tending to overthrow the state.


Keeping an eye on the aggressive behavior of citizen’s restrictions increased from 4 to 8 through various amendments and made it a controversial fundamental right given to the citizens.

Freedom of speech and expression has become more dangerous in the past few decades, the earliest form of freedom of speech and expression to communicate which was supposed to be the right to communicate and share one’s opinion without any fear, now it became the privilege for a part of society which is using it negatively.

What would we be as a civilization if we were not to have freedom of speech and expression? Freedom of speech and expression is the signing one of all these liberties and therefore it has been described in several judgments as mother of all the liberties


Shreya Singhal v Union of India[3]: Striking down Section 66 A[4] of Information Technology Act, 2000. Justice Nariman tries to explain the counterpart of the American part of freedom of speech and Indian article 19 (1) (a) he said:


1. Difference is the 1st amendment of the US constitution contains the declaration of the absoluteness that the congress shall make no law which abridges the freedom of speech and expression.

2. Under the US constitution the speech may be abridged while under the Indian constitution reasonable restrictions may be imposed.

3. Under the Indian constitution such restrictions must be justified under one of those eight enumerated exceptions in article 19 (2) and if it will pass only if it is proximate to one of those eight ground sand of course in addition to that it must be reasonable.

The restriction imposed on article 19(1) (a) was invoked by the three different state government across the country to stop on select publications so in Bihar the government restrains on a provocative political pamphlet, the high court rejected the contention of the State and that view was upheld by the SC in the case of The State of Bihar v. Shailabala Devi[5].

In Madras Romesh Thappar famously known as the critical of the prime mister of that time Nehru started a communist weekly named crossroads Supreme Court struck down the censorship order and held that it would be nothing short of an overthrow of the state or a threat to overthrow a state which would justify a restriction and under 19(2).

The topic of freedom of the press has always been a controversial topic because there is no reference to the press specifically in the Indian constitution under Article 19, after all, the constituent assembly concluded that the press will enjoy the very same rights the citizens do.

CONCLUSION:

The freedom of speech and expression is not a separate right but the fountainhead of other cherished values in our constitution. The right to free speech, surely the most fundamental building block of a functioning democracy is essentially important to come with restriction because something which has the power to make things and the power to break them needs to be a safeguard.

It is not practically possible for freedom and right to be independent for the reason that a right should be specific and its boundary has to be clear and not ambiguous because the basic structure of rights is enforceability and enforceability never comes with ambiguousness. But anything which is not reasonably curbing down freedom of speech and expression is liable for committing a crime.

Reference:

[1] Constitution of India.

[2]https://constitution.congress.gov/constitution/amendment-1/#:~:text=Constitution%20of%20the%20United%20States&text=Congress%20shall%20make%20no%20law,for%20a%20redress%20of%20grievances.

[3] Writ Petition (Criminal) No. 167 of 2012.

[4]"Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine."

[5]1952 AIR 329, 1952 SCR 654

6.https://www.history.com/topics/united-states-constitution/freedom-of-speech#:~:text=Freedom%20of%20speech%E2%80%94the%20right,dates%20back%20to%20ancient%20Greece.&text=The%20ancient%20Greek%20word%20%E2%80%9Cparrhesia,of%20the%20fifth%20century%20B.C.

7.https://constitution.congress.gov/constitution/amendment-1/#:~:text=Constitution%20of%20the%20United%20States&text=Congress%20shall%20make%20no%20law,for%20a%20redress%20of%20grievances.

8.https://ruralindiaonline.org/library/search?q=constitution&type=resource&gclid=Cj0KCQjw-uH6BRDQARIsAI3I-Udxpyai5BX6JGyl37ayLKbb4MtflvVHWZVe2tXDtSz2-NJMG1gBGFYaAsiVEALw_wcB

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