“If liberty means anything at all, it means the right to tell people what they do not want to hear.”- George Orwell
Yuval Noah Harari mentions in his book Sapiens that humans rose to the top of the chain quickly because they could tell each other believable stories. We could communicate and spread our ideas, and this communication resulted in what Harari calls ‘flexible cooperation.’
Speech and expression appear to have played a massive role in the journey of humankind. It is, therefore, no coincidence that democracies guarantee freedom of speech and expression to their populace.
In one of its judgements, the US Supreme Court, highlighting the need for different opinions, said that “Compulsory unification of opinion achieves only the unanimity of the graveyard.”
The entire idea behind free speech is that the consent of the governed is never muzzled by the State and that authority must be controlled by opinions and not opinions by authority.
Thus, for obvious reasons, freedom of speech and expression was conferred upon the Indian citizens as a Fundamental Right under Article 19(1)(a) of the Indian Constitution. It guaranteed freedom of speech and expression under Article 19(1)(a) to all citizens. As exceptions, it allowed the legislature to impose restrictions on the grounds of libel, slander, defamation, contempt of court, and any matters offending decency or morality or which undermine the security of/tend to overthrow the State.
This article traces the Indian experience of the right to freedom of speech and expression.
Road to the First Amendment: The 3 ‘Triggering’ Cases
Article 19(2), containing reasonable restrictions that could be imposed on the rights under Article 19(1), was first amended as early as 1950. Some free speech cases decided by the courts are seen as its immediate cause.
Case 1. Romesh Thappar vs State of Madras (1950)
1st March 1950, a little over a month after the Constitution had come into force, the Supreme Court was confronted with questions about the domain of free speech in Romesh Thappar vs the State of Madras.
Romesh Thappar was an editor of ‘Cross Roads,’ a weekly magazine based in Bombay. The magazine was a staunch critique of the then Prime Minister, primarily his foreign policies. Coincidentally, the communist movement was on the rise at the same time in India, and Thappar was accused of being a communist and having ulterior motives behind his publications.
Thus, the Madras state government prohibited the circulation of ‘Cross Roads’ in the State, citing the Madras Maintenance of Public Safety Act, 1950. The Act allowed the government to restrict the distribution of publications for public safety and the maintenance of public order. This move was challenged directly before the apex court, and by a majority of 5-1, the court struck down the section in question.
The rationale behind the court’s verdict was that the terms ‘public safety’ and ‘public order’ were vague and cannot be construed as reasonable restrictions. [It must be noted that prior to the first amendment, these were no grounds for reasonable restrictions that could be imposed under Article 19 (2) of the Indian Constitution.) In its original form, Article 19(2) read ‘undermines the security of the state or tends to overthrow the State’.] The court took a rigid interpretation and held that restrictions on freedom of speech and expression would be legitimate only if they concern ‘undermining the security of the state or overthrowing of it.’
Case 2. Brij Bhushan vs State of Delhi (1950)
The Organiser was (and is) an English weekly run by the Rashtriya Swayamsevak Sangh (RSS). On 2nd March 1950, the Chief Commissioner of Delhi imposed prior restraints citing section 7(1)(c) of the East Punjab Public Safety Act, 1949. Abhinav Chandrachud (In his book, ‘The Republic of Rhetoric: Free Speech and the Constitution of India’) equates this Act with the prior restraints imposed by Dalhousie during the Fourth Mysore War.
The order stated that The Organiser was publishing content that was a threat to public law and order. While holding prior restraints as constitutional if they were in furtherance of the grounds mentioned under the ambit of Article 19(2), the court struck down the restraint on The Organiser.
Justice Fazal Ali’s Dissent
Justice Fazl Ali delivered dissenting judgments in both cases (Romesh Thappar vs State of Madras (1950) and Brij Bhushan vs State of Delhi (1950)), contending that the terms “sedition,” “public safety,” “public order,” and “undermining security” were interchangeable. His perspective was that any action that posed a threat to public order also had the potential to subvert and overthrow the State.
Case 3. Justice Sarjoo Prasad’s Observation in Shaila Bala Devi vs State of Bihar (1952)
Perhaps one of the most astonishing of all was the Patna High Court’s judgement in Shaila Bala Devi, where Justice Sarjoo Prasad observed that ‘if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity’ because it was apparently under the ambit of protected speech.
The government did not miss an opportunity to cock a snook at these judgements. The Prime Minister himself wrote to the law minister that the constitutional provisions needed to be amended. Accordingly, the first amendment to the Constitution was tabled. The Statement of Objects and Reasons to the Bill was signed by Nehru himself. It was indicative of the amount of disapproval the government had for these judgements. It read that the courts have construed freedom of speech and expression so broadly as ‘not to render a person culpable even if he advocates murder and other crimes of violence.’ The Statement of Objects and Reasons, according to Abhinav Chandrachud (Author, Republic of Rhetoric), was an ‘obvious reference to Justice Sarjoo Prasad’s judgment in Shaila Bala Devi.’
Free Speech After the First Amendment of the Indian Constitution
Lawrence Liang (a law professor at Ambedkar University, Delhi) points out the irony that while the First Amendment to the US Constitution recognized a right to free speech, the Indian version restricted it.
Criticizing the amendment in the house, Hridaynath Kunzru (a member of the Constituent Assembly) remarked that Article 19 was not being amended; it was being repealed. Despite some opposition, the amendment was passed in the Parliament.
As a result of the first amendment and subsequent amendments, Article 19 (2) now reads:
“(2) Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
The word ‘incitement to an offence’ now removes the impunity to endorse murder. It gave the executive more teeth to deal with objectionable speech.
Scope of Free Speech Under Article 19(1)(a) of the Indian Constitution
The presence of free speech is reflective of the confidence a democracy has in its existence. There can be no free democracy without the consent of the governed, which can only be achieved through freedoms, particularly the freedom of speech and expression.
In another case, S Rangrajan vs P Jagjeevan Ram (1989), the court observed that “Democracy is government by the people via open discussion. The democratic form of government itself demands [from] its citizens an active and intelligent participation…”
The Supreme Court of India affirmed in Manubhai D Shah vs Life Insurance Corp India (1993) that a constitutional provision is ‘never static, it is ever-evolving and ever-changing.’ It suggested that a provision must never be interpreted through a ‘narrow, pedantic and syllogistic approach.’ The court itself adopted a dynamic approach in this case by expanding upon this principle when it said that ‘freedom of speech and expression’ should be interpreted expansively to encompass the liberty to communicate one’s opinions orally, in writing, or through audio-visual means.
How Free Is Free Speech – a Contemporary Analysis
“Freedom to air one’s views is the lifeline of any democratic institution, and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship.” – Indian Supreme Court in Manubhai D Shah vs Life Insurance Corp (1993)
The Supreme Court and the High Courts of the country have always been committed to the protection of free speech. Barring a few exceptions, the courts have always been lauded as the guardian of Fundamental Rights, often sailing against the political tide. The courts have never kowtowed to the need for political correctness of free speech. They have upheld the right to hold and express an unpopular opinion. The court has used Article 19(1)(a) to initiate new rights, like the right to know, which was recognized in the State of UP vs Raj Narain (1975). Time and again, it has widened the scope of protection for free speech and expression.
In Raj Kapoor vs State (1980), when charges of obscenity were brought against the film Satyam Shivam Sundaram, the court came to the rescue of the artists. Justice VK Iyer remarked:
“The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies.”
Likewise, in Maqbool Fida Hussain vs Raj Kumar Pandey (2008), the court held that the paintings by the legendary painter MF Hussain were not obscene. Justice Sanjay Kishan, in his verdict, considered art to be an important means of expression, and hence it was deemed to be protected under freedom of speech and expression.
Aseem Trivedi, a cartoonist, was arrested on charges of sedition for a cartoon that read Bhrashtameva Jayate, meaning Corruption alone triumphs, an obvious parody of the national emblem. Ordering his release, the Bombay High Court made stark observations against the Mumbai Police. It observed:
“Today, you attacked a cartoonist; tomorrow, you will attack a filmmaker; and then a writer. We live in a free society, and everyone has freedom of speech and expression.”
It is obviously not an equivalent to the US Supreme Court’s decision in the case of Johnson vs the State of Texas (1989), where a person desecrating the national flag was deemed to be exercising his right to free speech and expression.
Aseem Trivedi’s case, however, is another feather in the hat of a judiciary that has always been protective of Fundamental Rights.
The Supreme Court has gone to the extent of annulling legal provisions if they tend to abridge free speech and expression. Shreya Singhal vs Union of India (2015) was one such case, where section 66A of the Information Technology Act, 2000 was declared void because it violated Article 19(1(a). Section 66A of the IT Act, 2000, made it a punishable offence for any person to send ‘grossly offensive’ or ‘menacing’ information using a computer resource or communication device. The Supreme Court held that because of its vague and broad nature, it cannot be used to curb freedom of speech and expression.
The Shreya Singhal case opened new doors for the judiciary in the world of Internet and Artificial Intelligence. It provided a structure to build a fortress around the cherished right to freedom of speech and expression under Article 19(1)(a).
Conclusion
From Romesh Thappar to Aseem Trivedi, we see a common thread that there cannot be unlawful restrictions. The courts have made it clear that the right to free speech cannot be curtailed through unjust and unreasonable laws. The verdict of Shreya Singhal shows that the sky is the limit for a judiciary that is committed to preserving Fundamental Rights, particularly free speech and expression.
It is the presence of liberty to speak that distinguishes a democracy from a dictatorship. Shakespeare puts it in the mouth of Edgar in King Lear: “Speak what we feel, not what we ought to say,” just for us to understand the essence of free speech.
It is the right to say what we feel as against what we are expected to say; it is the right to offend at times when there appears to be a duty to offend.
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