Is there any hard and fast rule or an exhaustive formula to determine what speech comes under the domain of freedom of speech and expression in India and what speech does not?
Read this to learn more about the right to freedom of speech and expression in India.
Freedom of Speech in India
In a world of social media, governments all over the world are concerned with the negative byproducts of freedom of speech and expression. Issues like fake news, rumor-mongering, etc have given a considerable headache to many nations.
To counter them, they often come up with sorts of rules and regulations that sometimes even end up stiffing freedom of speech. The Indian government is not immune to this and often resorts to various tactics to regulate free speech in India.
Moreover, the contours of freedom of speech and expression are not definite and still evolving with changing times, circumstances, and technologies. Courts all over the world struggle to answer certain questions regarding free speech.
This includes extents and limits on free speech; reasonable restrictions, propaganda, hate and subversive speech, so on, and so forth. Indian courts too have time and again grappled to define the contours of free speech in India within the framework of the freedom of speech and expression as contained in the Indian constitution.
Article 19(1)(a) of the Indian constitution provides for freedom of speech and expression. But one may ask why should there be this right to free speech? One may say-so that we can communicate freely with each other and share our ideas and experiences.
Indeed, ideas are the foundation of all kinds of innovations and inventions in any field. And free speech facilitates the generation and communication of ideas and hence it is a necessity for the development of a healthy and progressive society.
Free speech is also an inherent social good that advances the cause of democracy and liberty. In the case of India, the constitution-makers also happened to freedom fighters who have had the bitter experience of curtailment of this precious right during the colonial regime.
Thus, while drafting the constitution of independent India, to declare free speech a fundamental right. By doing so they wanted to make it immune from the vagaries of momentary short-sighted political temptations of politicians.
Freedom of Speech: Not an Absolute Right
Any right anywhere in the world is ordinarily not absolute and is accompanied by some forms of restrictions and limitations. And these restrictions and limitations are often contained in the constitutional text itself.
The USA is an exception though, as the first amendment to its constitution provided for free speech in an absolute sense i.e. contains no limitations on free speech.
In the United States, the debates on the right to free speech often revolve around what falls within the scope of free speech and what does not.
In India, since the limitations on free speech are provided in the constitution itself under Article 19(2), the debate revolves around the question of whether any restriction on speech is within or outside the purview of the restrictions as provided therein.
The phraseology of Article 19(1)(a) is that all citizens shall have the right to freedom of speech and expression. Of the two words ‘Speech’ and ‘Expression’, the latter has been held to be of wider import and generally includes any conduct or behavior seeking to communicate something.
According to Prof. Aparna Chandra, the word ‘expression’ is so wide that it can include any act, conduct, or behavior expressing, showing, or communicating something and that can include speech, art, protest, suicide, and even assassination and acts of terrorism, etc.
That does not, however, mean that all of these acts come within the ambit of free speech in India.
In US v O’Brian 1968, the United States Supreme court held that the burning of statutory documents publicly is outside the scope of the right to speech and expression.
The case concerned the burning of the draft statute on the Vietnam war. The Court said that where acts of speech and non-speech are so intricately interlinked, the state can regulate the non-speech element even though it ends up regulating the free-speech element.
So the prohibition on the burning of a public or statutory document in public was held valid in this case even though it ended up prohibiting the free speech of disapproval of the Vietnam war by burning the statute.
In another important case of Texas v, Johnson 1989 the court held that the right to speech and expression under the 1st amendment includes even the burning of the US flag.
In India, people often get involved in a range of activities to express political opinions, especially disapproval of sociopolitical and legal issues. These activities include general strikes, hartals, bundhs, fasts, etc.
People often justify them as their fundamental right of speech and expression. So the task of the Court has been to look at which one of them gets the protection of freedom of speech and expression in India under Article 19(1) and which does not.
In Bharat Kumar v State of Kerala 1997-petitioners requested ‘Bundhs’ (cessation of all kinds of public activities) be banned as it impacts their freedom of movement and trade.
The court held that freedom of speech and expression does not mean bringing and forcing everything to come to a standstill. It held further that there is no right under Article 19 to call for ‘Bundh’.
In Harish Uppal v Union of India 2002, the court held that lawyers don’t have the right to strike at the workplace because it affects the litigant’s right to a speedy trial.
Does the Right to Freedom of Speech include the Right to not Speak?
In the case of Bijoy Emmanuel v State of Kerala 1987, some school children were expelled from their school for not singing the Indian National Anthem in the morning assembly.
The children belonged to the Jehovah’s Witness sect which did not allow worshiping or praising any entity other than God and hence they refused to sing the Indian national anthem which they thought was praising the nation in place of God.
The Court held that the right to freedom of speech and expression in India includes the right to not speak or sing. As far as showing respect to national ideals and symbols is concerned, the court held that not singing the national anthem ipso facto does not imply disrespect as long as one stands respectfully and does not disturb others from singing it.
Moreover, the Fundamental Duties nowhere say that not singing the national anthem means showing disrespect. All they provide is that one should respect the ideals and institutions and respect can be shown using other means too.
However, in a more recent case of Shyam Narayan Choksey v Union of India 2016, Supreme Court by order made it mandatory the playing of the national anthem in cinema halls before the screening of movies, though this order was subsequently modified after so much hue and cry.
In Union of India v Motion Pictures Association 1999, the challenge was to a provision of the cinema licensing regulation which authorized govt. to order screening of any scientific or public awareness content before the screening of movies in cinema halls.
Here court looked into the nature of compulsion as whether it is good or bad for citizens and justified the said provision on the ground that it is socially beneficial as people from diverse walks of life come to cinema halls and will benefit from the broadcasting of contents relating to social and health awareness programs of government. Court also said that petitioners have raised no objection to the content of such broadcasts.
Does Right to Freedom of Speech include the Right to know?
The right to know is an important limb of the right to speech as it equips the speaker with information that enables him to speak effectively. In the Union of India v Association for Democratic Reforms 2002, the court agreed that in order to effectively vote in an election, voters need to know some personal details of the candidates including their assets, criminal, and educational backgrounds.
The Court gave certain guidelines as to the kind of information which needs to be revealed by the candidates standing in an election. When the government attempted to relax some of those guidelines subsequently in an amendment to the Representation of Peoples Act 1951, the court reiterated the verdict of this case in Peoples Union of Civil Liberties v Union of India 2003.
Right to speech and the Right to vote
One of the fundamental arguments in favor of freedom of speech and expression is that it furthers the cause of democracy. But the Right to vote is a sine qua non of democracy as it is hard to imagine a democracy without the right to vote.
However, it is ironic that Indian constitutional courts do not recognize the right to vote as a fundamental right. In the case of the Association for Democratic Reforms 2002, it was held that the right to vote is merely a statutory right emanating from the Representation of People’s Act 1951.
In PUCL 2013, they thought it to be more graceful to recognize voting as a constitutional right emanating from Articles 325 and 326 of the Indian constitution and that there is a difference between the right to vote and freedom of voting.
The right to vote being a constitutional right can be limited by the Parliament but the freedom to vote to the extent of the right to vote is covered under Article 19. Once someone is qualified to vote, that person gets the freedom to vote and he cannot be compelled to vote nor can he be stopped from voting.
In Kuldeep Nayar v Union of India 2006, Court upheld the PUCL reasoning but only on the question of the difference between freedom of voting and of the right to vote.
So as per the law as it stands today, the right to vote is neither a fundamental right nor a constitutional or common law right in India. But it is still uncertain as to what extent parliament can curtail or limit this right of voting.
Is election speech part of Freedom of Speech in India?
In Jamuna Prasad Mukhariya v Lachhi Ram 1954, petitioners challenged the constitutionality of S.123 of Representation of Peoples Act 1951 (which prohibited seeking of votes in the name of religion, castes, etc) on the ground that it is beyond the restrictions provided in Article 19(2). Very smartly court held that since the right to be elected is not a Fundamental Right, one has to abide by the rules of the election as laid by the statute.
In Ramesh, Yashwant Prabhu 1996 provisions of the RP Act (which prohibited seeking of votes in name of caste, religion, etc) were again challenged on the ground that only when an appeal to religion or caste is prejudicial to public order, that a restriction can be placed upon. Readers must note that the maintenance of public order is one of the grounds under Article 19 under which freedom of speech can be curtailed.
The court rejected that contention by reiterating the reasoning of Jamuna Prasad and in arguendo, it also said that such prohibitions can also come under the broader interpretation of decency and morality which is a ground for restriction on freedom of speech and that decency and morality for the purpose of election in a secular polity such as India require that candidates in an election do not seek vote or appeal in the name of religion race or caste, etc.
A 7 bench of Supreme Court in Abhiram Singh v CD Commachen 2017 reiterated the above findings but in minority Justice Chandrachud held that in a society like India, it is quite impossible to advocate for the socio-economic upliftment of many historically marginalized communities without talking about their castes and backgrounds and hence such restrictions are beyond the scope of Article 19(2).
Are Commercial Speeches part of Freedom of speech in India?
Courts in India have been of the view that if a purely commercial speech does not involve propagation of ideas or advancement of any social or democratic value, then it does not get the protection of freedom speech and hence can be curtailed and regulated.
The underlying reasoning is that since the rationale of freedom of speech is to further the cause of democracy and democratic values and if a speech does not further this cause then it does not deserve the protection of free speech.
But in a radical shift in Tata Press Ltd v Mahanagar Telephone Nigam 1995, the court linked advertisements to freedom of the press and said that for a democratic press, advertising is necessary as, without advertisement, resources available for expenditure on news would decline which may lead to erosion of quality and quantity and cost of news to the public would also increase and thereby ending up placing restrictions on its democratic availability. This case is now controlling precedence on this issue.
Indian constitution does not provide specifically for ‘Freedom of the press as there was an assumption that the press was definitely going to be free in democratic India and press freedom is implicit in freedom of speech and expression under Article 19(1)(a).
In Express Newspaper v Union of India 1958, the court held that the press can be subject to ordinary law but if there is any special law made for dealing only with the media, then that law has to pass the touchstone of Article 19 ie the test of reasonable restrictions.
Types of restrictions on Freedom of Speech and Expression
Generally, there are two ways in which freedom of speech is restricted all over the world-
- Prior Restraint-You should submit your speech to an authority and only after getting permission you can speak the content of your speech. The best example of this is the ‘Censor Board for Film certification’ Similar boards exist in many other countries too. But it is a very daunting task for any government to have effective prior restraint. In KA Abbas v Union of India, 1971 court held that there is nothing inherently pernicious about pre-censorship and censorship in some form exist all over the world.
- Post-Restraint-You are free to speak whatever you want but face punitive actions if it is violative of any law. All kinds of hate and subversive speeches can be included in this category. The person making such speeches is punished after he had made the speech.
Is Hate Speech part of Freedom of Speech and Expression?
In layman’s terms, one can say that hate speech is a speech that excites hatred and contempt for an individual or for a group. It is another thing that some may relish and some may cringe over such speech depending upon which group one belongs to.
For instance, Trump’s diatribe against Press, Muslims, and refugees are frowned upon by many but not by a Trump supporter who may find such diatribe very pleasing and soothing. In India, some forms of hate speeches are prohibited under the Indian Penal Code 1860 however under the constitutional paradigm, the general criteria for placing restrictions on such speeches is that they should lead to public disorder.
In S Rangarajan v Jagjivan Ram 1989, SC held that commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.
The anticipated danger should not be remote, conjectural, or far-fetched. It should have a proximate and direct nexus with the expression. Expression of thought should be intrinsically dangerous to the public interest. The State cannot plead its inability to handle the hostile audience problem.
Many people argue that social sanction is a better option for dealing with such speeches than penalizing them as penalizing might backfire.
For example, even though hate speech is penalized in India, yet many obnoxious hate speakers end up occupying the corridors of powers using their decisive tactics and their sheer influence of power and wealth.
It is not very difficult for them to manipulate the law to their advantage. Therefore an informed citizenry that does not get swayed by passions generated by hate speeches can better reign in hate speeches as well as hate speakers. There are other reasons as well as to why the restriction on hate speech is not justified on the account of the fear that it may end up stifling freedom of speech in the long run-
- Any restriction on Freedom of speech is considered bad in a democracy
- Hate speech prohibition can end up stifling genuine debate and discussion.
- When you start restricting hate speech in a diverse society like ours on the ground that it leads to demonization of a group by another group, you might end up in a very slippery slope by leaving a very few scopes for free discussion.
In Sri Baragur Ramachandrappa v State of Karnataka 2007, the challenge was on the ban imposed by the state on a fictional book on a popular saint of south India-Basveswara on the ground that the book portrays the saint in a negative light. The Court justified the ban by holding that unwarranted and malicious criticism or interference in the faith of others cannot be accepted.
The problem with this decision is that inference in the faith of others is not a ground for restricting freedom of speech under Article 19(2). Going by the logic of that case also means narrowing down the right of propagation of one’s religion as propagation may involve criticism of other religions.
In the State of Maharashtra v Sangharaj Damodar Rupawate 2010, the court went even further by obliterating the defense of ‘truth’ if one’s writing is calculated to promote feelings of enmity or hatred. In the words of court-
If the writing is calculated to promote feelings of enmity or hatred, it is no defense under S.153A of Indian Penal Code 1860 that the writing contains a truthful account of past events.’
The case was about a book written on Maratha-Brahmin dispute themed on Shivaji.
Read more| Fundamental Duties and Haridwar Hate Speech
Obscenity and Freedom of Speech and Expression
In Ranjit Udeshi v State of Maharashtra 1965, the court justified the ban on obscene speech. It held that obscenity neither has any social value nor does it serve any social or democratic purpose. The court also invoked the famous Hicklin Test to buttress its arguments.
The Hicklin test involves asking the question that whether the matter charged as obscene tends to deprave and corrupt susceptible minds and into whose hands a publication of this sort may fall. Finally, the court held that obscenity without a preponderating social purpose or benefit cannot have constitutional protection.
Aveek Sarkar and Contemporary Community Standard Test
But in Aveek Sarkar v State of West Bengal 2014, the court rejected the Hicklin test. He held that only those sex-related materials which tend to excite lustful thoughts can be said to be obscene.
It also held that obscenity has to be judged from the viewpoint of an average reasonable person by applying contemporary community standards.
This test was further upheld in Devidas Ramachandra Tuljapurkar v State of Maharashtra 2015. Here the court also added that the test becomes more rigorous if obscenity is directed or alluded to any historically respected personality like Mahatma Gandhi.
Compared to the Indian scenario, Canadian jurisprudence on the matter of obscenity is much wider and liberal. In Canada, the test is of dignity as to whether obscenity in question affects one’s dignity. And the answer is yes, then such obscenity needs to be prohibited.
Defamation and Freedom of Speech Expression
Courts have held that defamation is one of the grounds under which freedom of speech can be curtailed under Article 19(2) of the Indian constitution.
And as per the holding in the Subramanian Swamy v UOI 2016, defamation in such cases can be both civil and criminal defamation. For a considerable time, many politicians and public officials used to silence the Press and Media by getting injunction orders from courts against reporting their corrupt or questionable practices on the grounds of defamation.
However, in R Rajagopal v State of TN 1994, the Supreme court of India by taking a cue from the famous US case of NYT v Sullivan, held that a public official cannot sue for defamation for statements or reporting done on him while he is on public duty, even if such a reporting is false unless he can prove that the alleged statement regarding him was made with ‘actual malice’ that is with the knowledge that it was false or with reckless disregard of its veracity.
Conclusion
To conclude, it is difficult to determine the contours of freedom of speech and expression in India even though the constitution guarantees the freedom of speech and expression under Article 19(1)(a) and also provides the scope of restrictions therein.
There is no hard and fast rule or any exhaustive formula to determine what speech comes under the domain of freedom of speech and what does not. It all depends upon the facts and circumstances of each case and also the nature and inclinations of the concerned Judge.
It is also affected to some extent by the prevailing public discourse and reasoning. Decisions of Indian courts on matters concerning freedom of speech have not been static but fluctuating.
Nonetheless, their reasoning appears to be impressed by British and American jurisprudence on free speech. Be it the modified version of the Hicklin test in the Ranjit Udeshi case or the reflections of NYT v Sullivan in the Rajagopal case.
This shows that despite some amount of conservativeness shown in some cases, the Supreme Court of India has also kept abreast of the global developments on the jurisprudence of freedom of speech and has evolved its decision making accordingly in the light of changing times and circumstances.
Suggested Reading| Constitutional Law Class Notes