Do you have freedom of speech and expression in your country? If Yes, then to what extent? Are there too many restrictions on free speech or a very few if at all? Are hate and subversive speech part of free speech? You want to know where your country stands in terms of free speech and its scope vis-a-vis the largest democracy in the world? Read this to know the scope of freedom of speech and expression in India-

Article 19(1)(a) of 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 we can communicate freely with each other and share our ideas and experiences with each other. Surely, why not? It is said ideas are the foundation of all kinds of innovations and inventions in any field. Free speech facilitates the generation and communication of ideas and hence it is necessary for any healthy society and for its further development and progress. Free speech is an inherent social good which also advances the cause of democracy and liberty. In case of India, the constitution makers were also the freedom fighters who have had the bitter experience of curtailment of this precious right during the colonial regime and hence by making this right a fundamental right they wanted to make it immune from the vagaries of momentary short-sighted political temptations of politicians.

Any right anywhere in the world is ordinarily not absolute and is accompanied by some forms of restrictions and limitations. US first amendment which provided for free speech in the US is absolute in the sense that the statute provides no limitation on it. So the debate in the US revolves 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 whether any restriction on speech is within or outside the purview of the restrictions provided in Article 19(2).

The phraseology of 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 is of wider import and includes any conduct or behavior seeking to communicate something. As per 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.

In US v O’Brian 1968, US Supreme court held that burning of statutory documents publicly is outside the scope of the right to speech and expression. The case concerned with 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 court held that right to speech and expression under 1st amendment includes even the burning of US flag.

In India, people undertake a range of activities to express political opinions especially disapproval of sociopolitical and legal issues. These activities include general strikes, hartals, bundh, fasts etc. So the task of Court has been to look which one of them gets protection under Article 19(1) and which do 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. Court held that freedom of speech and expression does not mean bringing and forcing everything to come to a standstill and that there is no right under Article 19 to call for ‘Bundh’.

In Harish Uppal v Union of India 2002, court held that lawyers don’t have right to strike at workplace because it affects the litigants right to speedy trial.

Does right to free speech includes right to not speak and can someone be compelled to speak?

Bijoy Emmanuel v State of Kerala 1987-In this case some school children were expelled from their school for not singing the Indian National Anthem in their morning assembly. The children belonged to 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. Court held that right to free speech includes right to not sing and that Fundamental Duties as contained in the Indian constitution only provides for showing respect to ideals and institutions of the constitution and not singing the national anthem does not amount to showing disrespect as long as one stands respectfully and do not disturb others from singing.

But in a more recent case of Shyam Narayan Choksey v Union of India 2016, Supreme Court by an 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 by 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 freedom of free speech include right to know?

Right to know is an important limb of the right to speech as it equips the speaker with information which enables him to speak effectively. In 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. 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.

Does right to speech and expression also include Right to vote?

One of the fundamental argument in favor of free speech is that it furthers the cause of democracy. But the Right to vote is a sina quo 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 Association for Democratic Reforms 2002, it was held that right to vote is merely a statutory right emanating from 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 Article 325 and 326 of Indian constitution and that there is a difference between the right to vote and freedom of voting. 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, 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 free speech?

In Jumuna 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 rules of election as laid by the statute.

In Ramesh Yashwant Prabhu 1996 provisions of 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. Please mind that the maintenance of public order is one of the grounds under Article 19 under which freedom of speech can be curtailed. Court rejected that contention by reiterating the reasoning of Jumuna 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 free speech and that decency and morality for the purpose of election in a secular polity such as India requires 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 such as advertisements part of Free speech?

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 free speech and hence can be curtailed and regulated. The underlying reasoning is that since the rationale of free 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, court linked advertisements to freedom of 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 public would also increase and thereby ending up placing restrictions on its democratic availability. This case is now the controlling the precedence on this issue.

Indian constitution does not provide specifically for ‘Freedom of press’ as there was an assumption that 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 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 restriction.

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.

Are Hate and subversive speeches part of Free Speech?
In layman’s term, one can say that hate speech is a speech which 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 example-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 Rangrajan 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. 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 which 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 free speech in the long run-

  • Any restriction on Free 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 free 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 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.

Obscenity and Free Speech

In Ranjit D Udeshi v State of Maharashtra 1965, the court justified the ban on obscenity on the ground that it does not have any social value nor does it serve any social or democratic purpose. The court also invoked the famous Hicklin Test under which test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds open to such immoral influences and into whose hands a publication of this sort may fall and thus held that obscenity without a preponderating social purpose or profit cannot have the constitutional protection.

But in Aveek Sarkar v State of West Bengal 2014, the court rejected the Hicklin test by holding that only those sex-related materials which have a tendency of exciting lustful thoughts can be held to be obscene but the obscenity has to be judged from the point of view of an average reasonable person by applying contemporary community standards.

In Devidas Ramachandra Tuljapurkar v State of Maharashtra 2015, the court reiterated the ‘contemporary community standard test’ of Aveek Sarkar and also added that if it becomes more rigorous if obscenity is directed or alluded to historically respected personalities such as Mahatma Gandhi.

Compared to Indian, Canadian jurisprudence on the matter of obscenity is much wider and liberal as in Canada the test is of dignity as to whether obscenity in question affects one’s dignity, and if yes such obscenity needs to be prohibited.

Defamation and Free speech

Defamation is one of the ground under which freedom of speech can be curtailed under Article 19(2) of the Indian constitution. Many especially politicians and public officials have also found an easy way in this to shut the mouth of Press and Media by getting injunction orders from courts against reporting their corrupt or questionable practices on the ground of defamation. However, in R Rajagopal v State of TN 1994, 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 proves that the statement was made with ‘actual malice’ that is with knowledge that it was false or with reckless disregard of whether or not it is false. In a recent case of Subramanian Swamy v UOI 2016, the court held that defamation under Article 19(2) includes both civil and criminal defamation.

To conclude, In India, though the constitution guarantees the freedom of speech and expression under Article 19(1)(a) and also provides the scope of restrictions on them in clear terms under 19(2), yet it is difficult to determine the contours of free speech in India. There is no hard and fast rule or any exhaustive formula to determine as to what speech comes under the domain of free speech and what not. It all depends upon the facts and circumstances of each case and also the nature and inclinations of Judges to some extent, as well as the prevailing public discourse and reasoning. Decisions of Indian courts on matters concerning free speech has not been static but fluctuating and one can clearly notice the American and to some extent, the European influence on them be it the modified version of Hicklin test in Ranjit D Udeshi or the reflections of NYT v Sullivan in the Rajagopal case. This shows that despite some amount of conservativeness shown in some cases, Supreme Court of India has kept abreast of the global developments on the jurisprudence of free speech and has evolved its decision making accordingly in the light of changing times and circumstances.

Thanks for Reading! If you have something in your mind, feel free to express yourself in comments below.  I would love to hear your views on free speech and the scope of free speech in your society.

With Peace!