Freedom of Speech & Expression

Freedom of Speech: A Right and a Responsibility 

Freedom of speech is regarded as the most important fundamental right after “Right to Life”. Freedom of speech and expression is often regarded as the blood and soul of a democratic government as it helps us to distinguish between a democratic and a non-democratic government. For, in a non-democratic government, the very first policy which a dictator adopts is to ban the right to express opinion especially that against the government, in order to save him from public ridicule.

In recent times, it has become the most debatable and controversial right in India. Take for example the Yakub Memon hanging case. Views expressed on the issue were sharply divided on merits and veered on religious lines. It led to a clash of ideologies, open spats, painting those who were in favour as “bloodthirsty” and those against as “traitor”. Well, the point is we can’t claim one ideology as right or wrong and after all everyone is practicing their right. Hence, it becomes difficult to draw the line, where one right infringes upon the other person’s right to speech.

What is freedom of speech and expression?

Freedom of speech and expression guaranteed under Article 19(1) (a) is the right to communicate one’s opinion and ideas without fear of govt. retaliation or censorship. It is a right given only to the “citizens” of India. It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice. One can use any communication medium of visual representation such as signs, pictures, or movies. Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Thus, the freedom of publication is also covered under freedom of speech.  Freedom of speech serves 4 purposes -

•    Allows an individual to attain self -fulfilment.
•    Assists in the discovery of truth.
•    It strengthens the capacity of a person to make decisions.
•    It facilitates a balance between stability and social change.
This right is not only about communicating your ideas to others but also about being able to publish and propagate other people's views as well.

Historical Background

The declaration of rights of man and of citizen adopted during the French revolution in 1789 specifically affirmed freedom of speech as an inalienable right. The declaration provides for freedom of expression in Article 11, which says that –
   “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write and print with freedom but shall be responsible for such abuses of his freedom as shall be defined by law.”

The right to freedom of expression is recognised as a human right under Art. 19 of the Universal Declaration of Human Rights and further recognised in International human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPCR states that “Everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression; the right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers either orally or in writing or print, in the form of art, or through any other media of their choice”.

Importance of Freerom of Speech

 “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”.   – John Milton

John Stuart Mill argued that without human freedom there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill's On Liberty, published in 1859 became a classic defence of the right to freedom of expression.
i)  Mill argued that truth drives out falsity, therefore, the free expression of ideas, true or false, should not be feared. The truth is not stable or fixed but evolves with time.
ii) Mill also argued that free discussion is necessary to prevent the "deep slumber of a decided opinion". The discussion would drive the onwards march of truth and by considering false views the basis of true views could be re-affirmed.
iii) An opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech.

Is it an absolute right?

No right is absolute for, it is necessary to maintain social order, peace and tranquillity of the nation. J.S Mill has rightly said “freedom which is absolute is no freedom in true sense”. There should be some restriction in order to protect the rights of another individual. Hence, Supreme Court in the famous decision in Romesh Thapar vs State of Madras stated concern regarding restrictions to be imposed on this right.  First amendment act (1951) lays down grounds for reasonable restriction.

Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under following heads:
•    I. security of the State,
•    II. friendly relations with foreign States,
•    III. public order,
•    IV. decency and morality,
•    V. contempt of court,
•    VI. defamation,
•    VII. incitement to an offence, and
•    VIII. Sovereignty and integrity of India.

Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.

In order to be a valid limitation under clause 19(2)-19(6) must comply with the following condition: -
i) There should be a law made by a state.
ii) It should not be just an executive order.
iii) The restriction must be proximately related to any of the grounds specified in the limitation clause (2) to (6) which may be relevant to the fundamental right in question.
iii) The restriction imposed by law must be reasonable except in cases coming under sub clause (I) – (ii) of clause (6).

Supreme Court has defined the ambit of Sec 19(2) in the recent judgement of Shreya Singhal v Union of India:-
There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is a discussion, the second is advocacy and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(2). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to or tends to affect the sovereignty and integrity of the India, Security of state, friendly relation with foreign state etc.

How is our right to speech and expression different from U.S?

U.S is regarded as one of the staunch supporters of “freedom of speech and expression”. It is significant to note that we have acquired a lot of principalities from U.S freedom of speech. However, there are differences in U.S first amendment and Article 19(1) (a) read with 19(2) of our constitution. The first difference being the absoluteness of U.S first amendment: Congress shall make no law which abridges freedom of speech. They have only “police control” as a means of restriction in relation to the said right, which is also not defined properly and hence left to interpretation. However, Indian constitution clearly defines the grounds on which freedom of speech and expression can be curtailed.

Conflict b/w Fundamental Rights and Directive Principles of State Policy

It is often the case that an individual’s right which is enforceable in nature (Fundamental rights) comes in conflict with the directive principles of state policy (directives/ aims/ goals given to state). As we have seen in the case of freedom of speech (as an individual, I have a right to speak) but this right does not extend to the point when it will hamper the state’s sovereignty. Hence, there can be restrictions on any fundamental right in order to secure directive principles. 

The above proposition will be considered valid or reasonable subject to two limitations: -

i) That, it does not run in clear conflict with fundamental rights. 

ii) That, it has been enacted within the legislative competence of the enacting legislature.

By reason of the word “reasonable”, however the framers very tactfully left the question to the apex court to decide, “where the freedom of the individual ends and the power of the state to protect the collective interests begin”.

Conclusion

Freedom of speech is particularly important to an individual’s self- fulfilment. . It is uniquely valuable in intellectual self-development. It is a reflective mind conscious of options and the possibilities for growth that distinguishes human beings from other animal species. Hence, censorship and curtailment of right which does not infringe nation’s security at large should be done away with.  

For Chinese Human Rights activist, Liu Xiaobo, very aptly puts, “free expression is the base of human rights, the root of human nature and the mother of truth. To kill free speech is to insult human rights, to stifle human nature and to suppress truth”. 

Concluding the RTI Campaign

From the highly informational campaign on RTI, we have definitely learnt a lot. Spreading over the last 2 weeks, our campaign covered right from the history of RTI to the landmark cases and RTI activists. For those who have been following our RTI campaign we have made a short summary of all out blogposts on the topic.

The Right to Information Act was passed in 2005 by the government of India after nearly two decades since it was first suggested by PM VP Singh. A few progressive states such as Tamil Nadu, Goa, Karnataka, Maharashtra and Madhya Pradesh had passed legislations before the RTI was implemented at the Central level.

Right to information provide for timely response by the government machinery to any query posted by the citizens. It is a powerful tool in the hands of the citizens to delve into the intricacies of government functioning. The objective of right to information is empower citizens and improve transparency and accountability in the government. This also helps in reducing corruption and promotes a more direct interaction between people thereby facilitating democracy further.

RTI allows any Indian citizen to seek information from any public authority (unless the act expressly exempts disclosure) by applying to seek the information from the Public Information Officer (PIO) appointed by the government. PIOs are obliged to disclose all information except those which are of sensitive nature, expressly forbidden, private in nature, trade secrets & IP or would impede any criminal investigation etc. Certain intelligence and security organisations (22 departments) are also exempted from disclosure of information except information pertaining to allegations of corruption and human right violations. If the application is rejected on unreasonable grounds or is not supplied to the applicant within the stipulated time, the applicant can appeal to higher authority. There are two rounds of appeal available to the RTI applicant.

Cost of RTI application is a nominal Rs.10 and a reasonable charge for any stationary or material (Photocopy, discs/floppy and postal charge) used for making the information available to the applicant. Moreover the PIO has to respond within a period of 30 days to all request made under the RTI and in cases involving life or liberty of a person, the PIO is deemed to respond within 48 hours.

RTI act has enabled many activists such as Satish Shetty, Rinku Singh Rahi and Lalit Mehta in exposing various scams and holding the government accountable for their actions. Within a decade of its implementation it has proved to be a very useful and indispensable tool for furthering the democratic principles.

“The right to know is the right to live.” -Aruna Roy
   
We hope that through our campaign we were able to add to your knowledge about your Right to Information. Stay tuned for our next campaign. Thank you for all your support and please do continue to provide feedback and motivate our team of TIPsters. Cheers!