• Nyayshastram

Freedom of Speech and its Restrictions

Saurabh Kumar, Law Student, Chanakya National Law University, Patna

Shruti, Law Student, Chanakya National Law University, Patna

If the freedom of speech is taken away, then dumb and silent, we may be led, like sheep to the slaughter. ― George Washington

The first condition of liberty is freedom of speech. Freedom of speech is also regarded as the mother of all liberties. Freedom of Speech and expression means right to express one's convictions and opinions freely either by the words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture and signs[1].

In modern times, it is widely accepted that the essence of a free society is the Right to freedom of speech, and it is needed to be protected at all time. In the development of a particular society, liberty to speak, express opinion and ideas without any hindrance and fear plays a vital role and ultimately helps in the development of the state.

The freedom of speech is guaranteed not only by constitution or statutes but also by various international conventions like the Universal Declaration of Human Rights and European Convention on Human Rights; these all expressly talk about freedom of speech and expression[2].

This freedom is enshrined under Article 19 (1) (a) of the constitution of India as “freedom of speech and expression” which guarantees every citizen shall have right to freedom of speech and expression, the philosophy behind this article lies in the preamble of Indian constitution, which aims to secure all its citizen liberty of thought and expression. However, this right comes with subject to ‘reasonable restrictions’ for some purposes imposed under article 19(2) of the Constitution of India.

The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint[3]. Thus, it allows the government to frame laws to impose some reasonable restrictions in the interest of the sovereignty, integrity, the security of the state, friendly relations with a foreign nation, public order, decency and morality and contempt of court and defamation.

The fundamental freedom under Article 19(1)(a) can be reasonably restricted for the purpose mentioned in Article19(2), and the restrictions must be justified on the anvil of necessity and not the quicksand of convenience or expediency[4].

The earliest case related to freedom of speech and expression was Romesh Thapar v. State of Madras[5] In which the supreme court of India held that freedom of speech and expression also includes freedom to propagate ideas which are ensured by freedom of circulation of a publication, i.e. declaring the freedom of the press as part of freedom of speech and expression, as the publication is of little value without circulation however 19(2) of the constitution says that this right is not absolute and ‘reasonable restriction’ may be imposed on the exercise of this right.

Freedom of ‘speech and expression’ not only comprises of the right to express, publish, and propagate information, but it also includes the right to receive information[6].


Various grounds on which this freedom can be restricted

The power to impose restrictions is not the power which is available for exercise in an arbitrary manner or for the purpose of promoting the interest of those in power or suppressing dissent[7].


Clause (2) of Article 19 of the Indian constitution imposes certain restrictions under these :


(i) Security of the State: For the Interest of the security of the state, which refers to the aggravated forms of public disorder, which are rebellion, waging war, against the state, insurrection. In the case of People’s Union for Civil Liberties v. Union of India,[8] a PIL was filed under Article 32 of Constitution by PUCL against frequent cases of phone tapping, the court held that since telephonic tapping violates Article19(1) (a) unless it comes within the grounds of reasonable restriction under Article 19(2).


(ii) Friendly relation with foreign states: It was added by the First Amendment Act of 1951. The state can impose reasonable restrictions on the right to speak if it hampers relations of India with other states and no similar provision is present in any other constitution of the world.


(iii) Public Order: The restriction prescribed by the constitution was to maintain public order this was also added by the constitution 1st amendment act of 1951, public order is related with public peace, safety and tranquillity. Anything which disturbs public peace and tranquillity it affects the public order of that place. It includes public safety and thus, creating rebellion would affect public order and public safety, but mere criticism of government does not necessarily create public disorder. Section 292 to 294 of Indian penal code provides for the restrictions on the freedom of speech and expression on the grounds of decency and morality, in case of Ranjit D v. State of Maharashtra [9] conviction of bookseller was upheld who was prosecuted under section 292 of IPC, for selling and keeping the book ‘Lady Chatterley’s Lover’. Since the standard of morality changes with changing times.


(iv) Contempt of court: In a democratic country judiciary plays an important role, so there is need to respect such institution and its order, this restriction can be imposed on freedom of speech if it exceeds the reasonable and fair limit and amounts to contempt of court after the 2006 amendment truth is considered as a defence. However, after that amendment, a person can be punished unless such statement is made in the public interest. In the case of M.R. Parashar v. Farooq Abdullah,[10] contempt proceeding was initiated against the CM of Jammu and Kashmir. Nevertheless, the court dismissed the petition under the want of proof.


(v) Defamation: Clause (2) of Article 19 prevents any person from making any statement that defames any person reputation. Defamation is punishable under section 499 and 500 of IPC. Since the right to free speech is not absolute, and it also does not give the right to hurt others reputation, which is protected by Article 21 of the Constitution although the truth is considered as a defence against defamation only if the statement was made for the public good.


(vi) Incitement to an offence: It was also added by first amendment act 1951, and it prohibits a person from making any statement that incites people to commit an offence.

Clause (2) of Article 19 prevents any person from making any statement that defames any person reputation. Defamation is punishable under section 499 and 500 of IPC. Since the right to free speech is not absolute, and it also does not give the right to hurt others reputation, which is protected by Article 21 of the Constitution although the truth is considered as a defence against defamation only if the statement was made for the public good.


(vii) Sovereignty and integrity of India: Prime duty of government is to maintain the sovereignty and integrity of a state. So, taking this into the ground, certain restrictions can be imposed so that it does not challenge the integrity of the state.


Conclusion

Hence, we can easily conclude that freedom of speech and expression is one of the most important fundamental rights is guarded by certain restrictions which stands essential in the running of our country in a smooth manner. It is a particular piece of right practised by the citizens of India, but it does come up with certain restrictions which are imposed in its practice to safeguard the national interest of our country or society on the whole.

It is one of the most important fundamental rights which is not only assured by our constitution specifically, but it also holds great importance in the international arena. Every convention and organization work incessantly for the fulfilment of this right as it is crucial for the development of a particular society. Liberty to speak, express opinion and ideas without any hindrance and fear plays a vital role and ultimately helps in the development of the state.

It is enshrined in our constitution. Article 19 of the Indian Constitution is not an absolute right and hence, has certain restrictions to it. The restrictions imposed are not to curb the right but rather to make this right even more rigid and austere so that the essence of this right stands immutable.

The restrictions imposed are for different purposes like to maintain the security of states so that no war is waged, to maintain public order so that the public remains safe, undisturbed and their tranquility remains undisturbed. It is also imposed to maintain the decorum of the judicial bodies of India and also for individual esteem and reputation. By imposing these restrictions, the sovereignty and integrity of a state also remain undisturbed and unchallenged.

The restrictions imposed are for different purposes like to maintain the security of states so that no war is waged, to maintain public order so that the public remains safe, undisturbed and their tranquillity remains undisturbed. It is also imposed to maintain the decorum of the judicial bodies of India and also for individual esteem and reputation. By imposing these restrictions, the sovereignty and integrity of a state also remain undisturbed and unchallenged that the legislation seeks to achieve, and it should establish a close link with such object of the legislation. There should be reasonable and proper nexus or relationship between the restriction and achievement of public order.

[2] Universal Declaration of Human Rights, art. 19, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948). [3] Ramlila Maidan Incident v. Home Secretary, Union of India, Suo Motu Writ Petition (Criminal) No. 122/2011. [4] S Rangarajan v. P Jagjevan Ram, (1989) 2 SCC 574. [5]AIR 1950 SC 124. [6] Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294. [7] C.J. Rajan v. Deputy Superintendent of Police, Mayiladuthurai Sub-Division, Mayiladuthurai & Another, Writ Petition No. 13681/2007. [8] AIR 1997 SC 568. [9] AIR 1965 SC 881. [10] AIR 1984 SC 615.

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