October 15, 2020
The
Supreme Court while hearing a case remarked that Freedom of Speech is the most
abused right in the recent times.[1]Freedom
of speech and expression, regarded as the first condition of liberty, is
essential for the proper functioning of the democratic process as democracy
means, government of the people and by the people. As Justice Bhagwati stated in the famous
case of Maneka Gandhi v. Union of India, that “Democracy rest on free debate and open discussion
as that is the only corrective of government action in a democratic setup.”[2] Constructive
criticism serves a useful purpose in building a democratic setup. However, this
freedom under Article 19(1)(a) of the Constitution, is subject to reasonable
restrictions given under Article 19(2). Fair comment is a statement based on
the writer’s or speaker’s honest opinion about a matter of public concern.[3]Restrictions
enumerated under Article 19(2) of the Indian Constitution, 1949 limits people
from making unfounded and irresponsible comments to protect and maintain the
security of the State, friendly relations with foreign States, public order,
decency, morality, sovereignty and integrity of India and in relation to
contempt of court, defamation or incitement to an offence. Hence, one has to be
cautious while exercising the right to freedom of speech and expression.
SCOPE
OF FREEDOM OF SPEECH AND EXPRESSION
Does
the freedom under Article 19(1)(a) is only for those words (spoken or written)
which people want to hear? Or, is it to express that other find hateful or do
not agree with?The Preambleof the Constitution secure to all its Citizens –
‘Liberty of thought and expression’. Speech and expressions may be fair and
acceptable as long as it is true and outside the scope of reasonable
restrictions. Restrictions to be reasonable should be in the public interest
and not arbitrary. The restrictions enumerated under Article 19(2) require
strict interpretation. A restriction to be constitutionally valid must be for
the purpose enumerated in Article 19(2) and must be reasonable.
Restrictions
under Article 19(2) mean restrictions imposed by legislation. Conversely,legislation
cannot empower a state with wide powers to restrict freedom of speech and
expression. The Supreme Court in Romesh Thappar
case held that restrictions imposed under the legislation were wider than what
is constitutionally permissible.An Act cannot empower a state with wide powers
to restrict freedom of expression.[4]The
concept of reasonableness may change with passage of time according to the
present socio-economic values.
CONTEMPT
OF COURTS
Contempt
of Court is either civil contempt or criminal contempt. As contempt of court
undermines the public confidence in the administration of justice, it becomes
necessary to draw a balance between freedom of speech and expression and the
justice administration system. Recently, the Supreme Court initiated suo
moto contempt proceedings and slapped Advocate Prashant Bhushan with one
Rupee fine for being guilty of ‘serious contempt of court’ for his two tweets
against Justice S.A. Bobde, the current Chief Justice of India. The fine was to
be payable by September 15, 2020, failing which he had to undergo imprisonment
for three months. For some, the decision of the apex court may be a thing of
mockery, but some may see it as a benevolent decision.
Section
5 of the Contempt of Court Act, 1971 allows fair criticism where a fair comment
on any case, which is finally decided, is published. A fair comment may be
defined as a comment which does not affect the administration of justice or
functioning of courts. Comment on judges in their official capacity also
denigrates the judiciary. However, it is the Court to determine whether the
speech or expression is fair and bonafide. What constitutes scandalizing court
or judge or interference with the administration of justice is a well-settled
law and one can find a catena of judgments on this.
More
recently, one retired Supreme Court Judge testified as a witness in Nirav Modi case in London Court wherein
he submitted written and oral claims thatNirav Modi in India would ‘not receive
a fair trial’because a majority of the ‘judiciary was corrupt’ and the
investigating agencies are subservient to the government.[5] Whether
such use of freedom of speech be allowed? These words weaken the authority of
law and Courts, and lower the prestige of judges and Courts in the eyes of the
people. Similarly, Media often crosses the limit of fair criticism, criticizing
a judgment in public. The right to freedom of media has to be exercised
responsibly. Section 12 of the Contempt of Court Act, 1971 provides for punishment
for Contempt of court that is six months imprisonment or fine of up to two
thousand rupees or both.
RESTRICTIONS
ON FREEDOM OF SPEECH ON PERSONS HOLDING PUBLIC OFFICES
In
the case, Kaushal Kishore v. State of Uttar Pradesh,[6] the
issue, inter alia, is whether restrictions can be imposed on the freedom of
speech on persons holding public offices. Article 105 and 194 gives wider
personal liberty and freedom of speech to Members of Parliament and the state
legislature. However, this freedom is restricted within the House, so the
public officers may be held liable for the statements made by them in the
public domain, but another question is, whether they are they liable to a
greater extent and whether there should be a code of conduct for public
officials. The matter is sub judice before five Judge Constitutional
Bench.
FREEDOM
OF SPEECH AND EXPRESSION ON SOCIAL PLATFORMS AND ELECTRONIC MEDIA
Every
citizen has a right to express his or her views via print or electronic media
or on social platforms subject to permissible restrictions. In today’s world,
an individual’s expression can also be expressed through a Meme. An
objectionable Meme (generally against public officials or public authority) may
result in a case of defamation. A Meme is an image form of communication.
Sometimes a meme may have more than one interpretation. The Mamta Banerjee case[7] is
a famous case of defamation through a meme. The Supreme Court, in SubramaniamSwamy v. Union of India,[8] upheld
the constitutional validity of criminal defamation and stated that the right to
free speech cannot mean that one citizen can defame the other.
As
regards journalism, fair and frank reporting of incidents by electronic and
print media cannot be curbed merely because it may have an adverse impact on business
of some class of person. Article 19(1)(a) which includes within its ambit
freedom of the press, is subject only to reasonable restrictions imposed by law
for a specific purpose.[9]
CONCLUSION
Fundamental
Rights guarantee certain rights to the people. It is the responsibility of the
people to use these rights wisely. The Supreme Court in a case stated that, ‘The Constitution envisions to establish an
egalitarian social order rendering to every citizen, social, economic and
political justice in a social and economic democracy of the Bharat Republic.’[10]
A
Report[11] titled
“Limits on Freedom of Expression” by the Law Library of Congress, United States
provides a comparative study of thirteen countries on the restrictions imposed
on the freedom of speech and expression. The survey Report states various
judgments on limitations imposed on speech and expression in different
jurisdictions across the globe and analyses the right to speech and expression
given under the Constitution of various countries to its citizens.The Survey revealed
that Freedom of speech and expression is not absolute and all of the countries
apply limitations to it at varied levels.[12]The
apex courts of various countries have upheld the
reasonable restrictions imposed on the right to freedom of speech and expression
as necessary. Therefore, Equal Balance of Right to free speech and expression
against other protected rights is significant for a healthy democratic setup.
[1]Indian Union of Muslim League v.
Union of India,W.P.(C) No. 1470 of 2019.
[2]AIR
1978 SC 597.
[3]
Black’s Law Dictionary 674 (9th ed. 2009).
[4]RomeshThappar
v. State of Madras, AIR 1950 SC 124.
[5] Gloria
Methri, Alleging Unfair Trial In India, Justice MarkandeyKatju To Testify Nirav
Modi In UK Court, Republicworld.com (Sept. 27, 2020, 11:45am), Available at https://www.republicworld.com/india-news/law-and-order/justice-markandey-katju-to-testify-for-nirav-modi-in-uk-court.html
[6]Writ Petition
(Crl.) No. 113 of 2016.
[7]Rajib
v. State Of West Bengal &Ors., W.P.(Crl.) No.146 of 2019
[8] (2015)
13 SCC 356
[9]
Mohammad Salim Pandith v. State of J&K & another CRMC No.152 of 2018
[10]Samatha
v. State of Andhra Pradesh, (1997) 8 SCC 191
[11] Ruth Levush, Report: Limits on Freedom of Expression (2019), Law Library of Congress, United States (Oct. 28, 2020, 04:15pm), Available at https://www.loc.gov/law/help/freedom-expression/limits-expression.pdf
[12]Ibid.
(Akarsh Chaturvedi is fifth year law student from Indore Institute of Law)
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