Freedom of Speech and Expression

Topic 5: Article 19 (1) of the Constitution of India

Free speech's origins are ancient: England's 1689 Bill of Rights, the 1789 French Declaration of Rights, and the 1948 Universal Declaration of Human Rights solidified it. This right is vital in global and regional human rights law, seen in International Covenant on Civil and Political Rights ICCPR's Article 19. The Declaration's Article 11 emphasises free expression's value while holding individuals accountable for abuses defined by law.

In a country as diverse as India, what is the power to exercise the right to freedom of expression? Article 19(1) states that all citizens of India have the right to express their views through “writing, speaking, drawing, or any other gesture or form”. The 1895 Constitution of India Bill introduced the initial freedom of speech provision, allowing free expression while also holding citizens accountable for misuse, as determined by Parliament. This right has changed over time, but it's crucial to recognize that the constitution doesn't provide unlimited freedom of speech and expression.

According to Article 19(2), the government has some reasonable restrictions too which are as follows:.

• Security of State: Limits on freedom of speech exist for state security, addressing major disruptions like rebellion, not minor issues.
• Friendly Relations with Foreign States: The Constitution (First Amendment) Act, 1951 prevents harmful propaganda against friendly foreign states, safeguarding positive relations.
• Public Order: Introduced by the Constitution (First Amendment) Act, 1951, "Public Order" relates to peaceful state due to government-enforced regulations.
• Decency or Morality: These subjective terms depend on prevailing societal and temporal moral standards.
• Contempt of Court: Limits on speech are possible if they breach fair limits and amount to contempt of court.
• Defamation: Harming reputation through speech is defamation, reflecting negatively and causing societal disdain.
• Incitement to Offence: Added by the Constitution (First Amendment) Act, 1951, freedom of speech doesn't allow provoking crimes.
• Sovereignty and Integrity of India: Constitution (Sixteenth Amendment) Act, 1963 ensures free speech doesn't undermine the nation's sovereignty and territorial integrity.?

According to this section, a person or group cannot say or do any act that hurts the feelings or religious belief of another person or group.

A common viewpoint is that this section should be eliminated. This is influenced by the example of several European countries like France, where religious parodies are permitted. The main reason is that many disgruntled people misuse this clause to vent their anger because they feel that their faith has been violated in some way.

Let's take a situation where freedom of speech is restricted in some way.

Let's say you're at a stand-up comedy show. A comic makes a joke about something and a group in the audience suddenly says “don't make that joke”. After that point, if the comic stops making that joke, it's a loss of freedom of speech. This is called the "heckler's veto". This is where the crowd decides what can and cannot be said in the public domain. It literally means surrendering to the crowd for its own good. This is a great quote from Justice Krishna Iyer, “We can’t let mobs and obdurate people and unreasonable people decide what can and can’t be said in public” To accept the heckler's veto would only be to surrender to blackmail and intimidation.

In the case Viacom 18 Media Private Limited & ors. v Union of India & Ors. (AIR 2018 SCC 86), involving the film "Padmavati," a writ petition was filed. The Hon’ble Supreme court didn't accept it, citing the pending certification and examination by the Central Board of Film Certification and that the court cannot pre-judge the matter. Films are artistic creations, blending reality and imagination. The Hon’ble Supreme court recognized reasonable freedom of speech, particularly in artistic expression, permitting the film's exhibition eventually.

This article was written by our Ms Arundhati Korale , Senior Attorney at Vis Legis Law Practice, Advocates .