Justice Nageswara Rao, judge of the Supreme Court of India, delivered an enlightening speech on Fundamental Right to Freedom of Speech and Expression enumerated in the Constitution of India and, the balance that must be struck between these guaranteed Fundamental Rights and Government's intervention to curtail the same.
Justice Rao was delivering the Third GL Sanghi Memorial Lecture.
He proceeded to delve into the topic by explaining the importance of the Fundamental Rights which are enumerated in Part 3 of the Constitution of India are human rights which cannot be denied.
Justice Rao, stated,
"Free speech for a person is very important for two reasons – one is for development of a person, as an intrinsic human being, and number two, for the development of society. Free flow of information and free flow of thought and expression is very important for stability of society and for change in the social order because with changing times, the social order has to change."
He proceeded with how it was important to even allow falsehood, as a facet of free speech, to be spoken as that would allow the strength of the truth to be uncovered. "All sorts of ideas have to be expressed by the people for the truth to come out."
In the 1919 judgement of Abrams v. United States [250 U.S. 616 (1919)] delivered by the Supreme Court of the United States, Justice Oliver Wendell Holmes Jr. stated that the "theory of marketplace of ideas" would entail that everyone would be able to share their ideas which would allow the overall development and improvement of an individual. This theory was further elaborated in a concurring opinion of Justice Louis Brandeis, along with Justice Holmes, in the 1927 case of Whitney v. California [274 U.S. 357 (1927)] wherein it was held that public discussion was important for the survival of a democracy. These instances exhibit how free speech allows the growth of an individual as they are subjected to not only their own right to speak, but also their right to receive information. "I should have the right to learn by hearing others."
In the case of Bijoe Emmanuel & Ors. v. State of Kerala [1987 AIR 748], three children belonging to a sect called Jehovah's Witnesses abstained from singing the National Anthem in their school as it was against the tenets of their religious beliefs. They were expelled on account of showing disrespect and therefore, approached the High Court by way of a Writ Petition. On being rejected by a learned Single Judge as well as a Division Bench, the children finally approached the Apex Court by Special Leave under Article 136 of the Constitution. Justice O. Chinnappa Reddy held that they had right under Article 19(1)(a) to remain silent as this was also encompassed by the right to freedom of speech.
WHAT IS ARTICLE 19(1)(a)?
Justice Rao then went on to explain what Article 19(1)(a) contemplated. The Article begins with the term "All citizens shall have the right"; this means that this right is conferred only on the citizens of the country (unlike Articles 14 and 21). The Right under Article 19(1)(a) is a right "to freedom of speech and expression". The Preamble also refers to the "Liberty, of thought, expression" of which "expression" can range from signs to even art. However, certain restrictions have been placed on this right so as to prevent its exercise from being detrimental to society and fellow human beings. This is on the parameters of the "harm principle" elaborated in "On Liberty" by John Stuart Mill, which states that rights can only be exercised to the extent to which it does not harm another person. Based on the same, discussions took place in the Constituent Assembly regarding the restrictions that can be placed on Article 19(1)(a). These restrictions are enumerated in Article 19(2) and any legislations arising from these restrictions are counted as exceptions to Freedom of Speech and Expression.
In the 1950 case of Romesh Thappar v. The State of Madras [1950 AIR 124], the dispute related to the circulation of two newspapers which was not permitted by the Madras government as they believed it would affect the public order in the State. A Writ Petition was filed at the Supreme Court of India under Article 32, and Justice Patanjali Sastri, on behalf of the Constitution Bench, considered the case on its merits and noted that "public order and public safety" was not a part of Article 19(2). Therefore, the government could not place any restrictions on the circulation, which was held as "unreasonable". Incidentally, "freedom of press" is not explicitly mentioned in Article 19(1)(a). However, it has been read into the Article as the Press in its guise as the Fourth Estate is an important organ as it allows dissemination of information.
REASONABLE RESTRICTIONS UNDER ARTICLE 19(2)
Post Romesh Thappar, the Parliament introduced the First Amendment of the Constitution and this placed several restrictions on the Fundamental Right. Therefore, Article 19(2) now enumerates that freedom of speech and expression can be reasonably curtailed "in the interest of sovereignty and integrity of the state, friendly relations with foreign states, security of the state, public order, incitement to offence, decency or morality, contempt of Court, and defamation". Article 19 has been held to be part of the "basic structure" which means that it cannot be abrogated; "freedom of speech cannot be taken away, but it can be curtailed by the government in the form of reasonable restrictions."
The concept of "reasonable restrictions" has been explained in a catena of Supreme Court judgements. The present 'test of proportionality' takes into review certain factors. These factors are:
1) What is the right that has been taken away?
2) What is the object of the law which is being made to take away the right?
3) Whether there is a rational nexus between the two?
4) Whether the restrictions placed are proportionate?
Justice Rao then talked about the two aspects taken into account while looking at Article 19(2):
1) Whether a law that is being made to place restrictions is violating the basic structure?
2) Whether it defeats the main provision wherein free speech is guaranteed to a citizen?
Therefore, any legislation can be challenged on the grounds of contravention of Free Speech.
SEDITION AND REASONABLE RESTRICTIONS
With these points, Justice Rao then steered the speech into the direction of Section 124A of the Indian Penal Code, 1860, which deals with the Law of Sedition. "Sedition is an offence when one spreads disaffection against the State and when one also promotes hatred towards the State." This law was challenged as being violative of Article 19(1)(a), and two High Courts took divergent views on this matter. While one High Court held that it was unconstitutional, the other failed to find any infirmities in the law. The matter was referred to the Supreme Court, which upheld the validity of Section 124A. By doing so, the Supreme Court held that the language of Section 124A, i.e. "promoting hatred by inciting or encouraging people".
There are three parts of Free Speech: discussion, advocacy, and incitement. While the first two parts are covered by Free Speech, the third part is problematic and can constitute as an offence. Hate speech, by itself is no offence. The incitement should be so imminent that it should constitute a threat to society. Again, in the case of Abrams (1919), Justice Holmes had elaborated the "present and clear danger test". The circumstances need to be looked into, and if there is a danger present, and the danger is very clear , then it can be stated to be "incitement". The same was again highlighted by Justice Brandeis in the Whitney case. However, in the case of Brandenburg v. Ohio [395 U.S. 444 (1969)], wherein the Ku Klux Klan (KKK) made speeches against the Blacks and Jews on television, and were accordingly charged with advocating violence under Ohio's criminal syndicalism statute, the Supreme Court of the United States overruled both Abrams and Whitney, and held that the "present and clear danger test" could no longer be applied, and propounded the standard of "imminent lawless action" which stated that the action stemming from free speech must be imminent and should not require contemplation. The restrictions present in our Article 19 are not present in the First Amendment of the U.S. Constitution. Back home, this "imminent lawless action" standard was applied by Justice Markandey Katju in the case of Arup Bhuyan v. State of Assam [(2011) 3 SCC 377].
CURTAILMENT OF FREE SPEECH UNDER ARTICLE 19(2)
1. Public Order:
It was not initially present in the Constitution and was brought in by Constitution (First Amendment) Act, 1951. The Law of Sedition falls under this head of reasonable restriction. The genesis of sedition law can be traced to the Wahabi Movement which commenced in Bihar between 1830 and 1860, and spread to all parts of the country. This movement proved to be problematic for the colonial empire as it subverted the dominance of the British. In order to suppress such movements, sedition was introduced in Macauley's Code, which did not enumerate the same when it was first being enacted.
According to Mahatma Gandhi, this law of sedition was the foremost law being utilized against persons fighting for freedom from the British rule. One famous incident is the one involving Bal Gangadhar Tilak in whose case the scope of sedition was expanded to include even the minimal of chances of spreading disaffection towards the State. Post Independence, sedition was limited to disaffection which did not include disapprobation.
In the case of The Superintendent, Central Prison v. Dr. Ram Manohar Lohia (1960 AIR 633), the Apex Court held that Dr. Lohia's call for citizens not to pay taxes could not be held as a threat to public order. The expression "public order" was elaborated so as to dispel confusion which arose due to Justice Fazl Ali's dissenting opinion in the Romesh Thapar case. Public order was held to be different from security of state and, law and order. "Public order is that which has a tendency to cause disharmony or discordance in the society". In S. Rangarajan v. P. Jagjivan Ram [1989 SCR (2) 204], the Apex Court asked whether the impugned Tamil movie was inciting people to turn against the government or was it only a suspicion. On the basis of the answers received to these questions, the Court held that the exhibition of the movie would not disrupt public order. Therefore, Justice Rao stated in his speech that when there needs to be a balance between the right of an individual with the restriction that is to be placed in the name of public order, the greater weightage is given to the former. "The burden shifts to the government whenever it says the restriction is reasonable."
2. Decency and Morality:
It is connected to people's views. In the case of Ranjit D. Udeshi v. State of Maharashtra (1965 AIR 881), the person circulating the book, "Lady Chatterley's Lover" by D.H. Lawrence, was charged under Section 292 of the Indian Penal Code, 1860 for circulating "indecent material". Justice M. Hidayatullah followed the Hicklin test which states that if there is any publication which has the tendency of causing depravity in the minds of people, then the State has the power to stop the publication.
In the case of Roth v. United States [354 U.S. 476 (1957)], the Hicklin test was repudiated and the "community standards test" was to be followed. The test took into account the prevailing circumstances in the society. Therefore, the common man's perception of the publication as well as the message conveyed by the publication were tested. In India, the case of Aveek Sarkar v. State of West Bengal [(2014) 4 SCC 257] led to Justice K.S. Radhakrishnan noting the passage of time since the Roth case and therefore, doing away with the Hicklin test and applying the "community standards test".
It can be either criminal under Sections 499 and 500 of the Indian Penal Code, 1860, or civil defamation. "Whether the excess free speech can damage the dignity of the individual". It was held in New York Times Co. v. Sullivan [376 U.S. 254 (1964)], that public officials do not have the right to file cases for defamation. Criticism of a public figure entails criticism of the establishment, and not the individual. The same principle was followed in India as well. In the case of R. Rajagopal v. State of Tamil Nadu (1995 AIR 264), Justice B.P. Jeevan Reddy stated that a right cannot be imbued in a public servant to file a case for defamation, and defamatory rights should come from public records, and any prior restraint order passed by the government is not permissible when a public servant is concerned.
Justice Nageswara Rao then elucidates the difference between a prior restraint order and an injunction. The former is given by the government and, as per Justice Jeevan Reddy, if something is spoken of based on public record, then the government may consider the case. However, the same cannot be case for public domain, such as the internet. Public officials have limited amount of privacy on account of their duties and this differs from a private person. The South African Constitutional Court enumerated the "reasonableness" test which states that when the Press receives any information, it is under the duty to scrutinize the veracity of the same. "The reasonable belief of the Press should come from some inquiry that is made before publishing". Privacy of a public person is also important, however, the standard of it is lower than that of a private person.
The latter, i.e. injunction was then explained by Justice Nageswara Rao.
In the case of Khushwant Singh & Anr. v. Maneka Gandhi (AIR 2002 Delhi 58), Justice S.K. Kaul (then at the Delhi High Court) stated that the publication did not defame Maneka Gandhi as the content was taken from public records. However, when it came to talking about Shilpa Shetty's purported extra-marital affair, an injunction was granted as it pertained to her personal life. Therefore, the trends of the courts exhibit that public persons also have a certain amount of dignity and any transgression into their private lives would amount to an injunction.
4. Contempt of Court:
This was done to ensure that the administration of justice was not polluted. Public confidence in the functioning of a court should not be eroded by mischievous persons. In the case of Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago [(1936) 38 BOMLR 681], the Bombay High Court, Lord Atkins stated, "Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men". Lord Denning, in Rv. Greater London Council, ex-parte Blackburn [(1976) 3 All ER 184] recognized the freedom of speech of persons to speak out, even if they are wrong.
The reason "contempt" is a restriction is because there might be scrupulous elements which impede the flow of justice by making unnecessary allegations against the judges personally. The restriction is to ensure that people do not transgress their limits.
In the case of Subramanium Swamy v. Union of India [Writ Petition (Criminal) No. 184 of 2014], the question of constitutionality of criminal defamation arose as its genesis was U.K. which no longer considered it an offence. The Apex Court held that Section 499 of the Indian Penal Code, 1860 is constitutional as limitations to safeguard its exercise are enumerated in the Section itself.
Justice Rao explained that the issue of contempt is only taken seriously by the judges when there is an apprehension that some harm has been caused to the institution, and not the individual, as harm being done to the institution is harm being done to the society. Confidence of the public should not be lost.
Justice Nageswara Rao ended his speech by telling the law students that they had the right to speak; the right to receive information; the right to think; the right to express all of their ideas. However, he noted that many do not exercise these rights and therefore, urged the students to imbibe in themselves the quality of questioning.
"Your self-fulfilment comes from asking questions. Your free speech has to be exercised in your classrooms when your teacher tells you something, you should not blindly follow whatever has been said; you should think whether there is another angle to this. Only then will you start thinking and only then will you start learning. This Right should be exercised diligently as well as rigorously by the students."