Importance of Freedom of Speech and Expression

8/19/2019 Importance of Freedom of Speech and Expression

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2015-16

FINAL DRAFT

Constitutional law

“Importance of Freedom of Speech and Expression

in India”

Submitted to: Submitted by:

Mr. Mahendra Singh aswan Shobhit Mani

!o"al

Assistant ro#essor $Law% Roll&'() $*rd sem%

Dr. Ram Manohar Lohiya National Law +ni,ersity- Lu/now Se&0


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Table of Contents

Page no.

Acknowledgement

………………………………………………………………………......

.3

Introduction

……………………………………………………………………………

……….4

Historical Background

…………………………………………………………………….

………...5

Importance of freedom of speech and expression

…………………………..….…….5

Is it an asolute right!

…………………………………………………….……………………..

…."

• #easonale #estrictions

………………………………………………………….………."

$est of reasonale #estrictions ………….

………………………………………………….…%&

How is right to freedom of speech and expression is

di'erent from (.)

……………………………………………………………………………

…………………………….……..%*

+onclusion

……………………………………………………………………………

……………….…%*

Biliograph,

…………………………………………………………….

………………………………%3


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ACKNOWLEDGEMENT

I take this opportunit, to express m, profound gratitude and deep regards

to m, guide -Mr. Mahendra Singh aswan for his exemplar, guidance/

monitoring and constant encouragement throughout the course of this

thesis. $he lessing/ help and guidance gi0en , him time to time shall

carr, me a long wa, in the 1ourne, of life on which I am aout to emark.

I would like to express m, gratitude towards m, parents 2 memers of r.#am anohar ohi,a 6ational aw (ni0ersit, for their kind co7operation

and encouragement which help me in completion of this pro1ect.

I would like to express m, special gratitude and thanks to all those people

who ga0e me attention and their in0aluale time.

, thanks and appreciations also go to m, friend and classmates in

de0eloping the s,nopsis and people who ha0e willingl, helped me out with

their ailities.

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INTRODUCTION:

The right to #reedom in Artile ') guarantees the Freedom o# s"eeh and e1"ression- as one o# its si1

#reedoms. It is enshrined under Artile ')$'% a o# the onstitution o# India.

The #reedom o# s"eeh is regarded as the #irst ondition o# liberty and most basi right o# all #reedom

"ro,ided to the "eo"le. 2 atan3ali Shastri- has said in the ase o# Romesh Thaper v State of

!adras" that #reedom o# s"eeh and that o# the "ress lay at the #oundation o# a demorati soiety-

#or without #ree "olitial disussions- no "ubli eduation is "ossible- whih is so im"ortant #or the

"ro"er #untioning o# the go,t.

It ou"ies a "re#erred and im"ortant "osition in the hierarhy o# the liberty- it is truly said about the

#reedom o# s"eeh that it is the mother o# all other liberties. Freedom o# S"eeh and e1"ression

means the right to e1"ress one4s own on,itions and o"inions #reely by words o# mouth- writing-

"rinting- "itures or any other mode. In modern time it is widely ae"ted that the right to #reedom o# s"eeh is the essene o# #ree soiety and it must be sa#eguarded at all time. The #irst "rini"le o# a

#ree soiety is an untrammelled #low o# words in an o"en #orum. Liberty to e1"ress o"inions and

ideas without hindrane- and es"eially without #ear o# "unishment "lays signi#iant role in the

de,elo"ment o# that "artiular soiety and ultimately #or that state. It is one o# the most im"ortant

#undamental liberties guaranteed against state su""ression or regulation.

Freedom o# s"eeh is guaranteed not only by the onstitution or statutes o# ,arious states but also by,arious international on,entions li/e +ni,ersal Delaration o# 5uman Right- 6uro"ean on,ention

on 5uman Rights and #undamental #reedoms- International Co,enant on Ci,il and olitial Rights

et. These delarations e1"ressly tal/ about "rotetion o# #reedom o# s"eeh and e1"ression.

This Ri#ht inc$%des:

• The right to #ly national #lag and sing national anthem

% AIR ')78 SC

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• Right to silene

• Right to reei,e in#ormation

• Freedom o# "ress

&ISTORIC'( )'C*+ROUND:

The delaration o# rights o# man and o# iti9en ado"ted during the Frenh re,olution in ';)

s"ei#ially a##irmed #reedom o# s"eeh as an inalienable right. The delaration "ro,ides #or #reedom

o# e1"ression in Artile ''- whih says that n Liberty- "ublished in ';7) beame alassi de#ene o# the right to #reedom o# e1"ression.

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2ohn argued that truth dri,es out #alsity- there#ore- the #ree e1"ression o# ideas- true or #alse-

should not be #eared. The truth is not stable or #i1ed but e,ol,es with time.

2ohn also argued that #ree disussion is neessary to "re,ent the ?dee" slumber o# a deided

o"inion?. The disussion would dri,e the onwards marh o# truth and by onsidering #alse

,iews the basis o# true ,iews ould be re&a##irmed.

An o"inion only arries intrinsi ,alue to the owner o# that o"inion- thus silening the

e1"ression o# that o"inion is an in3ustie to a basi human right. For Mill- the only instane in

whih s"eeh an be 3usti#iably su""ressed is in order to "re,ent harm #rom a lear and diret

threat. Neither eonomi or moral im"liations- nor the s"ea/ers own well&being would

3usti#y su""ression o# s"eeh.

In !ane/a +andhi v Union of India0- 0hagwati 2 has em"hasi9ed on the signi#iane o# #reedom

o# s"eeh and e1"ression in these words-

?Demoray is based essentially on #ree debate and o"en disussion- #or that is the only orreti,e o#

go,ernment ation in a demorati setu". I# demoray means go,ernment o# the "eo"le by the

"eo"le- it is ob,ious that e,ery iti9en must be entitled to "artii"ate in the demorati "roess and in

order to enable him to intelligently e1erise his right o# ma/ing a hoie- #ree and general disussion

o# "ubli matters is absolutely essential.?

In ')(- in 1hitne2 v Ca$ifornia3- Louis 0randeis 2- made a lassi statement on the #reedom o#

s"eeh in the onte1t o# the +.S Constitution:

?Those who won our inde"endene belie,ed that the #inal end o# the state was to ma/e men #ree to

de,elo" their #aulties... They belie,ed liberty to be seret o# ha""iness and ourage to be the seret

o# liberty. They belie,ed that the #reedom to thin/ as you will and to s"ea/ as you thin/ are means

indis"ensable to the diso,ery and s"read o# "olitial truth@ that without #ree s"eeh and assembly

disussion would be #utile.... that "ubli disussion is a "olitial duty@ and that this should be a

#undamental "rini"le o# the Amerian go,ernment.?

* %8"9 AI# 58"/ %8"9 )+# -* :*%

3 274 U.S. 357 (1927)

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The Right to #reedom o# s"eeh and e1"ression as "er as Indian Constitution means the right to

e1"ress ones own on,itions and o"inions #reely. The word B#reely means inluding by words o#

mouth- writing- "rinting- banners- signs- and e,en by way o# silene.

• The su"reme ourt o# India has held that hosting the National Flag by iti9ens is a #orm o#

#reedom o# s"eeh and e1"ression in Union of India v. Naveen Jindal & Anr 4- (88.

• Freedom o# "ress is an in#erred right im"liit under art. ')$'% a.

• The Right to In#ormation $RTI% emerges as a #undamental right under Artile ')$'% a- as a

#reedom o# s"eeh and e1"ression are meaningless without aess to in#ormation.

IS IT 'N ')SO(UTE RI+&T4

No right is absolute #or- it is neessary to maintain soial order- "eae and tran=uillity o# the nation.

2.S Mill has rightly said B#reedom whih is absolute is no #reedom in true sense. There should be

some restrition in order to "rotet the rights o# another indi,idual. 5ene- Su"reme Court in the

#amous deision in Romesh Thapar vs State of Madras5 stated onern regarding restritions to be

im"osed on this right. First amendment at $')7'% lays down grounds #or reasonable restrition.

RE'SON')(E RISTRICTIONS :

Clause $(% o# Artile ') o# the Indian onstitution enables the legislature to im"ose ertain

restritions on #ree s"eeh under #ollowing heads:

" Securit of the State: Reasonable restritions an be im"osed on the #reedom o# s"eeh

and e1"ression- in the interest o# the seurity o# the State. All the utteranes intended to

endanger the seurity o# the State by rimes o# ,iolene intended to o,erthrow the

go,ernment- waging o# war and rebellion against the go,ernment- e1ternal aggression or

4 -*&&4 * )++ 5%&; AI# *&&4 )+ %558

5 AI# %85& )+ %*4; %85& )+# 584

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war- et.- may be restrained in the interest o# the seurity o# the State. It does not re#er to

the ordinary breahes o# "ubli order whih do not in,ol,e any danger to the State.

0 !riendl relations "ith forei#n States: This ground was added by the Constitution $First

Amendment% At o# ')7'. The State an im"ose reasonable restritions on the #reedom o#

s"eeh and e1"ression- i# it tends to 3eo"ardise the #riendly relations o# India with other

State.

3 $u%lic order : This ground was added by the Constitution $First Amendment% At- ')7' in

order to meet the situation arising #rom the Su"reme Court4s deision in Romesh Thapar

s case' . The e1"ression 4"ubli order4 onnotes the sense o# "ubli "eae- sa#ety and

tran=uillity.

In (ishori Mohan v. State of )est *en#al + - the Su"reme Court e1"lained the di##erenes between

three one"ts: law and order- "ubli order- seurity o# State. Anything that disturbs "ubli "eae or

"ubli tran=uillity disturbs "ubli order. 0ut mere ritiism o# the go,ernment does not neessarily

disturb "ubli order. A law "unishing the utteranes deliberately tending to hurt the religious #eelings

o# any lass has been held to be ,alid as it is a reasonable restrition aimed to maintaining the "ubli

order.It is also neessary that there must be a reasonable ne1us between the restrition im"osed and

the ahie,ement o# "ubli order.

In Superintendent ,entral $rison v. Ram Manohar -ohia - the Court held the Setion * o# +..

S"eial owers At- ')*(- whih "unished a "erson i# he inited a single "erson not to "ay or de#er

the "ayment o# !o,ernment dues- as there was no reasonable ne1us between the s"eeh and "ubli

order. Similarly- the ourt u"held the ,alidity o# the "ro,ision em"owering a Magistrate to issue

diretions to "rotet the "ubli order or tran=uillity.

: AIR ')78 SC '(

" AI# %8"* )+ %"48

9 AIR ')E8 SC E**

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5 /ecenc and moralit: The word 4obsenity4 is idential with the word 4indeeny4 o# the

Indian Constitution. In an 6nglish ase o# R. v. 0ic1lin2- the test was laid down aording

to whih it is seen 4whether the tendeny o# the matter harged as obsene tend to de"ra,e

and orru"t the minds whih are o"en to suh immoral in#luenes4. This test was u"held

by the Su"reme Court in Ran3it /. Udeshi v. State of Maharashtra. In this ase the

Court u"held the on,ition o# a boo/ seller who was "roseuted under Setion ()(-

I..C.- #or selling and /ee"ing the boo/ "ady #hatterley$s "over . The standard o# morality

,aries #rom time to time and #rom "lae to "lae.

6 ,ontempt of court : The onstitutional right to #reedom o# s"eeh would not allow a

"erson to ontem"t the ourts. The e1"ression Contem"t o# Court has been de#ined

Setion ( o# the Contem"t o# Courts At- ')'. The term ontem"t o# ourt re#ers to i,il

ontem"t or riminal ontem"t under the At. 0ut 3udges do not ha,e any general

immunity #rom ritiism o# their 3udiial ondut- "ro,ided that it is made in good #aith

and is genuine ritiism- and not any attem"t to im"air the administration o# 3ustie.

%n re Arundhati Ro- the Su"reme Court o# India #ollowed the ,iew ta/en in the Amerian Su"reme

Court $Fran/#urter- 2.% in $enne1amp v. !lorida6 in whih the +nited States Su"reme Court

obser,ed: BI# men- inluding 3udges and 3ournalists- were angels- there would be no "roblem o#

ontem"t o# ourt. Angeli 3udges would be undisturbed by e1traneous in#luenes and angeli

3ournalists would not see/ to in#luene them. The "ower to "unish #or ontem"t- as a means o#

sa#eguarding 3udges in deiding on behal# o# the ommunity as im"artially as is gi,en to the lot o#

men to deide- is not a "ri,ilege aorded to 3udges. The "ower to "unish #or ontem"t o# ourt is a

sa#eguard not #or 3udges as "ersons but #or the #untion whih they e1erise.

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7 /efamation: The lause $(% o# Artile ') "re,ents any "erson #rom ma/ing any statement

that in3ures the re"utation o# another. ith the same ,iew- de#amation has been

riminalised in India by inserting it into Setion )) o# the I..C.

8 Incitement to an offense: This ground was also added by the Constitution $First

Amendment% At- ')7'. The Constitution also "rohibits a "erson #rom ma/ing any

statement that inites "eo"le to ommit o##ense.

9 Soverei#nt and inte#rit of India: This ground was also added subse=uently by the

Constitution $Si1teenth Amendment% At- ')E*. This is aimed to "rohibit anyone #rom

ma/ing the statements that hallenge the integrity and so,ereignty o# India.

“Reasona$e restrictions on these #ro%nds can e imposed on$2 2 a d%$2 enacted $a; and not

2 exec%tive action”

In order to be a ,alid limitation under lause ')$(%&')$E% must om"ly with the #ollowing ondition:

• There should be a law made by a state.

• It should not be 3ust an e1euti,e order.

• The restrition must be "ro1imately related to any o# the grounds s"ei#ied in the limitation

lause $(% to $E% whih may be rele,ant to the #undamental right in =uestion.

• The restrition im"osed by law must be reasonable e1e"t in ases oming under sub lause

$i% < $ii% o# lause $E%.

Su"reme Court has de#ined the ambit o# Se ')$(% in the reent 3udgement o# Shrea Sin#hal 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. &ere discussion or even advocacy of a particular cause howsoever unpopular is

at the heart of 'rticle ()*+. %t is only when such discussion or advocacy reaches the level of

incitement that 'rticle ()*+ kicks in. %t 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 %ndia, -ecurity of state, friendly relation with foreign state etc.”

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Test of reasona$e restrictions:

S"anning se,eral ases- SC has laid down the #ollowing guidelines:

'. It is the ourts and not the legislature that will deide whether a law is reasonable or not.

(. Reasonable means that the law is not arbitrary and the restrition is not beyond what isre=uired in "ubli interest. The time and duration o# the restrition annot be unlimited.

*. There is no #i1ed standard #or reasonableness. 6ah ase must be deided on its own merits.

. The restrition must be reasonable #rom substanti,e as well as "roedural stand "oint.

7. Restritions im"osed due to im"lementation o# Direti,e rini"les may deemed to be

reasonable.

E. The test o# reasonability must be ob3eti,e in the sense that it does not matter what a 2udge or

Court thin/s what is reasonable but what a normal reasonable "erson would thin/.

. The restrition must ha,e a relation to the ob3et that is sought through the law and must not

be e1essi,e.

;. It is the reasonableness o# the restrition that a ount has to determine and not the

reasonableness o# the law itsel#.

). Restrition may amount to "rohibition.

The #ollowing are im"ortant ases that ha,e attenuated the so"e o# this right:

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" ,$I 7M8 v. *harat (umar 9: In this ase SC has held that bundhs alled by ,arious "olitial

"arties are illegal beause they "re,ent the iti9ens #rom e1erising their right to #reedom.

0 Ran3it Udeshi v. State of Mah.4: In this ase- a boo/seller was "rohibited #rom selling boo/

ontaining obsene material.

3 0amdard /a"a1hana vs Union of India5: In this ase- SC held that obno1ious and

#raudulent ad,ertising is not "roteted under #reedom o# s"eeh.

&o; is o%r ri#ht to speech and expression different from US4

+.S is regarded as one o# the staunh su""orters o# B#reedom o# s"eeh and e1"ression. It is

signi#iant to note that we ha,e a=uired a lot o# "rini"alities #rom +.S #reedom o# s"eeh.

5owe,er- there are di##erenes in +.S #irst amendment and Artile ')$'% $a% read with ')$(% o#

our onstitution. The #irst di##erene being the absoluteness o# +.S #irst amendment: Congress

shall ma/e no law whih abridges #reedom o# s"eeh. They ha,e only B"olie ontrol as a

means o# restrition in relation to the said right- whih is also not de#ined "ro"erly and hene le#t

to inter"retation. 5owe,er- Indian onstitution learly de#ines the grounds on whih #reedom o#

s"eeh and e1"ression an be urtailed.

For a instane in +.S burning o# national #lag is a way to e1"ress anger against the go,ernment

and it is within the Freedom o# S"eeh and 61"ression whereas in India this is restrited.

%3 AIR ')); SC

%4 AIR ')E7 SC

%5 AIR ')E8 SC

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CONC(USION:

Freedom o# s"eeh and e1"ression is indeed the most im"ortant o# all #reedoms. 5owe,er- today- this

right is being routinely su""ressed under the guise o# morality and deeny or "ubli order. 6,en a

slight ritiism o# a "ubli leader or "ast /ing auses the "olitial "arties to in,ol,e in damage o#

"ubli "ro"erty. Any boo/ that tal/s about "roblems in a religion is banned in the name o# "ubli

order. It is e1tremely un#ortunate that the e1euti,e- instead o# the u"holding "eo"les4 right to s"eeh

and e1"ression by "re,enting unsru"ulous element #rom hurting the author- is more interested in

sti#ling the ,oie by banning their wor/s. 0y doing this they are not doing their 3ob res"onsibility.

This right is a ,ery wide and o,ers many rights within it- some are diso,ered and many are still

under sand o# thoughts.

For Chinese 5uman Rights ati,ist- Liu Giaobo- ,ery a"tly "uts- “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”.

)i$io#raph2:

• htt":HHwww.lawto"us.omHaademi/eH#reedom&o#&s"eeh&and&e1"ressionH

Indian Constitutional Law- th edition M. 2ain

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Importance of Freedom of Speech and Expression