This article has been authored by Sanjana Sachdev, a fourth-year student at New Law College, Bharti Vidhyapeeth, Pune.
“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up.”
- Bhagwati J.
The Constitution and Democracy are the biggest enablers in our country. The Constitution of India is unquestionably the supreme law of the land where the Fundamental Rights are the mainstay of the overall democratic administration. The constitutional provisions and the government ideals have to always align with the concept of democracy. Since the constitutional democracy is made for and by the people, the ultimate source of authority lies with the electorate.
The fundamental rights enshrined in the Constitution express the values of human dignity and are of paramount importance to secure Democratic values. The laws keep evolving along with the society and one such aspect that keeps transforming its essence is the “Freedom of Speech and Expression.” This undeniable right of citizens being subjected to certain restrictions has always been a debatable issue as such limitations hamper the spirit of democracy. Therefore, the author tries to emphasize the importance of the “Right of Freedom of Speech and Expression” and the challenges that are witnessed with its implementation in the contemporary scenario. It has also been argued that the challenges that hinder this fundamental right are violative in certain scenarios and differ to completely disconnect from the law of the land.
Freedom of Speech- Bulwark of Democracy
Since the inception of the Constitutional supremacy, the Constitution favors the rights of the citizens to be the basic elements for a fair democracy. The Supreme Court in its various judgments has rightly mentioned that the Right to Freedom of Speech is the most sacred and valuable right enshrined under the Constitution without which there will be no participation of the citizens in the working of a democratic government. It is not only a fundamental right but a human right as well. To secure the idea of democracy, the government has to liberalize and respect diverse opinions which include acquiescence to participate in political discourse. The representatives that the citizens choose have to ensure balance in the political and social atmosphere by allowing them to contribute through their right of speech and expression.
“Freedom of speech is one of the most precious and important human rights. A free society depends on the free exchange of ideas.”
But this fundamental right enshrined in Article 19 of the Constitution is not only limited to exchange of ideas and opinions but its scope has been widened to the right to seek information and ideas, right to receive information, right to impart information, right to free press, right to opine on a political issue, etc. ‘Freedom of Speech and of Press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible’
Challenges and Debate around the Freedom of Speech
The right to free speech is being subjected to various limitations that have always been arguable on the grounds that the interpretation of such limitations has to be widened concerning the changing societal norms. This concept of limiting the exercise of speech to certain subjects was borrowed from the Irish Constitution and since then it has been a matter of distress for the citizens and the government. Originally Article 19(2) of the Constitution consisted of only four subjects to prevent opening upon, but the First Amendment in 1951 added four more subjects to be restricted, subject to a test of reasonableness. The Government is now allowed to frame reasonable restrictions in the interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offense. With the insertion of the term “reasonableness”, the whole paradoxical situation of this fundamental right being limited to the volatile discretion of the supreme authority rose suddenly. Since then, various contentions have been raised on issues such as hate speech, political criticism, anti-government views being termed as anti-nationalist opinions which eventually invite punishments for Sedition, Defamation or Contempt.
Contempt of Court and Freedom of Speech
Considering the current scenario, the case of Senior Advocate Prashant Bhushan has given rise to a huge war of words between the legal fraternity and the judicial administration. The two tweets posted by him were considered to bring down the reputation of the judicial bodies and were placed within the four walls of defamation and Contempt of Court. This gave rise to the debate between contempt and bonafide criticism. Section 5 of the Contempt of Court Act says that fair criticism shall not amount to contempt; Section 13 of the Act provides that the court shall not declare contempt unless it substantially interferes or tends to interfere with the process of justice and Section 2(c) of the Act defines Criminal contempt to be of scandalizing nature. Analysing the above sections it is clear that the words “substantial”, “interference”, “scandalizing” can be widely interpreted and any wrong interpretation can lead to a miscarriage of justice. Hence, till the time such terms are ambiguous, the true nature of justice cannot prevail.
“Fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such a scenario fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility.”
Sedition and Freedom of Speech
Undeniably, “free speech” has become a threat now and criticisms have turned into a belief of hate speech. When it comes to public and political disclosure, freedom of speech seems to be losing its value as the government muddles with its right to impose reasonable restrictions. We witness how the political parties frequently criticize the administration and get away with it scott free whilst numerous complaints seem to be pending against citizens who exercise their right of fair criticism. Sedition law interferes with the quintessence of free speech and is very often misused in terms of exciting disaffection towards the Government. When Mahatma Gandhi was held for sedition, he criticized the law and said it was designed to suppress the liberty of citizens. This was proved to be true in the JNU case in 2016 where three students were arrested for raising anti-national slogans. It has to be made compulsory to consider the main essential for proving sedition i.e. “incitement to violence”.
Recently, eminent journalist, Vinod Dua was charged with sedition for attempting to spread fake news regarding Communal violence in Delhi to which Senior Advocate Vikas Singh said, “If what Dua said is sedition then only two channels can function in the country.” He further contended that “the statements made did not promote enmity or hatred and charging a journalist for exercising his free right is clear harassment.” The case is yet to be decided and while the case is pending, the fact that “sedition law is being both misunderstood and misused to muzzle dissent”continues to pertain.
Defamation and Freedom of Speech
The right to freedom of speech and expression includes: “Freedom of Press” as well. The freedom of the press is regarded as a “species of which freedom of expression is a genus.” The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”
Defamation as a restriction on freedom of speech is highly misused. Many news channels and journalists are charged with defamation for publishing their opinions on a political person or organization. Big corporate houses and political parties restrain the media from publishing anything against them infringing their right of free speech and therefore favourable publication is a perfect example of political supremacy over constitutional supremacy.
“Reasonable restrictions” is a polarizing subject when it comes to free speech. With the changing societal impacts of judicial interpretations, it has become the need of an hour to review all the hurdles that affect the path to nation-building. A country that works on the democratic principles laid down by the framers of the Constitution, fettered speech can immobilize its vision of healthy democracy.
The problem with the degradation of “Freedom of Speech” is double-edged. Firstly, the restrictions imposed are in dissonance with the principles of liberty. Since Freedom of Speech is considered as the mother of all liberties, it has to be considered by the judicial and administrative bodies before bringing any decision in motion. In cases of conflicts between other statutes and the Constitutional provisions, the Constitution should prevail being the grundnorm.
Secondly, the interpretations that keep transforming the meaning of the provision create imbalance and give rise to various disputable altercations. Instead of timely intervention in the same provision, the interpretation should be widened to include all the necessary points keeping in mind the maintenance of public order. It is true to say that offenses such as defamation, hate speeches leading to sedition cannot be decriminalized as they are the root cause of communal disharmony, but reducing the ambiguity in the provisions and a proper review can help achieve the goal of reaching healthy democratic administration.