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The concept of free speech right: Indian trajectory journey


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Foram Patel
Institute of Law, Nirma University, India
e-mail: foram.patel@nirmauni.ac.in


AGATHOS, Volume 15, Issue 2 (29): 455-464, DOI 10.5281/zenodo.13954111
© www.agathos-international-review.com CC BY NC 2024


Abstract: Free Speech as a practice impacts society at large along with a deep impact on the nature of the working of a nation as well. Free speech has been discussed as a theory and practice for ages but the impact of how far it is freely provided to the society matters a lot. Theorizing free speech and implementing it shall impact the society and the people living in it, as such rights are not only fundamental but also human in nature. This paper focuses on discussing the right of free speech, its legal trajectory through judicial review, and its facets such as rights, reasonable restrictions, etc. especially with reference to the Indian perspective. This paper shall draw the baseline to understand the concept of free speech as a right in India that shall affect the society at large.


Keywords: constitutional rights, legal regulation, internet law, free speech


Introduction

The world is diversified in different nuances such as history, culture, society, and people. Some of the countries have similarities based on the system of governance, which is driving them to establish a welfare state. Democracy is one of such important components, which needs to be enjoyed by the countries to reach the “welfare-ness” in nature of governance. In the course of the centuries, the world has succeeded in preserving cultural, ethnic, and linguistic diversity. Because of this diversity, people always have the opportunity to share their ideas, but more importantly, to compare them. It was also because of this diversity that countries were able to improve their systems and even cause positive changes in other countries.

 The right to enjoy the freedoms enumerated to individuals has provided them with the status of “being” since ages which idealizes the establishment of a civil and democratic society so that justice can be provided to all. “Free speech” is a concept that has been in discussion for ages, and stands to have the same attention even in the internet era. The internet for the first time has made it completely possible to fulfil the freedoms enumerated to the individuals. Free speech is essential in a democratic society and can serve purposes including individual self-fulfillment, the discovery of truth, enhancement of the individual’s decision-making capacity, and also to set up a mechanism that can establish a balance between stability and social change. It is regarded as the cornerstone for various other rights and plays an active role in ensuring that rule of law prevails within society. The evolution of free speech in India can be traced all the way back to India's pre-independence period. The right to free speech is not unrestricted but is subject to fair limitations that are consistent with the constitutional limits. As a consequence, a balanced approach to protect such rights is needed. We can, therefore, imply that the right to free speech should be given and used for the general public interest.

 Further, the infringement of these rights can only be for a demonstrable justification, and the manner of infringement must be a restrictive alternative. This article will discuss the burgeoning scope of free speech laws in India showing the trajectory of the rights bringing in changes in its forms and also the creation of new policies to balance them which has resulted into the present forms of free speech rights in India. With the advent of technology and “social media” platforms, the enjoyment of free speech rights has been expanded. After the advent of social media platforms and internet establishments, the rights associated with it became a profound platform for discussions and deliberation.


 Scope of the rights of free speech in India

The judiciary has consistently indicated that any formal offensive content that might be subject to criminal law requirements should be judged on fair criteria rather than by those who perceive danger from any hostile perspective. (Maharasthra v. Sangharaj Damodar Rupawate (2010) 7 SCC 398). There are several Indian court decisions that defined the boundaries and importance of the “free speech” right of the citizen. In Re Harijai Singh (AIR 1997 SC 73 at para 9), the relationship between the right to free speech and the functioning of a democratic society was explained by the Supreme Court of India.

 The Apex Court established that the citizens must be informed of democratic processes, which would help in facilitating participation. Thus, it is essential to ensure that there is free and fair dissemination of information to the public. In another case, “Indian Express Newspaper (Bombay)(P) Ltd. v. Union of India” (AIR 1986 SC 515 at para 11), the court allowed the petitioner’s argument that increasing the customs duty on newsprint would adversely affect its publication and dissemination. By corollary, any prohibitive burden on a newspaper would be above Art. 19(2) and would not be saved by the same provision. The court observed the right to free speech of a citizen:

It helps an individual to attain self-fulfillment.
It assists in the discovery of truth.
It strengthens the capacity of an individual in participating in decision-making.
It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

Judicial review for free speech in India

The trajectory of free speech from the judicial perspective in India can be understood by seeing the judicial trend for free speech rights. Starting from Romesh Thapar case to recent developments in judicial view shall help us understand the development of free speech rights in India. The right to free speech took a turn with the case of Shreya Singhal v. UOI(AIR 2015 SC 1523) where two women were arrested for allegedly making offensive and inappropriate remarks on Facebook about the importance of shutting down Mumbai after the death of Balasaheb Thackeray. The plaintiff asserted that Section 66A infringes on the right to free speech, rendering it ineligible for constitutional protection under Art. 19. (2). Art. 14 and 21 have been violated, and there is no discernible difference between those who use the internet and those who use other communication mediums. The court struck the provision down, holding it to be unconstitutional and observed that Section 66A was arbitrary and excessive as it disproportionately set restrictions to the right of an individual of free speech and expression. There is no definable standard under which an individual may be booked for an offence as the language is vague and undefined. The Court in Shreya Singhal used a test to determine whether an act causes a disruption in the current existence of the entire community or merely affects an entity in personem. The Supreme Court held that only incitement must draw the scrutiny of Art. 19(2), and there is no need to promote judicial overreach by enhancing the scope of the restriction.

 It is pertinent to note that the maximum number of cases booked under the erstwhile Section 66A of the IT Act pertained to ‘offensive’ messages on social media. In Nithyananda Swami v. S. Arathi Rao and others (Original Application No.494 of 2012 in C.S.No.409 of 2012 dated 10 October 2012), the defendant, a Godman of huge public standing, had been accused of sexual assault by many of his devotees. He subsequently took to social media to defame and post offensive content within the means of the law about the plaintiff. The Madras High Court ruled that videos posted on social media sites like Facebook could be used as evidence in criminal cases and to incite hate against the plaintiff. Social media has become a vital form of communication in India.

 The government has strictly regulated the speech, which has been criticized by the judiciary in various instances. While the country is still not fully equipped with a data security bill, the government has initiated various stop-gap measures, which have regulated social media rather than protected the rights of data providers. To protect the rights on social media, India introduced Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 but it has also been challenged or questioned for many times in the courts to date. These discussions can be gathered from certain judicial pronouncements which provide us with the view of judiciary for this issue. The Bombay High Court has stayed in adherence of two clauses of Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, which requires digital news media and online publishers to adhere to the Code of Ethics as prescribed by the rules. “In so far as Rule 9 is concerned, we have found it prima facie to be an intrusion of the petitioners' rights under article 19(1)(a). We have also held that it goes beyond the substantive law, therefore we have stayed clauses 9(1) and 9(3). The rule is not stayed in its entirety,” Chief Justice Dipankar Dutta said. (Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors. V. UOI). The Kerala High Court has similarly restrained any coercive action against LiveLaw under Part III. Although the petitions in these and other cases pertain broadly to the entirety of the Intermediary Rules (i.e., both Part II and III). The Madras high court’s order is the first one that pertains to Part II of the Rules i.e., the part governing digital intermediaries (Digital News publishers’ association v. UOI). Even though shedding light on the right to free speech, it is not justifiable to understand the concept only by the judicial trend itself that discussed the rights themselves. The absolute understanding of the rights can be gathered when understand with the restriction imposed upon them by the law.


Restrictions on the free speech right

The limitations imposed by Art. 19 have been subjected to numerous judicial interpretations (2). These restrictions were adjusted twice by the First Amendment Act and the Sixteenth Amendment, both of which were ratified in 1963. The Supreme Court determined particular tests for the reasonableness of the limits in Papnasam Labour Union v. Madura Coats Ltd. (AIR 1995 SC 2200 at para 15) as given below:

(a) The restriction sought to be imposed on the This rights guaranteed by Art. 19 of the Constitution must not be arbitrary or of an excessive nature to go beyond the requirement of the need of society and object sought to be achieved.
(b) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object sought to be achieved.
(c) No abstract or fixed principle can be laid down, which may have universal application in all cases. Such consideration on the question of quality of reasonableness, therefore, is expected to vary from case to case.
(d) In interpreting constitutional provisions, courts should be alive to the felt need of the society and complex issues facing the people which the legislature intends to solve through effective legislation.
(e) In appreciating such problems and felt need of the society the judicial approach must necessarily be dynamic, pragmatic and elastic.
(f)It is imperative that for consideration of the reasonableness of restriction imposed by a statute, the court should examine whether the social control as envisaged in Art. 19 is being effectuated by the restriction imposed on these rights.
(h) The reasonableness has got to be tested both from the procedural and substantive aspects. It should not be bound by processual perniciousness or jurisprudence of remedies.
(j) Restriction imposed on these rights guaranteed under Art. 19 of the Constitution must not be arbitrary, unbridled, unanalysed and excessive and also not unreasonably discriminatory. Ex hypothesis, therefore, a restriction to be reasonable must also be consistent with Art. 14 of the Constitution.
(k) In judging the reasonableness of the restriction imposed by clause (6) of Art. 19, the court has to bear in mind Directive Principles of State Policy.
(l)Ordinarily, any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in the public interest.

Reasonable Restrictions are well established under Article 19(2) of Indian Constitution which can be listed and understood as:

 Sovereignty and integrity of India

 The government is now required to restrict any secessionist actions that threaten the country’s sovereignty and integrity under Art. 19(2). In this regard, in N.T Rama Rao v. Telugu Desam (1995 (3) ALT 929), the court held that any anti-national sentiments which attempted to thwart the unity of the communities should be penalized and could not seek the protection of free speech and expression rights.

 Security of the state

 In the matter of State of Bihar v. Shailabala Devi (AIR 1952 SC 329), the court held that any incitement of the people to commit crimes would endanger the integrity of the state. Therefore, the ban amounts to a reasonable restriction.

 Public order

After the favorable decision in Romesh Thapar towards free speech rights, the term public order was inserted in the First Amendment Act to nullify the effect of the decision. The petitioner in Ramji Lal Modi v. State of UP (AIR 1957 SC 620) challenged the validity of Section 295A of the IPC before the Apex Court. The court held it absurd to suggest that insult to religion could have no bearing on public order to attract Art. 19(2) given Art. 25 and 26 of the Indian Constitution, while granting freedom of religion, were expressly subject to public order. A.G. Noorani notably noted that there should be no “hate speech” in the society that incites communal passion in the people. He notes that it is always possible for the state to deal with “hate speech” and nip it in the bud. All we require is the political will and administrative resolve to solve this puzzle. He noted that it is imperative to have a conscious state-driven effort to eliminate “hate speech” wherever and whenever it arose among the public.

 One of the recent and significant cases concerning internet control is Bhasin v. Union of India (Writ Petition (Civil) No. 1031/2019 dated January 10, 2020). It is about the internet lockdown imposed in Jammu and Kashmir in early August of 2019. Before issuance of Constitutional Order regarding Art. 370 and its working in the state, the Indian government had imposed restrictions on online platforms and the freedom of movement. It was to ensure little retaliation to the unilateral imposition of the constitutional order by the government. This internet shutdown has limited many journalists and the general public's ability to move and travel and publish content on freedom of speech and expression rights. The written petition was lodged by Ms Anuradha Bhasin, a journalist, who argued that “free speech” was important and that the current restrictions violated Art. 19 of the Constitution of India. The court upheld the internet limitations, ruling that online free speech is unquestionably a this right. It may, however, be limited in the name of national security, but such an order would be subject to judicial review. The court laid down a test for proportionality, which was the critical aspect concerning the question of restricting these rights. The test reads as under:

 1. There is a legitimate restriction.

 2. The restriction is bound by necessity.

 3. If there are any alternatives to the restriction.

 4. The measure taken is the least restrictive.

 5. The restriction is open to judicial review.

The Apex Court further observes, “degree of restriction and the scope of the same, both territorially and temporally, must stand to what is necessary to combat an emergent situation… The concept of proportionality requires a restriction to be tailored by the territorial extent of restriction, the stage of an emergency, nature of urgency, duration of such restrictive measure and nature of such restriction.”

  Decency or Morality

 Section 292-294 of IPC provides for actions that are considered immoral and indecent and restricted under Art. 19(2) of the Constitution. As laid down in R v. Hicklin ([1868] LR 3 QB 360) Hicklin’s test states that the test for determining what is considered obscene or indecent is “whether the tendency of the matter charged as obscene tends to deprave and corrupt the minds which are open to such immoral influences.” Keeping this test in mind, the Supreme Court in Ranjit Udeshi v. State of Maharashtra (AIR 1965 SC881) dismissed the appeal by observing that viewing certain parts of the book as divorced from the entirety would depict a skewed picture of the contents of the book. Thus, the penal statute would not get attracted in the present case.

 Contempt of Court

 The infamous case of Justice C.S. Karnan v. The Honourable Supreme Court of India ((2017) 2 SCC 756) mentions:

We have given our thoughtful consideration to the factual position noticed hereinabove, as also, the submissions advanced by learned counsel, who assisted us during the hearing. We have carefully examined the text of the letters written by Shri Justice C.S. Karnan, from time to time. We had closely examined the suo-motu procedure adopted by him, whereby he passed orders which were derogatory to the administration of justice, before he was issued a notice for contempt, by this court. We have also carefully analysed the orders passed by Shri Justice C.S. Karnan suo-motu (in the purported exercise of the jurisdiction vested in him under Art. 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure), even after the issuance of the contempt notice to him, by this court. His demeanour was found to have become further aggressive, after this court passed orders from time to time, in this case. The contents of the letters addressed by him contained scandalous material against Judges of High Courts and the Supreme Court. His public utterances turned the judicial system into a laughing stock. The local media, unmindful of the damage it was causing to the judicial institution, merrily rode the Karnan wave. Even the foreign press had its dig at the Indian judiciary. None of his actions can be considered as bona fide, especially given the express directions issued by this court on 8.2.2017, requiring him to refrain from discharging any judicial or administrative work. To restrain his abuse of suo-motu jurisdiction a further order had to be passed by this court on 1.5.2017, restraining Courts, Tribunals, Commissions and Authorities from taking cognisance of any order given by Justice Karnan.

The Supreme Court recently adjudicated suo motu contempt proceedings against Senior Advocate Prashant Bhushan. Bhushan’s tweet about the current Chief Justice of India S.A. Bobde states, “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their right to access Justice!” The court declared that the tweets have scandalized the court and lowered its authority. The Supreme Court also relied on its ruling in Re: Vijay Kurle & Ors.( (2019) 9 SCC 521) based on the information obtained, there was no mistake in registering a suo motu case. Bhushan was found guilty of contempt by the Supreme Court, but Twitter was released from the case because it served as an intermediary.

 In yet another case concerning criticism towards a governmental authority, the police arrested senior Congress leader Pankaj Punia following a complaint that he allegedly “hurt religious feelings” and “promoted enmity between different groups on ground of religion” through his tweet. In his tweet, Punia targeted Yogi Adityanath’s Uttar Pradesh government and was a rant on the saffronisation of the politics of the state. “The complaint was registered under sections 295-A (Deliberate and malicious acts, intended to outrage religious feelings), 153-A (Promoting enmity between different groups on the grounds of religion, race, etc.), 153 (Provocations with intent to cause a riot), 504 and 505 of IPC, and relevant sections of Information Technology Act, 2000.” While the arguments for the case were minimal, the Supreme Court of India was quick to dismiss the writ petition for quashing criminal proceedings.

 Defamation

Defamation is a penal offence under Section 499 and 500 of IPC and is covered within reasonable restrictions under Art. 19(2) of the Constitution. The Two Judge Bench of the Supreme Court in Subramanian Swamy v. The Union of India (AIR 2016 SC 2728) dismissed the challenges to the constitutionality of the reasonable restriction regarding defamation. It observed that this restriction is in public interest and is not excessive in any manner. Subramanian Swamy, Arvind Kejriwal and Rahul Gandhi, some of the well-known petitioners in this case, were charged with criminal defamation. Criminal proceedings were stayed due to pending constitutional proceedings. The Apex Court held that there existed a constitutional duty to respect the dignity of individuals and therefore, the challenge to criminal defamation fell through. The court recognised that this right to free speech and expression is bound by reasonable restrictions as specified within the constitutional framework. However, these restrictions should remain within the parameters of reason and should not be excessive. The balance should be assessed by weighing importance to rights of individual as well as community. The Bench held the law on criminal defamation was distinguishable from other cases such as Shreya Singhal as the law in the former was explicit and did not require any more clarification.


Conclusion

Freedom of Speech rights and their reasonable restriction and the exercise of the same on the internet are governed by different laws of the country in India. Several developmental changes in policy can be considered as a requirement to govern the same in the best possible manner. The legal provisions should be implemented in a harmonious way to avoid any conflict of rights or interests in the society. And so, establishment of a proper governing body must be done so that efficiency and consistency is maintained. Judicial interpretation of the right to free speech has been a balancing act between the individual rights of the citizen and the public responsibility of the judiciary to ensure peace and tranquillity. It is pertinent to note that the scope of this right continues to be tested with new judicial precedents created over time. It is imperative to understand that a salient feature of Indian jurisprudence is the unbridled attempt to wrest these rights from the governmental arm of the state. The present laws on the governance of free speech on the Internet need a developmental approach to ensure integrity and freedom at the same time. The responsibilities for the actual implementation of the plans of action will remain with the concerned assigned authority in their sphere of work. Public, private, and government sectors shall be involved with their respective jurisdiction to implement the policy governing free speech on the Internet. Free speech rights and their reasonable restriction and the exercise of the same on the internet are governed by different laws of the country in India.


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