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The Comparison of Freedom of Speech and Expression in India, The United States of America and North Korea
The Comparison of Freedom of Speech and Expression in India, The United States of America and North Korea
The Comparison of Freedom of Speech and Expression in India, The United States of America and North Korea
1. INTRODUCTION
Human beings have been endowed with the special gift of communication, which is the main
distinguishing factor when compared to other occupiers of the globe. The psychological
ability of a human brain to formulate thoughts and to convey it in the form of self-expression
is evident. The freedom of expression has directly originated from natural law and freedom is
one among the most important inalienable rights that is embodied in an individual1.
Believing that the right to freedom of expression and speech has emanated from the concepts
of natural law, the whole idea has undergone an evolution over the past decades. The freedom
of expression has become a global issue, especially with regard to whether a restriction needs
to be imposed on this or not. It becomes important to understand the right to free speech as
practiced in various places. The comparison becomes necessary because the countries are no
longer detached from the other parts of the world and also because they are interconnected.
This can be evidently seen in instances such as the involvement of the US and UK in the
Syrian crisis2 as well as the global outrage on North Korea3.
3. OBSERVATION
Objective 1: To know about the nature right to freedom of speech as written down in
the constitutions of India, the US and North Korea.
India
The preamble to the constitution of our country was adopted on 26 November 1949 and one
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North Korea
The constitution of this country was enacted in 1972 and the amended constitution was
adopted in September 1998. Part 5 of the constitution, deals with fundamental rights and
duties of citizens. Article 67 talks about freedom of speech17. It reads as – ―Citizens are
guaranteed freedom of speech, of the press, of assembly, demonstration and association. The
State shall guarantee conditions for the free activity of democratic political parties and social
organizations.‖ If the latter part of the sentence is observed here, the state is given
unrestricted power to set the conditions for free speech and other such activities.
Objective 2: To trace the evolution of this right in history to the present scenario.
India
During the British colonial rule over India, a tract named ‗Rangeela Rasol‘ was brought into
picture which was alleged to contain offensive stories against prophet Muhammad‘s personal
life. It was said to be published by one of the members of the Arya Samaj and this created a
huge strife between the Hindu and the Muslim community. This is the roots of section 295A18
of the IPC which is the closest law for blasphemy India has. This section basically punishes
those who maliciously intend and cause harm to the sentiments of certain religious ideas or
their followers. This act experienced certain changes after the British era19. In 1957, it was
amended by the Supreme Court where it said that arbitrarily imposing such restrictions would
curtail the fundamental right of an individual and hence the for ‗deliberate and malicious
intention‘ was included in the section in order to punish those that intended to cause such
disturbance and hider the tranquillity between the communities in our country. The most
recent and widely known controversy where this section was put into limelight was during
the time when Iran‘s Ayotalla Khomeini issued a fatwa against Satanic Verses written by
Salman Rushdie. The book incited widespread condemnation and violence as it was alleged
to be blasphemous and hurtful to the Muslim sentiments. In this instance, the right of the
author to freely express his views was restricted which forced him to change his identity and
go into hiding as he also received death threats from such sections of the community who
were deeply angered by his words.
Though in our country there is sufficient scope for freely expressing one‘s ideas and
thoughts, freedom of speech and expression is not devoid of restrictions as mentioned above.
There are certain instances that bring us to think whether this right must be made absolute or
not. In the recent past there have been situations like the hue and cry in JNU, in which it was
held initially that Kanaiah Kumar‘s statements were seditious in nature. But, later he was
released on bail. The conflict between sedition and freedom of speech still persists. Recently
there have been violent protests against the screening of the movie Padmavati as well which
is claimed to have insulted the religious sentiments of certain sections of the society20. There
again arises a conflict between right to expression in the form of art and censorship. This
1791. The first amendment talks about right to speech and expression25.
After the enactment of bill of rights certain events like the World War 1, the civil war and
slavery threatened the free practice of this liberty. In 1798, during the presidency of John
Adam, the US was at loggerheads with France which pushed the states to the brink of war.
This was referred to as the ‗fever of 1798‘26. In order to maintain national security, the
sedition law27 was enacted during this period. This law was totally against the first
amendment act. However, according to Section 4 of the act, it stated that it would be in force
until March 3 , 1801 and not after that. The then Vice president Thomas Jefferson was totally
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against this law. Jefferson and James Madison drafted the Kentucky and Virginia reforms
respectively which were adopted by the states of Kentucky and Virginia28. It basically stated
that the state does cannot enact laws that were against the civil liberties of the citizens. In the
next election, Adams lost his seat and subsequently the sedition law ceased to exist. This law
is considered to be a black mark on the American history.
The dark age of slavery which subsequently lead to the civil war was one of those time
periods where the right to freedom of speech and expression was most exploited in the
country. Slaves were treated as mere objects and let alone their right to free speech; their
right to life was also not given any importance. Slavery first traces its origin to 1619 when the
Dutch ship brought slaves to the state of Virginia. They were mainly transported to work in
the tobacco fields and even later, over the 17 and the 18 centuries slaves were employed to
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work under rich landlords, in the plantations29. It was mainly because African slaves were
cheap to buy and the minds of the Whites were filled with racism that they deprived their
not yet fully freed. Finally, the slaves were emancipated during the ‗reconstruction‘ and the
civil rights movement in the 1960s31.
North Korea
Korea before partition was under the Japanese rule. When the Japanese lost control at the end
of World War 2, the Korean subcontinent was put through a cold war. The southern part was
supported by the US and the northern part was taken over by the soviet. The country was
divided across the ‗38 parallel‘. But, in 1950 a war broke out when troupes were sent from
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the north to the southern part. The troupe comprised of around 75000 people who marched to
the 38 parallel and all this occurred under the regime of the then popular North Korean
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leader Kim II Sung. Since North Korea was taken over by Soviet Russia, communist
ideologies prevailed and Kim II Sung propagated the same32. He brought in the ‗Juche‘33
ideology which basically promotes self-reliance and believes that man is the master and
creator of everything. The entire party of ‗Democratic People of Korea (DPRK)‘ believes and
is based on this. This philosophy of Juche is believed to be a slight deviation, but nonetheless
derived from the Marxist-Lenin ideology and it is evident because Sung was a communist34.
From the very beginning, during the his regime, individuality and expression of any one
person was not given much importance because he believed in ‗collective good‘ and the well-
being as a whole rather than the realization of something individual like the fundamental
rights. So, the roots of the country lies in the fact those rights are conditional and not
universal as such.
When Sung‘s son Kim Jong -il came into power, the same ideology of Juche was carried
forward. The rights of a citizen mainly depended on the loyalty and obedience that he offered
to the nation and it is the role of the state or the government to decide the loyalty that need to
be commanded from every individual. On the lines of the Juche ideology, Jong wanted the
state to be self-reliant, self-sufficient and in a position to survive and prosper on its own35.
Currently, the leader of North Korea is Kim Jong-un who is the son of Kim Jong-il.
The authoritarian regime that is being followed by the current leader can be traced back to
history as it is from the previous rulers that such values and principles were embedded as the
fulcrum of politics and this is passed on from one generation to the next.
Objective 3: To reflect upon certain case laws that has focused on this right.
India
In order to understand this better certain landmark judgements can be considered. In the case
of ‗Romesh Thapar v State of Madras,‘36 Justice Patanjali Shastri observed that the right to
freedom of speech and expression included free press and circulation of ideas. This particular
case was filed by Romesh Thapar who was prohibited from publishing his magazine ‗Cross
roads‘ by the state. This case also led to the first amendment to the article.
In the case of Maneka Gandhi v Union Of India37, the petitioner filed a case because her
passport was impounded without any reasonable reasons given by the passport authorities.
The authorities claimed that the action was taken to ensure public order which was later
North Korea
North Korea as such does not disclose the cases that occur due to the suppression by the state
and the secretive nature of the government. If a person is found voicing his opinions against
the state, he and his family can be sent to political prison camps. The only voice in the
country is that of the ruling regime. Freedom of press is the last right that can be expected in
this country because even that is controlled by the regime46. During one of the most important
political events in North Korea which was the ‗7 congress of the Worker‘s Party of Korea‘,
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journalists across the globe were invited to cover the event. They were always put through
security checks and were prevented from performing their job. During this course, Rupert
Wingfield Hayes who was the Tokyo correspondent of BBC was detained by the North
Korean government and he was questioned for 10 hours. The government claimed that some
of his statements had hurt the sentiments of the North Korean people47.
In the recent past, a similar incident of Otto Warmbrier, a student from the US who was put
into hard labor as he was accused of stealing a propaganda poster from a hotel. It was evident
that he was tortured and when his health conditions worsened he was sent back to his parents
in a totally disfigured state. He died on June 19 , 2017 due to lack of oxygen and other health
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complications due to the hostile conditions he faced in North Korea48. The world is also
looking at this country with scepticism especially after the series of nuclear weapon launch
by the state.
A 2014 United Nations Commission of Enquiry report on North Korea recorded that there
was widespread prevalence of crimes against humanity like murders, rape, arrests and torture
without reasonable grounds, forced abortion, rape and other sexual offences49. Though the
country has ratified some of the key international treaties, in practice there is violation of
human rights which has resulted in an extreme situation. In the near future, the world is going
to take serious cognizance of this issue and most probably the UN may issue directives to the
government preventing it from breaching human rights and the necessary actions that need to
be taken in order to protect and preserve fundamental rights like the right to free speech and
expression.