FREEDOM TO SPEECH IN INDIA

-Sakshi Choudhar1

Abstract

In ancient Greece freedom of speech was considered as democratic ideal where citizens have freedom to express
their views without any restriction from government. India is secular country and largely known for its
democratic principles our country has proposed various constitutional rights and freedom proposed in preamble
itself as “liberty of thought, expression, belief, faith and worship”2 and thus, enforcement of freedom of speech
is key point to maintain democracy. But while enjoying the fundamental rights one should follow fundamental
duties towards nation by keeping essence of democracy. In this module we will know the origin of this
fundamental right of free speech we enjoy, we will also see the elements that are considered while allowing and
prohibiting freedom to speech we will go through the freedom specifically restricted in Indian Judicial system
and need for it, we will also understand the justification given to the limitations over it and end it with some
critical analysis over this freedom and limitations and needs of it.

Keywords: India, Freedom of speech, expression, government, restrictions, limitation, fundamental etc.

INTRODUCTION

God provided the power to speak on humans as a gift. The ability to express one's ideas, emotions, and feelings
to another is referred to as speech. As a result, every human being is born with the right to free expression,
sometimes known as freedom of speech. Everyone has the right to free speech and expression in order to spread
knowledge and their own beliefs.

Our constitution provides citizens freedom of speech with certain constitutional protections. But to analyze the
same is freedom possible if it has limitations to it. Question arises how are these limitations decided? Limitation

1
1st year student, Maharashtra National Law University, Nagpur.
2
Preamble of the constitution of India.
on speech of some person’s speech is complex to analyze where you can provide freedom to individual and some
other won't be hurt or dissatisfied with it. This freedom of speech is provided irrespective to religion, gender,
caste, creed, language to all citizens of India. The values of democracy in a country are defined by this guaranteed
fundamental freedom of speech and expression. The freedom to practice any religion, the freedom to express
opinions and disagreeing viewpoints without hurting the sentiments or causing violence is what India is
essentially made up of. According to Article 19(1)(a) of the Indian Constitution, every citizen has the right to
freedom of speech and expression, which means the right to express their opinions freely by different modes like
word of mouth, writing, printing, social media, pictures, etc. Debate on Freedom of Speech focuses on the idea
that one can express their ideas through any communicable medium or visible representation, such as gestures,
signs, etc. Freedom of the press also falls under this category. A Democracy can survive only if there is a free
and fair exchange of ideas. Free speech does not imply that a person has the license to say anything that comes
out of his mouth because any action that may hurt other person is prohibited. This freedom of speech is to use in
positive approach towards development or pointing out the wrong in society.

Origin of freedom of speech

In ancient Greek literature the term Freedom of speech appeared. It was used as democratic principle where
people can raise voice for themselves without any restriction from government. The ancient Greek word for
‘Parrhesia’ is ‘free speech’ or ‘to speak sincerely’. This Parrhesia had role in government of Athens where people
were free to speak about religion, law and raise voice against government, criticize it for judgements, law,
procedure and arrangements of government.3 later this idea was adopted by various European countries such as
France and England though it took a long time to adopt it but The English Bill of Rights, 16894 was gave freedom
of speech as constitutional right and it is still in effect. As for France after French revolution they adopted
Universal Rights for Man and Citizen. Later UN General Assembly adopted Universal Declaration of Human
Rights5 in December 1948, article 19 was recognized as freedom to speech and expression.

As for India, in colonial era British gave very harsh treatment to Indians and had restrictions over fundamental
rights as well. They were very harsh towards Indians and didn’t allow freedom so that we cannot raise voice
against their rule. In 1870, Section 295A of India's Hate Speech Law was enacted for restricting citizens' rights

3
As India Rages About Freedom of Speech, How Well Do We Know it; By Sunil JI; on 24 August 2020
4
The English Bill of Rights, 1689
5
Universal Declaration of Human Rights
to express their ideas and opinions on colonial government and suppressing citizens' revolutionary feelings,
resulting in major independence battles. Furthermore, the Prevention of Seditious Meeting Act of 1907 was
passed in 1907, outlawing open meetings and the establishment of unions, as well as depriving residents of their
right to free expression. That is why Indian constitution framers gave fundamental human rights that is adopted
from American constitution.

Freedom of speech and expression

Although the terms "expression" and "speech" sound self-explanatory, the court has legally interpreted this basic
right to includes the right to freely express one's opinions and feelings, whether through speech, writing, or
printing, is referred to as freedom of expression. It entails the freedom to speak and disseminate one's own ideas.
It also includes the right to disseminate or publish the opinions of others; otherwise, the press would not be
included in this freedom. The presence of a second party to whom the thoughts are delivered is required for
expression. In short, as the Supreme Court of India stated in Romesh Thapar vs. the State of Madras, expression
includes the notion of publication, dissemination, or circulation, as well as the right to receive the substance
transmitted (1950). It includes the freedom to express oneself as well as the freedom to seek, receive, and
communicate information and ideas, whether orally, in writing, or by legally operated visual or auditory means
such as radio, film, gramophone, loudspeaker, and so on. It includes not only the right to provide, but also the
right to receive and import opinions and information from others on matters of mutual interest, i.e., the right to
be informed. The right to silence includes the right to speak. It entails both the freedom to refuse to listen and
the freedom to refuse to be forced to listen. The ability to be free of whatever it is that one chooses to be free of
is implied by the right. The right to criticize government affairs includes the right to criticize the government's
military policy and activities. In a free democracy, public discourse is not just a right, but also a political
obligation, because an inactive people are the greatest threat to freedom. Without free political debate, a
democratic government cannot function properly. This freedom, however, is not total, allowing the government
to maintain reasonable control over India's sovereignty and integrity, state security, international friendship,
public order, decency, morality, and disdain. Furthermore, negligence, defamation, and incitement to commit a
crime are all prohibited by the court. This limitation on any citizen's freedom of expression can be exploited in
the same way as the state's inaction can. The failure of the government violates Article 19 (1) (a), which gives
all citizens the fundamental right to freedom of expression.
“Everyone in the land should be free to think their own thoughts, to have his own opinions and to give voice to
them, in public or private, so long as he does not speak ill of his Neighbour and free also to criticize the
Government or any party or group of people, so long as he does not invite anyone to violence.”6

Elements of freedom of speech in India

There are few elements of freedom of speech that determine certainty of the speech conveyed. Such as, this right
is available only to Indian citizens and not to people from other countries, such as foreign nationals. The freedom
to express oneself in whatever medium, including writing, printing, gestures, and so on, is guaranteed by Article
19(1)(a) of the Indian constitution. The government has the authority to enact laws and impose reasonable
constraints in the interests of India's sovereignty and integrity, friendly relations with other governments, state
security, public order, decency, morality, defamation and contempt of court, and incitement to an offence.
Strengthening freedom of speech is the commonly held idea that unlimited freedom of speech is required for the
existence of a democracy-based society. Detractors, on the other hand, contend that it is precisely in a democratic
society that initial rights and ideals should be protected. Every citizen has the right to freedom of speech and
expression under Article 19(1)(a) of the Indian Constitution, which includes the ability to freely express oneself
through several mediums such as word of mouth, writing, printing, social media, and photography. The dispute
over free speech focuses on the ability to express oneself through any communicative medium or visible
representation, such as gestures, signs, and other visual representations. This area also includes press freedom.

Is freedom of speech justified?

The ability to express oneself without fear of censorship or other constraints that can limit or block one's ability
to talk freely is referred to as freedom of speech. For decades, the issue of whether or not freedom of expression
should be permitted has been a passionately debated one. Even more difficult has been the question of how much
autonomy should be provided to freedom of expression in order to maintain its utility as a constructive argument
or constructive critique. The justification for limits on free speech will be demonstrated in contrast to the natural

6
Supreme Court Judgement in case of Brij Bhushan vs. the State of Delhi (1950)
occurrence of events, as well as the role that misconceptions play in the development of an event that needs the
application of restrictions on free speech. Because freedom of expression is regularly used to aid the formation
and exploitation of mobs, the usage of constraints on freedom of expression is appropriate. This form of
exploitation has been done numerous times in the past to incite violence and build hostility among the general
public. The right to free expression must be recognized and utilized within limitations. This is essential because,
on occasion, a person's freedom to express their feelings about a particular issue or person may be in serious
conflict with the values or rights of another person. There are two theories that might be used to explain the
relationship between speech limits and its exploitation. The "Harm Principle," introduced by John Mill in 1859,
asserts that communication should be free and unrestricted, regardless of how harmful it may be to another
person. Considerations include the social significance of the speech in the originating and second party situations,
the demographic insulted, the mindset with which the offensive remark was made, and the intensity of the
offensive statement. It is crucial to emphasize that the feature of supporting the application of speech limitations
is mostly motivated by apprehension about the consequences of violating the sanctity of free expression. This is
supported by the idea that, in addition to causing injury to the listener, abuse of free expression can do just as
much, if not more, harm to the speaker. This could be due to the speaker's lack of understanding of the subject
at hand. This may lead to a misunderstanding of the consequences of the speaker's information release in his
speech. For example, if we divide the probability of a dangerous event into two categories: certainty of
occurrence and risk of occurrence, the people involved will be prevented from visiting the region where the event
is most likely to occur if the probability is highest. If only the risk of the event occurring exists, the subject party
will only be informed of the potential harm that the event may cause. As a result, we can conclude that the level
of involvement required in circumstances where harm could result from a single incidence or a series of
occurrences is determined by the extent of prospective damage. When the same pattern is extended to the world
of speech and its consequences, it is discovered that the risk of harm resulting from the misuse of free expression
is only obvious when it is at its peak, and the need for action becomes undeniable. It is critical to emphasize that
limitations on freedom of expression are imposed not because of moral concerns, but because of a contempt for
the rights and beliefs of others.

Freedom of speech in judiciary.

The judiciary's existing public dignity originates from its respect to justice, as well as its fearlessness and liberal
attitude to major rulings. And no matter how valuable a man's words are, they cannot be used to diminish his
dignity. Many nations regard the Court's ability to hold someone in contempt as a relic of the past, and the
democratic court has frequently taken a liberal approach to criticism. Even the judiciary isn't and can't be perfect,
therefore it's not immune to criticism. The court maintains that any individual or representative of institution
must be brought to justice in order to maintain public trust in judicial institutions. The word "contempt of court"
is defined under Section 2 of the Contempt of Courts Act of 1971. Contempt of court refers to both civil and
criminal contempt of court. Judges, on the other hand, are not immune to criticism of their judicial behavior if it
is presented in good faith and is genuine criticism rather than an attempt to hinder justice administration. The
Supreme Court and the High Courts have the ability to punish for contempt of their own courts under Articles
129 and 215 of the Constitution. This has now been resolved in the case of Justice C.S. Karnan vs The Honorable
Supreme Court of India (2017)7, in which a seven-judge bench unanimously held that even a judge can be
punished for contempt of court, specifically for making any kind of allegation against judges of the Constitutional
Courts, i.e., the High Courts and the Supreme Court.

Limitations on freedom of speech

As a fundamental right, the Indian Constitution provides freedom of speech and expression. All theoretical rights
are guaranteed by the laws; nevertheless, theoretical rights do not always imply that all guarantees are given. All
international treaties, notably the International Covenant on Civil and Political Rights, guarantee freedom of
expression and free speech. However, there is one exception: the protection of national security. National security
is a wide notion that can be interpreted in a plethora of different ways to benefit the parties involved. Any
occurrence has the potential to jeopardies national security. Any activity, whether it's sharing stories or
photographs on social media or marching to the streets for protests, could endanger national security. Please
allow me to describe what you can expect from this essay. This article explores the laws and cases that can and
cannot be used to limit freedom of speech and expression. Because of the various situations we face and the rules
we must follow, the importance of criticism in our culture cannot be emphasized. There was no system in place
to guide human behavior prior to the birth of civilization. People's behavior began to improve gradually as society
progressed. When the Social Contract Theory was introduced, it justified the rule or power over the citizens and
then residents give up certain liberties in exchange for the promise of protection against evils and some vital
rights for healthy survival. Citizens had given up their autonomy in exchange for the promise of certain rights
that would allow them to live in dignity. As a result, the social contract concept is called into question when it
comes to protecting fundamental rights such as the freedom to speak and criticize.

7
7 Justice C.S. Karnan vs The Honourable Supreme Court Of India(2017) 7 Justice C.S. Karnan vs The
Honourable Supreme Court Of India(2017)
Because it is the foundation for our fourth pillar of democracy, the media, freedom of speech and expression
must be allowed with few limits in a country like ours. The media is the most important link between the public
and the government. It acts as a channel of communication between the general public and the government.
Appreciation, suggestions, and criticism are all valid modes of communication. Criticism is one of these means
of communication that must reach the government in order to force a policy change if it is unacceptable for the
broader public. Even Prime Minister Narendra Modi has emphasized the importance of critical thinking in a
democratic society.

ANALYSIS

Today, free speech has taken the form of limitations on the right to speak out against injustice. "Free speech is a
guaranteed right," as the phrase goes, but citizens currently have unrestricted freedom to distribute false
information. In a nation like India, where free speech is required to effect constructive change, the change is now
being perceived incorrectly. The freedom to free expression is critical for effecting change and correcting the
government's mistakes. When a mistake is brought out, it is taken as an insult, a defamatory issue, or anything
along those lines. The spread of erroneous information aggravates the situation. In light of recent occurrences, it
is evident that the transmission of such incorrect and inaccurate information that has the ability to harm
uninformed people must be limited. Reasonable restrictions on fundamental rights are meant to restrict the use
of free speech. Today, however, there are attempts to circumvent these bans in the form of hate speeches that
can be transmitted by the general public or via social media. Hate speech directed at a specific community, caste,
or religion can have long-term consequences. The current state of free expression in India is deteriorating as
people become more inclined to accept what is incorrect and oppose what is genuinely right. Paid news is an
excellent illustration of this. It is critical that such approaches be curtailed and rules enacted that are rigorous
enough to prevent people from abusing this right without meaningful proof. According to the Indian context and
perception of freedom of speech any speech or expression that causes harm to society or nation’s pride will have
to be limited. Any speech that can cause hate, instability, can cause illegal activities can be considered as limit
or prohibit the freedom for speech. Mostly it is strictly followed when it comes to nation’s safety and pride. That
is why most of the defense actions are kept secret and revealing these can be punishable, to safeguard these there
is no interference in military actions and espionage system.
 CONCLUSION

The freedom to free expression is critical in a democracy. Linguistics evidence for words uttered have effects on
it. Circumstances are needed to be seen and that is determine by parties and though there is no intention but it
may hurt others unintentionally. As a result, the Constituent Assembly conferred upon us the gift of freedom of
expression in India. However, in the current circumstance, the gift placed upon us is being used in such a way
that citizens are suffering. The use of social media and other websites to disseminate messages to citizens must
be scrutinized since there is a possibility of abuse of the right to free expression. The important foundation of a
democratic society is public debates and conversations that can assist the government and authorities in refining
their methods of operation so that citizens have the perception that the state is a welfare state that works for their
well-being. As a result, making wise and educated use of the freedom to speak and communicate accurate
information will help to build a better society and realize the Welfare State dream.