The Hindu Editorial Analysis- 3rd October 2024 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

A case of nothing but patent censorship 

Why in News?

On September 20, 2024, Justice A.S. Chandurkar of the Bombay High Court broke a tie that emanated out of a previously split verdict and delivered a ruling in defence of the right to free speech. He declared unconstitutional an amendment made to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules). This law, had it been allowed to stand, would have given the Union government an Orwellian carte blanche to decide for us how any news about its operations ought to be carried on the Internet.

What is Article 19(1)(a) - Right to Freedom of Speech and Expression?

• Article 19(1)(a) of the Indian Constitution gives every citizen the basic right to freedom of speech and expression.
• This right allows people to share their thoughts and opinions in many different ways.
• Citizens can give and receive information through any type of media.
• The freedom of the press is a vital part of this right, helping to spread information and opinions widely.
• This right also means that individuals have the freedom not to speak, meaning no one can be compelled to share their thoughts against their will.
• While freedom of speech is a fundamental right, it can be limited by reasonable restrictions under Article 19(2).
• These restrictions are in place for reasons such as national security, public order, and decency.
• The Supreme Court has stated that this freedom includes the right to participate in sports, display the national flag, and access information.
• Social media platforms are also included under this right, allowing people to express themselves online.
• However, hate speech and other illegal content are not permitted.
• There are restrictions on some types of expression, including obscenity, defamation, and contempt of court.

Origin of Free Speech and Expression

• The idea of free speech and expression is an important right with a long history.
• It dates back to important documents like the English Bill of Rights from 1689.
• The French Declaration of the Rights of Man and of the Citizen in 1789 also includes this right.
• Additionally, the United Nations' Universal Declaration of Human Rights from 1948 recognizes it as an essential right that cannot be taken away.
• Article 11 of the French Declaration highlights the importance of sharing ideas and opinions freely, allowing people to talk, write, and publish without restrictions.
• Article 19 of the UDHR also affirms that freedom of expression and opinion is a basic human right.
• The International Covenant on Civil and Political Rights supports the idea of free speech as well.
• In India, Article 19(1)(a) of the Constitution guarantees every citizen the right to freedom of speech and expression.
• The preamble of the Constitution emphasizes the goal of ensuring liberty in thought and expression.
• However, this freedom has some limits known as "reasonable restrictions", outlined in Article 19(2), which can be applied for reasons such as protecting national integrity and maintaining public order.
• The core of free speech is the ability to think, speak, and seek information without fear of government punishment.
• This right allows citizens to challenge the government, criticize its policies, and hold leaders accountable.
• Ultimately, free speech is crucial for a strong democracy as it encourages open discussions among the public.

Meaning and Scope of Article 19(1)(a)

•  According to Article 19(1)(a), every citizen has the right to share their thoughts freely. 
• This right includes the freedom to express opinions through various means, such as: 
  • Words
  • Writing
  • Images
  • Gestures
  • Signs
•  The right to free expression also involves press freedom, which is linked to sharing information. 
•  It is crucial to have a free flow of information and the exchange of ideas. 
•  This exchange can happen through different platforms and the press. 
•  The circulation of information is just as important as its publication. 
•  If information is not published, it loses its value and significance. 
•  Therefore, the right to free speech includes the ability to share not only one's own ideas but also the ideas of others. 
•  This right also means having the freedom to publish other people's views. 
•  Without this ability, true press freedom cannot exist. 

Freedom of expression serves several purposes:

• It helps people reach their personal goals.
• It supports the search for truth and understanding.
• It enhances the ability of individuals to make informed choices.
• It establishes a balance between stability and changes in society.
• Everyone in society is free to create and express their own beliefs.

Importance of Freedom of Speech

• This right is exclusively for Indian citizens and is not available to foreign nationals.
• Only Indian citizens have the right to free speech and expression.
• This right is protected by the Indian Constitution and several international agreements, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
• It includes: 
  • Freedom of the press
  • Freedom of commercial speech
  • The right to broadcast
  • The right to information
  • The right to criticize
  • The right to express oneself beyond national borders
  • The right to remain silent
  • The right to quiet
• This right has some reasonable limits as described in Article 19 (2) and interpreted by various Supreme Court rulings.
• Public order is different from law and order when it comes to acceptable limitations.
• The right to information is a crucial law that results from a series of progressive court decisions related to Article 19 (1)(a).
• This right is essential for a healthy, open-minded, and active democracy.
• According to Article 19(1)(a), freedom of expression includes the right to share one’s thoughts and opinions on any topic through various forms, including: 
  • Speaking
  • Writing
  • Printing
  • Images
  • Films
  • Movies
• This right is not absolute. It allows the government to create laws that impose reasonable limits for the following reasons: 
  • To protect India’s sovereignty and integrity
  • For national security
  • To maintain friendly relations with other countries
  • To ensure public order
  • To uphold decency and morality
  • To avoid contempt of court
  • To prevent defamation
  • To stop incitement to an offense

Restrictions on the Right to Freedom of Speech and Expression

• Freedom of Speech and Expression: This right can have reasonable limits placed on it. The Supreme Court of India has identified specific situations where these limits are justified.
• Security of the State: Limits can be enforced on freedom of speech to protect the state's security. This is different from maintaining public order and includes serious threats like rebellion or war against the state.
• Friendly Relations with Foreign Countries: Introduced by the Constitution (First Amendment) Act of 1951, this condition allows the state to limit speech that could harm India's relationships with other nations.
• Public Order: This refers to the peace and safety of the public. Actions that disturb public order violate this peace. Criticizing the government alone does not necessarily disrupt public order. However, laws that penalize comments that hurt religious feelings are seen as reasonable to maintain public order. This basis was added after a Supreme Court ruling in the Romesh Thapar case.
• Morality and Decency: Sections 292 to 294 of the Indian Penal Code set boundaries on free speech concerning decency and morality, banning the sale or display of obscene materials. These moral standards can change over time.
• Contempt of Court: The right to free speech does not allow an individual to disrespect the courts. Section 2 of the Contempt of Courts Act, 1971, defines what constitutes contempt, including both civil and criminal contempt.
• Defamation: Article 19(2) prohibits making statements that harm another person's reputation. Defamation is a crime in India, as outlined in Sections 499 and 500 of the Indian Penal Code. The right to free speech does not allow harming someone’s reputation, which is protected under Article 21 of the Constitution. While truth can be a defense against defamation, it must be for the public good, and the courts decide this.
• Incitement to Commit an Offense: The Constitution (First Amendment) Act of 1951 also prevents individuals from making statements that encourage others to commit crimes.
• Indian Sovereignty and Integrity: Added by the Constitution (Sixteenth Amendment) Act, 1963, this principle prohibits statements that threaten India's integrity and sovereignty.

Landmark Judgments on Freedom of Speech: 

The Indian judiciary has played a vital role in defining and protecting the right to free speech, as stated in Article 19(1)(a) of the Constitution.

• Romesh Thappar v. State of Madras (1950): In this case, the Supreme Court recognized press freedom as part of free speech. Justice Patanjali Sastri stated that free speech and press are essential for democracy since open political discussion is crucial for government functioning.
• Brij Bhushan vs. State of Delhi (1950): The court upheld a pre-censorship order requiring an English weekly to submit all content about communal issues and Pakistan for approval before publication. This case highlighted the right to not speak, emphasizing that it is included in free expression.
• National Anthem Case: Three students were expelled for not singing the national anthem, which they did stand for in respect. The Kerala High Court upheld the expulsion, asserting it was their duty to sing the anthem. However, the Supreme Court later ruled that the students did not break the law under the Prevention of Insults to National Honour Act, 1971.

Latest Dimensions of Freedom of Speech and Expression

The Government and Electronic Media

• The government does not have exclusive control over electronic media.
• The Supreme Court has confirmed that under Article 19(1)(a), citizens can broadcast important events to the public using television and radio.
• Restrictions by the government are only allowed for reasons stated in Article 19(2).
• Citizens have the basic right to use effective communication methods, including access to television.

Commercial Advertisements

• Advertisements are protected under the right to free expression.
• The government can limit advertising if it is deceptive, unfair, misleading, or untruthful.
• The public has a right to access commercial speech, which is also covered by Article 19(1)(a).
• Telephone tapping is seen as an invasion of privacy and violates Article 19(1)(a) unless it meets specific conditions in Article 19(1)(b)(2).
• Only the Home Secretary can authorize telephone tapping, and it must be reviewed by a higher authority committee.
• The duration of tapping cannot exceed two months unless extended by the review authority.

Freedom of Speech in Art

• The Constitution guarantees freedom of speech and expression in all forms, including art.
• The Supreme Court states that art should be evaluated based on its context and meaning.
• Art deemed obscene will be overlooked if it is minor compared to the overall work.
• Films are subject to restrictions under the Cinematograph Act of 1952, with the CBFC responsible for movie certification.

Freedom of Speech on Social Media

• Posting on social media is recognized as a fundamental right by the High Courts.
• Government employees also have the freedom to express their views on social media, but must follow certain service rules.

Sedition vs. Right to Free Speech

• Section 124A of the Indian Penal Code punishes those who use speech or other means to promote disaffection towards the government.
• This colonial-era sedition law has been criticized for limiting freedom of speech.
• Only speech that incites hate or public unrest qualifies as sedition, while legitimate criticism for reform should not be punished.
• The Supreme Court's ruling in the Kedarnath Singh v. State of Bihar case narrowed sedition to speech that incites violence.
• In the Shreya Singhal v. Union of India case, the court stated that there must be a close link between the words used and public disturbance.
• Despite these clarifications, many individuals are still charged with sedition for criticizing the government.
• This misuse has led to calls for repealing the sedition law to safeguard free speech.

Hate Speech

• The Supreme Court has asked the Law Commission to give the Election Commission the power to restrict hate speech at any time.
• The Law Commission advises considering various factors before limiting speech, such as the context, the speaker, the victim, and the impact of the speech.

Key Takeways for UPSC Students 

• Constitutional Provision: Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression for all citizens. 
• Scope of Freedom: This freedom includes expressing thoughts through any means, such as electronic media, and covers various forms of expression, including artistic and academic expressions. 
• Reasonable Restrictions:Article 19(2) specifies that there can be reasonable limits on this freedom based on factors like: 
  • Security of the state
  • Friendly relations with foreign countries
  • Public order
  • Decency or morality
  • Contempt of court
  • Defamation
  • Incitement to an offense
• Landmark Judgements: Significant cases, such as Shreya Singhal vs Union of India, which invalidated Section 66A of the IT Act, have strengthened the right to free speech. 
• Challenges and Debates: There are ongoing challenges in finding a balance between free speech and issues like hate speech, misinformation, and national security. 
• Media Regulation: There is a legal framework that oversees the regulation of print, electronic, and digital media, including censorship. 
• Role in Democracy: This right plays an important role in ensuring accountability, promoting transparent governance, and encouraging public involvement in democratic processes. 
• Future Directions: Reforms are necessary to address new challenges posed by digital media, and it is crucial to maintain a balance between free expression and responsible speech.