Saturday, Aug 01, 2020 14:15 [IST]
Last Update: Saturday, Aug 01, 2020 08:31 [IST]
The United Nations Declaration of Human Rights, Article 17, states “ Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and import information and ideas through any media and regardless of frontiers.” One of the most important purposes of society and government is the presence and accessibility of truth on subjects of vital concern. This is possible only through absolutely unlimited discussion, dialogue and transparency in the system. However, keeping in view certain matters or purposes concerning greater importance like, protection against external aggression or the overall interest of the State or the people; unlimited discussion or exercise of such right may defeat or override the purpose and object from which the democratic process intends to achieve. Under such circumstances, a balance needs to be drawn between the purposes and the freedom of speech and in which case the freedom of speech ought to weigh very heavily on the scale as it involves the very fundamental nature of democracy.
Originally the Constitution of India had Seven Fundamental Rights and Seven Freedoms under Article 19. With the long struggle which involved judicious interpretation of the terms, “law and amendment” and whether “amendment” is “law” or not, was adjudicated upon by the Hon’ble Supreme Court of India in several important cases, which culminated in the famous landmark judgment in the case of Kesavananda Bharati versus State of Kerala, 1973 SC 1461. It was finally decided in this case that; (i) “amendment is not law” meaning thereby that any fundamental right could be abridged by amendment but not by law which is forbidden by Article 13(2), (ii) basic feature of the constitution could not be taken away, and (iii) that right to property is not a basic feature. As a result of the this judgment, the right to property not being a basic feature had been deleted from the freedoms and also deleted from the list of seven fundamental rights. This was enforced by virtue of the 44th Amendment Act, 1978. The Constitution hence provides for six Fundamental Rights and six Freedoms under Article 19.
The freedoms enshrined in Article 19 are not given in absolute terms but are subject to certain well-laid down restrictions. Clauses (2) to (6) provides limitations to different freedoms which are guaranteed under Article 19(1). The Clauses(2) to (6) have specifically mentioned in general that the right to freedom under Article 19(1) shall not affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by the said Article in the interest of (the sovereignty and integrity of India), the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. While expressing the legal interpretation on the subject of ‘reasonable restriction’ the Apex Court has held that these restrictions can be imposed but they must be reasonable and for reasonableness they must pass a test. The test is objective and not subjective. It is not what a judge personally considers ‘reasonable” or “unreasonable” but what a reasonable man in his place would consider the restrictions reasonable or unreasonable.
For the very purpose of this article, from the six Fundamental Rights and six Freedoms under Article 19 as laid down in Part- III of the Constitution of India, I would like to specifically touch upon Article 19 (1)(a), which provides the right to “freedom of speech and expression”. The right to freedom of speech and expression as I understand is one of the most significant of the rights which has been bestowed to the people by the Constitution of India. The freedom of speech and expression is a fundamental human right and an essential part of democracy. It also underpins most of the other rights and allows them to flourish. The right to speak your mind freely on important issues in society, access information and hold the power to be accountable, plays a vital role in the healthy development process of any society.
By ordinary connotation of the words ‘speech’ means a formal discourse in public, while the word ‘expression’ represents generally an utterance of one’s thoughts or feelings, whether by word of mouth, writing, printing, picture or in any other manner. Freedom of speech obviously includes freedom of discussion and has been interpreted to include all that may be said to be covered by “freedom of expression”. However, the Constitution does not expressly mention “freedom of press” in Article 19 but it has been held to flow from the general freedom of speech and expression guaranteed to all citizens. It is regarded as a “species of which freedom of expression is a genus”. In reality the press and media play a major role in today’s world in making our democratic system vibrant. As such this institution is held high as the fourth State. As far as the relevance of the freedom of press is concerned, Justice Venkataramiah in the case, Indian Express versus Union of India (AIR 1986 SC 515), observed that the freedom of press is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitution prevails.
Questions are often raised as to the “trial by media”. When sensational issues arise in the society, the public curiosity experiences an upsurge. Newspapers, I would say some of them compete with each other, in publishing their own version of the facts. Some of them employ their own reporters to unearth details which are not otherwise available. This enthusiasm is understandable. The thirst for sensational news is a natural human desire. However, investigatory journalism has its risk. The law does not prohibit it in the abstract. But the law does require the players in this activity to keep within certain limits. These limit primarily flow from, (a) the right to reputation; (b) the right to privacy; and (c) the law of contempt of court. Just as everyone possesses the right to freedom of speech and expression, every person also possess a right to his reputation which is regarded as property. Hence nobody can so use his freedom of speech or expression as to injure another’s reputation. For instance the laws penalizing defamation do not, therefore, constitute infringement of the freedom of speech.
A citizen has a right to know about the activities of the State, the instrumentalities, the departments and the agencies of the State. The right to information also seems to flow from Article 21 of the Constitution on the right to life and personal liberty, which includes the right to know about things that affect our lives. The privilege of secrecy which existed in the old times, namely, that the State is not bound to disclose the facts to the citizens or the State cannot be compelled by the citizens to disclose the facts, does not survive now to a great extent. Under Article 19 there exists the right to freedom of speech. Freedom of speech is based on the foundation of right to know. For example the voters’ right to know the antecedents of the candidates is based on the interpretation of Article 19(1)(a) which provides that all citizens of this country would have fundamental right to freedom of speech and expression and this phrase is construed to include the fundamental right to know the relevant antecedents of the candidates contesting the election. The State can impose and should impose reasonable restrictions in the rights where it affects the national security or any other matter affecting the nation’s integrity.
Interestingly, due to the persistent efforts made by the civil society organizations in the 90s and the role of the people’s movement in India, the Right to Information (RTI) was formally recognized by the Government of India. The RTI as a legislation came into force on 21st June, 2005 as published in the Gazette of India as the Right to Information Act, 2005 (No.22 of 2005).This Act is a milestone in India’s progress as the biggest democracy. It recognizes the fact that public has every right to know what lies buried in the official records. The right is not less than the citizen’s fundamental right. It is a radical and an innovative piece of legislation with the potential to change fundamentally the nature of the relationship between the citizen and the government. It helps to transform a representative democracy into a participatory democracy. Well informed citizens can make better choices and are able to participate in governance.
With the introduction of new communication systems and digital technology dramatic changes have come about in the way we live. A revolution is occurring in the way the people use new technology to create, transmit, share and store information in the electronic form instead of traditional paper documents. With the presence of various applications in the digital and electronic media like, Television, Facebook, WhatsApp, Twitter, etc. today people at large are instantaneously receiving information on various issues as well as expressing their views and opinions through such digital/electronic media. As a matter of fact, we do find many individuals who provide regular information on regular basis to the general public as self-proclaimed journalist. In recent times we have seen that besides the regular print media, the television channels and other digital/social media platforms have taken the lead in this race of either being the first to cover the news item, as one would say the “breaking news “or to hype certain news items beyond set protocols. This revolution has brought about immense changes in matters relating the subject under discourse. Every citizen has the right to express his or her views or lay what sentiments he pleases before the public. However, this freedom must be exercised with circumspection and the care must be taken not to trench on the rights of other citizens or jeopardize public interest. Every citizen of this free country, therefore, has the right to air his views through the printing and/or electronic media subject, of course, to the permissible restrictions imposed under Article 19(2) of the Constitution. Thus, the freedom of the press flows from the freedom of speech and expression and it stands on no higher footing than the freedom of speech and expression of a citizen.
With reference to the freedom of speech and expression and Section 66A of the Information Technology Act, 2000, a historic judgment was passed by the Hon’ble Supreme Court in the case, Shreya Singhal versus Union of India, (AIR 2015 SC 1523, , on 24th March, 2015. While upholding freedom of expression, the Hon’ble Supreme Court struck down Section 66A of the Information Technology Act, 2000, where a provision in the cyber law which provides power to arrest a person for posting allegedly “offensive” content on websites. The Apex Court ruled that the Section falls outside Article 19(2) of the Constitution, which relates to freedom of speech and thus held to be struck down in its entirety. It was observed that Section 66A affects the right of people to know, hence violates Article 19(1)(a) beyond the extent permissible under Article 19(2) of the Constitution. This judgment of the Apex Court reflects the very importance of the freedom of speech and expression guaranteed by the Constitution in the present global context.
Right is the result of the application of the principle of the rule of law, that no man is punishable except for a distinct breach of law of the land. Every citizen has the freedom to speak, express, write or publish so long as he does not commit a breach of the law or oversteps the boundaries set by law. Therefore, in order to ensure vibrant and participatory democracy it becomes the foremost duty of the State (Article 12) to uphold the right to freedom of speech and expression to its citizens, press and media (print/electronic/digital) keeping in mind the reasonable restrictions as laid down by the law of the land. It is equally important for every citizen to apply, this freedom of speech and expression sensibly and as per the guidelines set by the rule of law. Information is power and positive information is absolute power; empowerment of the people.
Democracy is “government of, by and for the people”. – Abraham Lincoln
(The author is former Speaker, Sikkim Legislative Assembly. The views expressed are those of the author. Email: email@example.com)