Explained: How The Indian Constitution Guarantees Freedom Of Speech To Every Citizen

When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.

-- Supreme Court of India, Shreya Singhal v. Union of India, March 24, 2015.

The Indian constitution grants varied fundamental freedoms to the citizens of India. Right to freedom of speech and expression is one of the fundamental freedoms protected under article 19(1)(a) of the Indian constitution and many international treaties to which India is a party.

Article 19(1)(a) guarantees the citizens of India freedom of speech and expression. This can be in the form of written texts, word of mouth or any other form of communication. The mode can be anything from the following- oral/ written/ electronic/ broadcasting/ press or others.

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Besides, in the case of Maneka Gandhi v. Union of India, it was also confirmed by the Supreme Court that freedom of speech and expression was not limited by geographical limitations or boundaries and claimed that Article 19(1)(a) encompasses both the right to speak and the freedom to express in India as well as abroad.

Freedom of expression is also inclusive of Freedom of Press. Although it is nowhere expressly mentioned in the Constitution. However, it is implicitly present as a right under the meaning of freedom of speech and expression.

Freedom of the press is essential to freedom of expression, which forms the backbone of political freedom and genuine functioning of democracy. In the case of Romesh Thappar v. State of Madras, the court affirmed that the enforcement of pre-censorship on a journal constituted an infringement on the freedom of the press, which is an essential part of Article 19(1)(a). The judgment also added that free political dialogue is necessary if a democratic government is to work properly

Origins of freedom of speech and expression

The concept of free speech has been around for a long time. Freedom of expression was established as a constitutional right in England's Bill of Rights in 1689, and it is still in effect today. The Declaration of Man's and Citizen's Rights was adopted by the French Revolution in 1789. This reinforced the importance of freedom of speech as an undeniable right.

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Article 11 of the Declaration of Freedom of Speech states: "The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law".

The Universal Declaration of Human Rights (UDHR), which was adopted in 1948, also states that everyone has the right to freely express their thoughts and opinions. Article 19 recognises freedom of speech and expression as a human right, and it is now a part of international and regional human rights law.

Simultaneously, the International Covenant on Civil and Political Rights (ICCPR) recognises freedom of speech and expression as human rights (ICCPR).

According to Article 19 of the ICCPR, "Everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of speech and expression; the right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers either orally or the form of writing or print, in the form of art, or through any other media of their choice".

The crisis of free speech: Article 19 (2)

Article 19(2) of the Constitution, as first drafted, originally stated that "Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State."

Accordingly, the Supreme Court, in the case of Romesh Thappar v. State of Madras, held that public order considerations cannot be justified under the ground of ¡®security of the state¡¯ under Article 19(2).

While striking down the then-Madras government's ban on Cross Roads (a weekly journal that was notably critical of Nehru's policies) from entering the state, the Court noted that such broad restrictions on freedom of expression were unconstitutional and that only narrow restrictions on freedom of expression were permitted.

In Brij Bhushan & Anr. v. State of Delhi, it was also claimed that an English weekly, Organizer, was publishing communal writings, and the Chief Commissioner of Delhi ordered the publisher to submit all materials for prior censorship.

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The Supreme Court argued in its decision that requiring prior approval limits the constitutional ideal of free speech, because pre-censorship of a publication would be a restraint on liberty.

Because the Supreme Court ruled against the state in both of these cases, Parliament enacted the First Constitutional (Amendment) Act, 1951, which gave us the current version of Article 19(2), which added the grounds of "public order," "friendly relations with foreign states," and "incitement to an offence."

The scope of the State's power widened after the amendment, and the Supreme Court, in its landmark decision in the case of Kedar Nath v. State of Bihar, overruled a challenge to the criminal offence of sedition for allegedly violating the right to free speech. The court upheld sedition as an offence, arguing that 'public order' and 'national security' were reasonable constraints under Article 19. (2).

Furthermore, there are several sections of the penal code that criminalise certain types of speech. For example, Section 153A makes it illegal to "promote enmity between different groups on the basis of religion, race, place of birth, residence, language, or other factors, and to do acts prejudicial to the maintenance of harmony by words, either spoken or written, or by signs, visible representations, or other means."

Obscenity is illegal under Section 292 of the Criminal Code. Section 295A makes it illegal for individuals to commit "deliberate and malicious acts intended to insult religious emotions of any class." Section 298 makes it illegal to "utter any word or make any sound" with the "deliberate intention of injuring a person's religious emotions."

Then there's the issue of sedition

In 1860, the British made sedition a crime in India in order to quell revolt. And it is still in effect in India. "Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment for life," according to Section 124 of the Indian Penal Code.

The Supreme Court has narrowed the definition of sedition to speech that "incites imminent unlawful action." Few people have been convicted of sedition, but just bringing the charge against someone can start a judicial process that can last years before the person is acquitted, as is generally the case.

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