Freedom of Speech and Expression- A Myth

Manav Kothary


The ancient Greeks pioneered the free speech principle called ‘parrhesia’ around the end of the fifth century B.C.  The First Amendment of The US constitution, which was adopted on December 15, 1791, guarantees four freedoms to the citizens:

  • Religion
  • Speech
  • The press
  • The right to assemble

The clause relating to freedom of speech and expression was included in the Swaraj Bill, 1895, which is regarded as the first Indian articulation of a constitutional vision.

Article 19 of the United Nations Universal Declaration of Human Rights, adopted on 10th December 1948, provides:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Under Article 19 of the Constitution of India we are guaranteed:

(1) (a) Freedom of speech and expression, with reasonable restrictions under Article 19(2)

(2) Nothing in sub-clause (a) of clause (1) shall 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 right conferred by the said sub-clause in the interests 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.

What is the break-up point of Freedom of speech and expression in this 21st liberationist democratic century[C1] ? In different parts of the world, the practice of this expression differs differently for the same gravity of the act.

The U.S. Supreme Court, in Texas v. Johnson[i] in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag.

Whereas in India, on 11 December 2016, nine members of the audience who decided not to stand up for the national anthem on principle during the screening of a film were assaulted during the interval as not showing even cursory respect. This act was also violative of Section 3 of THE PREVENTION OF INSULTS TO NATIONAL HONOUR ACT, 1971.

  • Sedition:

Sections 124A and 505 of the Indian Penal Code make it obvious that the sections seek to make illegal only those acts that are planned, or have a propensity, to cause disorder or disruption of public peace by resorting to violence. The critique of government policy, albeit intense, would be within fair bounds and compatible with the constitutional right to freedom of expression.

The National Crime Records Bureau’s figures for 2020 show a 96% increase in filing seditious cases, almost every state seems to have weaponized sedition as a means of silencing critics and the numbers are increasing, with absurd reasoning:

  • A woman questioned the need for declaring a holiday on the death of a political leader and the other ‘liked’ that Facebook post in 2012. They were booked under Section 505 of the IPC.
  • Dr Kafeel Khan delivered an address to students at the Bab-e-Sayyad gate of Aligarh Muslim University in December 2019, criticizing the Citizenship Amendment Act and the National Register of Citizens.

More than a month later for more than six months, he was arrested for making an inflammatory and provocative speech. He was held in preventive detention under the National Security Act, a repressive statute that requires detention without trial and is focused on the arbitrary discretion of the detaining authority.

Later on September 1, 2020, The Allahabad high court quashed the preventive detention order, concluding that,

“A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent.”

  • In Karnataka, 85 school children were interrogated by the Bidar cops concerning a play in which a child recites what the authorities found to be an objectionable dialogue. The mother of the child and the teacher who oversaw the play was charged with sedition and arrested.
  • Contempt of Court:

A comparison of the spirit of this term in various economies:

In 1987, after the Spycatcher judgment by the House of Lords, the Daily Mirror had published an upside-down picture of three Law Lords with the caption ‘You Old Fools’. Lord Templeman refused to initiate contempt proceedings and said he was indeed old and whether he was a fool was a matter of perception though he personally thought he was not a fool.

The Supreme Court of India initiated suo moto contempt proceedings against public interest lawyer and activist Prashant Bhushan, based on two tweets posted by him. One was a comment on the Chief Justice of India riding an expensive Harley-Davidson motorcycle belonging to a ruling party leader, and the other, a critique on the Supreme Court’s role in destroying democracy in India. The Supreme Court declared that the tweets had the ‘effect of destabilizing the very foundation of this important pillar of Indian democracy’ and held Prashant Bhushan guilty of contempt of court. In response to a nationwide criticism of the judiciary’s attempt to thwart free speech, the Court handed down a symbolic punishment sentencing him with a nominal fine of Re. 1

What’s the point of free speech until and unless different points of view are acknowledged?

“Freedom of speech has to be guarded against becoming a license for vilification and condemnation of the Government established by law. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”[ii]

But in contemporary India, political discourse continues to elicit the broad gamut of constitutional safeguards and censorship on free speech.

The concept of unfettered liberty is as quixotic as this idealistic notion:

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”[iii]

Utterly discarding attenuation is a futile act because the framers in their far-sighted wisdom have drafted it meticulously. Even in a decent state-of-affair cases have cropped up where one has infringed other’s dignity and where a justifiably-reasonable-binding restriction has deterred it. But up to what extent can the curtailment are interpreted to assist in thwarting its boundaries?

Will anyone talks freely if a perception voiced no matter how ludicrous or insane, results in detention and an allegation of sedition, preceded by a protracted legal battle?

We have seen various facts where if a citizen exercises the freedom of speech and says something distasteful, he or she can be arrested based on a utopian tale.

Starting from the fifth century B.C till date, if the result is ending up in jail on the basis of some fairy tale, Article 19 (1) has just become a ‘sway’. It has become conscientious obligation of the government and the courts to reiterate this term liberally.

[i] Texas v. Johnson, 491 U.S. 397 (1989)

[ii] The Hon’ble Supreme Court of India observed in Kedar Nath Singh vs State Of Bihar on 20 January 1962, 1962 AIR 955, 1962 SCR Supl. (2) 769

[iii] John Milton Quote

 [C1] LIBERTARIANIST is not a word per se but its meaning and relevance in this sentence is very well clear. Still if the editor thinks that it won’t fit in with the purpose they may proceed with suitable changes.

This article is authored by Manav Kothary, a first-year law student at Karnavati University (United World School of Law). Presently working as a contributing author at The Blue Letters.

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