Understanding Article 19: Scope, Limitations and Challenges to Freedom of Speech in India – Part 02

Article 19 of the Indian Constitution guarantees several fundamental freedoms, including freedom of speech, expression, assembly, association, movement, residence, and profession. These rights are crucial for fostering democracy, ensuring individual liberties, and maintaining public order. However, they come with reasonable restrictions to balance individual freedoms with the broader interests of society.

Scope and Limitations of Freedom of Speech and Expression: Hate Speech, Press Freedom, and Other Fundamental Rights

Hate Speech 

• • Definition of Hate Speech: Law Commission of India in its 267th Report has defined hate speech as an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious beliefs, etc.
• Legal Provisions
  • Section 153A and 153B of theIPC: provides for punishment for actions that create enmity and hatred between groups.
  • Section 505(1) and 505(2) of the IPC: make the publication and circulation of content which may cause ill-will between groups an offense.
  • Section 295A of the IPC: provides for punishment for actions which deliberately or with malicious intention outrage the religious feelings of a class of persons.
  • Section 125 of the Representation of People Act, 1951: prohibits promotion of enmity or hatred between classes of citizens and considers it under corrupt electoral practices.
• Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act ,1989: prohibits hate speech targeting Scheduled Caste and Schedule Tribe.
• Judicial Cases 
  • Shaheen Abdulla vs Union of India and ors,2022: The Supreme Court has directed the government and police authorities to take suo moto actions in hate speech cases.
  • Pravasi Bhalai Sangathan v. Union of India ,2014: Hate speech is not defined in any pre-existing legislation in India. 
  • In this case, the Supreme Court has requested the Law Commission of India to address this issue.
  • Shreya Singhal v. Union of India,2015: Section 66A of the Information Technology Act,2000 was challenged as violative of  the fundamental right of free speech and expression of the Constitution. 
  • The Supreme Court differentiated between discussion and incitement of hatred.

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Issue Of Hate Speech 

• Lack of Legal Definition of Hate Speech: Definition of hate speech- it has not been defined under any legislation. 
  • Without an official definition it becomes difficult to establish clear guidelines targeting hate speech.
• Social Impact of Hate Speech: It promotes social inequality. 
  • It reaffirms historical oppression and discrimination. 
  • Threat to the basic principles of fraternity and dignity of the individual.
• Hate Speech and Violence: It incites violence which may lead to physical and psychological harm to its victims.
• Online Hate Speech: is made easier with the spread of the internet. 
  • It becomes difficult to identify and remove such content.
  • Many social media platforms like Meta and X ( erstwhile Twitter) are struggling to moderate hate speech.
• Accountability of Public Figures: Hate speech by public figures and politicians: it is challenging to hold them accountable.
• Balancing Freedom Of Speech And Hate Speech: Hate speech can be viewed as a restriction on the fundamental right of speech and expression leading to many legal challenges.

What Needs to be Done

• Bezbaruah  Committee 2014: recommended making amendments in section 153 of IPC to punish acts and statements that promote racial discrimination.
• Viswanathan Committee 2019: proposed insertion of section 153C (b) and section 505A in the IPC for stringent provisions. 
• It also proposed for punishment of up to two years along with ₹5000 fine.
• Government and Civil Society Initiatives: Awareness programs and initiatives to maintain cordial relationships ,to be taken by the government and civil society.
• Role of Education in Social Harmony: Our education system can play a pivotal role in promoting social harmony and tackling hate speech through social sensitisation.

Freedom of Press

• Freedom of the press: pertains to the rights associated with freedom of speech and expression. 
• Role in Democracy: It fosters independent journalism and enhances democracy by providing a platform for individuals to express their views either in support of or in opposition to the government’s actions. 
• Constitutional Framework: The Constitution does not explicitly mention “Freedom of the Press”; instead, it is commonly understood to be encompassed within the broader framework of Freedom of Speech and Expression. 

• Significance of Freedom of Press
  • Preservation of Democracy: The freedom of the press plays a crucial role in preserving and strengthening democratic principles. 
  • It allows for the dissemination of diverse information, fostering an informed citizenry capable of making educated decisions.
  • Government Accountability: A free press acts as a watchdog, holding government institutions accountable for their actions.
  • Journalists can investigate and report on potential abuses of power, corruption, and other issues, promoting transparency and accountability.
  • Expression of Diverse Opinions: Freedom of the press ensures a platform for the expression of diverse opinions and perspectives.
  • It encourages a robust public discourse by allowing journalists to present a variety of viewpoints on societal issues.
  • Protection Against Censorship: Press freedom acts as a safeguard against censorship and authoritarian control over information.
  • It allows journalists to report on matters of public interest without fear of undue restrictions, promoting an open exchange of ideas.
  • Information Flow and Public Awareness: The freedom of the press facilitates the flow of information, keeping the public informed about current events, policies, and social issues.
  • It contributes to an enlightened society by providing citizens with the knowledge necessary to participate actively in civic life.

Issues Related to Press

• Fake News: A Ubiquitous Challenge: Many of us have succumbed to the prevalence of fake news, a phenomenon so widespread that it often convinces us of its veracity. 
• Example: reporting the presence of a GPS chip in the new ₹2000 notes.
• Paid News: Due to the relatively low remuneration in the field of journalism, some practitioners resort to disseminating false information in exchange for financial compensation.
• Biased Media: Wealthy individuals, including criminals and politicians, frequently pay media organizations to showcase their positive and philanthropic endeavors. 
• This practice results in a biased portrayal, particularly during election periods.
• Media Trial: News shows carry narratives that make a person guilty in the eyes of the public, even before the court finds them guilty.  
• Example: media trial in Sushant Singh Rajput suicide case.
• Wrongful Prosecution : A journalist from Jammu and Kashmir is recently released from jail after 21 months.
• Crimes Against Journalists: India stands among the top four countries with the highest number of recorded journalist deaths according to a report ‘IPI Death Watch 2021’.
• • Journalist Subhash Kumar Mahato was shot dead in Begusarai, Bihar in 2022.

Article 19(1)(B) : All Citizens Shall Have The Right—  To Assemble Peaceably And Without Arms

Scope: This includes public meetings, rallies, protests, or any form of social gathering. 

• The assembly must be peaceful and unarmed. 
• This right can only be exercised on public land. 
• It does not include the right to strike.
• Section 144 of the CPC: According to Section 144 of the Criminal Procedure Code (1973), a Magistrate has the authority to prohibit an assembly, meeting, or procession when there is a potential for obstruction, annoyance, danger to human life, health, safety, disturbance of public tranquility, riot, or any affray.
• Section 141 of the IPC: According to Section 141 of the Indian Penal Code, a gathering of five or more individuals is deemed unlawful if its purpose is:
  • To resist the execution of any law or legal process
  • To forcibly occupy the property of some person 
  • To commit any mischief or criminal trespass
  • To force some person to do an illegal act
  • To threaten the government or its officials on exercising lawful powers. 
• Reasonable Restrictions:
  • Sovereignty  and integrity of India
• Public Order

Article 19(1)(c): All citizens shall have the right—  to form associations or unions or co-operative societies

Right to Establish: Every citizen possesses the right to establish associations, unions, or cooperative societies. 

• This right encompasses the formation of political parties, companies, partnership firms, societies, clubs, organizations, trade unions, or any collective body. 
• Scope of the Right: It extends beyond the initiation of such associations to the ongoing existence thereof. 
  • Additionally, this right encompasses the negative aspect of choosing not to establish or join an association or union.
• Right to form Cooperative Societies:  These are the associations where members collaborate for mutual benefit, often in economic or social endeavors. 
  • It was added to the constitution by the 97th Constitutional Amendment Act, 2011.
• Reasonable Restrictions: 
  • Sovereignty  and integrity of India
  • Public Order
  • Freedom to Establish Associations and Unions: Citizens have the full freedom to establish associations or unions to achieve legal aims and objectives. 
    • Limitations: However, the right to obtain official recognition for the association is not considered a fundamental right. 
  • Trade Unions: According to the Supreme Court ,the trade unions do not have an inherent right to effective bargaining , the ability to strike, or the authority to announce a lockout.

• The right to strike can be regulated by an appropriate industrial law.

Article 19(1)(D) : All Citizens Shall Have The Right—To Move Freely Throughout The Territory Of India

Right to Unrestricted Travel Within the Country: This freedom grants every citizen the right to travel unrestricted within the country’s territory. 

• It allows seamless movement between states and within a state, emphasizing the unity of India. 
• The objective is to foster national unity and discourage parochialism. 
• Reasonable Restrictions: on this right aim to balance the interests of the general public and protect the rights of scheduled tribes. 
• • Restrictions in tribal areas aim to preserve the unique culture, language, customs, and livelihoods of scheduled tribes, safeguarding them from external exploitation.
• Internal vs. External Aspects: While Article 19 safeguards the internal aspect of movement (freedom of movement inside the country), Article 21, which pertains to the right to life and personal liberty , addresses the external aspect (freedom to move outside the country).

Article 19(1)(e): All citizens shall have the right—to reside and settle in any part of the territory of India

Right to Residence and Settlement: Every citizen possesses the right to both reside temporarily and settle permanently in any part of the country. 

• This aims to eliminate internal barriers, fostering nationalism and preventing narrow-mindedness. 
• It is to be noted that the rights to residence and movement are interconnected, complementing each other.
• Reasonable Restrictions: The State can impose reasonable restrictions based on the grounds of: 
• Interest of General Public: In this regard the Supreme Court stated that few areas can be banned for certain kinds of people like sex workers, habitual offenders.
• The Protection Of Interest Of Any Scheduled Tribe: The right of outsiders to reside and settle in any tribal area is restricted to preserve the unique cultural practices, language, traditions, and behaviors of scheduled tribes, and to defend their traditional occupations and assets from being exploited.
• Supreme Court’s Stance: Moreover, the Supreme Court had stated that certain areas can be banned for certain categories of persons like habitual offenders and prostitutes.

Article 19(1)(F): All Citizens Shall Have The Right— To Practice Any Profession, Or To Carry On Any Occupation, Trade Or Business

Right to Practice Any Profession: The right to profession is pivotal, providing individuals the freedom to choose and pursue a livelihood, fostering economic independence, creativity, and societal progress.

• Additionally, no citizen can be forced to conduct a business.
• Freedom from State Interference in Business: This freedom safeguards the right of citizens to engage in business without State interference, except for reasonable restrictions serving the public interest. 

• Reasonable Restrictions: The State is empowered to impose reasonable restrictions by taking the following steps 
• Requirement of Technical Qualifications: To practice any profession , or to engage in any occupation, trade, or business an individual requires technical qualifications.
• State Monopoly and Justification: To engage directly in any trade, business, industry, or service, whether fully or partially excluding citizens or not. The state is not required to justify its monopoly.
• Regulation of Unsafe and Immoral Businesses: This right does not extend to businesses that are unsafe (harmful drugs or explosives) or immoral (human trafficking) may be banned or regulated through licenses.

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Conclusion

While Article 19 upholds essential freedoms, its implementation involves navigating complex issues like hate speech, press freedom, and reasonable restrictions. 

• Effective legal frameworks and judicial oversight are necessary to protect these rights while addressing challenges. 
• Continuous reforms and vigilance are crucial for maintaining the delicate balance between individual liberties and societal harmony.

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