Freedom of Speech and Expression under Article 19: Key Rights, Judicial Interpretations, and Restrictions – Part 01

Article 19 of the Indian Constitution guarantees six fundamental freedoms to all citizens, essential for the democratic framework of the country. These rights include the freedom of speech and expression, assembly, association, movement, residence, and profession. These freedoms, however, are subject to reasonable restrictions to balance individual rights with societal interests and maintain public order, morality, and the integrity of the nation.

Freedom of Speech and Expression: Article 19 and Its Implications

Article 19:  Protection of certain rights regarding freedom of speech, etc.

• Article 19: It guarantees to all citizens the six rights. These are:

1. 1. Right to freedom of speech and expression.
   2. Right to assemble peaceably and without arms.
   3. Right to form associations or unions or co-operative societies.
   4. Right to move freely throughout the territory of India.
   5. Right to reside and settle in any part of the territory of India.
   6. Right to practice any profession or to carry on any occupation, trade or business.

• Amendments: Originally, Article 19 had seven rights, but the 44th Amendment Act of 1978 removed the right concerning property acquisition, holding, and disposal. 
  • The six remaining rights are safeguarded only from actions by the State, not from private individuals.
• Applicability of Rights: Additionally, these rights are applicable solely to citizens and shareholders of a company, excluding foreigners and legal entities such as corporations. 
• Limits on Rights: The state can only place ‘reasonable’ restrictions on these rights based on the grounds specified within Article 19(2) and not on any other grounds.

Article 19(1) (a): All citizens shall have the right— to freedom of speech and expression

• Right to Freedom of Expression: This means that every citizen of India has the right to voice their opinion, speak freely, and communicate their ideas without fear of retaliation or censorship from the government except on reasonable grounds.
• Diverse Formats of Expression: The word ‘expression’ has a broader concept than just speech. 
  • This means that citizens have the right to express their thoughts, ideas, and opinions in various formats, such as writing articles, creating artwork, making films, social media, and the press.
• Judicial Interpretation of Free Speech: The Supreme Court stated that the right to freedom of speech provides citizens the liberty to pursue their own beliefs or political leanings within the framework of the Indian Constitution. 
  • This right is co-related to fundamental duties envisaged under Article 51A (Fundamental Duties).

• Reasonable restrictions on the exercise of the freedom of speech and expression can be imposed by the State on following grounds: 
• Sovereignty and integrity of India( added by 16th amendment act)
• Security of the state
  • Friendly relations with foreign states (added by 1st amendment act, 1951)
  • Public order, decency or morality (added by 1st amendment act, 1951)
• Contempt of court
  • Defamation and incitement to an offense.

Defamation

• Defamation: Saying or writing something that harms the reputation of others. 
• “Slander and Libel: It is termed slander when done verbally and libel when done in a written form. 
• Legal Status of Defamation: In India it is both a civil and criminal offense, but world over the trend is to reduce it to a civil offense. 
• State Involvement in Serious Offenses: Offenses like murder which are prosecuted by the state are not just an offense against the family affected but the whole society itself. 
  • Thus the state which represents society has to get involved.
• Defamation under IPC: Section 499 of IPC talks about defamation and section 500 talks about the punishment. 

Issues With Treating It As A Criminal Offense

• Nature of Civil Offenses: Civil offenses are private wrongs between the entities involved. 
  • Defamation is treated as a private wrong in mature western democracies. 
  • Thus treating it as a criminal offense is providing a public remedy for a private wrong. 
• Impact on Democratic Societies: It also has a pernicious effect on democratic societies as the fear of defamation leads to self censorship on journalists and opposition leaders. 
  • As the state uses criminal defamation to coerce, it leads to unwarranted self-restraint. 
• Abuse and Harassment: The followers of leaders start filing defamation, the nature of social media non geographic leads to cases being filed in multiple parts across the country. 
  • It is used as harassment of social activists and opposition political leaders. 
• Exceptions in Defamation Law: Sec 499 also lists acts that would not amount to defamation. 
  • Example: Imputations made on good faith would not lead to defamation, comments made on public performance of public servants, imputation of truth that serve public purpose. 
• Judicial Application Issues: It has been found that magistrates are mechanically applying the sec 499 without looking at the exceptions. 
• Accessibility Issues: It is the exclusive preserve of elites with the common man unable to go through the hassles to either defend or go to court to frame charges.  

Subramanian Swamy case, 2016: criminal defamation was challenged 

Government’s Defense of Criminal Defamation: The Government of India defended criminal defamation by saying that poor people don’t have the financial capacity to pay damages, hence cannot pay damages. 

• Hence it needs to remain a criminal offence. 
• Inconsistencies with Other Civil Offenses: But the same is not applied to other offence like traffic fines, not getting tickets, which are civil offences. 
• Court’s Decision on Criminal Defamation: Second argument was that it was the government’s duty to protect the reputation of citizens. 
  • Right to Reputation and Life: Eventually, the court missed the opportunity and criminal defamation was upheld citing right to reputation as part of right to life. 
  • Impact on Dignity and Community: The court also opined that the dignity and fraternity commitment in the preamble would be harmed if baseless allegations are made and a person may be alienated from the community.  

Contempt of Court

Constitutional Basis for Contempt Powers: The contempt of Court Act of 1971 defined contempt, but the contempt powers of the court are mentioned in the constitution itself (Article 129). 

• • Types of Contempt: The act describes two types of contempt: civil and criminal contempt. 
    • Civil: Breach of the order of the court or breach of undertaking given to the court. 
    • Criminal: Anything that has the effect of scandalizing the court or has the tendency to do so, anything that interferes in the proceedings of the courts, or actions that obstruct the administration of justice. 
  • Need Of Such Powers: There might be instances where the ruling is unpopular, thus harming the independence of the judiciary, and thus shielding them from malicious campaigns. 
    • If there is no independence of the judiciary, the public interest would be hurt.

• Issues with Contempt of Court: 

• • • Principle of Natural Justice: Nemo Judex in causa sua i.e. No person can be a judge in his own case.
      • But in case of contempt of court, the judge presides over his own case. 

• Criminal contempt: Fair criticism is fine and allowed by law, but there are vague terms like scandalizing the court, obstruction of justice which can be abused . 

• • Supreme Court’s Stance on Criticism: While the Supreme Court has said that the shoulders of the Supreme Court are broad and can take all criticism, hence hypersensitivity is to be avoided. 
  • Challenges in Evaluating Criticism: So when fair criticism trespasses into the territory of scandalizing the court, there is no yardstick for evaluation. 
    • It depends on subjective assessment of application of justice and hence variability of justice which is a violation of the right to equality . 
  • Effects on Court Forums and Institutional Growth: Equality of treatment in court forums is also a part of equality before law and it may even stifle genuine criticism and prevent the growth of the institution. 
• Perception of Judicial Infallibility: It leads to judiciary being considered infallible: 

• Assumption: It assumes that judiciary it can never be wrong 
• Distinguishing Criticism of Judges and Judiciary: Judiciary is also composed of humans who are susceptible to human failings and hence any just criticism of the judge shouldn’t be misconstrued as criticism of the judiciary and contempt of court is not equal to contempt of judge. 
• Blurring the Line Between Judge and Court: When the attack on a judge becomes an attack on the court, the line distinguishing between the two is blurred. 
• International Perspectives: In the UK, scandalizing the court has been removed as a ground for contempt, and in the US, after many judgements, a diluted version of contempt powers is used. 

• Mulgaonkar guideline(1978):  Guidelines were laid for judges to exercise contempt powers: 

• Economic Use of contempt powers is desirable
• Harmonization between free criticism and judicial independence. 
• Press should be given free play within reasonable limits 
• Judges shouldn’t be hypersensitive  
• Distinction between contempt of court and that of judges. 

• Supreme Court’s View on Justice and Scrutiny: The Supreme Court has expressed in various judgements that the path of justice is not strewn or littered with roses and hence justice should be allowed to suffer the scrutiny and even the outspoken comments of the common man. 
• 2006 Amendment to Contempt of Courts Act: In 2006, there was an amendment to Contempt of Courts Act, 1971, (CoCA) which provided for truth as a valid defense in contempt of court. 
  • If there are allegations of corruption against the judge applied and if those turn out to be true, the contempt should not be proceeded with. 

Conclusion

The rights under Article 19 are crucial for fostering individual liberty and democratic participation, ensuring that citizens can freely express themselves, associate with others, and pursue their livelihoods. 

• While these rights are not absolute and come with reasonable restrictions, they form the bedrock of India’s commitment to a free and just society. 
• Balancing these freedoms with the needs of society remains a dynamic and ongoing process.

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