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Freedom Of Speech And Expression In Indian Constitution With Reference To Morality And Decency

Freedom of Speech and Expression

Meaning and Scope
Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that all citizens shall have the right to freedom of speech and expression. Under Article 19(2) reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1)(a) includes the right to express one's views and opinions at any issue through any medium, e.g. by word of mouth, writing, printing, picture, film, movie, etc. It thus includes the freedom of communication and the right to propagate or publish an opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary.

It is important to note that a restriction on the freedom of speech of any citizen may be placed as much by an the action of the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens irrespective of their circumstances and the class to which they belong, the fundamental right to freedom of speech and the expression would constitute a violation of Article 19(1)(a).

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. In fact, the freedom of speech and expression gives greater scope and meaning to the citizenship of a person extending the concept from the level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows Government to frame laws to impose reasonably restrictions in the interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation, and incitement to an offense.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizens liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one's opinion, the right to seek information and ideas, the right to receive information and the right to impart information. The Indian State is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy aforesaid rights.

In Romesh Thappar v State of Madras (AIR 1950 SC 124), the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as the publication is of little value without circulation. Patanjali Sastri, J., rightly observed that:
Freedom of Speech and of Press lat at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government is possible.

However, Article 19(2) of the Constitution provides that this right is not absolute and reasonable restrictions' may be imposed on the exercise of this right for certain purposes. The right to freedom of expression includes the right to express one's views and opinions on any issue and through any medium whether it be in writing or by word of mouth.

The phrase speech and expression used in Article 19(1) (a) has a broad connotation. This right includes the right to communicate, print, and advertise the information. In India, freedom of the press is implied from the freedom of speech and expression guaranteed by Article 19(1)(a). The freedom of the press is regarded as a species of which freedom of expression is a genus.

On the issue of whether advertising' would fall under the scope of the Article, the Supreme Court pointed out that the right of a citizen to exhibit films is a part of the fundamental right of speech and expression guaranteed by Article 19(1)(a) of the Constitution.

Indian law does not expressly refer to commercial and artistic speech. However, Indian Law is developing and the Supreme Court has ruled that commercial speech' cannot be denied the protection of Article 19(1)(a) of the Constitution.

The Court has held that commercial speech is a part of the right of freedom of speech and expression as guaranteed by our Constitution.

The citizens of India have the right to receive commercial speech and they also have the right to read and listen to the same. This protection is available to the speaker as well as the recipient. Freedom of Speech and Expression also includes artistic speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) because the common basic characteristic of all these activities is freedom of speech and expression.

Under the provisions of the Constitution of India, an individual as well as a corporation can invoke freedom of speech arguments and other fundamental rights against the State by way of a Writ Petition under Articles 32 and 226 of the Constitution of India subject to the State imposing some permissible restrictions in the interests of social control.

Under the provisions of Indian law, the right to invoke the freedom of speech arguments is not limited to individuals alone. Corporations are also entitled to invoke such arguments. The cases of Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757 and Indian Express Newspapers (Bombay) P. Ltd v. Union of India (86) A.SC. 515, are of great significance.

In these cases, the corporations filed a writ petition challenging the constitutional validity of notifications issued by the Government. After much deliberation, the Courts held that the right to freedom of speech cannot be taken away with the object of placing restrictions on the business activities of citizens. However, the limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of 19(2) is not valid.

The main elements of the right to freedom of speech and expression are as under:
  1. This right is available only to a citizen of India and not to foreign nationals.
     
  2. The freedom of speech under Article 19(1) (a) includes the right to express one's views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.
     
  3. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation, and incitement to an offence.
     
  4. This restriction on the freedom of speech of any citizen may be imposed as much by an action of the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens the fundamental right to freedom of speech and expression would also constitute a violation of Article 19(1)(a).

The Grounds on Which This Freedom Could Be Restricted

Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under the following heads:
  1. security of the State,
  2. Friendly relations with foreign states
  3. Public order,
  4. Decency and morality,
  5. contempt of court,
  6. Defamation,
  7. Incitement to an offense, and
  8. Sovereignty and integrity of India.

Decency or morality:

The way to express something or to say something should be a decent one. It should not affect the morality of society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground.

The words morality or decency are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fixed standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.

Article 19(2) and the Bal Thackeray Case

The word decency in Article 19(2) is often run together with morality, forming the compendious term, decency or morality. Since judicial discussion tends to focus on the meaning of morality (see, for instance, our previous analysis of the Ranjit Udeshi case, the word decency tends to get subsumed within the meaning of morality. Bal Thackrey case is, however, a notable exception, and deserves close scrutiny.

S. 123(3) of the Representation of Peoples Act prohibited a person from appealing for votes on the basis of his religion, race, caste, community or language. In the Bal Thackeray Case, it was argued that S. 123(3) violated Article 19(1)(a), and was constitutional only if the said appeal was directly prejudicial to public order, as envisaged by Article 19(2). The Court rejected this contention. Naturally, then, S. 123(3) was either unconstitutional or saved by another head under Article 19(2). The Court settled upon the latter course and chose decency. Rejecting the appellant's argument that the phrase decency or morality was limited to sexual morality, the Court held:

The ordinary dictionary meaning of decency' indicates that the action must be in conformity with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate's religion which by itself is no index of the suitability of a candidate for membership of the house.

Certain extracts from the alleged speeches of Bal Thackeray, translated in English, are expressly pleaded in the election petition, as under:
From Speech of 29.11.1987 "We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so."

From Speech of 9.12.1987 "Hinduism will triumph in this election and we must become hon'ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dugout. Anybody who stands against the Hindus should be showed or worshipped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion."

From Speech of 10.12.1987 "We have gone with the ideology of Hinduism. Shiv Sena will implement this ideology. Though this country belongs to Hindus, Ram and Krishna are insulted. (They) valued the Muslim votes more than your votes: we do not want the Muslim votes. A snake-like Shahabuddin is sitting in the Janata Party, a man like Nihal Ahmed is also in Janata Party. So the residents of Vile Parle should bury this party (Janata Party)."

Assuming - reasonably - that:
conventional morality and public morality refer to the the same idea, it is clear, on a combined reading of the three observations of the Court, that preservation of public morality is not, after all, in itself, a ground for restricting free speech! Of course, the issue is more complicated, since the Court was undoubtedly influenced by the fact that the case was not about a pornographic film that depicted sex, but about a statement in a newspaper.

Yet is there a principled difference between an influential actress persuading people about the the desirability of pre-marital sex by making a statement, and a pornographic film doing the same by depicting it? If there is, the Court did not attempt to explicate it.

In conclusion, therefore, it is rather difficult to extract a coherent philosophy out of the Court's decency and morality jurisprudence over the last fifty years. We saw that there are at least three possible ways of interpreting this phrase, each of which correspond to a different political philosophy, and a different vision of society: speaking very broadly, and ignoring all the nuances employed within this terms, these are legal paternalism, legal moralism, and a strong, autonomy-respecting harm principle. The Court, in its decisions, has at various times endorsed all of them, some of them, or none of them. We await clarity on this important issue.

Conclusion
Expression through speech is one of the basic guarantees provided by civil society. However in the modern world Right to freedom of speech and expression is not limited to express ones' view through words but it also includes circulating one's views in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of the press, etc. It is a right to express and self-realization.

Two big democracies of the world i.e. America and India have remarkably protected this right. As far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls in the fundamental right category. Indian courts have always placed a broad interpretation of the value and content of Article 19(1) (a), making it subjective only to the restrictions permissible under Article 19(2).

The words in the interest of public order', as used in Article 19 include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. There should be reasonable and proper nexus or relationship between the restriction and achievement of public order.

Freedom of speech and expression is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process and is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving protection to all other liberties.

It has been truly said that it is the mother of all other liberties. That liberty includes the right to acquire information and disseminate the same. It includes the right to communicate it through available media without interference to as large a population of the country, as well as abroad, as is possible to reach. The right to know is the basic right of the citizens of a free country and Art. 19(1)(a) protects that right. The right to receive information springs from Art 19(1)(a).

Reference:
  1. Article 19 of the Constitution
  2. Romesh Thappar v State of Madras (AIR 1950 SC 124)
  3. Indian Express Newspapers (Bombay) P. Ltd v. Union of India (86) A.SC. 515
  4. Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757
  5. Sections 292 to 294 of the Indian Penal Code
  6. S. 123(3) of the Representation of Peoples Act
  7. Bal Thackeray v. Prabhakar Kashinath Kunte (1996)
Written By-Abhishek Roy - Jogesh Chandra Chaudhuri Law College, LL.M

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