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India’s Tryst With Freedom Of Speech And Expression

Everyone has Right to Freedom of Opinion and Expression; this right includes freedom to hold opinions without interference and impart information and ideas through any media regardless of frontiers.-Universal Declaration of Human Rights, 10th December, 1948

Introduction
Right to Freedom of Speech and Expression is a live wire in democracy, it is essential to the completion and growth of one's individuality. As democracy is a common will of the people, the individuality of the people shapes the society into a reasonable, intertwined and united bureaucratic system.

An independent India adopted the Indian Constitution on 26th January, 1950, which solemnly guaranteed to secure the freedom of expression, thought, worship and belief to all citizens. The Freedom of Speech and Expression was explicitly recognised as a basic fundamental right guaranteed under Article 19(1) (a) of the Constitution of India, however subject to some constitutional limitations.

Freedom of speech and expression promotes a platform for ideas and allows society to develop continuously by spreading new thoughts, ideas and discussion. It is also vital for self-expression, which is an important vehicle of free conscience and self fulfilment, playing a crucial role in facilitating scholarly and artistic enterprises of all sorts as it is the privilege of every human being to interpret and use experience in his own way and act of choosing amongst alternatives bring a man's moral abilities into play.

Mr. John Milton in his book Areopagitica says that without this freedom:
there can be no health in the moral and intellectual life of either the individual or the nation', in a democratic form of state where people are the sovereign rulers, freedom of speech and expression are more integral. Ivor Jennings in without freedom of speech said that the appeal to reason which is the base of democracy cannot be made.

The moment when the citizens of any democratic country lose its rights related to freedom they are entitled to, the country ceases to be a democracy.

The term, 'Democracy' has a broader dimension for Dr. B.R Ambedkar and he opined that democracy is a form and method of government through which radical changes are brought about in the social and economic life of the people without bloodshed.

There has been political and economic refusal of this process from time to time. In order to continue its advancing process, any democratic nation, needs to have its citizens' rights in such a form that it is fundamentally accepted and guaranteed by the state.

When, We the citizens of India, were giving the Constitution to ourselves, we considered this right to freedom of speech and expression as an essential fundamental human right under Article 19(1) (a), under Part III of the Indian Constitution.

The different features and levels of this Article 19 have undergone a detailed elucidation in a sequence of landmark judgments proclaimed by our Supreme Court. These proclamations have helped both the central and the state government in realizing the divine nature of this Article and for developing India as a democratic nation.

To protect the sovereignty, integrity and the overall position of the country, it is necessary to advance the restrictions to this fundamental right apotheosized under Article 19 laid down by the Constitution of India.

The 8 restrictions 4 to this freedom are in regard to the following:
  1. Contempt of court
  2. Decency or Morality
  3. Defamation
  4. Security of the state
  5. Friendly relations with other states
  6. Incitement to an offence
  7. Public order
  8. Maintaining the sovereignty and integrity of India.

India has seen its fair share of freedom being retrenched form time to time, as being one of the world's largest democracies.

There have been numerous instances of the rights of the people being retrenched during the whole of the colonial period. One of the many such instances happened to Mahatma Gandhi when he was asked to leave Champaran, Bihar. He had all the rights as a citizen of India to move freely in the territory of India, though India was under the British Raj.

Another instance happened with Bose, the British put him under house arrest for his role in civil disobedience movement. When the Leaders of our nation formulated the Constitution, they realised that this right was important to all the citizens and they wanted to ensure that this right was given to all the citizens of the nation irrespective of their caste, colour, religion or gender.

Birth Of Freedom Of Speech And Expression Under The Constitution Of India

The freedom of the people of India was at complete stake, under the era of the British Raj. The freedom of speech and expression was suppressed by the outrageous behaviour of the British Empire.

From the time, the Laws of Sedition in 1870 to the Hate Speech law, section 295A was enforced by the British, they allured every possible way to restrict the Indians from making
opinions to an independent fight by suppressing the rebellious emotions dominating the crowd.

The prohibition of the Seditious Meetings Act, 1907 which curbed free analysis and establishment of Unions was the propulsion behind the fundamental right to free speech and expression, being granted to the citizens which they were previously bereft of.

As we know, The Constitution of India is a bag of borrowings, for its different sources of many characteristics, the idea of Freedom of speech and expression was borrowed from the American Constitution by the architects of the Indian Constitution. Thus, right to free speech is a significant characteristic from the democratic ideas established in the American Constitution.

Chapterization
  1. Literature

    Films and motion pictures are not the only fields that have faced the impact of restriction of freedom of speech and expression. There has been a rising number of the literary works which have been banned from marketing in India. Of all times, printing press is considered as one of the most important creations. The literacy rate arose as ideas and opinions flowed. The early liberals were usually printers who fought for the rights of the people to get their opinions printed and circulated in the society. Moving forward towards the world of liberalisation, certain authors and painters had to face the impact of the restrictions to free speech on their works. Painters like M.F Hussain and Aseem Trivedi has faced battery of charges with Trivedi being jailed on charges of sedition.

    Certain books had to face controversies during their time of publication. One such example is the book 'the Satanic Verses' by Salman Rushdie, in 1988. This book was banned in India by restricting its import into the country. Another such example is, 'Jinnah- India, Partition, and Independence' by Jaswant Singh. The controversies about this book was that, it criticised our national leaders like Jawaharlal Nehru and Sardar Patel and favoured Jinnah and after the publication of this book Singh was expelled from BJP. Later, the ban on the book by the Gujarat Government was capsized by the High Court. Thus, suppressing right to free speech which is subject to one's thoughts and beliefs will keep our society sinked down in poverty and ignorance.
     
  2. Education

    Media being one of the institutions of the society have always faced the restrictions of its speech, but in the recent times, it is the Educational Institutions which have been facing this impact. The universities are regarded as the hub of social and political thoughts. One such incident is the arrest of the Jawaharlal Nehru University (JNU)

    students on the averred allegation of renting the air with anti-India slogans. A similar incident is, the Ramjas College came in the news because of the term anti- national hurled at the students during the bloody clashes at the college. The college had to face the brutal protests against the seminar which was led by a Nationalist Student Organisation Akhil Bharatiya Vidyarthi Parishad [ABVP] against a seminar. The organisation happened to be a wing of the ruling party, Bhartiya Janata Party [BJP]. After the protests turned violent, the Culture Of protests event was discontinued. The seminar included two students, Umar Khalid and Shela Rashid, in the list of the speakers, who were already involved in the JNU incident and therefore, it was believed that it angered the conservative organisation.

    Another incident took place, when Professor Rajshri Ranawat of the Jai Narain Vyas University, Jodhpur was suspended by the University for inviting Professor Nivedita Menon from JNU, for a talk show.

    No sooner ABVP, protested against the invitation, the suspension too place.

    In 2015, the screening of the movie 'Muzzafarnagar Abhi Baaki Hai' was opposed by a group of people in two colleges in New Delhi, alleging that this movie might hurt the emotions of certain population of the society, as it was against public order.

    From my point of view, freedom of speech and nationalism should be kept separate and there should be a place for every individual to express and share their thoughts and opinions on matters relating to their own country, irrespective of the fact that the opinion might be going against the public faith. Louise Richardson, before taking up his role as the Oxford University Vice Chancellor said that, education must be about facing ideas that one discovers to be really repugnant, figuring out why is it that one finds them repugnant, designing a reasoned argument contrary to them, confronting the person, one disagree with and trying to change their mind, being clear to them changing one's own mind. That is not really a comfortable experience but a very educational one.
     
  3. Cinematography

    In the recent times, a very modern way of restricting the freedom of expression is the rising ban on the films. Films have always played a vital role, since the ancient times, not only in entertaining the society, but also creating popular assent associated to the matters of the world.

    The Great Dictator, being a classic example, of Charlie Chaplin's 1940s, which went on to inspire the people during those times of war. Charlie Chaplin performed the role of Adolf Hitler and chaffed his theories through this film.17 It is said that, Hitler regarded Charlie Chaplin as one the greatest entertainer of all times18 and he found his flick very amusing. Over the time, it is observed that people have become less tolerant about the criticisms and politics leading people to drag down the tradition of a society by their decisions.

    The Indian film industry, having a yearly production of more than 3000 films is not a static industry and apart from entertainment it plays a very important role in the nation's progress as it creates a sense of unity amongst the people, develops the nation's character and helps in the growth of mankind.

    In India, there has been numerous numbers of films which have been banned and have dealt with controversies.

    The movie Kissa Kursi Ka, being one such example. The film was banned by the censor board as it was apparently, based on the politics of India and happened to be a spoof on the lives of Indira Gandhi and her son, Sanjay Gandhi. Another controversy came up with the film Bandit Queen, which was a biography on Phoolan Devi and it was banned when Phoolan Devi herself questioned the authenticity of the facts.

    The film Fifty Shades of Grey, is another such example which came up with a controversy and the movie was banned because of its explicit sexual details. Though, the necessary cuts and changes were made to this film; it did not get any ratings from the Indian Censor Board.

    Another controversy, took place in Deepa Mehta's film, Water, which was set in 1938. The film hurt the sentiments of the Hindu fanatics as it examines the problems and grieves faced by the indigent widows at a temple in Varanasi. Deepa Mehta initially, intended to direct Water in the year 2000 but prior to the days of its shoot, there were protests and the main set of the film was destroyed along with death threats to Mehta. The government of Uttar Pradesh decided to put a stop on the shoot, whereas a human activist, Arun Pathak had organised a suicide protest in order to stop the production. The film was eventually shot with an entirely different cast in Sri Lanka and was later allowed to be released in India in the year 2007.[1]

    Sanjay Leela Bhansali's-Padmavat and Prakash Jha's- Lipstick Under My Burkha being the controversies of the recent times, have reignited the argument between the conservatives and the liberals. These debates have however neglected the idea of India being young and vibrant.

    Perhaps, a time has come when we should act as matured and start taking criticisms in our own strides irrespective of our national leaders being criticised, rather than putting a ban on certain films which goes against our nation and criticises it revealing our immaturity in taking criticism. Similarly, the ban of certain films like Water which concerns the modern issues, like the conditions of widows in India should have a place in the society.

    The movies concerning issues like sexual orientation must also be given a place in the society as it is a time when the LGBTQ rights are debated as a constitutional issue and are also a part of the Human Rights.

Press Censorship

Article 19(1) (a) of the Indian Constitution, guarantees the people of India the right to freedom of speech and expression, though there are certain limitations to it. Yet, from Independence the government's right have exhibited their propensity to censor. There is a sense of shrinking liberty in India, when it is about freedom of press. Although, the press is supposed to be considered as a pillar of democracy, Indian media has been plagued with attack on its journalists or on its offices or even, sometimes as bans on their channels.

The level of freedom enjoyed by the press is measured by The World Press Freedom Index and according to it, in 2018, India's position was 136 out of 180 countries and a year prior to it India's position was ranked two spots higher. The poor record of India can be attributed to the past events of intolerance exhibited towards to

opinions and criticisms expressed by the press that are contrary to those of the government. In India, the freedom of press is illusionary, as anything or anyone that goes against the government is termed as either anti- national or anti- Indian, there is attack on journalists or their offices are stoned or there are bans on their channels and there is violent vandalism. One such case was the one day ban on NDTV channel, which was a direct order by the Government under the Cable Television Act, 1995.

This ban was during the Pathankot attack and was because they had broadcasted sensitive information about the operation at that time. Therefore, this ban is an example of testimony to the shrinking right given to the press. Another recent incident, a journalist was molested while reporting a JNU protest and her camera was taken away by the police .The attack on the press is indirectly an attack on their right to free speech and expression, thus, showing the physical manifestations of censorship.

The restriction to free speech of the press is not a recent phenomenon and has always been a part of the politics of India since the ages.
Many leading newspapers were not allowed to be printed as they did not favour with the government's policies. Most of them went on to print the dailies, leaving blank the editorials space.
The freedom of speech happens to threaten authoritarian governments which leads to attacks and murders of journalists, vandalism on media offices and bans on their channels, slowly fading away our democracy to dictatorship, snatching away our right to disunity, maybe forever.

The Concept Of Heckler's Veto

A new concept, the concept of Heckler's Veto came up in the recent times. According to the legal scholars the heckler's veto is a process by which the socially and influentially powerful groups can shut down inconvenient and critical speech by threatening public disorder and disturbance, or violence too in some cases. There are conditions created of a veto by the heckler, suppressing the censurable content by either creating a threat of violent reaction or a violent reaction.

This results in self censoring the context by the person who is heckled, in the fear of the react that it may create. Some of the ways in which how this heckler's veto takes shape are by destroying the movie sets, stone pelting, burning the effigies of creator, carrying out protests to ban the film, etc.

One of the ways how the lower courts encourage the Heckler's veto is by granting an ex parte injunction against the broadcast of news or publication. Although, these are called interim injunctions, they do become a prior restraint which is not permissible by The Apex Court.[2] Chief Justice of India, Justice J.S Khehar, made it clear that pre-publication or pre-broadcast censorship is not the business of the court and all resentments against objectionable content will be dealt after its publications in accordance with the law of land.

Law Of Sedition, Misused In The Name Of Freedom Of Speech

In India there are certain statues, which are often misused by the people in authority and thereby preventing freedom of speech. One such example is The Law of Sedition, Article 124 A of the Indian Constitution, is the most misused one.

The law of sedition has gone through a chronic variation after the Independence. In the well known case of Romesh Thappar[3], the provisions of this article were examined by the Constitution.

Accordingly, when the deletion of the word 'sedition' from the abstract Article 13(2) was noted by the Supreme Court, it showed that restriction to free speech and expression cannot be considered a ground for the criticism of the government, unless it is done to sabotage the state and its security. However, the constitutionality of sedition was questioned in the Supreme Court in the Kedarnath Case of 1962[4], and on the vires of this controversial law, this case became the landmark judgement. The Supreme Court upheld the constitutional vires of the Article 124A on the basis that this power was required by the state to protect itself, annulling its provisions.

However, the Constitution Bench set the benchmark by adding a vital caveat that 'the act of a person could be prosecuted for sedition only if it has caused intention or incitement to violence or tendency to create disturbance of public peace or public disorder'. It was held by the court that 'it is the right of a citizen to express by writing or saying whatever he likes about the government or its measures, be it in favour of the government or by way of criticism or comment, so long, as he has intention to create public disorder or not incite people to violence against the Government'.

However, recently, there has been a rise in the number of cases where the people are being charged with offense of sedition against the people citing criticism, by the government authorities, though they had no intention to incite people to violence or create any public disorder.
One perfect example of the misuse to free speech is the Kanhaiya Kumar case from JNU.

India being the largest democracy and right to free speech and expression being the most essential ingredient of it should allow people to enjoy it.

Conclusion
It is high time for a better realisation of the right to free speech and expression in India. Though, one is not free from the threats and attacks, be it from the authorised officials of the government or the powerful people of the society, the time has finally arrived where people should have the right to express their thoughts and opinions freely.

The laws formed, are important for protecting the sovereignty and integrity of the country, but at the same time it is important that the people are ensured to execute these laws freely without any threats. The problem appears when these laws are misused by the people for their own causes.

Thus, it is the granted rights that make all the difference between a slave and a free man, but restriction to such freedom, sounds skeptical in a democratic country. In my opinion, where every person should have the right to free speech and they should express their thoughts and opinions without the fear of threats, irrespective of the fact that their ideas are going against the popular belief.

End-Notes:
  1. It was nominated for the Best feature film category for Oscar.
  2. R. Rajagopal v. State of Tamil Nadu, 1994
  3. Kedar Nath Singh v. State of Bihar, 1962 AIR 955
  4. Romesh Thappar v. State of Madras, 1950
Sources:
  1. Dubey, A. (2019). Freedom of Speech and Expression under the Constitution of India. Retrieved from https://blog.ipleaders.in
  2. Justice. n.d. A Legal Guide to the Freedom of Artistic Expression. Retrieved from https://ijustice.in
  3. India Today. (2018). 9 films banned in India that you will really want to watch. Retrieved from https://www.indiatoday.in
  4. India Today. (2019). Use and Misuse of Sedition law: Section 124A of IPC. Retrieved from https://www.theindiatoday.in
  5. Joshi, S. (2018). Freedom of Speech and Media Censorship. Retrieved from https://indianfolk.com
  6. Law Teacher. 2018. Freedom of Speech and Expression. Retrieved from https://lawteacher.net
  7. Panneerselvan, A.S. (2017). The Heckler's Veto. Retrieved from www.thehindu.com
  8. Prabhu, M. (2017). Is free speech under threat in Modi's India? Retrieved from www.aljazeera.com
  9. Priya, T. (2014). Freedom of Speech and Expression. Retrieved from www.lawoctopus.com
  10. Sebastian, K.S. (2016). Muzaffarnagar Abhi Baki Hai remains in the limelight. Retrieved from https://www.thehindu.com
  11. Shodhganga. n.d. Chapter 3- Right to freedom of Speech and Expression. Retrieved from https://shodhganga.inflibnet.ac.in
  12. Shodhganga. n.d. Concept, Meaning and Scope of Freedom of Speech and Expression. Retrieved from https://shodhganga.inflibnet.ac.in
  13. The Guardian. (2012). Indian Cartoonist Aseem Trivedi jailed after arrest on Sedition charges. Retrieved from www.theguardian.com

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