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Freedom of Speech and Expression

Freedom of Speech and Expression
Freedom of Speech and Expression


The legal narrative surrounding freedom of speech and expression serves as a rich terrain for exploring the interplay between constitutional principles and the conceptualization of a democratic public sphere.

With censorship disputes being inherently public in nature, the discussions revolving around the content and extent of the freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution, as well as the 'reasonable restrictions' delineated in Article 19(2), have stirred public discourse and sparked debates concerning the essence of democracy in India.

Numerous rulings by the Supreme Court have swiftly drawn distinctions between India's tradition of free speech and that of other jurisdictions.

A notable instance is found in the Court's remarks in the case of Life Insurance Corporation v Manubhai D Shah, where it underscored that unlike the First Amendment in the United States, Article 19(1)(a) does not confer an absolute right and must be exercised in a manner that does not infringe upon the rights of others or clash with 'the paramount interest of the State or the community at large.'

This observation encapsulates the central dilemmas that have marked the trajectory of free speech in India. While these themes are not exclusive to India, there persists a sense of Indian exceptionalism permeating discussions surrounding Article 19(1)(a) and Article 19(2).


Competing Theories of Free Speech

There exists a multitude of competing theories offering normative justifications for the concept of free speech. Scholars typically ground their arguments for free speech on either instrumental theories, which aim to secure or promote other values such as democracy, or intrinsic value theories, where speech is esteemed for its inherent worth.

Familiar iterations of instrumental theories include the 'marketplace of ideas', 'speech promoting democracy', 'watchdog theory', and 'speech promoting the truth'.

These perspectives view speech as a means to achieve broader societal goals, such as fostering democratic discourse or uncovering truth. In contrast, non-instrumental theories posit that speech and expression are fundamental to individual autonomy, irrespective of their social utility.

The Indian legal landscape predominantly reflects a jurisprudence rooted in the instrumental theory of speech, placing less emphasis on promoting the intrinsic value of speech.

While many cases have grappled with questions surrounding freedom of speech, fewer have delved into the scope of 'expression' as outlined in Article 19 of the Constitution.

Consider the scenario of an individual refusing to stand during the national anthem, citing their rights under Article 19(1)(a). Does such a refusal automatically brand them as anti-national?

In a landmark case in 1987 involving students belonging to the religious group 'Jehovah’s Witnesses', the Supreme Court overturned their suspension from school for refusing to sing the anthem. The Court affirmed that the right to freedom of speech and expression encompassed the right to remain silent, provided there was no display of disrespect.

Normative theories of free speech are not mutually exclusive, and courts may employ different justifications depending on the case at hand. The choice of normative theory often acts as a framing device, shaping the contours of free speech disputes and influencing case outcomes.

For instance, contrasting approaches between US and Indian courts regarding the marketplace of ideas theory underscore the impact of differing normative frameworks. While the US embraces the marketplace metaphor, Indian courts have shown scepticism, opting for a balance of public interest approach.

This divergence is evident in cases addressing issues such as media regulation and freedom of expression across various mediums.

The Supreme Court of India has primarily relied on the nexus between free speech and the promotion of democracy. In seminal rulings, the Court has emphasised that free speech lies at the heart of democratic governance, facilitating open discussion and citizen participation.

The period of Emergency in the 1970s serves as a stark reminder of the importance of free speech in safeguarding democracy. The Court has unequivocally stated that any attempt to curtail freedom of expression poses a threat to democratic principles.

However, questions persist regarding the Court's conception of democracy and its interpretation of free speech in relation to other societal values. 

While the democracy argument has informed several judgments, its overreliance risks reducing it to a mere rhetorical trope, overlooking opportunities to enrich discourse on speech and democracy.

Evolution of Free Speech Jurisprudence in India

Freedom of speech remains a cornerstone of democratic societies, adapting to the ever-changing landscapes of politics, society, and technology. 

The Supreme Court's perspective, as articulated in the Manubhai Shah case, underscores the dynamic nature of constitutional provisions, rejecting narrow interpretations in favour of an evolving approach.

Expanding the Scope of Expression

In a notable case involving the Life Insurance Corporation of India (LIC), the Court intervened when LIC denied a petitioner the right to respond to critiques in its in-house magazine. Labelling LIC's stance as "unfair and unreasonable," the Court emphasised the importance of presenting diverse viewpoints to readers, thereby broadening the understanding of Article 19(1)(a) to encompass not only the right to communicate but also fairness in access to means of communication.


Judicial Interpretations and Democratic Space

Judicial interpretations play a vital role in extending democratic space, primarily by clarifying the boundaries of protected speech. 

The distinction between political, creative, and commercial expression, exemplified in cases like Hamdard Dawakhana and Tata Press Ltd v Mahanagar Telephone Nigam Ltd, demonstrates the judiciary's role in delineating the scope of free speech protections.

Recognition of New Forms of Expression

The judiciary's recognition of the freedom of the press and broadcasting under Article 19(1)(a) reflects an evolving understanding of expressive rights. 

Despite initial reluctance, landmark decisions such as Odyssey Communications and the Cricket Association of Bengal have expanded the scope of free speech to include broadcasting, acknowledging the significance of new media in shaping public discourse.

Toward a Comprehensive Understanding

A spatial understanding of free speech jurisprudence acknowledges the evolving media landscape, from traditional forms to the Internet age. This perspective not only considers the infrastructure and access to communication platforms but also emphasises the rights of both speakers and audiences in the realm of broadcasting.

Reasonableness Standards in Free Speech

The Supreme Court of India has evolved various tests and standards to interpret the concept of 'reasonableness' under Article 19(2), which allows for reasonable restrictions on the freedom of speech and expression.

These standards include proximity, arbitrariness, and proportionality, all aimed at ensuring that any restriction on free speech remains within the bounds of reason.

Proximity Test

In the case of Ram Manohar Lohia, the Court emphasised that any restriction must bear a reasonable relation to the objective the legislation aims to achieve, without exceeding it. T

his echoes the standards set in State of Madras v VG Row, which emphasised the need to consider the purpose of the restriction, the urgency of addressing the issue, and the prevailing conditions.

Proportionality Test

The proportionality test evaluates whether a restriction is excessive in nature, beyond what is necessary in the public interest. While this test has been less elaborated upon compared to the proximity test, it serves as a crucial factor in determining the reasonableness of a restriction.

The Court, drawing from administrative law principles, has emphasised that legislation should not arbitrarily or excessively infringe upon rights.

In Chintaman Rao v State of Madhya Pradesh, the Court articulated that restrictions should not be arbitrary or excessive, emphasising the need for intelligent care and deliberation in the legislative process. This principle was reaffirmed in Sahara India Real Estate Corporation Ltd v Securities and Exchange Board of India, where the Court balanced the right to free speech with the necessity of postponing the publication of news, stressing the importance of proportionality and necessity in such decisions.

Application of Reasonableness Test

When a law violates Article 19(1)(a) by either being vague or overreaching, the reasonableness test becomes pivotal in protecting free speech.

While it may be straightforward for the judiciary to strike down laws that clearly contravene constitutional provisions, the reasonableness test becomes crucial in cases where the nature of the restriction is ambiguous.

In such instances, the reasonableness test serves as the linchpin connecting substantive commitment to free speech with procedural safeguards.


Sedition Laws and Free Speech in India

The introduction of sedition laws in India through Section 124A of the Indian Penal Code (IPC) in 1870 aimed to suppress anti-colonial sentiments during British rule.

Influential figures in the independence movement, like Gandhi and Tilak, faced trials under this provision, leading Gandhi to famously denounce Section 124A as a tool to stifle citizens' liberties.

Exclusion of Sedition from Constitutional Restrictions

During the drafting of the Indian Constitution, the word 'sedition' was notably excluded from what would become Article 19(2), owing to objections raised by Constituent Assembly members who highlighted its colonial misuse.

However, the legacy of sedition laws persisted post-independence, presenting the first challenges to free speech in India.

Conflict over Free Speech and Sovereignty

Post-independence, conflicts arose between democratic ideals and state sovereignty concerns, particularly regarding political extremism and religious tensions. While Nehru's government aimed to prevent a police state, it also sought to curb potentially divisive elements in the political landscape.

Judicial Interpretations and Constitutional Crisis

Two pivotal Supreme Court decisions—Romesh Thappar v State of Madras and Brij Bhushan—challenged restrictions on free speech. The Court held that restrictions must be narrowly tailored to address threats to state security or order, rather than mere criticism of the government.

Dissenting views, however, argued for a broader interpretation of restrictions.

First Amendment and Expanding Restrictions

The First Amendment to the Constitution introduced 'public order' as a ground for restricting speech, albeit with the qualification of 'reasonable restrictions.' This amendment significantly influenced the trajectory of free speech jurisprudence in India.

Judicial Tests and Standards

Subsequent cases, such as Ramji Lal Modi v State of Uttar Pradesh and Superintendent, Central Prison v Dr Ram Manohar Lohia, further refined the interpretation of restrictions under Article 19(2).

The courts introduced tests of proximity and proportionality to determine the reasonableness of restrictions, emphasising the need for a clear nexus between speech and public order concerns.

Reimagining Free Speech in India

The philosophical underpinning of free speech in India revolves around the promotion of democracy through deliberative and communicative rationality. However, the reality of strong restrictions on free speech poses a significant challenge.

To envision a more robust sphere of speech, we must consider the complexities of India while avoiding the perpetual infantilization of public discourse.

Role of Constitutional Interpretation

Constitutional interpretation plays a crucial role in constructing a robust public sphere. Deliberative democracies rely on consensus-building and deliberation to address fundamental questions.

However, given India's diversity, achieving consensus on such questions may be challenging. Insisting on absolute agreement as a precondition for democratic participation may hinder inclusivity.

Embracing Democratic Conflict

Instead of viewing speech nervously, we can embrace our differences as the starting point of democracy. Embracing a certain amount of conflict as desirable in a democratic society aligns with the concept of an agonistic public sphere.

This perspective prioritises agonistic politics over a politics of resolution, recognizing that democratic conflict and contestation are essential for shaping policies, institutions, and practices in a heterogeneous democracy.

Role of the Judiciary

The judiciary, while demonstrating an admirable but inconsistent record on protecting free speech, must reimagine a democratic politics of speech.

If regulatory imagination is based on consensus through control, it may fail to address the misuse of laws like sedition and hate speech.

The judiciary can play a pivotal role in shaping a jurisprudence of Article 19(1)(a) that fosters a safe environment for diverse forms of speech.

Legacy of Shreya Singhal Case

The Shreya Singhal case, particularly its striking down of Section 66A of the Information Technology Act, sets a significant precedent for safeguarding free speech, especially in the digital age.

By adopting a "strict scrutiny" standard and emphasising the distinction between legitimate and illegitimate speech, the judgement reinforces the importance of protecting speech rights in the face of arbitrary laws.


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