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Recently, there have been a spur of controversies surrounding comments made by people which may be breaching the parameters of free speech. From FIRs against media persons for inciting hatred to criticism of activists for addressing administrative incompetence, there rage a series of questions of what a person can or cannot say in a particular surrounding. This article is an attempt to explain the rights of every citizen of free speech, and what are the reasonable restrictions on those rights.

1. What is the place that the right to free speech holds in the Indian democracy and Constitution?
The Constitution of India under Article 19(1) provides the citizens the right to free speech and expression. It is one of the six essential freedoms provided by the Constitution.

The Supreme Court has held that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible. [Romesh Thapar v. State of Madras, AIR 1950 SC 124]. The right is so broad that in Maneka Gandhi v. Union of India [(1978) 2 S.C.R. 621], it was held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.

It is thus a fundamental and valued right of the citizens of India which has been strongly guarded by the Courts of the country. The right, however, is not absolute and has certain reasonable restrictions upon it, which were kept in the interest of security of the state.

2. Can an individual criticize the government?
As per Indian law, the state cannot prevent open discussion and open expression, however hateful, towards its policies, or criticism towards the incapacity of the government. [See (1989) 2 SCC 574; (1992) 3 SCC 673].

A landmark decision of the Privy Council in Hector v. A.G. [(1991) LRC (Const.) 237 (240-41) PC], it was held that in a democratic society, those who hold office and are responsible for administration must always be open to criticism, and any attempt to stifle the criticism amounts to political censorship of the most objectionable kind.

The Supreme Court of India in S. Rangarajan v. P. Jagjivan Ram [(1989) 2 SCC 574] held that open criticism of government policies and operations is not a ground for restricting expression, cautioning the state of the dangers of intolerance. Recently, the Supreme Court opined that India being a democracy, the right to criticize the government can only be effectively maintained if accountability and transparency are maintained. [2019 SCC OnLine SC 1459].

The right to free speech thus includes the right to criticize, voice opinions and comment on matters of public importance. In fact, in a healthy democracy, criticism leading to positive change is ideal.

3. Are the rights of the media any different from regular individuals?
The media is considered the fourth pillar of democracy and is responsible for keeping the citizens of the state informed. With this great role and responsibility that they possess, they have all the rights encompassed in the Constitution of India protecting them and their news reporting. The freedom of press is a fundamental freedom. It cannot be abridged even on the ground of benefitting the public, or a section thereof. [(1972) 2 SCC 788].

At the same time, the rights of an average individual are actually no different. In India, citizens enjoy the same level of freedom of speech as the press, and any prohibition on publishing or circulation of information would amount to restrictions on that freedom. [AIR 1957 SC 896].

Therefore, while the press serves a great purpose in a democracy, their right to free speech is not more extensive than that of the regular citizen of India. The law does not make a distinction.

4. What is not permissible as part of free speech?
Article 19(2) of the Constitution of India allows the state to make laws that restrict freedom of speech so long as they impose reasonable restrictions in the "interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence."

The above list shows that expressions which would compromise sovereignty, integrity, security of the state and international relations, is clearly not permissible. The more commonly in imposed restrictions are against:

• Public order which connotes the sense of public peace, safety and tranquility [Kishori Mohan v. State of West Bengal, (1970) 1 SCC 98].
• Decency and morality, which is put the same test as obscenity under criminal law
• Defamation
• Incitement of an offence which would include making statements that incite people to commit illegal acts, or incite hatred amongst communities by way of hate speech.
• Contempt of courts, which is covered by the Contempt of Courts Act 1971 which deals with both civil and criminal contempt. Contemptuous behavior is disobeying of court authority. While civil contempt is usually non-satisfaction of a court order, criminal contempt is offending or disrespecting the authority of the Court. It must be made clear however, that a court’s decision can definitely be subjected to judicial criticism.
Any statement which falls within the above exceptions is not protected by the right of freedom of speech. The restrictions allow the state to keep a check on those people who would use free speech to achieve ends that are against public safety and interest.

5. What are some of the recent legal issues being raised and what is the stance of the Courts?
There are two important, recent issues relating to permitted use of the freedom of speech that have been raising doubts in our minds as to what is acceptable and what is not. They are discussed below:

• CRITICISM OF COURTS: Recently, the courts of the country have come under some criticism for the manner in which they disposed of certain cases of public interest. While accusations flew from those against such actions, and retorts from the ones defending the system, it left many of us with the question - to what extent can one criticize the actions of a court? The rule to be followed is that any citizen of the country can criticise the judgments delivered by any Court including this Court. However, no party has the right to attribute motives to a Judge or to question the bona fides of the Judge or to raise questions with regard to the competence of the Judge [In re: Vijay Kurle and Ors., Supreme Court of India, Suo Moto Contempt Petition (Criminal) No. 2 of 2019, Judgment dated April 27, 2020]. One must not make a destructive attack on the reputation and credibility of the institution which undermines the public confidence in the judiciary. At the same time, fair criticism of the conduct of the judge, the institution of the judiciary and functioning may not amount to contempt if it is made in good faith and in public interest. [See PN Duda v. P Shivashankar, (19880 3 SCR 547].

• FIRs AGAINST MEMBERS OF THE MEDIA: A petition was filed in the Supreme Court, seeking directions that no FIRs be registered against journalists and media houses without prior sanction from the Press Council of India, in light of the FIRs filed against two journalists for allegedly inciting hatred between religious communities on their news channels. The petition stood dismissed. [Ghanshyam Upadhyay v. Union of India, Writ petition (C) No. 505/2020, Order dated June 16, 2020.] The Supreme Court, however, asked the petitioner to make a representation before the Centre in this regard. The Supreme Court’s stand so far indicates that based on the law, it is not giving any special protection to media persons. The restrictions on freedom of speech are for very limited purposes, and the same need to be enforced in public interest, without letting any sector of society of the hook.

The freedom of free speech is not an absolute right but it is a fair right meant to be used in a constructive manner. The courts, the government and the legislature can all be subjected to criticism, but a destructive attack which would impact state functioning and credibility of the institutions should not be done carelessly. The attempt must always be to criticise in the hope to see improvement. There are no exceptions and privileges granted to any group with regard to the rights and restrictions related to freedom of speech.

By Shiv Mangal Sharma

Advocate Supreme Court