Reviewing the challenges and limitations associated with Article 19
Freedom of speech and expression is one of the fundamental rights any nation can
give its citizens. That is why Article 19(1)(a) of the constitution of India
provides for the said right. This right enables citizens to give a voice
liberally and freely spread information and opinions in a society as a tool for
properly holding leaders accountable, increasing the efficiency of the
government's operation, and producing change in the overall progression of
society (1). However, the freedom of speech under the article is not an absolute
freedom and is available 'subject to the reasonable restrictions provided under
19(2) for the protection of decency or morality of the community, preservation
of public order or of law and order in the country.
Although this provision is rooted in democratic principles, their implementation has, time and again, subjected to different complexities. As India is a diverse and dynamic nation, the gaps between freedom and limitations often get blurred, which creates debates around the manipulation of law for its misuse. For example, charges of sedition have often been used as tools to mute activists or journalists; this has commanded authority's excesses (2). Furthermore, with the rise of digital mediums, the complications have risen even more, as half-truth and hate dialogues can now reach different parts of the nation within seconds, which has increased the need for regulating such mediums as well.
However, the meaning of terms such as 'morality' or 'public order' might change over the course of time depending on the current estimations of society members, but it constitutes a major loophole and legal instability at the same time by reasons of different meanings of these terms and different legal regulation accordingly (3). Thus, drawing the analogy from the legal, history, and worldwide perspective of this article, the article aims to scrutinize the challenging and limiting areas linked with Article 19 as being the article that safeguards some freedom and forms the focal point of debates in present-day contemporary India.
The respective article helps address different aims, such as supporting individuals in achieving fulfillment, helping to reveal reality, and improving one's ability to take part in making a judgment. It also serves as a mechanism through which balance can be attained between social transformation and social cohesion. However, the article does have certain limitations, as highlighted by the restrictions mentioned in Article 19 (2) (4). The motives for such limitations are Security, Sovereignty, and integrity of the nation, Friendly relations with foreign countries, Public order, Decency or morality, Hate Speech, Defamation, and Contempt of Court.
Moreover, the right to speech and expression further also extends to the press with the virtue of Bennett Coleman vs. Union of India (1973) case law (5). This allows the press to criticize the negative elements of government policies. Furthermore, such rights were then limited with the decisions issued through Rajagopal vs. State of Tamil Nadu (1994). This case law highlighted that such rights do not extend when publishing material that is defamatory (6). This right is considered to be the fundamental right for an individual in India, but with the evolution of law, different reforms have been made so that its misuse can be avoided.
Free Speech As A Cornerstone Of Democracy
Free speech is often considered a form of right that is crucial for the functioning of democracies because it compels citizens to form their opinions regarding the performance of the government and to put pressure on its decisions. The government of India has set this right by protecting freedom of speech and expression through the Indian Constitution article 19(1)(a), which allows citizens to get actively involved in the governance without being persecuted for it. It promotes its officials' responsibility, thus enhancing the flow of information, which is very important when making a decision. Presumably, this right 'legitimizes' dissent as an inviolable feature of democracy, thereby precluding the accumulation of power and the threat of tyranny.
The classic Indian decision is S. Rangarajan v. P. Jagjivan Ram (1989), which distinguishes between free speech and public order considerations (9). The fundamental rights have, therefore, been curtailed in the following ways, but the Supreme Court upheld this and said that restrictions on speech are justified only if there is an immediate threat. The constitutional validity of section 124A of the Indian Penal Code (10) for treating speech that incites violence or creates communal disharmony was upheld, but in the same breath, freedom of dissent was upheld.
However, abuse of free speech, like the use of hate speech or disinformation, poses a lot of unique questions in the new media age. Social media platforms have acted as the booster of unverified or negative content, which leads to social disturbance. The challenge of how to moderate the protections offered by the First Amendment to free speech with the need for effective compliance systems to deal with such problems continues to exist. However, free speech, which is the core of any democracy, remains a key ingredient of pluralism and makes society ensure that any voice, however low it is, has a right to be heard.
International Stance On Freedom Of Speech And Expression
Freedom of speech and expression is recognized on a global level under the category of human rights. The respective constitutional rights are acknowledged by the International Covenant on Civil and Political Rights, Universal Declaration of Human Rights, African Charter on Human and Peoples' Rights, Resolution 169 on Repealing Criminal Defamation Law in Africa by the African Commission on Human and Peoples' Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms, American Convention on Human Rights and ASEAN Human Rights Declaration (11). This indicates that the international significance of such rights has been appreciated for a long time. However, the socio-political conditions of each nation may affect the extent of such rights.
The case law of Brandenburg v. Ohio (1969) further highlights the 'imminent lawless action' test (12). This emphasizes that speech can only be limited if the result of it would be an instant illegal action. The respective test underlines the priority of personal liberty over governmental authority. However, the constitution of India tries to adopt a balanced approach towards the liberty of individuals and public order.
The restrictions that are imposed through Article 19 try to provide freedom to individuals while safeguarding morality, the security of the nation, and maintaining public order. It can be determined that India is a culturally diverse country, which also means any speech or expression can result in a disputing situation if not controlled adequately. On the other hand, it can also be determined that Article 19 tries to make sure that the cultural and societal sensitivities within India can be respected, but such actions might exceed desired limits.
Freedom Of Speech And The Liberty Of The Press
It can be determined from the evaluation of Article 19 that there is no specific mention related to the freedom of speech and expression for the press. However, it can also be understood that the press has to be provided with freedom in order to establish democracy, which the country does. They are considered guards who keep an eye on the acts of the government and hold them accountable wherever necessary.
Moreover, through such freedom, transparency, debates, and diverse opinions can be facilitated, and the public can be informed about critical subjects. The Supreme Court focused on the fact that circulating rights facts can be included in the right of freedom of speech, which was highlighted through the case law of Sakal Papers Vs. Union of India (1962) (13). The Court put a hold on the order to restrict the prices and page numbers of newspapers by stating that such action directly violated Article 19 (1)(a). The role that the independent press plays in safeguarding democratic rights was highlighted in this case.
It can also be determined that the press within India has to face different kinds of challenges, such as harassment, censorship, and threats, especially when such cases of authorities in power are brought to light. Standards related to sedition and defamation are often observed when the press exercise their rights of freedom of speech and expression. The liberty of the press is often tried to be suppression through such allegations. On the other hand, it can also be observed in certain cases when the pressure tries to overuse their right to free speech, which has been the reason for debates in the country in recent times.
RTI (Right to Information):
The Right to Information Act 2005 brings Article 19(1)(a) into operation through the citizens getting the right to access information that is in the records of the public authority. Transparency can be brought into the system while empowering the citizen of the nation to get answers to their questions. Through this, corruption can be fought, and accountability can also be established, which is essential for a developing nation. Such an Act came as a revolution as different irregularities and gaps in the systems were disclosed through the same.
The scope of RTI was described by the judiciary. There were several case laws, such as CBSE Vs. Aditya Bandopadhyay (2011), through which the significance of RTI was highlighted to maintain transparency (14). However, there is a need to balance such rights with confidentiality so that information is used for ethical purposes. The case brought clarity to the limits of disclosure so that sensitive information can be protected without hampering the spirit of RTI rights.
On the other hand, challenges may also be observed while implementing the provisions of the RTI Act. There have been cases of bureaucratic resistance towards such rights. Moreover, the misuse of exemptions provided under Section 8 of the Act has also been observed, and along with that, outbreaks of RTI activists are also affecting the efficiency of such provisions (15).
Furthermore, concerns have also been raised around the wearying of the Act after the amendments of 2019, which weakened the independence of the Information Commission. Although RTI still has the power to promote transparency while providing the public the right to hold government authorities liable. However, by providing support to RTI activists and making reforms to strengthen the existence of RTI, its efficacy can be improved.
Grounds For Restrictions On Speech And Expression Freedom:
Conclusion
It can be concluded that Article 19 of the Indian Constitution can be considered the center of the democratic structure of the nation. It provides power to its citizens to make free speech and expression. However, it can also be determined that such rights are not absolute, as there are certain restrictions that limit the freedom of speech and expression. Such restrictions were imposed so that individuals could be provided with liberty without causing harm to the public order.
On the other hand, it can also be determined that there have been cases when such rights have been tried to be misused, but through the ruling of courts, such gaps were tried to be filled. This article tried to form an inclusion framework through which international standards can be complied with, national security can be ensured, and democracy can prevail.
References:
Written By: Samina Zoher Ali, Student at Mohanlal Sukhadia University, University College of Law, Udaipur, Rajasthan (313001)
Although this provision is rooted in democratic principles, their implementation has, time and again, subjected to different complexities. As India is a diverse and dynamic nation, the gaps between freedom and limitations often get blurred, which creates debates around the manipulation of law for its misuse. For example, charges of sedition have often been used as tools to mute activists or journalists; this has commanded authority's excesses (2). Furthermore, with the rise of digital mediums, the complications have risen even more, as half-truth and hate dialogues can now reach different parts of the nation within seconds, which has increased the need for regulating such mediums as well.
However, the meaning of terms such as 'morality' or 'public order' might change over the course of time depending on the current estimations of society members, but it constitutes a major loophole and legal instability at the same time by reasons of different meanings of these terms and different legal regulation accordingly (3). Thus, drawing the analogy from the legal, history, and worldwide perspective of this article, the article aims to scrutinize the challenging and limiting areas linked with Article 19 as being the article that safeguards some freedom and forms the focal point of debates in present-day contemporary India.
Meaning And Extent Of The Freedom Of Speech & Expression
Article 19 (1)(a) of the Indian Constitution provides that every citizen has a right to freedom of speech and expression [1]. This further implies that everyone has the freedom to opinionize their views either through speech, movies, banners, writing, visual arts, or digital mediums. The article further extends the liberty to seek, review, or convey every kind of information.The respective article helps address different aims, such as supporting individuals in achieving fulfillment, helping to reveal reality, and improving one's ability to take part in making a judgment. It also serves as a mechanism through which balance can be attained between social transformation and social cohesion. However, the article does have certain limitations, as highlighted by the restrictions mentioned in Article 19 (2) (4). The motives for such limitations are Security, Sovereignty, and integrity of the nation, Friendly relations with foreign countries, Public order, Decency or morality, Hate Speech, Defamation, and Contempt of Court.
Moreover, the right to speech and expression further also extends to the press with the virtue of Bennett Coleman vs. Union of India (1973) case law (5). This allows the press to criticize the negative elements of government policies. Furthermore, such rights were then limited with the decisions issued through Rajagopal vs. State of Tamil Nadu (1994). This case law highlighted that such rights do not extend when publishing material that is defamatory (6). This right is considered to be the fundamental right for an individual in India, but with the evolution of law, different reforms have been made so that its misuse can be avoided.
Origin And Importance Of The Right To Speech And Expression
The inclusion of rights to expression was first considered by the Sub-Committee. The preamble of this nation provides fundamental rights to its citizens, and in such a list, respective rights were also included. Moreover, the rising international debates on the protection of human rights also contributed to the origin of such terms as the Universal Declaration of Human Rights, which considers the rights to be human rights. Indian leaders have emphasized the need to include such rights in the preamble so that the dominations due to colonization can be eliminated. The roots of such rights can be seen in the following standards (7).- Munshi's draft, Article V (1) and (2), Select Documents II, 4(ii)(b), p. 75.
- Shiva Rao The Framing of the Constitution of India, (1968), p. 211.
- Ambedkar's draft Articles (141), (12) and (7); Select Documents, II, 4(11)(d), pp. 86-87.
- Shiva Rao The Framing of the Constitution of India, (1968), p. 211.
Free Speech As A Cornerstone Of Democracy
Free speech is often considered a form of right that is crucial for the functioning of democracies because it compels citizens to form their opinions regarding the performance of the government and to put pressure on its decisions. The government of India has set this right by protecting freedom of speech and expression through the Indian Constitution article 19(1)(a), which allows citizens to get actively involved in the governance without being persecuted for it. It promotes its officials' responsibility, thus enhancing the flow of information, which is very important when making a decision. Presumably, this right 'legitimizes' dissent as an inviolable feature of democracy, thereby precluding the accumulation of power and the threat of tyranny.
The classic Indian decision is S. Rangarajan v. P. Jagjivan Ram (1989), which distinguishes between free speech and public order considerations (9). The fundamental rights have, therefore, been curtailed in the following ways, but the Supreme Court upheld this and said that restrictions on speech are justified only if there is an immediate threat. The constitutional validity of section 124A of the Indian Penal Code (10) for treating speech that incites violence or creates communal disharmony was upheld, but in the same breath, freedom of dissent was upheld.
However, abuse of free speech, like the use of hate speech or disinformation, poses a lot of unique questions in the new media age. Social media platforms have acted as the booster of unverified or negative content, which leads to social disturbance. The challenge of how to moderate the protections offered by the First Amendment to free speech with the need for effective compliance systems to deal with such problems continues to exist. However, free speech, which is the core of any democracy, remains a key ingredient of pluralism and makes society ensure that any voice, however low it is, has a right to be heard.
International Stance On Freedom Of Speech And Expression
Freedom of speech and expression is recognized on a global level under the category of human rights. The respective constitutional rights are acknowledged by the International Covenant on Civil and Political Rights, Universal Declaration of Human Rights, African Charter on Human and Peoples' Rights, Resolution 169 on Repealing Criminal Defamation Law in Africa by the African Commission on Human and Peoples' Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms, American Convention on Human Rights and ASEAN Human Rights Declaration (11). This indicates that the international significance of such rights has been appreciated for a long time. However, the socio-political conditions of each nation may affect the extent of such rights.
The case law of Brandenburg v. Ohio (1969) further highlights the 'imminent lawless action' test (12). This emphasizes that speech can only be limited if the result of it would be an instant illegal action. The respective test underlines the priority of personal liberty over governmental authority. However, the constitution of India tries to adopt a balanced approach towards the liberty of individuals and public order.
The restrictions that are imposed through Article 19 try to provide freedom to individuals while safeguarding morality, the security of the nation, and maintaining public order. It can be determined that India is a culturally diverse country, which also means any speech or expression can result in a disputing situation if not controlled adequately. On the other hand, it can also be determined that Article 19 tries to make sure that the cultural and societal sensitivities within India can be respected, but such actions might exceed desired limits.
Freedom Of Speech And The Liberty Of The Press
It can be determined from the evaluation of Article 19 that there is no specific mention related to the freedom of speech and expression for the press. However, it can also be understood that the press has to be provided with freedom in order to establish democracy, which the country does. They are considered guards who keep an eye on the acts of the government and hold them accountable wherever necessary.
Moreover, through such freedom, transparency, debates, and diverse opinions can be facilitated, and the public can be informed about critical subjects. The Supreme Court focused on the fact that circulating rights facts can be included in the right of freedom of speech, which was highlighted through the case law of Sakal Papers Vs. Union of India (1962) (13). The Court put a hold on the order to restrict the prices and page numbers of newspapers by stating that such action directly violated Article 19 (1)(a). The role that the independent press plays in safeguarding democratic rights was highlighted in this case.
It can also be determined that the press within India has to face different kinds of challenges, such as harassment, censorship, and threats, especially when such cases of authorities in power are brought to light. Standards related to sedition and defamation are often observed when the press exercise their rights of freedom of speech and expression. The liberty of the press is often tried to be suppression through such allegations. On the other hand, it can also be observed in certain cases when the pressure tries to overuse their right to free speech, which has been the reason for debates in the country in recent times.
RTI (Right to Information):
The Right to Information Act 2005 brings Article 19(1)(a) into operation through the citizens getting the right to access information that is in the records of the public authority. Transparency can be brought into the system while empowering the citizen of the nation to get answers to their questions. Through this, corruption can be fought, and accountability can also be established, which is essential for a developing nation. Such an Act came as a revolution as different irregularities and gaps in the systems were disclosed through the same.
The scope of RTI was described by the judiciary. There were several case laws, such as CBSE Vs. Aditya Bandopadhyay (2011), through which the significance of RTI was highlighted to maintain transparency (14). However, there is a need to balance such rights with confidentiality so that information is used for ethical purposes. The case brought clarity to the limits of disclosure so that sensitive information can be protected without hampering the spirit of RTI rights.
On the other hand, challenges may also be observed while implementing the provisions of the RTI Act. There have been cases of bureaucratic resistance towards such rights. Moreover, the misuse of exemptions provided under Section 8 of the Act has also been observed, and along with that, outbreaks of RTI activists are also affecting the efficiency of such provisions (15).
Furthermore, concerns have also been raised around the wearying of the Act after the amendments of 2019, which weakened the independence of the Information Commission. Although RTI still has the power to promote transparency while providing the public the right to hold government authorities liable. However, by providing support to RTI activists and making reforms to strengthen the existence of RTI, its efficacy can be improved.
Grounds For Restrictions On Speech And Expression Freedom:
- Sovereignty and integrity of India
Any speech that is considered to be trying to destabilize or harm the unity and integrity of India as a nation is prohibited. The Kedar Nath Singh vs. State of Bihar (1962) focused on such a phenomenon while interpreting the law of sedition. The Apex court elaborated that sedition is unlawful only when it incites people to violence or presents an actual threat to the stability of a state in order to avert misuse of sedition laws against peaceful protest. Such a judgment laid a significant precedent that limitations in the name of sovereignty are to be aimed correctly.
- Security of the State
The restrictions under such grounds elaborate that such speech is to be prevented, which can jeopardize or rebel against national security. When the speech is leading towards violence, promoting terrorism, waging war against the state, or supporting hostile forces, then it is considered a threat to security. For example, when terrorist acts are glorified, or armed rebellions are being advocated, they fall into this restriction category. However, such restrictions can only be exercised when there is a direct threat to the security of the country without broad interpretations.
- Friendly relations with foreign states
In order to ensure that diplomatic harmony can be maintained, such speech and expressions are restricted, which can cause harm to India's foreign relations. Citizens and the media must be careful when conducting campaigns against foreign governments or policies. The purpose of this restriction is to protect international relations. However, the field here is less wide in democracies where freedoms, including speech, are an essential value and insist on the proportionality of restrictions.
- Public order
Such kind of speech which harms public peace or encourages communal disharmony gets restricted through such legal grounds. This was supported by the ruling made by the Supreme Court in the case of Ramlila Maidan Vs. Home Secretary Union of India (2012), through which maintaining public order was considered a sincere restriction. On the other hand, the significance of proportionality was emphasized in this case so that respective restrictions are not used unethically, which can harm public order.
- Morality or decency
With such restrictions, public speech is aligned with the norms of society. Any act of obscenity is restricted through such grounds so that a balance can be struck between artistic freedom and moral grounds.
- Contempt of court
The dignity of the Court is protected through such grounds, which restrict citizens from disrespecting the Court through their speech or expression. For example, a remark against the Court by a political leader was punishable due to the prevalence of such restrictions on speech.
- Defamation
This can be applied to criminal and civil cases as any speech which harms the reputation of an individual is restricted. This ensures that the freedom of speech does not provide any right to an individual or a community to defame or tarnish the reputation of another.
- Incitement to an offence
Speech that encourages criminal action such as rioting or similar assembly is limited in order to keep society from descending into anarchy. That way it maintains the public debate so that it does not turn into a violent conflict. For example, laws like Section 153A of IPC prohibit giving speeches that cause violence or hatred against a community.
Conclusion
It can be concluded that Article 19 of the Indian Constitution can be considered the center of the democratic structure of the nation. It provides power to its citizens to make free speech and expression. However, it can also be determined that such rights are not absolute, as there are certain restrictions that limit the freedom of speech and expression. Such restrictions were imposed so that individuals could be provided with liberty without causing harm to the public order.
On the other hand, it can also be determined that there have been cases when such rights have been tried to be misused, but through the ruling of courts, such gaps were tried to be filled. This article tried to form an inclusion framework through which international standards can be complied with, national security can be ensured, and democracy can prevail.
References:
- Indian Kanoon, 2024. Constitution Article; Article 19 in Constitution of India. [Online]. Accessed through: <https://indiankanoon.org/doc/1218090/>. [Accessed on: 20th November 2024].
- Jayasawal, S., 2023. The Law of Sedition in India: A Critical Analysis in Light of Freedom of Speech Guaranteed Under the Constitution. Journal of Scientific Research and Technology, pp.11-15.
- Keswani, S., 2024. Constitutional Challenges to Freedom of Speech in India: A Study on the Balance between Freedom of Expression and Reasonable Restrictions under Article 19 of the Indian Constitution. The Indian Journal of Legal Affairs and Research, 1(2), pp.01-19.
- Byjus, 2024. Freedom of Speech Article 19 (1)(a). [Online]. Accessed through: <https://byjus.com/free-ias-prep/freedom-of-speech/#:~:text=7 C682, C movies C banners C etc.>. [Accessed on: 21st November 2024].
- Senapati, A., 2024. Bennett Coleman & Union of India (1973). [Online]. Accessed through: <https://blog.ipleaders.in/bennett-coleman-vs-union-of-india-1973/>. [Accessed on: 21st November 2024].
- GFE, 2024. R. Rajagopal v. State of Tamil Nadu. [Online]. Accessed through: <https://globalfreedomofexpression.columbia.edu/cases/r-rajagopal-v-state-of-t-n/.>. [Accessed on: 21st November 2024].
- Advocate Khoj, 2024. Drafting history of Article 19. [Online]. Accessed through: <https://www.advocatekhoj.com/library/lawreports/freedomofspeech/11.php?>. [Accessed on: 21st November 2024].
- iKanoon, 2024. Maneka Gandhi vs Union Of India on 25 January, 1978. [Online]. Accessed through: <https://indiankanoon.org/doc/1766147/>. [Accessed on: 21st November 2024].
- Casemine, 2024. S. Rangarajan V. P. Jagjivan Ram (1989). [Online]. Accessed through: <https://www.casemine.com/judgement/in/5609ac41e4b014971140e68b>. [Accessed on: 21st November 2024].
- iKanoon, 2024a. Union of India €" Section 124A in The Indian Penal Code, 1860. [Online]. Accessed through: <https://indiankanoon.org/doc/1641007/>. [Accessed on: 21st November 2024].
- UNESCO, 2024. International standards on Freedom of Expression. [Online]. Accessed through: <https://www.unesco.org/sites/default/files/medias/fichiers/2024/01/international_standards_on_freedom_of_expression_eng.pdf>. [Accessed on: 21st November 2024].
- Justia, 2024. Brandenburg v. Ohio, 395 U.S. 444 (1969). [Online]. Accessed through: <https://supreme.justia.com/cases/federal/us/395/444/>. [Accessed on: 21st November 2024].
- Ipleaders, 2021. Sakal Papers vs Union of India ' Freedom of Speech and Expression & restrictions on business activities of citizens. [Online]. Accessed through: <https://blog.ipleaders.in/sakal-papers-vs-union-india-fre>. [Accessed on: 21st November 2024].
- iKanoon, 2024b. Centrlal Board Of Sec.Education & Anr vs Aditya Bandopadhyay & Ors on 9 August, 2011. [Online]. Accessed through: <https://indiankanoon.org/doc/1519371/>. [Accessed on: 21st November 2024].
- Indian Kannon, 2024. Section 8 in The Right to Information Act, 2005. [Online]. Accessed through: <https://indiankanoon.org/doc/758550/>. [Accessed on: 21st November 2024].
- GFE, 2024a. Kedar Nath Singh v State of Bihar. [Online]. Accessed through: <https://globalfreedomofexpression.columbia.edu/cases/nath-singh-v-bihar/#:~:text=The Supreme Court of India, for the Forward Communist Party.>. [Accessed on: 21st November 2024].
- JJ, 2024. The Case of Ramlila Maidan v Home Secretary Union of India (2012). [Online]. Accessed through: <https://www.jyotijudiciary.com/the-case-of-ramlila-maidan-v-home-secretary-union-of-india-2012>. [Accessed on: 21st November 2024].
- Indian Kanoon, 2024. Section 153A in The Indian Penal Code, 1860. [Online]. Accessed through: <https://indiankanoon.org/doc/345634/>. [Accessed on: 21st November 2024].
Written By: Samina Zoher Ali, Student at Mohanlal Sukhadia University, University College of Law, Udaipur, Rajasthan (313001)
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