Free Speech and Expression of is one of the foundational bedrocks of India along with other ideas such as democracy & secularism. It is so important that the framers of our constitution made it part of our fundamental rights so that this right becomes unalienable. The government was quick to put restrictions on right to prevent its abuse by passing the first amendment and also making those restrictions subject to the test of reasonableness. However, with the changing times, society and governments the question arises whether those restrictions are still reasonable or not keeping in mind the current socio-political environment.

Differing Viewpoints
Free Speech is guaranteed by Article 19 (1)(a) [1] , however this right is “reasonably restricted” by Article 19 (2) [2] which subjects it to many restrictions including incitement to offence, public order and security of state. However, it is important to mention that these restrictions were developed during a time period when the country was facing a lot of tensions including the aftershocks of the communal rioting during India’s independence. The question that arises now is that whether of not these restrictions are still relevant or not if they are whether they should be reformed to prevent their misuse.

On one end of the gamut the opinion of people is that these restrictions are absolutely necessary and without these restrictions the right to free speech would inevitably lead to clashes and hostility between different groups and communities of the nation.

They justify their opinion by the reasoning that if people are allowed to speak without any sort of filter, they will end up hurting the sentiments of others to such a degree which the other person can’t stay quiet about. Another one of their reason for this is that if speech is not moderated in some form then mischievous anti state elements of the society get a free pass to spread their secessionist message as well as cause a rebellion against the existing state and interfere with the normal functioning of the country.

At the other end of the gamut there are people who believe that absolute right to speech is a non-negotiable necessity. This group of people believe that right to free speech is so sacrosanct that even if someone’s speech offends another person’s beliefs or faith then also the speech shouldn’t be restricted.

I am of the opinion that both of these extreme ends of the spectrum of opinion are incomplete and can even be dangerous for a country like India. While the opinion that these restrictions should be there and right to speech should only be allowed this filter is too restrictive, the other end is far too unmoderated which could create aforementioned tensions and riots within a diverse and culturally complex country like India. However, there is a dire need to evolve these restrictions to better suit the changing social dynamics of the country as well as to prevent their misuse that has become somewhat controversial over the last few years in the country as evidenced by the recent developments listed below.

Recent Developments
The right to free speech has been restricted in the recent years by with a majority of the restrictions coming in form of questionable accusations from either the aggrieved authority or individuals. First let us talk about the historical relationship between free speech and sedition and how has its potential of misuse has increased over the years especially by successive governments as a tool to silence the opposition and every voice that offers criticism.

Sedition
The Supreme Court in Kedar Nath Singh v. State of Bihar [3] considered the constitutionality of sedition in Section 124A [4] of the Indian Penal Code as a penal offence. In the judgement it was held that:
The provisions of the sections [that is, Sections 124A and 505 [5] of the Indian Penal Code read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence”.

This judgement further explained that the criticism of the government and comments on action would a part of within the ambit of the right to speech of the people even if the criticism is strongly worded.

However, what ideally should have been a shield for the society against the anti-state elements of the society has been reduced to a weapon to curb opposition view, something that can even be proved by the statistical increase of sedition cases since 2014 as recorded by the National Crimes Records Bureau.

The number of cases and their speed of increment per year is almost frightening with 93 cases being recorded in 2019 alone. The use of sedition is becoming that of a sword to cut down the any opposing view instead of the shield that it should be to defend from anti state elements. Many cases which have been booked under sedition seem actually to be directly contrary to judgement observed in the Kedar Nath Singh case including the arrest of a teenager for raising a supposedly ‘anti state slogan’ thrice which raises a question whether in any world can such raising of slogans ever destabilize the government. This also raises the question whether or not raising of slogans and rally by prominent political leaders openly talking about shooting the traitors could be considered a disruption of public order, another one of the restrictions on free speech.

These are just 2 instances which speak volumes about the need for reform in this section, the need for a clearer guideline. However, an even better reform in my opinion would be overall removal of sedition as restriction due to its growing misuse with it being replaced with a more objective safeguard rather than something that is so vague and open to different interpretations.

Media And Selective Restrictions

Media and Social Media in particular are very powerful tool of information in modern period with social media becoming a major platform for people of all sections of the society to voice out their opinions. However recently there has been an increasing curtailment on right of people of what to express online, with the curtailment at times being blatantly selective.

Innocent posts are riled up police cases and litigations while posts inciting violence are taken down only after there has been a loss suffered by the nation or there is a counter legal method take up by the other party. Illustrations of this can be found in reporting of certain cases by the media and its spread on social networking sites. Certain facts and reports are freely manipulated by the media in the guise of freedom of speech and evading the clutches of the restrictions where it is needed the most.

This is shown by the recent events that of Sudarshan News broadcasting a show specifically made to vilify a particular community. The accusations made on this show had no factual basis and were blatantly communal in nature with the accusations even going as far as to say that the community has a conspiracy to invade the bureaucracy of the country and even questioning the integrity of one of India’s premier exams. The interesting thing is that this show got the government’s approval for its broadcast even though it was prima facie communal and disharmonious in nature and was only stopped by the supreme court after four episodes of the show had already been broadcasted.

The Government’s such lenient approach over restriction of speech as evidenced by the above case is sharply contradicted by its over restrictive approach in curtailing the speech whenever there are posts or speeches which the government feels is anti-state which in actuality maybe a totally innocent and justified remark. This is shown clearly in Dr. Kafeel Khan’s Case: He gave a speech sometime in December 2019, criticising the Citizenship Amendment Act and the National Register of Citizens.

However, he was arrested for that speech more than a month later on the grounds that the contents of the speech were inflammatory in nature. About 10 days later, he was granted bail but was not released for reasons that are not clear. However, Dr. Khan could actually not get out of the detention at all as he was detained by an order passed on February 13, 2020 under the National Security Act which makes it virtually impossible to get a trial before the period of detention is over.

This is done to supposedly protect the security of the state as the detenu is prone to commit acts in the future which may compromise the security of the state according to a subjective analysis of the detainee. The only remaining option left for Dr. Khan in this case was to show an advisory board that he is not a threat to the national security or wait out the period of detention and then fight for the violation of his rights in court.

Dr Khan was freed from his detention after more than 6 months of remaining trial less. This was done after the Allahabad High Court passed an order quashing the detention on September 1, 2020. Former Supreme Court Justice Madan Lokur was of the opinion that not only the law was not followed in khan’s arrest but also that it was actively violated and that Khan was even accused of saying things which were nowhere part of his speech.[6]

This is just the tip of the iceberg of the huge number of selective restrictions imposed by the governments over right to free speech restricting the speech not in accordance to ensure the integrity of the nation but rather to ensure the that agenda of the government is unchallenged.

Conclusion
The arguments, illustrations and cases stated above are not restricted to any single political party or government or authority rather takes in account the whole scenario of current times. The right to dissent, fundamental to the right to free speech, is being eroded in practice in the entire country. There is an imminent need to revaluate these restrictions as evident by the fact that in their current form these restrictions are not performing the task, they were supposed to that is to maintain the peace and stability in the country.

The need of restructuring these restrictions, making them more objective is also required so that they are not reduced as mere political tools for misuse in the hands of ever-changing governments. To sum up, I would like to quote late American Congressman John Lewis, “Democracy is not a state. It is an act.” which portrays the clear importance of the right to expression as a fundamental tool in ensuring the continuity of democracy.

References:

1. India Const. art. 19, cl. 1(a).
2. India Const. art. 19, cl. 2
3. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
4. Indian Penal Code, 1860, § 124A, No. 45, Acts of Parliament, 1860 (India).
5. Indian Penal Code, 1860, § 505, No. 45, Acts of Parliament, 1860 (India).
6. The Wire, https://thewire.in/rights/fundamental-rights-free-speech-protest.