Free speech in India: How Free Speech Is Little Freer

Source: The post is based on the article “How Free Speech Is Little Freer” published in The Times of India on 6th January 2023.

Syllabus: GS 2 – Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Relevance: About the SC ruling on free speech in India.

News: Recently, the Supreme Court has ruled that Articles 19(1) (free speech) and 21 (right to life and personal liberty) can be enforced against private entities also.

What are the salient points in the recent SC ruling on Free speech?
Read here: Supreme Court expands Article 19 ambit
What are the implications of the SC ruling on Free speech?
Read here: How Free Now? – SC did well to warn against further restrictions on free speech. But misuse of IPC provisions needs checking too
About Article 19 of the Indian Constitution
Read here: Article 19 of Indian Constitution

In short, Article 19(1)(a) gives citizens the right to freedom of speech and expression. Article 19(2) enlists certain grounds on the basis of which the state, through a law, can impose reasonable restrictions on this right.

If the restrictions imposed by a law are not ‘reasonable’, SC or a high court may strike down the law.

In Shreya Singhal case: The SC struck down Section 66A of the Information Technology Act, 2000 for imposing an unreasonable restriction on free speech. On the other hand, the court held that Section 124A of the Indian Penal Code (which criminalises sedition) imposes a reasonable restriction on free speech.

What is the constitutional history of free speech in India?

The framer of the constitution gave a right to free speech which could be restricted on explicitly stated grounds. Such as libel, slander, defamation, contempt of court, decency or morality, and anything which undermines the security of or tends to overthrow the state.

In 1950, the government banned and pre censored two weeklies respectively in the interests of public order. But the court overruled it as public order was not one of the enlisted restrictions.

Hence, the government amended Article 19(2) and introduced a host of additional grounds (including public order) to restrict free speech. More grounds were subsequently added.

How has the right to free speech in India developed since then?

The scope of the right to free speech has been incrementally expanded and the restrictions have been more clearly defined. For instance,

-SC has read the freedom of the press into Article 19(1) (a). This includes the right to freely publish and circulate information, opinions, as well as advertisements.

-SC recognised the right to know as a part of free speech by holding that voters are entitled to receive information about the criminal antecedents of candidates.

-The courts have held the significance of free speech in artistic expression also. For example, a) In 2008, the Delhi HC found that a painting by MF Husain depicting Bharat Mata did not attract any of the restrictions enlisted under Article 19(2). The court emphasised the need to strike a balance between obscenity and creativity, b) In 2018, SC held that state governments could not impose prior restraints on the exhibition of Padmaavat after the CBFC had certified it.

What is the observation of Free speech in India?

Overall, the right to free speech can only be curtailed on the basis of the enlisted grounds, and no others. The judiciary is the ultimate custodian of everyone’s free speech, irrespective of whether they are a minister or ordinary citizens.



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