“Freedom of speech and expression may be the most abused freedom in recent times,’’ the Supreme Court observed Thursday as it took exception to what it called an ‘‘evasive’’ affidavit filed by the Centre in response to a petition alleging discriminatory news coverage of the Tablighi Jamaat issue.
- Chief Justice of India SA Bobde made this remark when Senior Advocate Dushyant Dave, appearing for petitioner Jamiat-Ulama-i-Hind which said the Tablighi issue was reported in such a manner that it spread communal hatred, submitted that the government affidavit accused it of trying to muzzle freedom of speech.
- At this, the CJI said, “they are entitled to make any argument like you people are. This freedom of speech may be the most abused freedom in recent times”.
- The bench, also comprising Justices A S Bopanna and V Ramasubramanian, made evident its displeasure over the affidavit filed by the Ministry of Information and Broadcasting.
- The CJI told Solicitor General Tushar Mehta, appearing for the Centre, “We must tell you Mr Mehta, you cannot treat the Court the way you are treating it in this case. You have filed an affidavit by a Junior Officer. We find it extremely evasive. It mentions nothing about bad reporting. How can you say there’s no incident?”.
- Mehta said he would file a fresh affidavit. The bench said it must be filed by the Secretary of the department concerned and that it must reflect on the instances complained about.
- Defending freedom of the press, the Centre’s affidavit said spread of Covid-19among attendees of the Tablighi Jamaat convention at the Nizamuddin Markaz, attacks on health workers by some sections etc, were all matters of fact and that “news reports based on facts… cannot be censored”.
- The affidavit said the reports complained about “do not encourage or incite violence or contain anything against maintenance of law and order and/or which promotes anti-national attitudes”.
- The affidavit said the plea raised grievances against “certain section of media” without naming any, and “certain news reports” without producing these reports, and “merely relied upon ‘certain fact check news reports’ to contend that entire media is perpetrating communal disharmony and hatred towards Muslims, and is therefore required to be censured/gagged”.
- Maintaining that no relief should be granted on the basis of such “general assertions”, the affidavit said that “attempt to seek a blanket ‘gag order’ against the entire media in respect of Markaz Nizamuddin will effectively destroy freedom of the citizen to know about the affairs of the respective sections of the society in the nation & the right of the journalist to ensure an informed society”.
- The bench asked Mehta for information on laws under which the government had exercised similar powers in the past.
- As the hearing commenced, the CJI told Dave that the court had looked at the relevant provision — Section 20 of the Cable Television Networks (Regulation) Act, 1995 — but it “does not help” as it applies only to Cable TV and not television signals.
- Section 20 deals with the power of the Centre to prohibit operation of a cable television network in public interest.
- The bench said it wanted to know if the government had any power to prohibit broadcast of TV signals.
- Dave said the department had been invoking powers under the Cable TV Act to control television.
- Intervening, Mehta said, “not controlling, regulating… they have two different meanings”.
- The bench pointed out that only those powers which are mandated by law can be exercised.
- In its affidavit, the Centre said, “All the aforesaid facts are neither per se false nor per se fake. Though in isolated cases it may be exaggerated… news reports based on facts which are not prima facie not per de false or fake cannot be censored under Article 19(2) of the Constitution of India.”
- It said “dissemination of such facts by the media houses, even though they may appear to be offensive and distasteful to certain individuals or a section of society, is nevertheless protected under Article 19 (1) (a) of the Constitution of India. Furthermore, dissemination of said facts by the media prima facie does not amount to attack on religion or religious communities. The same also does not amount to visuals or words contemptuous of religious groups or words/opinions which promote communal attitudes”.
- The Centre said it is only per se false and fake news which do not enjoy Constitutional protection of free speech and pointed to instances where prosecution has been launched in individual cases of false reporting.
- The Ministry of Electronics and Information Technology had issued directions to social media platforms to remove/block 739 URLs and 4 accounts that spread misinformation on the virus that could lead to communal disharmony.
- The I&B Ministry, it said, had also set up a Fact Check Unit in the Press Information Bureau for Covid-19 cases on April 2. Until July 14, this unit had received communication in 6853 cases out of which replies had been given in 6079 cases, it said.
Freedom of Speech – Article 19(1)(a)
The Constitution of India guarantees freedom of speech and expression to all citizens. It is enshrined in Article 19(1)(a). This topic is frequently seen in the news and is hence, very important for the IAS Exam. In this article, you can read all about Article 19(1)(a) and its provisions.
- According to Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.
- This implies that all citizens have the right to express their views and opinions freely.
- This includes not only words of mouth, but also a speech by way of writings, pictures, movies, banners, etc.
- The right to speech also includes the right not to speak.
- The Supreme Court of Indiahas held that participation in sports is an expression of one’s self and hence, is a form of freedom of speech.
- In 2004, the SC held that hoisting the national flag is also a form of this freedom.
- Freedom of the press is an inferred freedom under this Article.
- This right also includes the right to access information because this right is meaningless when others are prevented from knowing/listening. It is according to this interpretation that the Right to Information (RTI)is a fundamental right.
- The SC has also ruled that freedom of speech is an inalienable right adjunct to the right to life (Article 21). These two rights are not separate but related.
- Restrictions on the freedom of speech of any citizen may be placed as much by an action of the state as by its inaction. This means that the failure of the State to guarantee this freedom to all classes of citizens will be a violation of their fundamental rights.
- The right to freedom of speech and expression also includes the right to communicate, print and advertise the information.
- This right also includes commercial as well as artistic speech and expression.
- You can read all about Fundamental Rightsat the linked article.
Importance of Freedom of Speech and Expression
- A basic element of a functional democracy is to allow all citizens to participate in the political and social processes of the country. There is ample freedom of speech, thought and expression in all forms (verbal, written, broadcast, etc.) in a healthy democracy.
- Freedom of speech is guaranteed not only by the Indian Constitution but also by international statutes such as the Universal Declaration of Human Rights (declared on 10th December1948), the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, etc.
- This is important because democracy works well only if the people have the right to express their opinions about the government and criticise it if needed.
- The voice of the people must be heard and their grievances are satisfied.
- Not just in the political sphere, even in other spheres like social, cultural and economic, the people must have their voices heard in a true democracy.
- In the absence of the above freedoms, democracy is threatened. The government will become all-too-powerful and start serving the interests of a few rather than the general public.
- Heavy clampdown on the right to free speech and free press will create a fear-factor under which people would endure tyranny silently. In such a scenario, people would feel stifled and would rather suffer than express their opinions.
- Freedom of the press is also an important factor in the freedom of speech and expression.
- The second Chief Justice of India, M Patanjali Sastri has observed, “Freedom of Speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible.”
- In the Indian context, the significance of this freedom can be understood from the fact that the Preamble itself ensures to all citizens the liberty of thought, expression, belief, faith and worship.
- Liberal democracies, especially in the West, have a very wide interpretation of the freedom of speech and expression. There is plenty of leeways for people to express dissent freely.
- However, most countries (including liberal democracies) have some sort of censorship in place, most of which are related to defamation, hate speech, etc.
- The idea behind censorship is generally to prevent law and order issues in the country.
- To know more in detail about the Constitution of India, visit the linked article
The Need to Protect Freedom of Speech
There are four justifications for freedom of speech. They are:
- For the discovery of truth by open discussion.
- It is an aspect of self-fulfilment and development.
- To express beliefs and political attitudes.
- To actively participate in a democracy.
Restriction on Freedom of Speech
Freedom of speech is not absolute. Article 19(2) imposes restrictions on the right to freedom of speech and expression. The reasons for such restrictions are in the interests of:
- Sovereignty and integrity of the country
- Friendly relations with foreign countries
- Public order
- Decency or morality
- Hate speech
- Contempt of court
The Constitution provides people with the freedom of expression without fear of reprisal, but it must be used with caution, and responsibly.
- The Supreme Court of India had asked the Law Commission to make recommendations to the Parliament to empower the Election Commission to restrict the problem of “hate speeches” irrespective of, whenever made. But the Law Commission recommended that several factors need to be taken into account before restricting a speech, such as the context of the speech, the status of the maker of the speech, the status of the victim and the potential of the speech to create discriminatory and disruptive circumstances.
Freedom of Speech in Art
- In relation to art, the court has held that “the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.”
- There are restrictions in what can be shown in cinemas and this is governed by the Cinematograph Act, 1952. You can read more about this and the Censor Board in India
Decency or Morality
- Article 19(2) inserts decency or morality as grounds for restricting the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code give instances of restrictions on this freedom in the interest of decency or morality. The sections do not permit the sale or distribution or exhibition of obscene words, etc. in public places. However, the words decency or morality is very subjective and there is no strict definition for them. Also, it varies with time and place.