The Right to Freedom of Speech and Expression is one of the supreme rights recognized worldwide. Our Constitution also provides for the freedom of speech and expression under article 19(1)(a) and exceptions to the freedom in clause 2 of article 19. Having said that, this right is being misused to a greater extent. The religious and political leaders are delivering hate speeches and instigating conflicts among masses. This article reflects the ambiguous freedom of speech and it’s exception through recent Bengaluru Riots and Prasant Bhusan’s Contempt case.
Introduction to Freedom of Speech
“Give me the liberty to know, to argue freely and to utter according to conscience, above all liberties” – John Milton.
Freedom of speech originated in a Greek word “Parrhesia” which means free speech or to speak frankly. The freedom of speech and expression is regarded as first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberties.
Right to Speech and Expression
In India, Freedom of speech and expression is guaranteed under article 19(1)(a) of the Indian Constitution which is available only to citizens of India and not to foreign nationals. Freedom of speech under Indian constitution includes the right to express one’s views through any medium and also includes the right to communicate and right to propagate or publish one’s opinion. In Romesh Thappar versus State of Madras , the court held that the Right to speech and expression includes the freedom to propagate ideas which is ensured by freedom of circulation.
Democracy is based essentially on free debate and open discussions, for correction of any government action in a democratic setup. If the democracy means government by the people, for the people and of the people it is obvious that every citizen must be entitled to participate in democratic process and in order to enable him to intelligently exercise its right of making free and general discussion of public matter.
Misuse of Freedom of Speech
While the right has, for the most part, given freedom to the citizens to provide constructive criticism to other individuals as well as to the state, the right has been abused and exploited, mostly by political and religious leaders across the country.
The right is being used as a shield under which the leaders are instigating and provoking the masses against their counterparts, be it another political party, different religion, or simply another group with a different ideology than their own. The leaders deliver hate speeches against such individuals and communities under the name of exercising their rights, abusing and performing a character assassination in the name of expressing their views on an event or a person.India is known all around the world for its cultural and communal diversity, and such hate speeches, which are delivered under the name of Freedom of speech and expression is dangerous.
Bengaluru Riots 2020
On 11th August, a man named P. Naveen in Bengaluru puts allegedly derogatory post on Facebook which goes against Prophet Muhammad and Islamic beliefs. The screenshots of this post was shared on WhatsApp and other social media handles and made to go viral. The same evening around 200 people lead by Social Democratic Party of India (SDPI) leader Muzammil Pasha gathered outside DJ Halli police station and lodged an FIR.
P. Naveen is nephew of congress MLA Srinivas Murthy in Karnataka as the SDPI maintained that police did not took any action against P Naveen. When police clarified their incapability to arrest the accused , around 1000 people gathered and turned violent outside the police station, as the consequences of this riot more than 50 policemen were injured and caused 3 deaths. Later P Naveen was arrested for allegedly posting derogatory comments which incited hatred and violence.
India Prohibits hate speech by several sections of Indian Penal Code and Criminal Procedure Code. Section 95 of Criminal Procedure Code gives the government the power to declare certain publications forfeited if it appears to state government it contains any matter punishable under section 124A which is Sedition charges or section 153A, 153B, 292 293 and 295A of Indian Penal code. With reference to Bengaluru riot let’s understand section 153A and 295A of Indian penal Code.
Section 153A sates that whoever by words either spoken or written or by visible representation promotes or attempts to promote disharmony or feeling of enmity or hatred between religion or any class or community on grounds of religion, race , place of birth, language, caste or community which disturbs or is likely to disturb tranquillity shall be punished with imprisonment which may extend to 3 years or fine or with both. Section 295A states that whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizen of India insults or attempts to insult any religion or its beliefs shall be punished with imprisonment of either description for a term which may extend to 3 years or with fine or both.
Exceptions to the Freedom
This Freedom is not absolute and is restricted by clause (2) of article 19 of Indian Constitution which specifies for the restrictions.
(A) Public order
It signifies state of tranquillity which prevails among members of society and is synonymous to public peace and safety. Any speech which disturbs public order is restricted under it and thus, a law punishing utterance made with deliberate intention to hurt religous feelings of any class of person is valid as it imposes restriction on right to free speech in interest of public order.
(B) Security of state
The freedom is also restricted on ground of security of state example: rebellion, waging of war against state, unlawful assembly, riot , affray etc.
(C) Friendly Relations with Foreign State
To prohibit unrestrained malicious propaganda against any foreign state which may jeopardize good relations between India and any other foreign state.
(D) Decency and Morality
The restrictions on the freedom in the interest of decency or morality. This prohibit the sale or distribution or exhibition of obscene words, etc. in public places and includes anything which an ordinary decent man or woman would find to be shocking, disgusting or revolting.
The statement, which injures a man’s reputation amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt.
(F) Incitement to an Offence
Obviously, freedom of speech and expression cannot confer a right to incite people to commit offences.
(G) Sovereignty and Integrity of India
The main purpose is to guard the freedom from being used to assail the sovereignty and territorial integrity of the Country.
(H)Contempt of Court
Contempt of Court is the behavior that opposes or defies the authority of justice and dignity of court. Our Constitution of India gives the power to court for its contempt under Article 215 to High Court and Article 129 to Supreme Court. There is also a statutory law guiding Contempt that is the Contempt of Courts Act 1971 which defines contempt of court in two types i.e Civil Contempt which is wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court, and Criminal contempt which means by any publication which scandalizes or lowers the authority of court or prejudice or interferes the proceedings of court or the administration of justice.
Punishment for Contempt under section 12 of the Contempt of the Courts Act, 1971 can be with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. An accused may be discharged or the punishment awarded may be remitted on apology being made by the accused to the satisfaction of the court. An apology is not supposed to be rejected merely on the ground that it is qualified or conditional.
The Curious Case of Prasant Bhusan
Prasant Bhusan a senior lawyer in Supreme Court of India on 27 June 2020 tweeted about the “role of Supreme Court” in the “destruction of democracy during last 6 years” and had also mentioned especially “last 4 Chief Justice of India”
In another Tweet on 29 June 2020 he had commented on present Chief Justice of India Justice Sharad Arvind Bobde astride a Harley Davidson bike. He questioned for riding bike without helmet and face mask while “he keeps the Supreme Court on Lockdown“.
The Supreme Court on suo motu cognizance issued notice on 5 August to Prasant Bhusan which read
” this…have brought the administration of justice in disrepute and are capable of undermining dignity and authority of institution……..and office of Chief Justice of India in particular.”
The Court asked Mr. Prasant Bhusan to apologize to which he refused, and on 31 August 2020 the Supreme Court imposed fine of Re 1 on Mr. Prasant Bhusan and 3 month imprisonment and be debarred from practice for 3 years in case he does not pay the fine by September 15.
It can be easily concluded that right to speech and expression is one of the most important fundamental rights. It also comprises of right to information, freedom of press etc. Thus, this fundamental right has a vast scope and subject to reasonable restriction under Article 19(2) of the Indian Constitution.