INTRODUCTION
In a Democracy it is very necessary that the people must have right to express themselves without all arbitrary restrictions. Expression of views and participation in the open discussion is the sole of democracy. Though there are certain limitations in this freedom are imposed by the state on the ground of reasonableness. The right to freedom of speech and expression is defined under Article 19(1) (a) of Indian Constitution.
Constitution of India is based on the
principle of checks and balances. The Preamble of Indian Constitution expresses
two ideas which complement each other, namely:
1.
Rights
of the individual which correspond to the duties of the State towards the
individual,
2. Duties of the individual towards the State
which correspond to the rights of the society against the individual.
The State is under an obligation not to
infringe the rights of the Individuals and the individuals also obliged to
contribute to the social welfare. Every
attempts need to be made to preserve this right and the beauty of this freedom
lies under the limitations of the interest of the Society. In this Article the
scope and nature of Freedom of speech and Expression will be discussed and the
reasonable restrictions upon this freedom will also be discussed.
Historical
Background of Freedom of Speech and Expression
Freedom of speech was the demand on the
European enlightenment for on the state which took its roots initially in
England within the Framework of Common law. At the 18th century freedom of
speech and expression were considered first time in Britain section 12 of the
Virginia Bill of Rights, 1776, declared that the freedom of the press is one of
the great bulwarks of liberty and can never be restrained by despotic Governments.
1st. Amendments of United nation also
restricted parliament to make any law which abridges the freedom of press. And
in 1789, the freedom of opinion was proclaimed as a human right, the
unrestrained freedom of thought and opinion were proclaimed as a human right
‘the unrestrained communication of thoughts and opinion being one of the most
precious rights of man. In 19th century German government also provides freedom
of speech in their constitution within the framework of general criminal laws.
According to Abraham Lincoln “democracy is
government for the people, by the people and of the people. But there can be no
government by the people if government fails to protect their rights. That
means that is the people who are sovereign a Democratic Country”.
The preamble of Indian constitution is not
like the other preambles of the world but it is the gist of our constitutional
makers. While interpreting the constitution preamble must be considered as
integral part of the constitution. Where there is ambiguity the preamble also
shows that it is the people who are supreme.
The constitution of India gives various
Fundamental rights to its citizens. One such important right is right to
freedom of speech and expression under Article 19 of Indian Constitution. Article
19 says that all the citizens have freedom of speech and expression but this
right is subject to limitations imposed under Article 19 (2). Which empowers
the state to put ‘reasonable' restrictions on the following grounds, e,g.,
security of the state, friendly relations with foreign states, public order,
decency and morality, contempt of court, defamation, incitement to offence and
integrity and sovereignty of India.
Freedom of speech and expression defines the
right to express oneself freely by words of mouth, writing, printing, pictures
or any other mode and also includes the expression of one’s ideas through any
communicable medium or visible representation it may be gesture, signs and the
like.
In Romesh
Thapper v. State of Madras[1]
Freedom of speech and of the press lay at the foundation of all democratic
organisations, for without free political discussion no public education, so
essential for the proper functioning of the process of popular government, is
possible.
The judiciary has been enlarging the area of
the freedom of speech and expression. Freedom
of speech and expression is a vital feature of democracy without this freedom
the democracy is more exists. This freedom is the mother of all the freedoms
and implicit different types of freedom under its purview. Such as the freedom
of press is the implicit part of this freedom.
This fundamental right of the freedom of the
press implicit in the right to freedom of speech and expression is essential
for political liberty and proper functioning of democracy. According to
American press Commission freedom of the press is essential for political
liberty. Circulation of thought is necessary for securing the freedom. Unlike the
American Constitution, Article 19 (1) (a) of the Indian Constitution does not
expressly mention the liberty of the press but it has been held that liberty of
press is included in the freedom of speech and expression. The ‘press has no
special rights which are not to be given or which are not to be exercised by
the citizen in his individual capacity. The editor of a press or the manager is
merely exercising the right of the expression, and therefore, no special
mention is necessary for the freedom of press[2].
Lord Mansfield: consists in printing without
any licence subject to the consequences of law''. Thus, the liberty of the
press means liberty to print and publish what one pleases, without previous
permission.
Article 19 (1) (a) of the Indian constitution
guarantees freedom only to the human beings which are citizens not the juristic
person or non-citizens. However, Article 19 gives freedom on the plea that
press constituted of citizens.
In Indian
Express Newspapers (Bombay) Pvt. Ltd. v. Union of India[3]
the Supreme Court after pointing out that communication needs in a democratic
society should be met by the extension of specific rights e.g., the right to be
informed, the right to inform, the right to privacy, the right to participate
in public communications, the right to communicate, etc., The Court pointed out
that the freedom of speech and expression guaranteed under Article 19(1)(a) of
the Constitution is not for the benefit of the press as it is for the benefit
of the public. The people have a right to be informed of the developments that
take place in a democratic process and the press plays a vital role in
disseminating this information. Neither the Government nor any instrumentality
of the Government or any public sector undertaking run with the help of public
funds can shy away from articles which expose weaknesses in its functioning and
which in given cases pose a threat to their power by attempting to create
obstacles in the information percolating to the members of the community.
In the case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd[4]
The court held that the Advertisement included in article 19(1) (a). The right
to issue advertisement even of commercial nature is covered by article 19 of
Indian Constitution. It can only be restricted on the grounds mention in clause
2 of article 19. The telephone authorities permitted ‘Tata Press Yellow Pages’
containing advertisements of commercial nature in telephone directory. A civil
suit for injunction was filed by Nigam and also Union of India claiming
monopoly in publication of directory under Indian Telegraph Act. In an appeal
by Tata against injunction issued by Trial Court and confirmed by the High
Court. The appeal was allowed by the Supreme Court and High Court’s order was
set aside on the ground that advertisement is a kind of commercial speech and
is covered by Article 19(1) (a).
In Hamdard
Dawakhana v. Union of India[5]
the Supreme Court had held earlier that an advertisement of commercial nature
was not protected by Article 19(1)(a) of the Constitution. After Tata Press
case61, this view is overruled. As such Hamdard Dawakhana view is now limited
to protection of obnoxious advertisements of commercial nature. Tata Press case
view applies to all advertisements except that are obnoxious. The Court,
however, made it clear that the Government could regulate the commercial
advertisements, which are deceptive, unfair, misleading and untruthful.
In the case of Secretary, Ministry of Information and Broadcasting, Government of
India v. Cricket Association of Bengal (CAB) the Supreme Court expanded the
nature of Right to speech and expression and held that right to speech and
expression includes the right to receive and Impart Information. It was held
that it is necessary for securing this right that the people must have the
plurality of views and rage of opinions on public issues.
successful democracy posits an aware
citizenry. Diversity of opinions, views, ideas and ideologies is essential to
enable the citizens to arrive at informed judgment on all issues touching them.
All these developments of law giving meaning to freedom of speech and
expression or personal liberty are not required to be reconsidered nor there
could be legislation so as to nullify such interpretation except as provided
under the exceptions to fundamental rights. In this case, six nations cricket match
was held in 1993. Cricket Association of Bengal (CAB) requested Doordarshan to
telecast the match. It agreed to pay royalty to Doordarshan. Later on, the
right of telecast was given to foreign T.V. CAB moved Calcutta High Court
pleading that it had fundamental right under Article 19(1)(a) to telecast the
cricket match. It was included in freedom of expression. Subsequently, in
Supreme Court the same plea was taken. The Supreme Court upheld this plea and
directed Doordarshan to provide facilities for telecast. The claim of monopoly
of State over electronic media was denied. Monopoly was not a ground given in
Article 19(2) of the Constitution. No new ground can be evolved for restraining
right under Article 19(1)(a).
Article 19 of Indian Constitution is the most important
right for those who love freedom. However, in the preamble of Indian Constitution
the freedom of speech and expression is also provided impliedly in the form of
liberty of thought, belief, faith and worship. The society will be a place of
suppression if the people do not express their opinions freely. The sole of
democracy lies in this freedom after all it is the mother of all freedoms. At the
same time, the scope of the freedom of speech and expression must be determined.
It can be exercised as far as it does not encroach upon
[1] AIR
1950 SC 124
[2]
Dr. Ambedkar Speech in constituent Assembly Debates, 980.
[3] AIR
1986 SC 515:(1985) 2 SCR 287:(1985) 1 SCC 641.
[4] AIR
1995 SC 2438
[5] AIR
1960 SC 554.
[1] AIR
1950 SC 124
[2]
Dr. Ambedkar Speech in constituent Assembly Debates, 980.
[3] AIR
1986 SC 515:(1985) 2 SCR 287:(1985) 1 SCC 641.
[4] AIR
1995 SC 2438
[5] AIR
1960 SC 554.
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