The Author, Kabir Dhamija is 1st year student at Rajiv Gandhi National University of Law, Patiala, Punjab.
Introduction
"One of the most cherished rights under our Constitution is to speak one’s mind and write what one thinks."[1] These words by Justice Sanjay Kaul appositely put light on the importance of one of the basic fundamental rights provided by the Constitution of India: The Right to Freedom of Speech and Expression. It is one of the supreme human rights recognised in majority of the world. Our Constitution provides every citizen the right to express his thoughts, opinions, and criticism freely under article 19(1)(a). However, this freedom is subject to reasonable restrictions which the legislative body may impose. These restrictions are broadly described under Article 19(2).
Having said that, this right is being misused more than being used in the 21st century India. On one hand, Religious and Political Leaders are delivering hate speeches and instigating their followers under the shield of the Freedom of Speech, resulting in conflicts among the masses, violence, and chaos in different parts of the country. On the other hand, the reasonable restrictions imposed by the Government are being misused by the same political and religious leaders, as well as large corporations, who use the charges of sedition and defamation to supress the people as well as the media groups who speak against them.
Due to such situations, it is time we reflect upon the ambiguous restrictions on the Freedom of Speech and Expression which are imposed through various sections of the Indian Penal Code. It is time we reduce the ambiguity of the restrictions present against the right to free speech and thrive to achieve a balance between giving too much freedom and giving too little freedom.
Freedom of Speech and Expression
The Freedom of Speech and Expression is considered one of the basic human rights. Keeping this in mind, the founding fathers of the Constitution of India provided its citizens the fundamental right to express their opinions freely, stating that “All citizens shall have the right to freedom of speech and expression.”[2] However, the right is not absolute in nature. To ensure that the right does not end up violating the democratic principle, the Constitution also provides the provision to impose reasonable restrictions on free expression, stating that reasonable restrictions can be imposed, if such restrictions are “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”[3]
Misuse of the Restrictions
The Freedom of Speech and Expression is subject to restraints which are deemed to be reasonable by the government. The Government of India has framed various penal laws to ensure that the right is not used against the interest of the state or of its citizens. For instance, Section 153A of the IPC criminalizes “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.” Section 298 also criminalizes “Uttering, words, etc., with deliberate intent to wound the religious feelings of any person.”
Sedition is a major example of the regulating the freedom of speech. Section 124A of the IPC criminalizes any act which instils or intends to instil the feeling of contempt or disaffection towards the government established by law. The act of sedition was criminalized in 1860 by the British through the IPC with the intent of supressing the rebellion of the Indians. Section 124A, although an important restriction to maintain peace and harmony throughout the country, is being misused by the political and religious leaders to silence the people who speak against them. The amount of sedition cases lodged have increased drastically over the past few years. The total number of sedition cases registered in 2015-2018 stand at 191, of which 30 were filed in 2015, 35 in 2016, 51 in 2017, and 75 in 2018. Out of these 191 cases, trials are completed for 43 cases, of which only 4 were convicted, while the rest were acquitted.[4] The conviction rate of the cases proves that majority of the cases were filed without any basis and the sole reason, as inferred from the data, is mental as well as financial harassment. Majority of the cases were filed with the purpose of pressurising the individuals as well as the media houses to revoke their statements, else they would be stuck, probably for years, under the burden of court proceedings and trials, affecting them both mentally as well as financially.
Another example of misuse of restriction on freedom of speech is Defamation. The act of defamation a crime under section 499 and 500 of IPC. However, the term is so broadly defined that any person or entity can claim damages under defamation for the statements published about them. This loophole is exploited usually by huge multinational corporations, who do not scruple to sue individuals such as journalists, environmental activists, or even large media houses, under the charge of defamation. They claim for monetary damages which are so immense, that it is beyond the capacity of the individuals or the media houses. For example, Karaturi Global Ltd. brought charges against environmental journalist Keya Acharya under the crime of defamation, demanding a billion rupees in compensation for the statement published by her on her blog. Similarly, Reliance Industries Ltd., India’s biggest corporation, sought one billion rupees in damages from journalists Paranjoy Guha Thakurta, Subir Ghosh, and Jyotirmoy Chaudhuri for a book on Reliance Industries Ltd.[5]
Such cases of defamation, sedition, etc. not only tie up the individuals with court fees, legal proceedings, and mental stress and agony for exercising their freedom of speech and expression but also intimidate the other citizens and organizations, who, as a result, refrain from freely exercising their right due to the possibility of facing such a suit themselves.
Misuse of the Right
The right of Freedom of Speech and Expression was incorporated by the Drafting Committee of the Constitution of India with the aim to ensure that the citizens can express their feelings and views, even though critical in nature, freely and without fear of facing any repercussions for the same. 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.
The result of such misuse is manifold. Firstly, delivering such hate speeches and defaming a person, community or organisation leads to humiliation of the said person or community and causes harm to its goodwill. Second, delivering such hate speeches with the purpose to instigate and provoke the masses leads not only to a feeling of hatred but also results in violence, causing injury and even deaths in large numbers due to mob violence. Third, instilling hatred among the masses through such hate speeches and character assassinations leads to communal disharmony, which is not at all healthy for stability of a nation which is home to more than nine major religions. 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, if not controlled, will eventually lead to communal disharmony and chaos all around the nation.
Conclusion: Thrive towards Balance
The right of Freedom of Speech and Expression is an integral right of each and every human being and part of the basic fundamental rights provided by our Constitution, along with a provision to apply reasonable restrictions on the same. However, the right as well as the restrictions have been exploited and misused on multiple occasions, ranging from mental and financial harassment through defamation and sedition suits, to delivering hate speeches under the name of free speech. So, the question that arises is: what can be done? Is it feasible to remove the restrictions and decriminalize sedition and defamation? Or should the restrictions be made more stringent to prevent hate speeches and instigation?
Both the solutions are extreme and not at all practical. Decriminalizing acts such as sedition or defamation will result in open instigation as well as shattering of people’s goodwill and will contradict their fundamental right against exploitation. Moreover, it will give way to the unwanted elements of the society to propagate hate and violence in the citizens. On the other hand, inflexible restrictions may sabotage the very spirit with which the right was granted by our founding fathers. What is required is balance. There is a very thin line between providing too much freedom and providing too little freedom, both of which will take the essence of the right out of it. It is a thin line that the nation needs to walk on, and reducing the ambiguity present in Article 19(2) will help achieve it.
References:
[1]Mira Kamdar, Do Indians Have Freedom of Speech?, PACIFIC COUNCIL (MAY 5, 2018, 12:41 AM) https://www.pacificcouncil.org/newsroom/do-indians-have-freedom-speech
[2] INDIA CONST. art. 19, cl. 1, sub cl. a
[3] INDIA CONST, art 19, cl. 2
[4] Crime in India-2018, National Crime Records Bureau
[5] Mira Kamdar, Do Indians Have Freedom of Speech?, Pacific Council (May 5, 2018, 12:41 AM) https://www.pacificcouncil.org/newsroom/do-indians-have-freedom-speech
Picture Source :