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As India Rages About Freedom Of Speech, How Well Do We Know It?

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Freedom of speech is a democratic ideal in ancient Greece, that is, the freedom of citizens to express their views without government restrictions. In many countries, the Constitution guarantees freedom of speech and expression. However, not all modern democracies limit this freedom. The ancient Greeks introduced freedom of speech as a principle of democracy. The ancient Greek word for ‘Parrhesia’ is ‘free speech’ or ‘to speak sincerely’. Historians attest to the fact that the term first appeared in Greek literature in the late fifth century.

During the classical period, the Parrhesia became a fundamental part of democracy in Athens. Leaders, playwrights, and the general public in Athens were free to speak openly about politics and religion and to criticize government laws, procedures, and arrangements.

The Constitution of India also provides constitutional protection for certain personal freedoms and rights, including freedom of speech and worship. But it is not clear what freedom of speech means. It is mainly in the courts that the law defines what kind of conversation should be protected. It protects all forms of communication, from speeches to art and other media.

Representational image.

Flag Burning

Freedom of speech is mostly about spoken or written words. But it also preserves some symbolic expressions. The symbolic discourse of flag-burning is a dialogue or activity that expresses such an idea.

When Is Speech Not Protected?

While there is constitutional freedom to speak and express opinions, some conversations may not have this protection. That is, acts such as child pornography, plagiarism, direct threats of defamation (defamation and defamation), or incitement to commit illegal acts are not legally protected. The Supreme Court of India and other lower courts have frequently ruled on numerous cases that have helped to define the limits of freedom of expression. But the law also prohibits interference in espionage or military action.

Any situation that allows the government to limit freedom of expression in accordance with clear and existing standards must be able to respond by recognizing that it is an encroachment on individual liberty and civil liberties and that it is dangerous to national security.

What Is Freedom Of Speech Under Article 19 Of The Constitution Of India?

What are the basics that can control this freedom?

Article 19 (1) (a) of the Constitution of India states that “all citizens shall have the right to freedom of speech“. It is committed to ensuring the security of all citizens and freedom of thought and expression. However, this right is subject to certain restrictions subject to certain requirements imposed by Article 19 (2) of the Constitution of India. The court has a duty to uphold media freedom and to repeal all laws and administrative measures that undermine that freedom. These include freedom of the press, freedom of publication, freedom of distribution and freedom before censorship.

There has been a court order determining the number of pages and size that a newspaper can publish for a price. The validity of the Newsprint Control Order, which defines the maximum number of pages, shall not be subject to reasonable restrictions under Article 19 (1) (a) Article 19 (2). The court rejected the government’s position that small newspapers would help grow.

Key Elements Of The Right To Freedom Of Expression

  • All Indian citizens are covered by this right. Not for foreign nationals.
  • Freedom of speech under Article 19 (1) (a) includes the right to express one’s views and opinions on any subject through any medium. Example: oral, writing, print, picture, film, etc.

However, this right is not absolute and allows the government to exercise reasonable control over the interests of India’s sovereignty and integrity, state security, friendship with foreign countries, public order, decency, morality and contempt. In addition, the court does not allow negligence, defamation or incitement to commit a crime. This restriction on the freedom of speech of any citizen can be applied in the same way as the inaction of the state. Failure on the part of the government is a violation of Article 19 (1) (a) as it guarantees the fundamental right to freedom of speech to all citizens.

There have been numerous cases in the courts of law in India alleging freedom of speech. Proof of such cases in various disciplines involves judicial creativity, judicial wisdom, and judicial ingenuity. This increased the scope of freedom of speech. Legislative freedom can only grow through the maintenance and guidance of the legislature’s vigilance, public opinion and journalistic excellence. Freedom of speech includes the right to disseminate one’s views through the print media or any other means of communication, subject to reasonable restrictions imposed by Article 19 (20).

In the first case in which the Supreme Court ruled in favour of freedom of expression as part of freedom of expression, Patanjali Shastri observed that freedom of speech was the basis of all democratic organizations, because without free political discussion, there is no public education, and the proper functioning of government processes is essential. The validity of the order imposing per-censorship on an English weekly in Delhi was directed to be scrutinized by the editor and publisher of a newspaper.

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Freedom Of Commercial speech

Mahanagar Telephone Nigam Limited contends that commercial advertising or commercial speech is part of the freedom of speech and will be limited to Article 19 (2). The Supreme Court ruled that the advertisement, which was not more of a commercial intervention, was, however, disseminating information related to product advertising. The public benefits greatly from the information provided through advertisements. In a democratic economy, the free flow of commercial information is inevitable.

The Right To Broadcast

Conceptual discourse and expression have evolved with the advancement of technology and include all available means of communication and communication. This includes electronic and broadcast media.

The Supreme Court in Lokvidayan Sanghatana opined that the right of a citizen to screen a film on a state channel is part of the fundamental right guaranteed by Article 19 (1) (a) of the Television. In this case, the applicants challenged the exhibition on the television of the series Honey Anhonian, claiming that superstition also promotes blind faith among the audience. The application was rejected on the ground that the complainant had failed to show evidence of prejudice to the public.

Right To Information

Freedom of expression and expression is not only the right to express and publish information, but it also disseminates and receives information. The Supreme Court has intervened in judgments that have discussed the right to information and the right of sports fans to watch cricket in various contexts, from advertisements that enable citizens to receive vital information about life-saving drugs. Citizens’ rights also include the fact that voters have the right to know the past history of their candidates.

In the case of Democratic reforms, all unilateral information creates an uninformed citizen. That makes democracy a farce. This includes the right to freedom of expression and acceptance.

Freedom To Criticize

Everyone has the fundamental right to express his or her opinion on any matter of common concern. Publicly criticizing government policies and actions is not a reason to restrict expression. Intolerance is as dangerous to democracy as it is to the individual. In a democracy, not everyone has to sing every song.

The Right To Express An Opinion Beyond National Boundaries

The Supreme Court has considered whether Article 19 (1) (a) of the Constitution of India is restricted to Indian territory and argues that freedom of speech is not limited to national borders. The right to speak or the right to be silent is included in the right to speak and to express one’s opinion.

In the case of the national anthem, three students were expelled from school for refusing to sing the national anthem. However, the court found that the children stood up respectfully while singing the national anthem and questioned the validity of the expulsion of the students in the Kerala High Court and upheld the expulsion of the students on the ground that singing the national anthem was their basic duty. However, on appeal to the Supreme Court against the order of the Kerala High Court, the Supreme Court held that the students had not committed any offence under the Prevention of Defamation of National Honors Act, 1971. There was no law that could deprive them of their fundamental right under Article 19 (1) (a).

Article 19 (2) of the Constitution of India imposes certain restrictions on freedom of expression under the following heads.

  • State security
  • Friendly relations with foreign countries
  • General order
  • Dignity and morality
  • Contempt of court
  • Defamation
  • Incitement to commit a crime
  • Sovereignty and integrity of India.
Representational image.

State Security

For the security of the state, reasonable restrictions on freedom of expression may be imposed. The term security of the state needs to be separated from the general order. Serious and worse general agreements regarding state security, for example, riots, war against the state (the entire state or part of the state), riots.

A public interest litigation has been filed under Article 32 of the Constitution of India against cases such as telephone tapping. This called into question the validity of Section 5 (2) of the Indian Telegraph Act, 1885. It is in the public interest and in the interest of public safety not to apply the provisions of Section 5 (2). If any of these two conditions do not exist, the government has no right to exercise power under this section. Accordingly, the law is violated if it does not come under reasonable restrictions.

Friendly Relations With Foreign Countries

This was added by the 1951 Constitution (First Amendment) Act. The State can impose reasonable restrictions on freedom of speech and expression if it interferes with India’s friendly relations with other States or States.

Public Order

This basis was added to resolve the situation arising out of the decision of the Supreme Court under the Constitution (First Amendment) Act, 1951. In the opinion of the Hon’ble Supreme Court, the term ‘public order’ refers to public order, security and tranquillity, as public order is different from law and order and the security of the state. Anything that affects public peace interferes with public order. But criticizing the government does not necessarily disrupt public order. A law punishing intentional utterances that offend the religious sentiments of any race is considered a valid and reasonable regulation aimed at maintaining public order.

Dignity and Morality Sections 292 to 294 of the Indian Penal Code restrict freedom of speech on the basis of decency and morality, prohibiting the sale, distribution or display of obscene language. The standard of morality changes with the changing times. The Supreme Court has upheld the conviction of a bookseller who was tried under Section 292, IPC for selling and keeping a book titled ‘Lady Chatterley’s Son’.

Court Order

The constitutional right to freedom of speech does not allow an individual to contempt of court. The term court permission is defined by Section 2 of the Court of Defamation Act, 1971. The term contempt of court refers to civil contempt or criminal contempt by law.

Defamation

Article 19 (2) of Article 19 prohibits any person from making a statement defaming the reputation of another. Defamation in India under Sections 499 and 500 of the KJE is a criminal offence. The right to freedom of expression is not absolute. This does not mean the freedom to hurt the reputation of another who is protected under Article 21 of the Constitution. Although truth is considered a defence against defamation, the defence can only be made by making a statement for the common good. This is a fact that needs to be assessed by the judiciary.

Incitement to commit a crime: The 1951 Constitution (First Amendment) Act also added this basis. The Constitution also prohibits any statement inciting people to commit a crime. Sovereignty and Integrity of India: The Constitution (Sixteenth Amendment) Act, 1963 added this basis. It aims to prevent anyone from making statements that challenge India’s integrity and sovereignty.

In conclusion, the right to freedom of expression is an important fundamental right, the scope of which has been expanded to include freedom of the press, the right to information, silence, and the right to criticize, including commercial information. However, the said right is subject to reasonable restrictions under Article 19 (2).

Author’s Note – This question has three parts, i.e. explain the right to freedom of expression under Article 19; Confirm the explanation given through the decided cases, and clarify the basis of the restrictions on freedom of expression and control.

Sunilji is a Communication Associate at the Institute for Sustainable Development and Governance.
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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

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A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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