Importance of Freedom of Speech and Expression

 

2015-16

FINAL

DRAFT Constitutional law

“Importance of Freedom of Speech and Expression in India” Submitted to:

Submitted by:

Mr. Mahendra Singh aswan !o"al

Shobhit Mani

Assistant ro#essor $Law%

Roll&'() $*rd sem%

Dr. Ram Manohar Lohiya National Law +ni,ersity- Lu/now

Se&0

Table of Contents Page no. 

Acknowledgement ………………………………………………………………………...... .3

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Introduction …………………………………………………………………………… ……….4

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Historical Background ……………………………………………………………………. ………...5

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Importance of freedom of speech and expression …………………………..….…….5

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Is it an asolute right! …………………………………………………….…………………….. …." •

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#easonale #estrictions #estrictions ………………………………………………………….………."

 $est  $est of reasonale # #estrictions estrictions …………. ………………………………………………….…%&

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How is right to freedom of speech and expression is di'erent from (.) …………………………………………………………………………… …………………………….……..%*

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+onclusion …………………………………………………………………………… ……………….…%*

Biliograph, ge 2 | P a……………………………………………………………. ………………………………%3 

 ACKNOWLEDGEMENT 

I take this opportunit, to express m, profound gratitude and deep regards to m, guide -Mr. Mahendra Singh aswan  for his exemplar, exemplar, guidance/ monitoring and constant encouragement throughout throughout the course of this thesis. $he lessing/ help and guidance gi0en , him time to time shall carr, me a long wa, in the 1ourne, of life on which I am aout to emark. I would like to express m, gratitude towards m, parents 2 memers of r. #am anohar ohi,a 6ational aw (ni0ersit, for their kind co7operation and encouragement which help me in completion of this pro1ect. I would like to express m, special gratitude and thanks to all those people who ga0e me attention and their in0aluale time. , thanks and appreciations also go to m, friend and classmates in de0eloping the s,nopsis and people who ha0e willingl, helped me out with their ailities.

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INTRODUCTION:

The right to #reedom in Artile ') guarantees the Freedom o# s"eeh and s"eeh and e1"ressione1"ression- as one o# its si1 #reedoms. It is enshrined under Artile ')$'% a o# the onstitution o# India. The #reedom o# s"eeh is regarded as the #irst ondition o# liberty and most basi right o# all #reedom  "ro,ided to the "eo"le. 2 atan3ali Shastri- has said in the ase o# Romesh Thaper v State of !adras " that #reedom o# s"eeh and that o# the "ress lay at the #oundation o# a demorati soiety-

#or without #ree "olitial disussions- no "ubli eduation is "ossible- whih is so im"ortant #or the  "ro"er #untioning o# the go,t. go,t. It ou"ies a "re#erred and im"ortant "osition in the hierarhy o# the liberty- it is truly said about the #reedom o# s"eeh that it is the mother o# all other liberties. Freedom o# S"eeh and e1"ression means the right to e1"ress one4s own on,itions and o"inions #reely by words o# mouth- writing "rinting- "itures or any other mode. In modern modern time it is widely ae"ted that the right to #reedom o#  s"eeh is the essene o# #ree soiety and it must be sa#eguarded at all time. The #irst "rini"le o# a #ree soiety is an untrammelled #low o# words in an o"en #orum. Liberty to e1"ress o"inions and ideas without hindrane- and es"eially without #ear o# "unishment "lays signi#iant role in the de,elo"ment o# that "artiular soiety and ultimately #or that state. It is one o# the most im"ortant #undamental liberties guaranteed against state su""ression or regulation.

Freedom o# s"eeh is guaranteed not only by the onstitution or statutes o# ,arious states but also by ,arious international on,entions li/e +ni,ersal Delaration o# 5uman Right- 6uro"ean on,ention on 5uman Rights and #undamental #reedoms- International Co,enant on Ci,il and olitial Rights et. These delarations e1"ressly tal/ about "rotetion o# #reedom o# s"eeh and e1"ression.

This Ri#ht inc$%des: •

% AIR ')78 SC

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The right to #ly national #lag and sing national anthem

• • •

Right to silene Right to reei,e in#ormation Freedom o# "ress

&ISTORIC'( )'C*+ROUND: The delaration o# rights o# man and o# iti9en ado"ted during the Frenh re,olution in ';) s"ei#ially a##irmed #reedom o# s"eeh as an inalienable right. The delaration "ro,ides #or #reedom o# e1"ression in Artile ''- whih says that n Liberty- "ublished in ';7) beame a lassi de#ene o# the right to #reedom o# e1"ression.

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2ohn argued that truth dri,es out #alsity- there#ore- the #ree e1"ression o# ideas- true or #alseshould not be #eared. The truth is not stable or #i1ed but e,ol,es with time. 2ohn also argued that #ree disussion is neessary to "re,ent the ?dee" slumber o# a deided o"inion?. The disussion would dri,e the onwards marh o# truth and by onsidering #alse ,iews the basis o# true ,iews ould be re&a##irmed. An o"inion only arries intrinsi ,alue to the owner o# that o"inion- thus silening the e1"ression o# that o"inion is an in3ustie to a basi human right. For Mill- the only instane in whih s"eeh an be 3usti#iably su""ressed is in order to "re,ent harm #rom a lear and diret threat. Neither eonomi or moral im"liations- nor the s"ea/ers own well&being would  3usti#y su""ression o# s"eeh.

In !ane/a +andhi v Union of India 0- 0hagwati 2 has em"hasi9ed on the signi#iane o# #reedom o# s"eeh and e1"ression in these words?Demoray is based essentially on #ree debate and o"en disussion- #or that is the only orreti,e o# go,ernment ation in a demorati setu". I# demoray means go,ernment o# the "eo"le by the  "eo"le- it is ob,ious that e,ery iti9en must be entitled to "artii"ate in the demorati "roess and in order to enable him to intelligently e1erise his right o# ma/ing a hoie- #ree and general disussion o# "ubli matters is absolutely essential.?

In ')(- in 1hitne2 v Ca$ifornia 3- Louis 0randeis 2- made a lassi statement on the #reedom o# s"eeh in the onte1t o# the +.S Constitution: ?Those who won our inde"endene belie,ed that the #inal end o# the state was to ma/e men #ree to de,elo" their #aulties... They belie,ed liberty to be seret o# ha""iness and ourage to be the seret o# liberty. They belie,ed that the #reedom to thin/ as you will and to s"ea/ as you thin/ are means indis"ensable to the diso,ery and s"read o# "olitial truth@ that without #ree s"eeh and assembly disussion would be #utile.... that "ubli disussion is a "olitial duty@ and that this should be a #undamental "rini"le o# the Amerian go,ernment.?

* %8"9 AI# 58"/ %8"9 )+# -* :*% 3 274 U.S. 357 (1927) 357 (1927)

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The Right to #reedom o# s"eeh and e1"ression as "er as Indian Constitution means the right to e1"ress ones own on,itions and o"inions #reely. The word B#reely means inluding by words o# mouth- writing- "rinting- banners- signs- and e,en by way o# silene. •

The su"reme ourt o# India has held that hosting the National Flag by iti9ens is a #orm o#

•

#reedom o# s"eeh and e1"ression in Union of India v. Naveen Jindal & Anr 4- (88. Freedom o# "ress is an in#erred right im"liit under art. ')$'% a. The Right to In#ormation $RTI% emerges as a #undamental right under Artile ')$'% a- as a

•

#reedom o# s"eeh and e1"ression are meaningless without aess to in#ormation.

IS IT 'N ')SO(UTE RI+&T4  No right is absolute #or- it is neessary to maintain soial order- "eae and tran=uillity o# the nation. 2.S Mill has rightly said B#reedom whih is absolute is no #reedom in true sense. There should be some restrition in order to "rotet the rights o# another indi,idual. 5ene- Su"reme Court in the Thapar vs State of Madras Madras 5 stated onern regarding restritions to be #amous deision in Romesh Thapar

im"osed on this right. First amendment at $')7'% $')7'% lays down grounds grounds #or reasonable restrition.

RE'SON')(E RISTRICTIONS :

Clause $(% o# Artile ') o# the Indian onstitution enables the legislature to im"ose ertain restritions on #ree s"eeh under #ollowing heads:

"  Securit of the State: State: Reasonable restritions an be im"osed on the #reedom o# s"eeh

and e1"ression- in the interest o# the seurity o# the State. All the utteranes intended to endanger the seurity o# the State by rimes o# ,iolene intended to o,erthrow the go,ernment- waging o# war and rebellion against the go,ernment- e1ternal aggression or 4 -*&&4 * )++ 5%&; AI# *&&4 )+ %558 5 AI# %85& )+ %*4; %85& )+# 584

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war- et.- may be restrained in the interest o# the seurity o# the State. It does not re#er to the ordinary breahes o# "ubli order whih do not in,ol,e any danger to the State. 0 !riendl relations "ith forei#n States: States : This ground was added by the Constitution $First

Amendment% At o# ')7'. The State an im"ose reasonable restritions on the #reedom o#  s"eeh and e1"ression- i# it tends to 3eo"ardise the #riendly relations o# India with other State. 3  $u%lic order : This ground was added by the Constitution $First Amendment% AtAt- ')7' in

order to meet the situation arising #rom the Su"reme Court4s deision in  Romesh Thapar Thapar s case '  . The e1"ression 4"ubli order4 onnotes the sense o# "ubli "eae- sa#ety and

tran=uillity.

In (ishori Mohan v. v. State of )est )est *en#al + - the Su"reme Court e1"lained the di##erenes between three one"ts: law and order- "ubli order- seurity o# State. Anything that disturbs "ubli "eae or  "ubli tran=uillity disturbs "ubli order. order. 0ut mere ritiism o# the go,ernment does not neessarily disturb "ubli order. A law "unishing the utteranes deliberately tending to hurt the religious #eelings #e elings o# any lass has been held to be ,alid as it is a reasonable restrition aimed to maintaining the "ubli order.It is also neessary that there must be a reasonable ne1us between the restrition im"osed and the ahie,ement o# "ubli order. v. Ram Manohar Manohar -ohia  - the Court held the Setion * o# +.. In Superintendent ,entral $rison v.

S"eial owers At- ')*(- whih "unished a "erson i# he inited a single "erson not to "ay or de#er the "ayment o# !o,ernment dues- as there was no reasonable ne1us between the s"eeh and "ubli order. SimilarlySimilarly- the ourt u"held the ,alidity ,alidit y o# the "ro,ision em"owering a Magistrate to issue iss ue diretions to "rotet the "ubli order or tran=uillity.

: AIR ')78 SC '( " AI# %8"* )+ %"48 9 AIR ')E8 SC E**

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5  /ecenc and moralit moralit:: The word 4obsenity4 is idential with the word 4indeeny4 o# the 0ic1lin2- the test was laid down aording Indian Constitution. In an 6nglish ase o#  R. v. 0ic1lin

to whih it is seen 4whether the tendeny o# the matter harged as obsene tend to de"ra,e and orru"t the minds whih are o"en to suh immoral in#luenes4. This test was u"held v. State of Maharashtra Maharashtra . In this ase the  by the Su"reme Court in Ran3it /. Udeshi v.

Court u"held the on,ition o# a boo/ seller who was "roseuted under Setion ()(I..C.I.. C.- #or selling s elling and /ee"ing the boo/ "ady boo/  "ady #hatterley$s "over . The standard o# morality ,aries #rom time to time and #rom "lae to "lae. 6 ,ontempt of court : The onstitutional right to #reedom o# s"eeh would not allow a

 "erson to ontem"t the ourts. The e1"ression Contem"t o# Court has been de#ined Setion ( o# the Contem"t o# Courts At- ')'. The term ontem"t o# ourt re#ers to i,il ontem"t or riminal ontem"t under the At. 0ut 3udges do not ha,e any general immunity #rom ritiism o# their 3udiial ondut- "ro,ided that it is made in good #aith and is genuine ritiism- and not any attem"t to im"air the administration o# 3ustie.

 %n re Arundhati Ro - the Su"reme Court o# India #ollowed the ,iew ta/en in the Amerian Su"reme Court Cou rt $Fr $Fran/ an/#ur #urter ter-- 2.% in $enne1amp v. !lorida 6 in whih the +ni +nited ted States States Su" Su"rem remee Cou Court rt obser,ed: BI# men- inluding 3udges and 3ournalists- were angels- there would be no "roblem o#  ontem"t o# ourt. Angeli 3udges would be undisturbed by e1traneous in#luenes and angeli  3ournalists would not see/ to in#luene them. The "ower to "unish #or ontem"t- as a means o#  sa#eguarding 3udges in deiding on behal# o# the ommunity as im"artially as is gi,en to the lot o#  men to deide- is not a "ri,ilege aorded to 3udges. The "ower to "unish #or ontem"t o# ourt is a sa#eguard not #or 3udges as "ersons but #or the #untion whih they e1erise.

8 .#. 3