Why is it in the news?
1. The Supreme Court on 28th March 2025 held that the fundamental right to free speech through poetry, theatre, stand up comedy and satire must be cherished.
2. The court said that reasonable restrictions on free speech must remain reasonable. Restrictions cannot be harmful or oppressive. Restriction cannot overshadow the fundamental right to free speech. It said that free speech was an integral part of a healthy and civilised society. A person’s view cannot be silenced because the majority does not like the sound of them.
3. The Supreme Court held that the law enforcement authorities and courts must employ the standards of reasonable strong minded firm and courageous minds and not weak and vacillating ones who scent danger in every hostile point of view before initiating criminal action against freedom of expression.
4. The top court highlighted that the police and the government have a duty to uphold and honour individual right to speech and expression. Thus, the court cancelled an FIR against a Congress MP under section 196 of Bhartiya Nyaya Samhita alleging to create animosity or hatred among different communities.
What is the right to freedom as the fundamental right?
1.The right to freedom comes under article 19, 20, 21 and 22 of our constitution. Article 19 guarantees to all the citizens six rights. These are:
Right to freedom of speech and expression
Right to assemble peacefully and without arms
Right to form associations or unions or cooperative societies.
Right to move freely throughout the territory of India
Right to reside and settle in any part of the territory of India.
Right to practice any profession or to carry on any occupation, trade or business.
In addition, article 19 also contained the right to acquire, hold or dispose of property. But this right was deleted by the 44th amendment act of 1978.
2.It should be noted that these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations. Further, these rights are protected only against state action and not private individuals. Moreover, these rights are subject to reasonable restrictions.
3. Article 20 grants protection against arbitrary punishment to an accused whether citizen or foreigner or legal person like company or corporation. Thus, it saves from double jeopardy, self-incrimination and punishment from retrospective effects.
4. Article 21 declares that no person shall be deprived of his/her life or personal liberty except according to procedure established by law. This right is available to citizens and non-citizens.
5. In Maneka Gandhi Vs Union of India (1978), the Supreme Court expanded the scope of right to life and personal liberty. It held that the right to life and personal liberty of a person can be deprived by law provided the procedure prescribed by that law is reasonable, fair, just and not arbitrary, fanciful or oppressive. The procedure should confirm the principle of natural justice. Thus, protection under article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action. The Court further held that the right to life under article 21 is not merely confined to animal existence or survival but it includes the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living.
6. Article 22 grants protection against arbitrary arrest. The detenu must be informed of the grounds of arrest. He should have the right to consult and get defended by the legal practitioner. He must be produced before the magistrate within 24 hours excluding the journey time. He must be released within 24 hours unless the magistrate authorises further detention. The second part of the article contains preventive detention whereby any person can be detained for three months without producing before the magistrate. The detention period can be increased further after the endorsement of two member committees of High Court judges up to one year. Parliament has the power to extend the period of detention indefinitely. But this preventive detention provision is not self executory. Parliament will have to pass separate laws to enforce preventive detention. For example, it passed the National Security Act (NSA), Maintenance of Internal Security Act (MISA), Unlawful Activities Prevention Act (UAPA) etc.
What is the right to freedom of speech and expression?
1. It means that every citizen has the right to express his/her views, opinions, beliefs and convictions by words, writing, painting, signs, engraving or in any other manner.
2. According to Supreme Court, the freedom of speech and expression include :
Freedom of the press
Freedom of commercial advertisement
Right to telecast
Right to propagate one's view
Right against tapping of telephoning conversation
Right against Bandh called by political party
Right to know about government activity
Right against imposition of pre censorship of newspaper
Right to demonstration and picketing but not right to strike
Right of voters to know the antecedents of the candidates contesting elections.
Right to choose medium of instruction at the primary level
Right to express gender identity
Right to reply the criticism
Right to post informational videos on the internet and social media
Right of film makers to exhibit their films
Right to have access to the internet to disseminate information
Right to the freedom of silence
What are the reasonable restrictions?
1. Right to freedom of speech and expression is subject to reasonable restrictions. They are not absolute. While in the USA, courts determine what constitutes reasonable restriction on the fundamental rights to freedom of speech and expression on a case to case basis.
2.Our constitution has explicit provision with regard to reasonable restrictions and so the state can impose restrictions upon the right to freedom of speech and expression on the following grounds. These are
Sovereignty and integrity of India
Security of the state
Friendly relations with foreign states
Public order
Decency and morality
Contempt of court
Defamation
Incitement to an offence
The role of the Supreme Court to uphold the right to the freedom of speech and expression.
1. The Supreme Court of India acted as a bulwark to safeguard the right to freedom of speech and expression by delivering various judgements. These are :
Romesh Thapar vs State of Madras (1950), the court held that freedom of speech and expression is essential for democracy. The ban on the entry and circulation of a magazine was struck down as unconstitutional.
In the case of Shreya Singhal vs Union of India, the Supreme Court struck down section 66 A of the Information Technology Act as unconstitutional because it was vague and violated free speech.
In the Maneka Gandhi vs Union of India (1978), the Court broadened the interpretation of personal liberty to include freedom of speech.
In the case of Indian Express newspapers vs Union of India (1985), the Supreme Court ruled that freedom of the press is implicit in the article 19 (1) a, thereby strengthening economic independence of the press.
In the case of S Rangrajan vs P Jagjivan Ram, the Supreme Court held that freedom of speech cannot be suppressed merely because the views are unpalatable to somebody. It asserted that there must be a direct connection between the speech and public disorder.
In the case of Anuradha Basin vs Union of India (2020), the Supreme Court held that freedom of speech through the internet is a fundamental right and that any curtailment must follow proportionality. It establishes that indefinite suspension of internet services violates free speech.
2. According to DD Basu, The Supreme Court has held that in examining the reasonableness of the statutory provision, whether it violated the fundamental rights guaranteed under article 19, one has to keep in mind:
The Directive Principles of State Policy
Restrictions must not be arbitrary or of an excessive nature, going beyond the requirement of the interest of the general public.
No abstract or general pattern to judge the reasonableness of the restrictions can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the constitution, prevailing conditions and surrounding circumstances.
A just balance has to be struck between the restriction imposed and social control envisaged by the article 19 (6) [Article 19 (6) stipulates that a state can make rules with regard to professional and technical qualification necessary for practicing any profession or carrying on any occupation, trade or business). Secondly, the state can also carry on trade, business, industry or service to the complete or partial exclusion of citizens.]
Prevailing social values as also social needs which are intended to be satisfied by the restrictions.
There must be a direct and proximate nexus or reasonable connection between the restriction imposed and the objects sought to be achieved by the Act, that being so strong presumption in favour of the constitutionality of the Act will naturally arise.
Thus, the question of reasonableness should be determined from both the substantive and procedural stand points. In order to be reasonable, the restriction must not be greater than the mischief to be prevented. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness. Secondly, in order to be reasonable the procedure or manner of imposition of the restriction must also be fair and just. Thus, if a restriction is imposed in a manner which violates the principle of natural justice, it would be called unreasonable restriction.
Ways Forward
1. To ensure a robust freedom of speech and expression in India it is essential to address both legal and societal challenges. These are
Decriminalising defamation - while criminal defamation should be abolished, civil defamation should continue to balance protection to reputation without curbing freedom of speech and expression.
A firm guidelines on arbitrary internet shutdown should be issued. A parliamentary committee should oversee and monitor shutdowns.
Implementing data protection law with secure digital freedom and prevention of surveillance.
Promoting tolerance and inclusivity through making people aware of constitutional rights and respectful dissent.
Hate speech delivered by politicians must be dealt with.
A permanent parliamentary committee should be formed to assess the misuse of the right to freedom of speech and expression.
India should borrow best practices with regard to freedom of speech and expression from developed countries of the world.
Conclusion
1. There is a need to balance individual rights with societal harmony.
2. Social control is necessary, otherwise, the unbridled freedom of speech and expression would lead to anarchy and security threat to India.
3. To sum up , the right to freedom of speech and expression is the cornerstone of a vibrant democracy.