Article 19 of the Universal Declaration of Human Rights provides for the right to freedom of opinion and expression. It states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
This right is also enshrined in Article 19 of the International Covenant on Civil and Political Rights and Article 19(1)(a) of the Indian Constitution. Liberty of thought and expression is of cardinal value and importance to the fuller growth of an individual and also to cultivate an informed citizenry by allowing for a healthy and free exchange of ideas, thoughts, beliefs, and discussions. Speech is important not only because man is a social being but also because of the omnipresence of the State in almost every sphere of life. This right of free speech acts as a restraint on many invasive and arbitrary actions of the State which has come to be the Orwellian “Big Brother” in modern times.
However, this right, like other fundamental human rights, is not absolute but subject to certain restrictions. Such restrictions numbering eight are provided under Article 19(2) and apply to matters related to:
I. Sovereignty and integrity of India
II. Security of the State
III. Public order
IV. Decency and morality
V. Contempt of court
VII. Incitement to an offence
VIII. Friendly relations with foreign States
As the final interpreter of the Constitution, the Supreme Court of India has been liberal in widening the ambit and scope of this right and circumscribing the restrictions clause in a number of cases.
In the landmark judgment of Shreya Singhal v Union of India (2015) the Supreme Court while struck down Section 66A of the Information Technology Act that put restrictions on online speech, thus upholding the cherished right of free speech. The court declared that for any restrictions on the right to freedom of speech to be valid, they must not only be limited to the permissible grounds under 19(2) but must also be reasonable.
The court stated that “there are three concepts which are fundamental in understanding the reach of this most basic of human rights (freedom of speech and expression): the first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a).It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression.”
The court also expounded on the term “public order”, which is frequently used by the authorities to scuttle freedom of speech. Drawing upon cases like The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia and Dr Ram Manohar Lohia v. State of Bihar & Ors, the court stated that “public order is synonymous with public safety and tranquility; it is the absence of disorder involving breaches of local significance. Disturbance of public order entails disorders of less gravity than those affecting “security of State”. “Law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”
Citing further the case of Arun Ghosh v. State of West Bengal, the apex court delineated what public order means. In Dr Ram Manohar Lohia’s case, the court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality or in the country as a whole which determines whether the disturbance amounts only to a breach of law and order. It is always a question of degree of the harm and its effect upon the community.
The question to ask is: Does it lead to disturbance of the current of life of the community, so as to amount to a disturbance of the public order, or does it affect merely an individual leaving the tranquility of the society undisturbed?
In another case, S. Rangarajan v. P. Jagjivan & Ors., the Supreme court has propounded the direct and clear danger test to curtail the freedom of speech. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”. Similarly, in Kedar Nath Singh v. State of Bihar, 1962, Section 124A of the Indian Penal Code was upheld by construing it narrowly and stating that the offence would only be complete if the words complained of have a tendency of creating public disorder by violence. It was added that merely creating disaffection or creating feelings of enmity in certain people was not good enough or else it would violate the fundamental right of free speech under Article 19(1)(a).
Thus we see a greater importance attached to the individual’s right to freedom of speech and only in certain situations it is allowed to be curtailed.
Going by the reasoning and interpretation adopted by the highest court in the country, it’s fair to admit that mere sarcastic posts or criticism of government policies in no way comes close to disruption of public order.
In spite of the clarity on the scope and ambit of free speech, there have been instances of misuse and abuse of the power by State agencies in curtailing the rights of the individuals. The reason for this is judicial lethargy in acting with swiftness to enforce these rights as also the unending backlog of cases that has so seriously hampered the administration of justice. People can be booked for airing their views while it takes years in court to prove or disprove the cases. To conclude with the words of Justice Chandrachud: “Dissent is the safety valve of a democracy and must not be stifled.”