Can Freedom of Speech be Absolute
Summary: There has often been a demand for
absolute freedom of speech from various interest groups. However scope and
limits of freedom of speech and expression are limited by its constraints.
Hence absolute freedom of speech and expression is only a mirage.
Absolute freedom is what we all desire.
Likewise we all want to enjoy absolute freedom of speech and self expression.
Therefore it is not surprising that freedom of speech and expression has been
granted to us even by law.
Freedom of speech and expression has been
recognized as a fundamental right in Article 19(1) of constitution of India. Freedom of speech is guaranteed not only
by the constitution or statutes of various states but also by various
international conventions like Universal Declaration of Human Rights, European
convention on Human Rights and fundamental freedoms, International Covenant on
Civil and Political Rights etc. These declarations expressly talk about
protection of freedom of speech and expression.
In the judgment of
the case Maneka Gandhi v.
Union of India the Supreme
Court held that the freedom of speech and expression has no geographical
limitation and it carries with it the right of a citizen to gather information
and to exchange thought with others not only in India but abroad also.
Why to protect
freedom of speech?
Freedom of speech offers human being opportunity
to express their feelings to one another, but this is not the only reason;
purpose to protect the freedom of speech. There are four other reasons for
freedom of speech –
1) Discovery
of truth by open discussion - According to it restrictions on speech shall
prevent the ascertainment and publication of accurate facts and valuable
opinion. Therefore freedom of speech is essential for social well-being.
2) Free speech as an aspect of self- fulfillment
and development – freedom of speech is an integral aspect of each individual’s
right to self-development and self-fulfillment. Restriction on what we are
allowed to say and write or to hear and read will hamper our personality and
its growth. It helps an individual to attain self-fulfillment.
3) For expressing belief and political attitudes
- freedom of speech provides opportunity to express one’s belief and show
political attitudes. It ultimately results in the welfare of the society and
state. Thus, freedom of speech provides a mechanism by which it would be
possible to establish a reasonable balance between stability and social change.
4) For active participation in democracy –
democracy is most important feature of today’s world. Freedom of speech is
there to protect the right of all citizens to understand political issues so
that they can participate in smooth working of democracy. That is to say,
freedom of speech strengthens the capacity of an individual in participating in
decision-making.
Thus we find that protection of freedom of
speech is very much essential. Protection of freedom of speech is important for
the discovery of truth by open discussion, for self- fulfillment and
development, for expressing belief and political attitudes, and for active
participation in democracy.
However, there are
several restrictions to freedom of speech and expression. In British law,
freedom of speech and expression is limited by legally prescribed prohibitions.
Supreme Court in a
recent judgment has held that freedom of speech and expression is "not an
absolute" and remarked that journalists "should know the lakshman
rekha so that they don't cross the line of contempt."
Justice Kapadia also clarified that the
postponement will be for a short period of time and will not affect the trial.
The doctrine, he added, has been evolved as a "preventive measure"
for "administration of justice and fairness of trial" and not as a
prohibitive and punitive measure.
Clause (2) of
Article 19 of Indian constitution contains the grounds on which restrictions on
the freedom of speech and expression can be imposed: -
1) Security of State: Security of state is of
vital importance and a government must have power to impose restriction on the
activity affecting it. Under Article 19(2) reasonable restrictions can be
imposed on freedom of speech and expression in the interest of security of
State. However the term “security” is very crucial one. The term "security
of state" refers only to serious and aggravated forms of public order e.g.
rebellion, waging war against the State, insurrection, criminal acts etc.
2) Friendly relations with foreign states: The
object behind the provision is to prohibit unrestrained malicious propaganda
against a foreign friendly state, which may jeopardize the maintenance of good
relations between India, and that state. In India, the Foreign Relations Act,
(XII of 1932) provides punishment for libel by Indian citizens against foreign
dignitaries.
3) Public Order: Next restriction prescribed by
constitution is to maintain public order. Public order is an expression of wide
connotation and signifies "that state of tranquility which prevails among
the members of political society as a result of internal regulations enforced
by the Government which they have established."
4) Decency or morality: The way to express
something or to say something should be decent one. It should not affect the
morality of the society adversely. Sections 292 to 294 of the Indian Penal Code
provide instances of restrictions on the freedom of speech and expression in
the interest of decency or morality. These sections prohibit the sale or
distribution or exhibition of obscene words, etc. in public places. No fix
standard is laid down till now as to what is moral and indecent. The standard
of morality is contextual.
5) Contempt of Court: Indian contempt law was
amended in 2006 to make “truth” a defense but with qualification that deliberate
efforts to scandalize court are not exempted.
6) Defamation
7) Incitement to
an offence: Obviously, freedom of speech and expression cannot confer a right
to incite people to commit offence. The word 'offence' is defined as any act or
omission made punishable by law for the time being in force.
8) Sovereignty and integrity of India- To
maintain sovereignty and integrity of a state freedom of speech and expression
can be restricted so as not to permit any one to challenge sovereignty or to
permit any one to preach something which will result in threat to integrity of
the country.
From above analysis, it is evident that Grounds
contained in Article 19(2) show that they are all concerned with the national
interest or in the interest of the society. The first set of grounds i.e. the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States and public order are all grounds referable to
national interest; whereas, the second set of grounds i.e. decency, morality,
contempt of court, defamation and incitement to an offence are all concerned
with the interest of the society.
Similar legal
situation prevails in various countries i.e. on one hand law confers freedom of
speech and expression and on the other hand undermines it by imposing
restrictions due to various reasons. Hence legally freedom of speech is not
absolute.
We exist as
independent, discrete entities in dependent and interdependent relationship
with other discrete entities. No one exists in vacuum. Absolute freedom of any
kind is bound to often lead to conflict situations with other independent
entities existing in our ecosystem. These conflicts are likely to be a threat
to our peace and tranquility. These conflicts must be avoided all the time and
therefore we can exercise our freedom of speech and expression with discretion
only. Indiscriminate exercise of freedom can often be detrimental to our own
interest.
We all have to
live as a part of a social system and no system can grant complete independence
to any of its parts.
A view has been
advanced that let the individuals be granted absolute freedom of speech and
expression and let individual members of the society decide for themselves,
whether or not they want to get along. But no uncivil means should be adopted
to protest against things and events which individual members of the society
find objectionable. For example M.F.Hussain should not have been made to flee
the country and live in exile. I am afraid this is not an acceptable position.
If M.F. Hussain had his freedom, society and its members had their freedom to
have a view about his work and select the mode of protest. If M.F. Hussain was
unable to appropriately regulate his creative surge then he can’t expect
society to regulate its retaliatory urge and confine strictly to protest before
a court of law. Uncivilized people can’t claim protection from the civilized
society for their uncivil acts, means and methods. They can’t ask society to
use only civil means against them. It is
an unfortunate situation but unavoidable too. One can’t demand mature civil
form of protest by others when one’s hands are not clean.
Misuse of freedom
of speech and expression for the purpose of mass marketing is widely rampant.
Journalist, authors, painters, feature film makers and others would
deliberately create and publish material only to capture mass attention by
creating a controversy because they know that controversies generally sell
well. They are well aware of gullibility of people and know how to exploit it
to further their commercial interest. So first they commit acts injurious to
interest of the society and state and then seek protection under the right to
freedom of speech and expression. No civilized society can ever afford such
misuse of its ideals and law.
Summing up freedom
of speech and expression can’t be absolute. It is subject to several
constraints. Any society is well within its rights to preemptively employ
various means to enforce constraints to freedom of speech and expression.
Author: Dr Mahesh C. Jain is a practicing medical doctor and has
written the book “Encounter of Science with Philosophy – A synthetic view”. The
book begins with first chapter devoted to scientifically valid concept of God
and then explains cosmic phenomena right from origin of nature and universe up
to origin of life and evolution of man. The book includes several chapters
devoted to auxiliary concepts and social sciences as corollaries to the concept
of God. This is the only book which deals with origin of nature and universe
from null or Zero or nothing.
http://curatio.in
