Updated: Nov 22, 2021
Fundamental rights are meant to keep away differences, which can also be the foremost step towards bringing equality. It is our “Birth Right.” Freedom of speech and expression is, way of expressing one’s opinion, which should not be hindered by retribution; this is a prerequisite of the open-minded democracy. In case such rights are violated, courts issue writs; according to sections 32 & 226, both the Supreme Court and High court respectively can entertain the matters related to violation of Fundamental Rights. Right to freedom of speech and expression, Article 19 A clearly states that there is freedom of speech and expression, which means you have the freedom to speak and to raise your voice against any Act done by anyone. But there are certain restrictions over them too, and hence it can be said that these rights are not absolute but are qualified.
For example- If a person named B defames A that he saw A beating a poor man and it affects his image in the eyes of the reasonable members of the society and has affected his image either socially or professionally, then there is a crime being committed and B cannot take the defence of Article 19.
“There are six fundamental rights, are as follows –
1. Right to Equality (Article 14-18)
2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)”
1.FREEDOM OF PRESS-
Media is known as the fourth pillar of our democracy. During the pre-constitutional era, when Britishers ruled India, numerous legislations were passed to control the freedom of the press, as it was considered that the media had the power to influence the mind of the people, so the executives restricted freedom of speech and expression through their sweeping powers resulting, that the press was barred from publishing any news related to congress to was considered as illegal. India press Act 1910 and India press Emergency Act were passed during the colonial rule.
Post colonization freedom of the Press was nowhere directly mentioned, but freedom of speech and expression was a fundamental right under Article 19 1 (A). But the fundamental right was not absolute, as stated in article 19 (2), that this right is subject to certain restrictions.
In Romesh Thappar VS State of Madras, the petitioner, in this case, was the Editor of the English News Paper “CROSS-ROAD” based in Bombay and circulated the newspaper throughout the country. In, State of Madras, "In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 1949 and after satisfying the governor that for the sake of the public safety and to maintain the public order, and thereby the notification was put in the gazette and hence CROSS-ROAD was denied circulation, sale or distribution of its copies.
The petitioner filed a case in the supreme court challenging the validity of Section 9 (1) (a) according to article 13 (1). As the act was passed in the year 1949 and the article clearly stated that, “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. So, Article 19 (1) (A) conferred upon the Right to freedom of speech and expression.” The defence also contended that the prosecution could not approach the supreme court without following the hierarchy. According to Article 32, the supreme court is considered the protector and guarantor of the Indian constitution. So it was held that the petition was thus maintainable in the Supreme court. And even Justice PATANJALI upheld Article 19 (1) A is the fundamental essence and is significant from the point of view of our democracy. However, he noted, it should be such that others’ rights should not be hindered or affected by the acts of one man.
Anuradha Bhasin vs. Union of India
On 4 August 2019 the broadband and internet services were suspended in the state of Jammu and Kashmir, citing national security as one of the reasons and because of which the right to freedom of speech and expression was violated, which is a fundamental right under the Indian constitution given in article 19 (1) A .Dr. Anuradha Bhasin, editor of the Kashmir times filed this petition to challenge the validity of curbing the freedom of the media. In this case, the significant issues were-:
● Access to the Internet and exercise of fundamental rights –
The Court here held that the Right to speech and expression and the Right to free trade through the Internet are constitutionally protected. However, the use of the Internet was not considered a Fundamental Right. This would further lead to; if restrictions are imposed over the internet, the limits must be reasonable.
● Orders to be published: The Apex Court held that all orders under section 144 of the Cr pc and in telecom suspension rules should be issued although there is nowhere mentioned in the telecom suspension rules that the charges have to be written, according to the principle of the natural justice, when the orders are concerning the Public order, the safety of property, Lives and any other security issue, in such cases the charges should be published.
● Reasoned order to be passed: Reasoned order must be given by the competent authorities, under section 2 of the telecom suspension rule in such situation when the order is passed in an unavoidable situation then, in that case, the concerned officer should declare the necessity of giving such order and even declare the inevitable circumstance.
● “Suspension to be temporary: The Court held that suspending internet services indefinitely is impermissible. It directed that the review committee must meet within seven days of the previous review and look into compliance with Section 5(2) of the Telegraph Act and the proportionality of orders.”
In this case, the court even brought in the concept of Proportionality Test, according to which the authorities were directed that while imposing the restrictions, the curtailment of fundamental rights should be to the extent of the requirement of the situation, that means that the state should resort least restrictive options.
Emergency and Censorship involve suppression of speech. The right to freedom of speech and expression is not absolute. It is subject to certain restrictions, generally to maintain communal and religious harmony, considering the past situations in the nation. But it still has a broad ground that involves the term objectionable content, and it has been defined under the IT rules 2011, “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states or public order."
2.CONTEMPT OF COURT-
Contempt of court means being disrespectful/ disgraceful to the court of law.
Contempt of court is of two types -:
● Being rude or disrespectful to legal authorities in the courtroom- To wilfully disrespect, disregard the court's authority, Justice, and dignity.
● Wilfully failing to obey a court order – It means not to follow an order or a decree passed by the court.
A person could be held guilty for contempt of court if they have disobeyed the decree or has passed any such statement which is considered or raises a question or which, in doing so deemed likely to jeopardize a fair trial, has done something because of which the proceedings of the court have been disrupted. “Art. 19(2) does not refer to ‘administration of justice.’ Still, the interference of the administration of justice is referred to in the definition of ‘criminal contempt’ in sec. 2 of the Contempt of Courts Act, 1971 and in sec. Three thereof as amounting to contempt. Therefore, publications that interfere or tend to interfere with the administration of justice amount to criminal contempt under that Act, and, to preclude such interference, the provisions of that Act impose reasonable restrictions on freedom of speech; such limits would be valid. (As per the 200 law commission report)”
Section 499 and 500 of the Indian penal code talks about criminal and civil defamation, and such suits are filed as a strategic purpose to muzzle the critics and naysayers and create fear in the minds of the one who tries to oppose them. But this is not just the purpose but also to protect its dignity, respect, reputation, etc. Criminal defamation attracts punishment up to 2 years or fine or both.
“In Subramaniam Swamy vs. Union of India, the petitioner contended that criminal defamation is one of the ways to bind the expression of public opinion, perception, and criticism by launching such criminal complaints and is capable of affecting the health of the democracy. Still, the supreme upheld the validity of the section by stating that on the grounds of saving someone’s right, others’ rights cannot be crucified.”
Ramdev vs. Juggernaut publishing – In this case, a book named “Godman to Tycoon; The Untold Story of Baba Ram Dev” In this case, Baba Ramdev was the petitioner, and he filed a petition and contended before the court that the book published by the juggernaut, said to be his autobiography, actually consisted of many false and defamatory statements which was capable of defaming him and was also unauthorized and hence were a violation of his reputation and privacy, ultimately violating, Right to life, fundamental right ( Article 21).
These provisions refer to the reasonable restrictions imposed on freedom of speech and expression, which is mentioned under Article 19(2) in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in concerning contempt of court, defamation or incitement to an offense.
“The constitutional provision states the reasonable restrictions included in the interest of includes-:
● Foreign relation
● Public order
● Contempt of court
● Incitement of an offense
The freedom of speech and expression should not be curtailed until the conditions are such that one of the above-said factors is affected. And the nexus between the freedom of speech and expression and threat to the public order is direct and imminent. The right to reputation is guaranteed under article 21 of the constitution of India.”
The importance of the Right to freedom of speech and expression is critical because it involves censorial power, which states that the public has direct control over the government, and its decision should be open to criticism. I firmly believe that criminal Defamation should be struck down, and instead of it, some other laws should be brought so that Free speech and expression gains importance. Still, at the same time, so as regulate the fundamental rights, heavy penalties should be levied, which would ultimately help in regulating Free speech and expression, so in this way, the reasonable restriction could also be imposed without instilling any fear for Criminal Defamation in the minds of the citizens. Freedom of speech and expression is required to fulfil the following objectives:
To discover the Truth
To ensure Pluralism
 Contempt of Court Act, 1971
 International Journal of Law ISSN: 2455-2194 Impact Factor: RJIF 5.12 www.lawjournals.org
 https://www.lawteacher.net 2. lawcommissionofindia.nic.in/