Article 19
The Fundamental Rights in Part III of the Indian constitution include some basic freedoms embodied in Article 19. This Article primarily deals with protection of rights regarding freedom of speech. As per Article 19(1)(a), All citizens have the right to freedom of speech and expression.
This right is not absolute and is subject to restrictions based on reasonable grounds.
Article 19(2) allows the State to impose reasonable restrictions on the exercise of the right conferred by Article 19(1)(a).The State may interfere in said fashion in the interests of the interests of security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence and Sovereignty and integrity of India.
The original wording of Article 19(2) however, did not include public order and instead used the phrase ‘undermines the security of, or tends to overthrow, the state’. It was only after the first amendment that public order was added to the Article.
It was in the case of Romesh Thappar v. State of Madras which this change was promulgated. In this case the Madras Maintenance of Public Order Act was challenged before a constitutional bench of the Supreme Court. Section 9 of the Act was in contention as it allowed the state government to control and regulate the entry and circulation of any set of documents, especially newspapers in the state, for the purposes securing public safety and maintaining public order.
The court was required to clarify the meanings of public safety, public order and undermining the security of the state to judge the constitutionality of the section.
The court defined public order and public safety as state of tranquility which prevalent amidst members of a political society and found to be undermining the security of the State meant nothing less than endangering the foundations of the state or threatening it overthrow.
A clear difference in degree between the clauses was established.It was laid down that if a document was seditious, its entry could be validly prohibited as it undermines the security of the State; but if on other hand, the document is calculated to disturb public tranquility and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquility are not matters which undermine the security of the State.
Therefore, since the section used the term public order, it was held to be unconstitutional.
The government of the time felt that this was too much freedom in hands of the general populace and hence the words Public Order in the constitution by the way of the first amendment.
The last change made to Article 19(2) after the 16th Amendment Act, 1963 was adding the words Sovereignty and Integrity to the constitution.
It also becomes important to keep in mind that the reasonable restrictions under the constitution must ensure that any limitation imposed on a person’s in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. This was held in Chinataman Rao v. State of Madhya Pradesh.
One interesting thing about these judgments is reference to US cases of freedom of speech and expression. It is particularly absurd because this right is absolute in the US without any reasonable restrictions, unlike India.
In July 2010, Terry Jones, the pastor of the Christian Dove World Outreach Center in Gainesville, Florida, U.S., announced he would burn 200 Qurans on the 2010 anniversary of the September 11 attacks. He gained media coverage, resulting in international outrage over his plans and pleas from world leaders to cancel the event. Jones's threat sparked protests in the Middle East and Asia. Since the freedom of speech and expression is absolute in the US, no restriction was levied. But such an event leads us to think about concepts of global constitutionalism and the presence of global audiences.
The rights of freedom of speech and expression are often understood local, natural and cultural contest. For instance, in Germany, Holocaust Denial is a criminal offence. In the case of Baragur Ramchandrappav. State of India, it was held that freedom of speech and expression is not unfettered (...) no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. It cannot be ignored that India is country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted.
Thoughts on the Presentation:
Group 6’s presentation was largely based on the Charlie Hebdo controversy that had occurred in 2011 and 2013. The magazine’s website was hacked after it published a cartoon depicting the Prophet Muhammad as homosexual, engaged in kissing a ember of the Charlie Hebdo staff. Thereafter, their website was hacked. Again in 2013, they published, on their cover, a cartoon of a muslim man being shot, while the caption read — “The Koran is shit, it does not stop bullets”. In 2015, two brothers, Said Cherif Kouachi, forced their way into the offices of the French satirical weekly in Paris and opened fire.
Thereby, through the use of cartoons and the controversies surrounding them as examples, the Group tried to understand the limitation of freedom of speech and expression under Article 19 (1) (f). In the case of ABC v Union of India, it was held that freedom of speech and expression includes artistic speech, as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) of the Constitution because the common basic characteristic of all these activities is freedom of speech and expression. In Romesh Thappar v State of Madras, public orders is seen as an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Finally, in the case Express Newspaper v Union of India, the Court held that the press was not immune from laws of general application or ordinary forms of taxation, or law of industrial relation; therefore, the court upheld the constitutionality of the act.
Discussion:
Q: Given that in several cases, the material in question is found to be obscene or objectionable by certain communities alone, what standard does the constitution hold them to in terms of imposition of reasonable restriction?
A: The Constitution of India imposes the test of direct proximity, wherein if the material is found to be obscene, in so far as it offends the religious sensibilities of a group, or if it causes threat to public order or security to the state, it may be banned if there is a direct and proximate relationship between the expression the threat.
Q: Does the fundamental right to not be forced to hear (right to silence) extend to not being forced to see cartoons/movies/etc?
A: The loudspeaker case was discussed, wherein it was held that no one should be subjected to an expression that they do not wish to hear/see/watch. Further, each fundamental right has a corresponding duty, and the right to freedom of expression enforces the duty that your expression may not violate the rights of the citizens around you.
Q: What is the state's duty to protect the freedom of speech and expression?
A: The state, in cases wherein there is a threat to public order due to the expression of artistic freedom, has a duty to prevent the breakdown of law and order. In the absence of such a duty, an individual's freedom of expression would be easily destroyed by mere blackmail.
Q: Is there a different standard for the freedom of press in India?
A: No, this standard does exist internationally, in countries like the USA, wherein the 1st Amendment protects the press's freedom of speech and expression specifically. This may also be because the press is viewed as the fourth estate in the USA. In India, a journalist has the same right to freedom of speech and expression and the same corresponding duty and liabilities.
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