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Article 19: Mapping the Free Speech Debate in India

The Freedom of Speech and Expression is a fundamental right guaranteed to all citizens under the Constitution of India. However, the Constitution does not guarantee an absolute individual right to freedom of expression. Instead, it envisages reasonable restrictions that may be placed on this right by law.

Many laws that restrict free speech such as the laws punishing sedition, hate speech or defamation, derive their legitimacy from Article 19(2). Inspection of movies, books, paintings, etc, is also possible by way of this clause. Scholars note that censorship in India was, and still is, historically rooted in the discourse of protecting Indian values from outside forces and building and maintaining strong national unity post independence. Scholars conclude that any misuse of the law could be detrimental to arts and ideas.

The freedom to criticise and dissent are part of one’s broader freedom of speech, which is seen as fundamental to the functioning of a democracy. If a state’s citizenry is not free to express themselves, then their other civil and political rights are also under threat.

The freedom of expression, however, is paramount to the working of a democracy and it includes the right to offend. For a little over half a decade, questions of whether “hate speech” can be excused under the right to freedom of speech, have been raised by various quarters of society—their stance often varying from one case to the other.

The freedom of press is also crucial to the functioning of participative democracy. In the absence of a free press, citizens lose their ability to make informed decisions in a free and fair electoral process. In conclusion,

“Intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for centuries. But it is precisely in the ready acceptance of the right to dissent, as distinct from its mere tolerance, that a free society distinguishes itself.”
—A G Noorani, 1999

In this resource kit, we have collated over 200 articles from the EPW archive and built a repository of articles that cover these debates.

Scroll over the redacted text of Article 19 (1) (a) and Article (19) (2) below to explore more.

19 (1) (a)

All citizens shall have the right to freedom of speech and expression …

19 (2)

Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, 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 sovereignty and integrity of India, the 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.

Freedom of Speech and Public Order

Laws maintaining public order seek to restrict and punish the harassment of individuals, hate speech and public nuisance. Any speech or publication considered prejudicial to these interests is subject to censorship. Restrictions on freedom of speech can also be invoked to curb the spread of misinformation and disinformation since these are likely to be inimical to public order.

While there are laws that punish offensive speech that may hurt the religious or cultural sentiments of sections of society, conservative groups have, on occasion, themselves posed a threat to public order in order to create a justification for restricting speech that may be critical of specific cultural or religious norms.

Articles in this section outline several such cases—the 1989 Supreme Court ruling to insert a disclaimer before a television serial on Tipu Sultan’s life claiming it depicts his life truly; the assassination of rationalist Narendra Dabholkar in 2013; the 2014 speech by Hindu Rashtra Sena leaders in Pune, that lead to communal violence and the death of Mohsin Sheikh; and the 2014 uproar against Perumal Murugan’s book, Madhorubhagan. Some articles also describe how right-wing groups across the country feel empowered to dictate what the people should read and watch.

It must be noted that while the intent of the speeches that have led to communal disharmony and violence can and must be questioned, at the same time, the use of the politics of “hurt religious sentiments” to organise violence must also be questioned. This leads to legal ambiguity. How can a distinction be drawn between individuals giving deliberate malicious speeches aimed at outraging religious sentiments and spreading enmity on the one hand and exercising their freedom of speech on the other?

Freedom of Speech and Reasonable Restrictions

“Freedom of expression is a privilege for some and denied to others while those strangling free expression continue to unabashedly sing the mantra of freedom and democracy’’ (EPW editorial, 16 September 2017). This quote captures the manner in which this freedom can be manipulated. For the functioning of any democracy, it is of importance that its citizens are guaranteed the freedom of speech with reasonable restrictions. The state has to ensure that its citizens can exercise this fundamental right without any threat to their personal liberty.

The implementation of this right in the context of book bans, censoring films and plays has often been contested in courts and judgments have taken a progressive stance. This freedom of expression applies not only to easily agreeable ideas but also to “ideas that offend, shock or disturb” the audience. The censor board has often overstepped its role as a certification body and outrageously demanded cuts in films and sometimes even a change in the narrative. The courts have rescued many films such as the Hindi film Udta Punjab, the Tamil film Ore Oru Gramathile and many others, from the subjective ruling of the censor board. In recent times, content put out on social media and the role of fake news in spreading disruptive misinformation has also become a subject of discussion in light of the manner in which restrictions can be placed. Scholars have discussed whether social media users or the platforms themselves should be held responsible for communications that promote hateful speech and intolerance. Discussions are geared towards the likely consequences of online censorship.

Articles in this section discuss the basis of “reasonable restrictions” to the freedom of speech in India on the grounds of “public interest.” The debates regarding what constitutes a “reasonable” restriction are also covered here.

Freedom of Speech and Morality

When it comes to maintaining decency and morality, the fundamental right to free speech can be restricted. This controversial ground of restriction has been the subject of much discussion and debate, especially in the context of censorship of art and literature, with most of the censoring having been sought to protect the public from depictions of obscenity. However, as was the case with maintaining public order, courts have not always applied the law consistently and are rooted in what has been referred to as a “colonial hangover of the moral police.”

The arts are particularly susceptible to judgments on morality and decency—cinema even more so. Several articles in this section deal with India’s film censor board, questioning its lack of clarity, purpose, people and qualifications. The censor board has been criticised for adhering to a “Victorian legacy” and clinging to India’s colonial past. Censorship legislation was introduced in 1918 when cinema needed to serve colonial interests. Films back then were politically manipulated, withdrawn or promoted depending on their material, something that seems to have been followed to varying degrees even post-independence. In 1998, the screening of Deepa Mehta’s film, Fire, was stopped by Shiv Sainiks and referred back to the censor board. Since then, there have been several instances of the Hindu right attempting to capture India’s cultural spaces and redefine “mainstream morality” in line with its idea of Indian society. Their actions, legal and otherwise, have been a major point of debate and discussion in the papers included in this section. The articles in this section cover issues from banning plays, revising books, controlling the media, in addition to censoring films.

Courts have sought to remove the arbitrariness in the characterisation of what constitutes public morality by devising various tests of acceptable standards of public speech. But these tests have changed and evolved over time. In this context, several articles raise the pertinent question of how morality should be defined and who has the authority to do so.

Freedom of Speech and Contempt of Court

Codified under the Contempt of Courts Act, 1971, the judiciary has the power to punish both civil and criminal contempt—civil contempt is the willful disobedience to a judgment and criminal contempt is when an act lowers the authority of the court, interferes with or obstructs the administration of justice. However, contempt of court sometimes conflicts with the fundamental right to freedom of speech. And while fair criticism of judicial pronouncements is not within the definition of contempt, the interpretation of contempt is in the hands of the courts themselves and can lead to arbitrary legal action against dissenters.

Articles in this section have discussed widening the ambit of contempt of court over the years and its failure to strike a balance between freedom of speech and the administration of justice.

The 1967 E M S Namboodiripad v T N Nambiar case, where Namboodiripad was convicted for contempt of court by the Kerala High Court; the 1999 Narmada Bachao Andolan v Union of India case where the Supreme Court contemplated contempt proceedings against Arundhati Roy; the 2001 proceedings against Delhi-based Wah India Magazine for “rating” judges; the 2016 Govindaswamy v State of Kerala case, where the Supreme Court issued a contempt notice to Justice Markandey Katju for criticising its judgment; the 2017 contempt proceedings against Justice C S Karnan, a sitting judge of the Calcutta High Court for levelling allegations of corruption against several judges without evidence, the 2020 contempt proceedings against advocate, Prashant Bhushan for two tweets about the conduct of the Chief Justice of India; against stand-up comedian Kunal Kamra and cartoonist Rachita Taneja for tweeting about the Supreme Court granting journalist Arnab Goswami interim bail—the articles in this section cover several such cases and highlight the underlying systemic issues and general institutional decline of the judiciary.

While some proceedings are perhaps warranted, scholars argue that the contempt jurisdiction was not meant to be used in this spirit. As India’s laws are based on English laws, it has also been pointed out that the contempt law is obsolete in England. Articles in this section suggest that a solution needs to be found, such that the implementation of this law protects the freedom of speech as well as permits the administration of justice in a fair manner.

Freedom of Speech and Defamation

Restrictions concerning defamation seek to protect an individual’s right to reputation and dignity against another’s right to free speech and information. Similar to other reasonable restrictions to free speech, the defamation law cuts both ways. As the individual’s right to reputation and dignity stems from the right to privacy and the right to life and liberty, it seeks to protect individuals from false and frivolous claims about their private lives that can harm their public image. On the other hand, defamation laws have been misused to harass the media and deter it from accurate reporting, and in more malicious cases such as those of sexual assault, they have been deployed against survivors forcing them to defend themselves. Articles in this section highlight the fact that defamation laws have been used to pursue SLAPPs (Strategic Litigation Against Public Participation) which accentuate pre-existing gendered power imbalances.

The 2021 criminal defamation case against Priya Ramani by M J Akbar is a classic example of a powerful man with greater resources, using the high cost of litigation to intimidate a sexual harassment survivor. A few other cases that have been featured are related to the press. Typically, the press is free to comment on any public figure and is not guilty of defamation unless the defendant proves otherwise. The 2008 defamation case by Justice P B Sawant against the television news channel Times Now; the 2005 defamation case against Mediaah and the 2011 case against The Hoot by the Times group itself, are a few of the cases that articles in this section comment on. While criminal defamation laws have been challenged in court, they have also been upheld as being constitutionally valid. Articles in this section have called for a debate on the defamation law, and an interrogation into the interests of “big business and big media and the state.”

Freedom of Speech and National Security

Section 124A of the Indian Penal Code (IPC) which defines sedition, was first introduced by the British to suppress dissent and was used to punish speech that incited “disaffection” against the colonial state. Since this law has been repealed in Britain, its existence in India has been a subject of inquiry for many scholars. The existence of this law gives the state an upper hand in determining, often arbitrarily, the answer to the question of what constitutes a threat to the security of the state. Such laws have also been used to criminalise dissent and criticism against the state and have been invoked indiscriminately against activists, journalists and other public figures.

Even students have not been spared. Institutions of higher education are spaces for critical thinking and questioning the current establishment. The manner in which students from Jawaharlal Nehru University, University of Hyderabad and other institutions were dealt with for holding views different from the popular right-wing understanding, has set an undesirable precedent. Considerable restrictions were placed on the Kashmiri media after the abrogation of Article 370 in 2020, and it was argued that these restrictions were in “national interest.” Even though the rationale of these laws is to protect the sovereignty, integrity, and security of the state, these laws can restrict citizens from expressing their dissent with the ruling government. The existence and scope of sedition laws have been a subject of debate. Thus, articles in this section explore the notion of a university, nationhood, freedom of speech, targeted attack on dissent and the recent clampdown on media in Kashmir.

Freedom of Speech and Right to Information

Under the Right to Information (RTI) Act, information previously inaccessible such as government records and data is made available to the public. With some exceptions, the RTI Act aims to facilitate not only the dissemination of information to the public but also encourage transparency and accountability in governance. Only an informed citizenry can meaningfully exercise its rights of voting and organising. Thus, the right to free speech goes hand in hand with the right to information.

The Supreme Court has held that the right to information is an integral part of freedom of expression. This right was codified in 2005 after a hard-fought grassroots battle for nine years, but attempts have been made to dilute it. Further, RTI activists in states including Gujarat have been exposed to violence due to inadequate protection. These violent attacks not only increase the cost of information but also hinder the effective functioning of the RTI Act. In recent years, the Right to Information (Amendment) Bill of 2019 has been critiqued by various scholars for undermining the authority of the chief information commissioner and information commissioners.

The articles under this section focus on how this law came into being from the bill on freedom of information, the purview of the act, the revolutionary access to information it provided, the threat it faces from various amendments, and the challenges in implementation.

Freedom of Speech and Press Freedom

The right to freedom of speech and expression is considered indispensable for nearly every other form of freedom. There is no specific provision in the Constitution guaranteeing press freedom because freedom of the press is included under the wider purview of freedom of speech and expression, which are a part of Article 19(1)(a) of the Constitution. However, restrictions on this freedom are often a way for the ruling establishment to suppress dissent.

Articles also discuss the importance of freedom of speech and the need for a free press in India. The murder of Gauri Lankesh at her home in broad daylight exposed the consequences of dissent that journalists face even today. Violent physical assault, as well as the murder of journalists investigating contentious issues, a need to protect reporter’s privilege and source confidentiality under the freedom of press, the employment conditions of journalists and free speech in a digital world, are some of the themes that articles in this section explore. The precarious contractual employment of journalists inhibits them from reporting against the official stand of the management of the media house. Thus, challenges to freedom of press by non-state actors such as media conglomerates, the ownership patterns of media companies and the information that is circulated are also discussed. The issue of “paid news” and how to place regulatory checks on such news has also been discussed in the pages of EPW.

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Curated by Anandita Chandra and Vasuprada Tatavarty

Designed by Vishnupriya Bhandaram

With inputs from Alok Prasanna Kumar and Shruti Sundar Ray

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