Rights vs restrictions: The precarious balance for free speech
NEW DELHI: Human rights are the foundation of human dignity, freedom, justice and peace. They are inalienable and basic rights, not accorded by the Constitution or law, but merely identified by a legal regime. Freedom of speech and expression, as enshrined under Article 19(1)(a) of the Indian Constitution, is recognised by the constitutional courts of the country as a cornerstone right, central to achieving individual liberty and developing democracy.
With the passage of time and progress in technology, the Internet has emerged as a great enabler of free speech in virtual space, reducing barriers to communication. The right has also been formally acknowledged by the Supreme Court of India in landmark judgments.
The arrest of Mohammed Zubair, co-founder of fact-checking site Alt News, on charges of allegedly promoting enmity between communities and outraging religious feelings through a 2018 tweet, and the spate of first information reports (FIRS) filed against suspended Bharatiya Janata Party (BJP) leader Nupur Sharma and expelled spokesperson Naveen Jindal for their remarks on Prophet Mohammed have once again highlighted the conflict between the right to free speech and the State’s mandate to regulate it through coercive measures.
Zubair has been remanded in police custody till July 2 under sections 153A and 295 of the Indian Penal Code (IPC). Section 153A deals with the offence of promoting disharmony, enmity or feelings of hatred between different groups on the grounds of religion, race, place of birth, residence, language, etc. and indulging in acts prejudicial to the maintenance of harmony. Section 295 criminalises injuring or defiling a place of worship with intent to insult the religion of any class. The alleged offences can fetch a jail term of up to three years.
Zubair’s arrest on June 27 also prompted UN chief Antonio Guterres to comment on Tuesday that journalists should not be jailed for “what they write, what they tweet, and what they say”, further raising the issue of journalistic liberty as a facet of one of the most widely celebrated fundamental rights across the world. The controversy also involves the applicability of the blasphemy legislation in India coupled with attempts to stifle free speech on social media. A raft of Supreme Court judgments may help us understand better the latest debate on prosecution for offending religious sentiments when tested against the overall concept of free speech.
Freedom of speech and expression
The Preamble of the Constitution of India speaks of liberty of thought, expression, belief, faith and worship. Article 19 (1)(a) lays down that all citizens shall have the right to freedom of speech and expression. Former Supreme Court judge Krishna Iyer once said that “this freedom is essential because the censorial power lies in the people over and against the Government, and not in the Government over and against the people.”
But the right under Article 19(1)(a), like every other right under the Constitution, is not absolute. Article 19(2) lays down that the State shall be entitled to impose reasonable restrictions on exercise of rights under Article 19 by way of framing laws. Article 19(2) provides that the right can be regulated and prohibited “be 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.”
Several rulings of the Supreme Court, in the last seven decades, have underlined the importance of freedom of speech and expression, both for the liberty of the individual as well as for the democratic form of government. In Romesh Thapar Vs State of Madras, (1950), the Supreme Court stated that freedom of speech lay at the foundation of all democratic organisations. In Sakal Papers (P) Ltd & Ors Vs Union of India, (1962), a Constitution bench held that freedom of speech and expression of opinion is of paramount importance under a democratic constitution, and must be preserved. In Bennett Coleman & Co & Ors Vs Union of India & Ors, (1973), the apex court called the freedom of speech and of the press “the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.”
On the ambit of restrictions that the State can impose on free speech under Article 19(2), the SC in Chintaman Rao Vs State of Madhya Pradesh (1950) held that such restrictions are amenable to judicial review. In State of Madras Vs G Row (1952), the court said that the test of reasonableness, whenever prescribed, shall be applied to each individual statute impugned and that no abstract or general principle of reasonableness can be laid down for all prohibitory laws.
The Supreme Court also clarified in Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia (1960), that “public order” must be distinguished from the other grounds mentioned under Article 19(2) and taken in an exclusive sense to mean public peace, safety and tranquility as opposed to national upheavals, such as revolution, civil strife and war, affecting the security of the State.
Internet and free speech
In other judgments, the court has extended the right of freedom of expression to anything posted on the Internet, and also emphasised the right to the Internet itself.
Back in 2015, in Shreya Singhal Vs Union of India, the SC expanded the contours of free speech to the Internet, and struck down the Section 66A of the Information Technology Act, which authorised police to arrest people for social media posts construed “offensive”or “menacing”. The Centre, in this case, emphasised that publishing on the Internet must be viewed from a different angle since by the very nature of the medium, the width and reach of the Internet is manifold as against newspaper and films. But the court shot down this argument.
In a recent ruling in the Supreme Court in Anuradha Bhasin Vs Union of India (2020, the court examined Internet shutdowns in Jammu and Kashmir and expressly declared the right to freedom of speech and expression over the Internet as a fundamental right. It added that any order susfeelings
pending internet services indefinitely is “impermissible” and suspension of Internet must be considered by the State only if it is necessary and unavoidable. Asserting that non-recognition of technology within the sphere of law is a disservice, the judgment held that freedom of speech and expression includes the right to disseminate information to a wide section of the population using the Internet and hence, this right is constitutionally protected.
Prosecution for blasphemy, hate speech as exceptions to freedom
India does not have a formal legal framework to criminalise blasphemy or hate speech. A clutch of provisions in the IPC, however, are invoked to deal with offences pertaining to religions and communities. IPC sections 153A, 295 and 295A tend to prosecute individuals for hurting religious sentiments of a class through offensive speeches. Section 295A criminalises acts with “deliberate and malicious intention of outraging the religious of any class of citizens of India”. The Supreme Court has tested the validity of these penal provisions under Article 19(2), which authorises the State to impose reasonable restrictions on the right to free speech.
The court has remained emphatic that any provision that penalises a speech must meet certain judicial standards. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered, the top court said in S Rangarajan Vs P Jagjivan & Ors, (1989). It underscored that the anticipated danger should not be remote, conjectural or farfetched but must have proximate and direct nexus with the expression.
In Ramesh Vs Union of India (1988), the SC pointed out that words used in the alleged criminal speech should be judged from the standards of reasonable, strongminded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
In Balwant Singh Vs State of Punjab, 1995, the SC held that the intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and that the prosecution must prove the existence of mens rea (intention) in order to succeed.
Again, in Bilal Ahmed Kaloo Vs State of AP (1997), the SC reiterated that the prosecution must be able to show mens rea of the accused. It added that merely inciting the feelings of one community or group without any reference to any other community or group cannot attract Section 153A. A latest judgment of the top court in Patricia Mukhim Vs State of Meghalaya in March 2021 maintained that mere repugnancy of the ideas expressed is insufficient to constitute the crime attracting penalty for a hate speech.
On applicability of Section 295 of IPC, the SC in S Veerabadran Chettiar Vs EV Ramaswami Naicker & Ors (1958) said that the Section has been intended to respect the religious susceptibilities of persons of different religions or creeds and hence, the courts should be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs. Though the intention of the respondents may be to decry the feelings and wound the susceptibilities of a large section of the people, still the intention alone is not sufficient unless it is carried out by an act which must fall within the scope of this section. In Ramji Lal Modi Vs The State of UP, 1957, the SC upheld Section 295A while emphasising that to mean that aggravated forms of insults to religion must have a tendency to disrupt public order. In The Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia (1960), the SC held that the link between the speech spoken and any public disorder caused as a result of it should have a close relationship with each other for attracting Section 295A.
In Mahendra Singh Dhoni Vs Yerraguntla Shyamsundar and Anr, 2017, the SC quashed prosecution of the Indian cricketer under Section 295A, initiated over his picture published on a magazine cover posing as a Hindu God. The court held that this provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
In Amish Devgan Vs Union of India, the SC declared that the import of Section 295A is to curb speech made with ‘malicious intent’ and not ‘offensive speech’. “Criminality would not include insults to religion offered unwittingly, carelessly or without deliberate or malicious intent to outrage the religious feelings. Only aggravated form of insult to religion when it is perpetuated with deliberate and malicious intent...is punishable,” it held.
Again, in Dr Ramesh Yeshwant Prabhoo Vs Prabhakar Kashinath Kunte & Ors, 1996, the SC upheld Section 123 (3A) of the Representation of People Act only if the enmity or hatred that was spoken about in the section would tend to create immediate public disorder and not otherwise. The line of judgments by the highest court of land makes it amply clear that the State has always been cautioned to examine an incident from either the standpoint of the clear and present danger test or the tendency to create public disorder before initiating prosecution for hate speeches or offending religious sentiments.
Law enforcement agencies must also be able to demonstrate the intent of the accused to offend religious sentiments of reasonable people, and incite them to violence.
The body of judgments cited above clarify that constitutional courts, have promoted free speech, defined the contours of reasonable restrictions and hate speech (and also blasphemy), not just in the physical domain, but also the Internet.
More than ever, the search must be to strike the right balance.