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Abstract

This research paper goes into the detail of freedom of speech and expression. It is given international importance and is counted as one of the most important features of a democracy. If this right is curtailed then the whole existence of mankind will be in danger and truth will cease to exist. India is a democratic nation and hence the Indian Constitution mentions as about this as a fundamental right. Though along with rights come duties, obligation and restriction. This is not an absolute right. Sedition, defamation etc., are said to be the overuse of this right. Article 19(1) (a) provides us with right to freedom of speech and expression, on the other hand article 19(2) puts reasonable restrictions on the same. Now to look at section 124-A, it protects Indian citizens from agitators that aim to destroy the integrity of the nation, or try to create a discontent against the government. All this means that we do have enough laws to help us get out of this mess, but we really need a better regulation system to keep a check on the same.

Introduction

“If freedom of speech is removed, then dumb and silent we could also be led, like sheep to the slaughter.” The quotation makes the distinct and evident importance of expressing ones thoughts and beliefs, in order to prevent the destruction of the democratic spirit of the country.

Freedom of speech can be defined as a right to articulate to pass comment, discuss thoughts, ideas and beliefs without the fear of the government censorships or punishment henceforth. The medium for such discussion is not specified. 

The international aspect of the same can be traced to the recognition of the same as a human right under Article 19 of Universal Declaration of Human Rights[1] and also in International Covenant on Civil and Political Rights.

Article 19 of ICCPR[2] states that these rights carry ‘special duties and responsibilities’ and they are ‘subject to certain voids and restrictions’ which are important ‘for the respect and reputation of an individual’ or they are necessary for the protection of ‘national peace and security’.

These restrictions may fall under the category of slander, libel, pornography, sedition, copyright violation, right to privacy and many more.

Every Indian citizen enjoys certain fundamental rights granted to them by the Indian constitution. One of such right falls under Article 19(1) (a) of Indian constitution giving the citizens freedom of speech and expression. This right is not available to foreign nationals.

This right is one of the major features of democratic nation. It gives the citizen the right to express without any fear of suppression and also enhances their individuality by giving them an arena to discuss political affairs in the country. Preamble to the constitution of India clearly mentions of securing liberty of thought, expression, belief, faith and worship to the entire citizen, hence, freedom of speech and expression in no way can be isolated from the largest democracy in the world.

In Maneka Gandhi v. Union of India[3], the court has emphasized on the significance of the freedom of speech & expression in these words:

“Democracy is based essentially on free and fair debate and open discussion for all, for that is the only remedy of state action during a democratic acknowledged out and its process. If democracy means government of the people and by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to wisely exercise his rights of making a choice, free, fair & general discussion of public matters is absolutely essential.”

Reasonable restriction

As a reasonable piece of information, every right brings along duties, obligations and restriction. Article 19(2)[4] discusses about the reasonable restrictions on the subject matter of Article 19(1) (a)[5]. Article 32[6] and 226[7] contain several writ petitions which can be looked into for the violation of the fundamental rights.

As important it is to grant the citizens freedom of speech and expression, so important is to provide some reasonable restriction on the same. This will also be crucial in maintaining the social order of the democracy. Article 19(2) discusses about the ‘reasonable restriction’, which are security of the state, friendly and healthy relations with foreign states, no similar clause is mentioned in any other Constitution of the world, public order: next restriction prescribed by constitution is to maintain public order, decency or morality, contempt of court, defamation,    incitement to an offense, sovereignty and integrity of India.

Misuse of Freedom of Speech and Expression

In this modern era humans like to be governed by ‘reasonability’ rather than by laws that have a scope of ambiguity. Anything uncertain, in violation of human rights or draconian is just not acceptable to the society.

Man has a crooked mind and hence found out loopholes in the right mentioned above. People have started misusing the power of freedom of speech and expression. The exploration of this right is an important issue to talk about.

In the name of freedom of speech citizens are misusing it for political gains, freedom to protest blocking roads making it tough to commute on a daily basis and so much more.  Now is the time that judiciary should take a deep insight into the problem discussed. Increasing misuse of the right is a growing threat to the nation.

 Freedom of Speech Alias ‘Hate Speech’

The freedom of speech is a fundamental right that supports every individual of the country to put up their opinions without any legal sanction or censorship. This right can be misused or misinterpreted by the general public. This was what exactly happened in the sedition case against the Lakshadweep filmmaker Aisha Sultana. The term ‘sedition’ here means that to incite public crowd to act against the particular government by delivering hate speeches or conducts. She is a native of the Lakshadweep Island. Aisha, during a TV debate, said that PM Narendra Modi’s government used their state administrator Praful Khoda Patel to use Covid – 19 as a ‘bioweapon’ against the natives of the respected Union Territory. As soon as she made this statement, the complaint was filed against her by the BJP’s Lakshadweep unit President C Abdul Khader Haji. After all this high – voltage drama, Kavaratti police filed a case under the Sections 124 A[8] and 153 B[9] of the Indian Penal Code against the actress. After the complaint was filed, she posted a Facebook post saying that she will keep fighting for her native place. Fifteen members of the BJP showed their solitude with her by giving in their resignations and stating that all accusations against her were false and unjustified. The cultural committee, Lakshadweep Sahitya Pravarthaka Sangam, rebuked the charges against her and said that they would stand for her. She moved to the Kerala High Court asking for anticipatory bail and stated the fact that there is a possibility of her being detained if she went to Kavaratti in her bail plea. On June 17, 2021, the Hon’ble HC of Kerala granted her interim anticipatory bail for one week, which was a huge sigh of relief for her. The single judge bench of Justice Ashok Menon also asked her to cooperate and appear before the police for further interrogation. The judgement on her bail plea has also been reserved. The island is also suffering from the enormous protests by its citizens after Administrator Patel’s introduction of certain draft regulations in the proposed Lakshadweep Development Authority Regulation[10], the Lakshadweep Prevention of Anti-Social Activities Regulation[11] (Goondas Act), and the Lakshadweep Animal Preservation Regulation[12]. The residents have been seeking the repeal of all these stating that it will violate the ethics of the indigenous population.

People nowadays are so much into the fame and money that they don’t even think what they are saying and because of their ever increasing popularity, public get influenced by them without even knowing the fact if it is true or not. And, for this they use hate speech as their main tool to attract the crowd. Under Article 19 (1) (a) of the Indian Constitution, citizens are obliged by the freeness of whatever they can speak or express. But, at times, this right is misused by the influential and powerful class of the society to criticize the government. Excess of everything is bad, so social influencers and actors should use this right in order to guide or influence citizens to the right path, and not for their own benefits. Their one mistake can lead to clashes among social groups and communities, further causing a pool of bloodshed which will create a divide in the country and the citizens have to take care of it by following their idols wisely.

Valley Losing its Beauty to ‘Hate Speech’

Kashmir and the life of the people living over there has become a lot more difficult in the last few decades, owing to growing terrorism and politics doing the rounds over there with the abrogation of Article 370[13]. Before this abrogation took place, the valley was losing its importance due to ever increasing pace of terrorism and removal of Kashmiri Pandits from their native place by annexing their properties. Although the condition has improved after removing that Article, but the goal is yet to be achieved. People still do not have access to freedom of speech and expression. Terrorists are slowly being gunned down, thanks to ‘Operation All Out’, but whenever there is a lead that terrorists are hiding at some place, the net connection in the valley is struck off for long durations. It further hinders the fundamental right. In a response to the petitions challenging the restriction of internet speed to 2G in the valley by the J&K government, it said that “Right to access the internet is not a fundamental right and high speed internet cannot be maintained over their owing to security concerns”. It further replied that “the Rights under Articles 19 (1) (a) and Article 19 (1) (g)[14] cannot be compared to that of slow speed of internet in the valley”. The PIL was filed by the inspiration for Media Professionals challenging the J&K government order of March 26, 2021, restricting the web speed to 2G within the Union territory. Further, a gaggle of activists visited the valley demanded that each one means of communication should be restored with immediate effect. The class had names like economist Jean Dreze, CPI – ML’s Kavita Krishnan, AIDWA’s Maimoona Mollah, and NAPM’s Vimal Bhai who visited the valley from August 9, 2021 to August 13, 2021. These activists were not allowed to share videos and pictures with the public, as they were denied the permission by the Press Club of India.

The people of the valley live in miserable conditions, as the government has curtailed many fundamental rights over there and people cannot enjoy these rights freely. Terrorists use the youths of the valley to further spread their ideologies by preparing them for the attacks on the security forces and stone – pelting on them. And, due to all these mischief, the government is forced to curtail the rights of the people. The native citizens are not able to move away with time, as local newspapers are unable to function due to the communication lockdown and further, they are lacking in the newsprint which comes from Delhi. The gags on freedom of speech, expression and to protest must be slowly lifted from J&K with the immediate effect. They must be allowed to express their protest and anguish through social media and by practicing peaceful means. The use of pellet guns by the forces should be discouraged, as it causes serious damages to human body by affecting an individual’s eyes, limbs and faces. Instead, the education should be used as a tool to fight off the bad elements over there, as someone has said that “Education is the most powerful weapon which you can use to change the world.”

Kunal Kamra: a ‘Room’ for Hate Speech

Kunal Kamra is a stand – up comedian with a huge fan following on his YouTube channel and is more inclined towards political views. He is one of the leading examples for misusing the Article 19 (1) (a) and due to this he got banned by several airlines in 2020. He also had to trade with the contempt charges for a row of tweets on Supreme Court for granting TV anchor Arnab Goswami interim bail in a suicide case.  Even the Attorney General of India, KK Venugopal, condemned this act by the Mumbai – based comedian and said that not only that tweets were arrogant in nature, but “clearly crossed the line between the humor and contempt of the court”. The comedian was banned from several airlines as per the Civil Aviation Rules Level – 1 offence which has been enshrined in para 8.1 (a). Herein, Kunal expressed his freedom of speech by asking questions to a journalist and this cannot be restricted according to Article 19 (2). If Arnab didn’t wanted the comedian’s interference in his personal matter, the anchor would have directly asked Kunal to do so, but he was rather enjoying his presence, and this act of Arnab revokes Article 19 (2). As far is Kunal is concerned, it was true beyond a reasonable doubt and was justified within his right. Supreme Court in the case of Romesh Thappar v State of Madras[15] held that freedom to propagate ideas is included in freedom of speech and expression and it can only be ensured by the freedom of circulation, as the publication will be of very little importance if not circulated. Similarly, in the case of Indian Express Newspapers v Union of India[16], the Court stated that although “freedom of the press” is not mentioned in the Article 19 of the Indian Constitution, but is enshrined within Article 19 (1) (a). There should not be any interference with the liberty of the news in the name of public interest and moral good. The aim of the press is to establish and bring out true facts and opinions in front of the public, without which democratic elections cannot take place comfortably.

Kamra shared a picture of Supreme Court wrapped in a saffron flag. The message was clear crystal, i.e., SC is shifting its judgements in interest of the BJP party and Hindu nationalism in general. This message was controversial and was outrageous for lawyers in many ways, as SC is an independent institution and enjoys complete freedom in its functioning for the sole reason of being an impartial judge and alleging and interfering with the working of SC in itself is a harm on its image which is standing tall day and night challenging all seasons providing justice to each and every individual. Kamra is a popular social media influencer and they forget the thing that every word they utter can have consequences in itself. Their opinions persuade the perspectives of a large amount of the population. In these times, when social media is such an active platform for expressing one’s opinions, one controversial tweet can cause more worries than expected and that too within a second. By tweeting “The J in Supreme Court stands for Justice”, Kamra paid a huge disrespect to the supreme authority of India and lawyers of SC as well. If our judicial systems are attacked and put in a negative and demoralized way, it will damage the belief of the people in the democracy of our country and the people’s faith on justice and other institutions safeguarding our Constitution. Supreme Court and the junior courts have time and again protected our natives and institutions from several wrongful allegations. One thing which we should remember is that the individuals running the SC are also humans who may feel disregarded about what’s being said about them. Healthy criticism and fruitful debate is an essential pillar for the democracy to function smoothly and with transparency. But, whether this tweets fall under this category or not is in itself a long standing debate. Although Twitter doesn’t allow the option to express the views and thinking of the handler through negative words or tweets, but a Twitter thread can be used to infer different meaning from one’s tweets, thus causing outrage among the general public. If Kunal has the time to publish an almost a dozen of tweets criticizing several people, then he must also do a little bit of research regarding the issues before tweeting to criticize people. This will surely help in preventing the spread of fake information among his followers and the guard of our judiciary system will never fall off. Had he approached the SC for justice before tweeting anything, the SC would have offered the same legal proceedings as its providing in this case itself and there would not have been so much of controversy as in present scenario. At the end of the tiresome day, the SC is provided with the same rights as any other institutional body in India. It’s high time that every citizen should take responsibility of their words and actions in their hands, as a matter of respect for each other, be it the person at the same level or any other institutional body. The proceedings against Kamra are not a bid to attack or defer his freedom of speech and expression, but a restrain on his strings of unfounded and misguiding tweets on his social media handle, which he used it as to gain followers and misused his power and popularity while doing this.

Conclusion

In conclusion, freedom of speech and expression is very important for every person. Government needs to protect minorities from the overuse of this right and also grant them a wider scope to use this right accurately. The point of consideration in the above mentioned situations is not whether the accused is guilty of the offence or not but rather the occurrences of such events. In a country like India, freedom of speech and expression is often misused which leads to cases of sedition, defamation and insult to the governmental institutions. What maybe offensive and derogatory in someone’s opinion may be completely agreeable in other’s perspectives. The challenge between opinion and disagreement is the key to democracy and when the criticizers are criticized for their views and ideas, the road to democracy becomes unachievable. This surrounding of fear will curb and demolish the ideas, which will further stop in spreading of bold humor and creativity. Kunal Kamra is a comedian; his statements are meant for comedy and humor (which should not be misused). Its time he take his place back, where they belong to the stage for the entertainment of the audience and not behind the bars serving for some mischief. There are people who have committed serious offences and are roaming here and there freely and then, there are pleas that haven’t been heard for the ages. Surely, the courts hold these type of cases in equality if not more important than the contempt of court cases.

Article 19(1) (a) provides us with right to freedom of speech and expression, on the other hand article 19(2) puts reasonable restrictions on the same. Now to look at section 124-A, it protects Indian citizens from agitators that aim to destroy the integrity of the nation, or try to create a discontent against the government.

Therefore it lies to the general understanding of the person to use the right wisely otherwise the same will fall to the discretion of the court and all benefits granted under the article shall take a turn to be punishable.