Onslaughts on Free Speech in India by Means of Unwarranted Film Bans (Second Edition) by Karmanye Thadani, Subhajoyti Banerjee, et al - HTML preview

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I.                  INTRODUCTION: RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

 

 

 

The  right  to  freedom  of  speech  and  expression  is  a quintessential  feature  of  any  democratic  framework.  It can assume diverse forms, be it in the verbal form or in that of writing, printing, pictures, cinema or any other mode.

 

 

The importance of this right has been recognized since ancient times. Buddhism and Jainism uphold this right in their own ways when they deal with guidelines on appropriate speech.  The Hindu epic, the Ramayan, mentions that Ram banished Sita due to the condemnation by the praja shows that at least philosophically, it was believed that people had the right to free speech. The classic Indian text, the Natya Shastra, emphasizes the right to freedom of expression very clearly, in which “Indra declared that the stage would be a space where everything could be said and nothing could be prohibited”[1].

 

 

 It is evident from the famous funeral address given by Pericles as back as in 431 B.C. that Athenians did not consider public discussion merely something to be put up with; rather they believed that the best interest of the city could not be served without a full discussion of the issues before the assembly.[2]

 

 

A.    Position in International Law and under the Indian Constitution

 

It is no wonder in todays day and age that freedom of speech and expression is regarded a human right, i.e. an inalienable right of every human being.[3] Article 19 of the Universal Declaration of Human Rights (UDHR), 1948, states-

 

 

Everyone  has  the  right  to  freedom  of  opinion  and expression;  this    right includes freedom to hold opinions without  interference  and  to  seek  receive  and  impart information and ideas through any media and regardless of frontiers.

 

 

When this historic declaration was given concrete legal shape in  the form of the International covenant on Civil and  Political  Rights  (ICCPR),  1969,  and  International Covenant  on  Economic,   Social   and  Cultural  Rights (ICESCR), 1969, this right found a place in the former. To quote Article 19(2) of the ICCPR, which deals with this right

 

 

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and  ideas of all kinds, regardless of frontiers either orally, in writing or print, in the form of art, or through any other media of his choice.

 

 

Various international human rights instruments localized to different regions, such as the European Convention on Human Rights, the Inter-American Convention on Human Rights and the African Charter on Human and Peoples’ Rights also take cognizance of this right.

Article 13 of the Inter-American Convention on Human Rights, 1969, provides that -

 

(1)        Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one s choice.

 

(2)        The exercise of the rights shall not be subject to prior censorship.

 

(3)        The right of expression may not be restricted by indirect methods or means such as the abuse of government or private controls over newsprint, radio, broadcasting frequencies, or by any other means tending to impede the communication and circulation of ideas and opinions.

 

 

Article 10(1) of the European Convention on Human Rights, 1950, states that -

 

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

 

Article 9 of the African Charter on Human and Peoples Rights, 1981 specifically provides that:

 

1.         Every individual shall have the right to receive information; and

2.         Every individual shall have the right to express and disseminate his opinions within the law.

The Indian constitution too upholds this right under Article 19(1) (a). Needless it is to mention that India is a signatory to the ICCPR.

 

 

B.    Significance of the Right

 

 

The importance of this right obviously cannot be underrated. In fact, it has been contended that if the idea of natural rights or rights guaranteed to man by nature (as advanced by thinkers like John Locke[4]) were to be accepted, then the freedom of speech and expression would definitely be one of them. The same can be understood by examining the following assertion-

 

 

Speech is God’s gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others.  Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right.[5]

 

 

Citizens can receive authentic information if and only if a free press is allowed to function. Without a strong media and civil society pressure groups, democracy cannot be effective. Debates and discussions which are integral to democracy can take place only if citizens have the right to freedom of speech and expression. The right of citizens to participate in the decision-making process cannot exist without this right and unreasonably severely restricting this right is bound to pave the way for autocracy. Indeed, it is well known that autocratic regimes, while possibly guaranteeing this right on paper, keep it practically non-existent.

 

The Communist regime in the People’s Republic of China, while allowing this right under Article 35 of their Constitution, practically resorts to punishing any dissenter, be it by way of making him lose his job or worse still imprisoning him.[6]  Other countries like Saudi Arabia don’t even have a clear stance viz-a-viz the matter.

 

The freedom of speech and expression is an end in itself, besides being the means to achieve other ends.

 

 

C.      Reasonable Restrictions

 

However, like most other rights, the right to freedom of speech and expression too is capable of misuse and therefore, needs to be subjected to reasonable restrictions. The ICCPR, for instance, states in Article 19(3)-

 

 

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall  only  be  such  as  are  provided  by  law  and  are necessary: