Freedom of speech and expression in a spirited democracy is a highly treasured value. Authors, philosophers and thinkers have considered it as a prized asset to the individuality and overall progression of a thinking society, as it permits argument, allows dissent to have a respectable place, and honours contrary stances. There are proponents who have set it on a higher pedestal than life and not hesitated to barter death for it. Some have condemned compelled silence to ruthless treatment.
William Dougles has denounced regulation of free speech like regulating diseased cattle and impure butter. The Court has in many an authority having realized its precious nature and seemly glorified sanctity has put it in a meticulously structured pyramid. Freedom of speech is treated as the thought of the freest who has not mortgaged his ideas, may be wild, to the artificially cultivated social norms; and transgression thereof is not perceived as a folly.
Freedom of expression is a supreme condition of mental and moral progress
Bury in his work History of Freedom of Thought (1913) has observed that freedom of expression is “a supreme condition of mental and moral progress” [p.239]. In the words of American Supreme Court, it is “absolutely indispensable for the preservation of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all, even the most despised minorities”.
In Yates v. U.S.[1] the court held that “the only kind of security system that can preserve a free Government – one that leaves the way wide open for people to favor discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.”
In Stromberg v. California[2] the Court remarked,
“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means… is a fundamental principle of our constitutional system.”
In Palko v. Connecticut[3] the right to freedom of speech and expression has been described as the “touchstone of individual liberty” and “the indispensable condition of nearly every form of freedom.”
Apart from the aforesaid decisions, we may refer to the dissenting opinion of Holmes J. in Abrams v. United States[4], thus:-
“… But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That at any rate, is the theory of our Constitution.”
In the concurring judgment Brandeis, J. in Whitney v. California[5], stated that:-
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its Government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American Government.
They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable Government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form.
Recognising the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”
Freedom of speech and of the press lay at the foundation of all democratic organisations,
In Romesh Thapar v. State of Madras[6] the majority opined that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of abuse. But the Framers of the Constitution may well have reflected with Madison who was ‘the leading spirit in the preparation of the First Amendment of the Federal Constitution’, that ‘it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits’.
In Express Newspaper (Private) Ltd. and another v. Union of India and others[7] the Court referred to the decision in Romesh Thapar (supra), noted a few decisions of the Court which involved with the interpretation of Article 19(1)(a) that they only lay down that the freedom of speech and expression includes freedom of propagation of ideas by which freedom is ensured; emphasized on liberty of the press as it is an essential part of the right to freedom of speech and expression and further stated that liberty of the press consists in allowing no previous restraint upon publication.
Thereafter the Court referred to number of authorities of the United States of America and culled out the principles from the American decisions to the effect that in the United States of America;
(a) the freedom of speech comprehends the freedom of press and the freedom of speech and press are fundamental personal rights of the citizens;
(b) that the freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public;
(c) that such freedom is the foundation of free Government of a free people;
(d) that the purpose of such a guarantee is to prevent public authorities from assuming guardianship of the public mind, and
(e) that freedom of press involves freedom of employment or non-employment of necessary means of exercising this right or in other words, freedom from restriction in respect of employment in the editorial force and eventually ruled thus:-
“This is the concept of the freedom of speech and expression as it obtains in the United States of America and the necessary corollary thereof is that no measure can be enacted which would have the effect of imposing a pre-censorship, curtailing the circulation or restricting the choice of employment or un-employment in the editorial force. Such a measure would certainly tend to infringe the freedom of speech and expression and would, therefore, be liable to be struck down as unconstitutional.”
In All India Bank Employees’ Association v. National Industrial Tribunal (Bank Disputes), Bombay and others[8] it has been held that “freedom of speech” means freedom to speak so as to be heard by others, and, therefore, to convey one’s ideas to others. Similarly, the very idea of freedom of expression necessarily connotes that what one has a right to express may be communicated to others; and that includes right to freedom of circulation of ideas.
In Sakal Papers (P) Ltd. v. Union of India[9] it has been held that it must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down.
On the other hand, the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions. The Court further observed that the right to freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to any available means of publication, subject again to such restrictions as could be legitimately imposed under clause (2) of Article 19.
Be it stated here that in Indian Express Newspapers (supra), this Court referring to earlier decisions had accepted that freedom of speech and expression includes within its scope freedom of press, for the said freedom promises freedom of propagation of ideas which freedom is assured by the freedom of circulation. Liberty of the press has been treated as inseparable and essential for the right to freedom of speech and expression.
The Court in Bennett Coleman & Co. and others v. Union of India and others[10] referring to Sakal Papers case opined that in the said case the Court has held that freedom of speech would not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers. Similarly, it referred to the authorities in Indian Express Newspapers (supra) and stated that if a law were to single out the press for laying down prohibitive burdens on it, that would restrict circulation and eventually violate Article 19(1)(a) and would fall outside the protection afforded by Article 19(2). Elaborating the idea further, the majority ruled: –
“The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum, “let the people have the truth and the freedom to discuss it and all will go well.” The liberty of the press remains an “Art of the Covenant” in every democracy. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man. The newspapers give ideas”.
In the said case, the Court referred to William Blackstone’s commentaries: –
“Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.”
Mathew, J., while otherwise dissenting, accepted the protection of freedom of speech in the following words: – “…. Free expression is necessary (1) for individual fulfilment, (2) for attainment of truth, (3) for participation by members of the society in political or social decision-making, and (4) for maintaining the balance between stability and change in society. In the traditional theory, freedom of expression is not only an individual good, but a social good. It is the best process for advancing knowledge and discovering truth.
The theory contemplates more than a process of individual judgment. It asserts that the process is also the best method to reach a general or social judgment. In a democracy the theory is that all men are entitled to participate in the process of formulating common decisions. [See Thomas I. Emerson: Toward a General Theory of First Amendment]. The crucial point is not that freedom of expression is politically useful but that it is indispensable to the operation of a democratic system. In a democracy the basic premise is that the people are both the governors and the governed.
In order that governed may form intelligent and wise judgment it is necessary that they must be appraised of all the aspects of a question on which a decision has to be taken so that they might arrive at the truth”
In Indian Express Newspapers (supra), a three-Judge Bench was again concerned with the importance of freedom of press in a democratic society. Venkataramiah, J. speaking for the Court opined that freedom of press is the heart and soul and political intercourse and it has assumed the role of public educator making formal and non-formal education possible in a large scale particularly in the developing world. The Court further observed that the purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.
In this backdrop, it was emphatically stated it is the primary duty of the courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate.
Freedom of speech and expression includes right to acquire information and to disseminate it
In Secretary, Ministry of Information & Broadcasting, Govt. of India and others v. Cricket Association of Bengal and others (1999), it has been ruled that the freedom of speech and expression includes right to acquire information and to disseminate it; and freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfilment. The Court further observed that it enables people to contribute to debates on social and moral issues and it is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. Emphasis has been laid on freedom of the press and freedom to communicate or circulate one’s opinion without interference.
The Court in Union of India and others v. Motion Picture Association and others[11] explaining the significance of free speech has observed that free speech is the foundation of a democratic society and a free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one’s own views and expressing them, are the basic indicia of a free society. It has been further stated that freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic and political rights in a free society in an informed manner and, therefore, restraints on this right have been jealously watched by the courts.
Freedom of Speech is mother of all liberties
In Union of India v. Naveen Jindal and another[12], the Court has laid down that freedom of expression is a cornerstone of functioning of the democracy and there is a constitutional commitment to free speech.
In Government of Andhra Pradesh and others v. P. Laxmi Devi[13], it has been ruled that freedom and liberty is essential for progress, both economic and social and without freedom to speak, freedom to write, freedom to think, freedom to experiment, freedom to criticise (including criticism of the Government) and freedom to dissent there can be no progress.
In S. Khushboo v. Kanniammal and another[14], it has been laid down that even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as `decency and morality’ among others, stress must be laid on the need to tolerate unpopular views in the socio-cultural space. The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense, it is the duty of everyone to promote a culture of open dialogue when it comes to societal attitudes.
The significance of freedom of speech has been accentuated in Ramlila Maidan Incident, In re[15]by observing that the freedom of speech is the bulwark of a democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a “basic human right”, “a natural right” and the like.
The observations in Sahara India Real Estate Corporation Ltd. and others v. Securities and Exchange Board of India and another[16] being extremely significant in the present context are extracted below:-
“Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population. It also includes the right to receive information and ideas of all kinds from different sources.
In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government.”
[1] (1958) 354 US 298 (344)
[2] (1931) 283 US 359 (369)
[3] (1937) 302 US 319 250
[4] 63 L Ed 1173 (1919)
[5] 71 L Ed 1095 : 274 US 357 (1927)
[6] 1950 SCR 594: AIR 1950 SC
[7] AIR 1958 SC 578: 1959 SCR 12
[8] (1962) 3 SCR 269 : AIR 1962 SC 171 (1962) 3 SCR 842 = AIR 1962 SC 305
[9] 1962 AIR 305,
[10] (1972) 2 SCC 788
[11] 1995 AIR 1236,
[12] (2004) 2 SCC 510
[13] (2008) 4 SCC 720
[14] (2010) 5 SCC 600
[15] (2012) 5 SCC 1
[16] (2012) 10 SCC 603