Freedom of speech is a bulwark of democratic government. This freedom of speech is essential for the pope functioning of the democratic process. Speech is regarded as first condition of liberty. Freedom of speech has been described as the “basic human rights” or “a natural rights” by various apex courts throughout the world. This embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information which would help formation of one’s opinion and view points and debates on matter of public concern.
The significance of freedom of speech and expression was appointed by the Bhagwati J.in Maneka Gandhi v union of India that: If democracy means government of the people, by the people and for the people, then it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to efficiently exercise his rights of making a choice, free and general discussion of public matter is absolute essential. Thus, freedom of speech and expression is considered as the biggest pillar of the democracy.
Talking about the first amendment to US Constitution which guarantees freedom of speech in the USA. The US Supreme Court has observed that: “it is the purpose of the first amendment to preserve and an inhibited marketplace of ideas in which truth will ultimately prevail, rather than to contravene monopolisation of that market whether it be by government itself or a private licensee”.
The Constitution of India: Article 19(1)(a)
‘Freedom Of speech and expression’ has been guaranteed to all the citizens of India under article 19 (1)(a). Article 19(1(a) includes the right to express one’s opinion and opinion to any issue through any medium such as by word of mouth, writing, printing, picture, film, movie etcetera. Thus, we can see that it includes freedom of communication and right too propagate or publish opinions. The phrase ‘Freedom of speech and expression’ has a very broad meaning under article 19(1)(a). The right to paint or sing or dance or to write poetry or literature is also covered by article 19(1)(a) because the common basic characteristics of all these activities is freedom of speech and expression. We could suggest that phrase ‘Freedom of speech and expression’ should be read with words “liberty of thought, expression, belief, faith and worship” of preamble and as it is linked with Preambulary thoughts does it is the duty of the court to progressively adhere to the values of the Constitution.
Article 19(1)(a) also covers the right to choose one’s personal appearance or dresses subject to article 19(2). Thus, the LGBTQ community has right to express their self identified gender through their speech dress appearance and mannerism. It is considered that gender identity lies at the core of one’s personal identity, gender expression and presentation and, therefore it will have to be protected under article 19(1)(a) of the Indian Constitution. A member of LGBTQ community could express their personality by the behaviour and presentation. The State cannot prohibit, restrict or interfere with a expression of such personality which reflects their inherent personality character. There for it was held that values of privacy, self identity, autonomy and personal integrity or fundamental rights guaranteed to the LGBTQ community under article 19(1)(a) of Indian constitution.
Freedom of speech and expression given to the press and other media sources is not for the benefit of the press or media houses itself. This has been given for the benefit of the general community of the country because every citizen of the country has right to be fully informed with the information and what government owes a duty to educate the people within the limits of its resources. Thus, freedom of press has always been a cherished right in all the democratic countries and the press has been rightly been described as the fourth estate. Further, credential of a democratic states are always judged by the extent of the freedom given and inspired by the press of the country.
Whenever the Constitution provides any fundamental rights it is always accompanied by the fundamental duties of the citizens towards the Constitution of the country. Similarly, to maintain and preserve the freedom of speech and expression in a democratic country, so also it is important to maintain social law and order by placing some curbs on the use of the freedom of speech and expression.
No Freedom Is Completely Absolute Or Unrestricted: Public Order
Accordingly, under article 19(2) state has formed a law imposing ‘reasonable restrictions’ on the exercise of the freedom of speech and expression ‘in the interest of’ the security of the state, friendly relations with foreign states, public order, decency, morality, sovereignty and integrity of India. There has been two conception under the article 19(2) that is ‘public order’ and ‘security of state’. Further, the concept of public order is considered as more wider than the concept of security of state as it includes public peace, safety and tranquility.
Provision under section 124A of the IPC is know as ‘Sedition’ that is the category of the offence against the state. Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan [(1867-71) 11 Cox’s Criminal Law Cases, 44 at p. 45] has observed that: “Sedition is a crime against society, nearly allied to that of treason. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder.”
Section 124A imposes restrictions on the fundamental right of freedom of speech and expression, but these restrictions cannot be said to be violative of the freedom of speech and expression.
But when section 124A is clearly reed as a whole along with the explanations, make it reasonably clear that the section aims at rendering penal only such acts which would be intended or have a tendency to create disorder or disturbance of the public peace by any kind of violence. The explanation adjoined to the main body of the section makes it very clear that criticism of public measures or comment on government action (strongly worded), within some reasonable limits would be considered consistent with the fundamental right of freedom of speech and expression.
However, when the words, written or spoken etc., which have tendency or intention of creating public disorder or disturbance of law and order, then the law under section 124A of IPC will prevent such activities in the interest of public order. Thus, the section strikes the correct balance between the fundamental rights and the interest of public order. Further, it is also well settled that in interpreting any enactment the court should not merely regard itself to the literal meaning of the words used, but should also take into consideration the history of the legislation, its purpose and after effects if it is seeks to suppress.
How law for sedition works?
The offences which are mainly the offence against the state or nation and conspiracy to commit such offences are of a serious and exceptional nature. Thus, the legislature has provided us with a special provision in Code of Criminal Procedure, 1973. Under section 196 of Code of Criminal Procedure, 1973 there has been a conditional precedent in which no court can take cognisance until and unless they has the prior sanction from the central government or state government or the district magistrate.
While providing the sanction it has to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. Thus, the authority must apply its complete mind to the facts of the case and it is the duty of the prosecution that they have to submit each and every detail or material to the authority for the sanction so that there will be no chance of mistake and failure of justice.
The law of sedition as provided in Section 124A is quite clear in its meaning and intention, and a person with reasonable prudence would not see it as an obstacle to freedom of speech and expression but as a legal instrument to monitor anti-state activity.In addition, judicial pronouncements in this regard have clearly set out the principle that anyone can fairly criticise government policies and actions and demand reforms as long as they do not incite or attempt to incite violence, rebellion, hatred or contempt against the established state government.
An analysis of the Supreme Court’s judgment in Kedar Nath itself shows some shortcomings in how the law is being understood today. There has been a shift in how we understand ‘state security’ as a ground for restricting freedom of expression and speech.
Furthermore, a change in the nature of government and the vulnerability of ordinary people to being incited to violence by an inflammatory speech also greatly reduced. Even maintaining ‘public order’ cannot be used as a justification for these laws, as it is intended to address issues of local law and order rather than actions affecting the very basis of the State itself.
 American Press v US, 326 US 1
 National Legal Services Authority v Union of India, (2014) 5 SCC 438
 Printers (Mysore) Ltd. v. CTO, (1994) 2 SCC 434
 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812
 Kedar Nath Singh v State of Bihar, AIR 1962 SC 955
 (1978) 1 SCC 248.
Ayush Mittal is a student at Vivekananda Institute of Professional Studies.
Ashna is a student at University of petroleum and Energy studies Dehradun.