The freedom of speech and expression is essential in a democratic set-up and for its proper functioning of the democratic process. Freedom of speech and expression is a right as well as liberty that is enshrined in our Constitution. Freedom of speech and expression is sacrosanct right for a vibrant democracy.[1] Free Speech is also regarded as the live wire of democracy. Ivor Jennings said, “Without freedom of speech, the appeal to the reason which is the basis of democracy cannot be made.”[2] It is a fundamental right which is also seen as a basic human right, a natural right that every citizen is entitled to.

This right plays a pivotal role in the lives of the citizens enabling them to form public opinion on social, political-economic matters. It also opens up channels and platforms of free discussion of various issues. The freedom of speech and expression fulfills diverse objectives, which includes the discovery of truth. If restrictions are placed on speech, it prevents the ascertainment of substantial facts which are valuable for the progress of the society. We cannot deny its democratic value and is the bulwark of democratic set-up.

In the judgement of Maneka Gandhi v UOI,[3] Bhagwati J emphasized on the importance of the freedom of speech and expression:

Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means the government of the people, 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 intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.

The freedom of speech includes the right to express one’s views and opinions on any issue through any media preferable, for example, by words of mouth, in writing or printing, movies, films or pictures, etc. It also includes the right to propagate and publish opinion granting the freedom of communication but is subjected to reasonable restriction. Article 19 (1)(a) of the Indian Constitution is a fundamental right which guarantees, ‘freedom of speech and expression.’ Under Article 19, clause (2), reasonable restrictions can be imposed by the State. It should be read along, ‘Liberty of thought, expression, belief, faith and worship’ of the Preamble as it is intrinsically linked with the Preambular objective and needs to be valued.

Electronic media includes radio, television, telephone, advertisements, and films are also taken into consideration under this article. How far are the instruments mentioned above covered under Article 19(1)(a)?

ADVERTISEMENTS

The intrinsic value of free speech and expression is the freedom to think and speak freely to obtain essential information through publications without fearing the retribution or repression by the government or the authorities. An advertisement is a form of communication which is used to persuade an audience through marketing to act or continue an act. In the case of Hamdard Dawakhana v UOI[4], the Court dealt with advertisements of drugs that were supposedly prohibited. The Court ruled that the Act enacted by the Parliament to control advertisements in certain drugs and commodities was not merely to curb advertisements against decency and morality but also to prevent self-medication and self-treatment. The Court also stated that though an advertisement is a form of speech, the actual character is indicated by the object that the advertisement is promoting.

The right to free speech and expression and the right to trade commerce fall under two different categories and should not be viewed as one. Since advertisements have an element of expression of ideas, it inevitably falls within the scope of Article 19(1)(a) but also has an element of trade and commerce under Article 19(1)(g), when it takes the form of commercial advertisement. Hence, it no longer falls within the scope of Article 19(1)(a). It was held in the case that an advertisement which is not propagating any ideas, thoughts cannot be claimed under Article 19(1)(a). An advertisement promoting the sale of drugs and other commodities which is not in the public interest and is meant for business falls within the scope of trade and commerce. It cannot be held that commercial advertisement advertising an individual’s business is not construed under freedom of speech guaranteed by the Constitution.

A differing judgement was passed in Indian Express v UOI,[5] in which the Court observed that all commercial advertisements could not be deprived of the protection of Article 19(1)(a) merely because people in business issued them.

Finally, in Tata Press Limited v Mahanagar Telephone Nigam Limited [6], the SC held that the rights of commercial advertisement or ‘Commercial Speech’ are a part of freedom of speech guaranteed under Article 19(1)(a) merely because businessmen issued it.  Advertising has two facets when it is called as a commercial speech. Firstly, advertisements are commercial transactions disseminating information regarding the products or services. The information is beneficial for the public at large and hence, any curtailment of advertisement would affect the right under Article 19(1)(a) on the aspects of propagation, publication and circulation.[7] Secondly, the article protects the right of a citizen to listen, read and receive the commercial information as the right is available to the speaker and the recipient of the speech.  Therefore, Tata press was entitled to the rights under Article 19(1)(a) and validated to print the yellow pages. The grounds mentioned by MTNL that Tata Press’s yellow pages do not come under ‘public interest’ was backed with an explanation that no such ground is mentioned in Article 19(2); therefore, MNTL cannot claim the same.

TELEVISION

An appeal was filed involving Doordarshan’s refusal to telecast a documentary film on the Bhopal Gas Tragedy, “Beyond Genocide.” The film was well appreciated and in 1987, won the Golden Lotus Award as the best non-feature film. Doordarshan refused to telecast it, stating that the contents of the film is outdated and do not have the relevance now. Filmmakers have the fundamental right under Article 19(1)(a) to exhibit their films, and the party may claim against it only under Article 19(2). The Court rejected Doordarshan’s reasons for not broadcasting the film on the television. The freedom to circulate one’s opinions and views by words, mouth or in writing or through the medium of audio-visual instrumentalities will subject to reasonable restrictions under Article 19(2). The citizen has the right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).[8]

A social organisation filed a PIL in Bombay High Court under Article 226 in the case of, Odyssey Communication Pvt Ltd v Lokvidayan Sanghtana[9], against UOI, Ministry of Information and Broadcasting and the State of Maharashtra. The NGO asked for restraining the episodes 12 and 13 of the serial, ‘Honi Anhonee’ which was airing on Doordarshan. The Bombay HC passed an order restraining the telecasting of the episodes as it was not in the public interest and was likely to spread false beliefs and superstitions. An appeal arose against the stay order before the Supreme Court. The Court emphasised that it is the right of the citizens to promote their ideas and exhibit films on the Doordarshan according to the terms and conditions mentioned by Doordarshan. Hence, it falls under the scope of Article 19(1)(a) and is subjected to the restrictions under Article 19(2). The Court also shed some light over the order issued by the High Court. The High Court, by issuing an interim injunction over the serial overlooked the fundamental right of the producer to publish his views via exhibiting his serial. It was prima facie evident that the episodes in question were not likely to give grave prejudice to the public by exhibiting these episodes, and hence, it did not violate any law or rights of the petitioners. Supreme Court also emphasised that the serial in question did not endanger public morality and it was not proper to issue the order of interim injunction.

TELEPHONE

Any citizen can exercise the fundamental right of free speech and expression under Article 19(1)(a). We can express our opinions and views freely by words of mouth, writing, printing, picture, films, etc. An individual talking over the telephone is exercising his right to freedom of speech and expression and cannot be curtailed unless it falls within the grounds mentioned under Article 19(2)

Also, telephone tapping goes against Article 21 of the Indian Constitution in which no person shall be deprived of his personal liberty which entails the right to privacy too.

CENSORSHIPS OF FILMS

Films are a great medium to learn and propagate notions and opinions to the public at large. In India, every citizen is connected to the films and is a medium to promote cultural and social issues. Films also enjoy the right to freedom of speech under Article 19(1)(a) and are subjected to reasonable restrictions under Article 19(2). The Cinematograph Act, 1952 to check on the films, and Central Board of Film Certification is the regulating body to issue certification to films in India for public exhibition.

In Khwaja Ahmad Abbas v UOI[10], the classification of films into ‘A’ & ‘U’ was held in this case. It was the first case where the factor of censorship and pre-censorship arose in India. The petitioner challenged the decision of the Censor Board as his movie, ‘A tale of four cities,’ was not granted the ‘U’ certificate. Several cuts were made into the movie before certifying it with ‘U.’ The Court taking issues under consideration held that the censorship of films and also pre-censorship is valid in India, and also, a film can be censored on the grounds mentioned in the Article 19(2).

In another case known as, ‘Bandit Queen Case,’[11] the respondent filed a writ in the High Court asking to quash the certification of the exhibition given to the film and restraining its exhibition. The film was based on Phoolan Devi who was exposed to brutality and lust of men at an early age. Though, the appellate tribunal and the Censor board granted A certificate to this film. On the grounds of obscenity, the exhibition of the film was restrained, and the Delhi High Court quashed the order of the tribunal. Later, the case was appealed in the Supreme Court, which held that the decision of the tribunal is valid. The film is a serious story of a village girl who became a dreaded dacoit due to some circumstances. The obscene scene that was mentioned was where is was humiliated, stripped naked in public and had to parade does not arouse the people watching the movie with lust but inducing them with sympathy for the victim and hate and disgust for the perpetrators. The Supreme Court set aside Delhi High Court’s decision.

CONCLUSION

From this article, it can be concluded that free speech is one of the most important fundamental rights. It is the right of every citizen through which they can express, disseminate, promote and propagate their views, opinions by words in writing or through the mouth and audio-visual representation, advertisements, etc. The electronic media is protected under Article 19(1)(a) and is imposed under reasonable restrictions under Article 19(2).