Responsible Freedom: Understanding the Concept and its Origin

Rights are those entitlements which are conferred upon an individual to provide her with opportunities to grow to her best potential. There are certain inalienable rights (1) which are available with a person by virtue of her being a human and which cannot be taken away by a man-made entity.  ‘Freedom of speech and expression’ as enshrined in the Universal Declaration of Fundamental Rights (UDHR) (2), 1948 and u/a 19 Constitution of India, 1950 is one such right. Liberty to express becomes all the more important and relevant for two reasons; (a) freedom of expression gives an individual an opportunity to bring forth a manifestation of her personhood or personality and thus, furthers an individual’s understanding of herself and her surroundings; (b) liberty comes with a parallel duty and responsibility of not exercising it to the deterrence of another being and disadvantage of society. 

Our founding fathers were also confronted with various questions on how a balance between individual liberty and reasonable restrictions could be maintained. An elaborate discourse took place in our Constituent Assembly on the nature of ‘freedom’ and scope of ‘restrictions’ (3) imposed in draft art. 13 (4) . The Assembly came to the conclusion that these ‘fundamental rights’ are not absolute and thus ‘reasonable restrictions’ can be imposed only on the grounds specified in clauses (2) to (6) of art 19 of Indian Constitution. 

The Changing Dynamics of Freedom and Media (Including Social Media and Cinema)

There is no explicit provision governing press freedom in India. However, it is protected by the provisions of u/a 19 (1) (a) of Indian Constitution. Shri Damodar Swaroop Seth, a member of the Constituent Assembly, was particularly apprehensive of power given to the State to restrict freedom of Speech and Expression. He was of the opinion that: (a) there should be a separate provision for Press Freedom; and (b) imposing restriction by state would virtually take us to the limited press freedom we had during British regime (5). Although media is considered the fourth and important pillar of democracy, yet it is plagued by problems of fake news, paid news, political ownership of news organisations, propagation of political-religious agendas, popularisation of majoritarian opinions, promoting hatred, to name a few. A mere perusal of prime time shows run by major news channels is sufficient to trace their political and ideological inclinations.

The scope of reasonable freedom has time and again come under scrutiny but the problem is all the more aggravated with the advent and amoebic expansion of social media. It has pressed worrisome challenges like; 

(a) An individual’s access to freedom has expanded manifold. On the one hand, it has empowered an investigative journalist to expose the truth with a click, on the other hand it is a weapon in the hands of those who are hiding behind a virtual identity and propagating violence, inciting religious and communal hatred, promoting disharmony and hate speech. Apparently, everyone has turned into self- proclaimed guardians of principles or schools of thoughts they pay their allegiance to;

(b) The second challenge is ‘blurring boundaries of hurting sentiments.’Dissent is confronted with hurting religious, racial, ethnic or linguistic sentiments. 

Social media has implications for the press as well and as a consequence, a tweet can drag you into bunch of law suits, while a fake news (online) can lead to communal riots, mob lynching, marginalization and hatred. 

Hate Speech and Propaganda: Anti-Thesis to Responsible Freedom

Curbing hate speech and propaganda leading to incitement of violence and disharmony has been a challenge for the legal fraternity and police administration. Black’s Law Dictionary identifies hate speech as the “speech that carries no meaning other than expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.” (6)

There is no concrete definition of hate speech in Indian legal regime. Judiciary has also refrained from defining speech due to fear of use of this definition to curtail fundamental freedom of expression. Recently, the Law Commission was directed by the Apex Court (7) to suggest changes/ solution to this issue. The Commission in its 267th Report also refrained from giving structured definition of hate speech. Interestingly, 2018 was considered as the ‘year of online hate.’ (8)

Legal Remedies against Hate Speech and Locus of an Individual 

There are several statutes which provide remedy to an individual (alone and collectively as a member of any religious, linguistic, ethnic, regional group) against hate speech and propaganda. The following are the statutory provisions: 

  • Indian Penal Code, 1860 (IPC)- Of Offences relating to Religion, Offences against public tranquility and Of Criminal Intimidation- ss. 153 A (9), 153 B (10), 295A (11), 298 (12), 505 (13) (1) & (2)
  • Information Technology Act, 2002- Ss. 69 (14), 69 A (15)
  • Representation of People Act, 1951- Ss. 8 (16), 123 (3A) (17), 125 (18)
  • Protection of Civil Rights Act, 1955- Sec 7 (19)
  • Religious Institution (Prevention of Misuse Act), 1988- Sec 3(g) (20)
  • Cable TV Network Regulations, 1955 – Sec 5 (21) & 6 (22)
  • Cinematograph Act- Ss. 4 (23), 5B (24), 7(25)
  • Criminal Procedure Code (Cr.P.C.), 1973 – Ss. 95 (26), 107 (27) , 144 (28), 151 (29), 160 (30)

The problem however is that these legal provisions are acquiring nature similar to that of  Strategic Law Suits against Public Participation (SLAPP) suits, in terms of their use. SLAPP Suits are often filed by large business corporations against anything published against them which is derogatory in their eyes. The purpose of these suits is not primarily to claim damages but to exhaust the criticizing entity of its resources, time and faith in due process. 

Just like SLAPP Suits, which literally are slaps on the face of freedom of speech and expression, these provisions are often slapped on anyone who either criticizes a duly elected government, its foul policies, or protest against any arbitrary action/ practice of any group or represent unpopular opinion without any deliberate act/ attempt and intention to promote hatred. 

Owing to these developments, the space for dissent is shrinking day by day. Therefore, it becomes important to have a look at the judicial stance taken by Indian Courts in some of these provisions and the tests (31) of ‘hate speech/ propagation’ as laid down by various democracies; 

1) Extremity of Speech- The offending expression should be reflecting extreme speeches capable of ‘incitinghatred, ill-will and disharmony. 

While looking into the constitutionality of sec. 295A of IPC (32), SC stated that not every act or attemptto insult religion or religious belief of a class of citizen are penalized rather penal provisions are attracted when these acts or attempts are made with deliberate or malicious intentions of outraging the religious feelings of that class. Also, the court put forth an important legal proposition, that is, ‘in interest of public order’ and ‘maintaining public order’ is different from each other. For example, propaganda against a marginalized community may not incite physical violence but may lead to propagation of discrimination. 

2) Incitement- An overt act with an intention to incite violence and discrimination is liable for penal sanctions. Equality and liberty go hand in hand. The reason being; in absence of equality the voices or opinion of weaker sections will not form a part of mainstream thoughts/ opinions. 

The Supreme Court drew distinction between discussion and advocacy from incitement, in the famous case of Shreya Singhal v Union of India (33). It was laid down by the court that restrictions u/a 19 (2) should be resorted to only when the offending material/ speech/ propaganda, reaches the stage of ‘incitement.’ Resort to restricting freedom has to be taken when community interest is ‘endangered.’ The anticipated danger should not be remote. Further, while judging the effect of expression of an offending material, the test of reasonableness should be judged from the mind of a prudent, firm and strong individual.(34)

3) Status of the Author or the Speech- Status of an author or orator of a speech is also a significant test. Authors who are public figures, like politicians, are subjected to greater scrutiny. The consequences that follow from their speeches are far reaching and thus need to be more responsible. The Election Commission had put in place Model Code of Conduct under Representation of People Act to make hate speeches during elections accountable. 

4). Status of Victim- The status of a victim is also a relevant consideration. For instance, referring to members of Scheduled Castes and Schedule Tribes as ‘Chamaar’ is covered under the ambit of these provisions. Therefore, the nature of the offending expression is also considered keeping in view its targeted victims. 

5). Potentiality of the Speech- Potential of the offending expression plays a significant role. For instance, SC has time and again held that films using its audio-visual expression of an idea have wider potential of moving its audience. (35) A cinematographic work should not be restricted merely to its depiction of unpopular ideas, rather the test is to examine the entire plot of the film to reach to the core principles it is seeking to reflect. One scene in isolation should not form a part of scrutiny.

In the opinion of the author, with the level of primetime TV news debates degrading to mere dramatic rhetoric fueling communal tendencies news channels should also be subjected to this scrutiny.

6) Context of Speech- An offending expression should be weighed keeping in view the context in which it is made. For instance, the recent tweet by Senior Advocate Prashant Bushan became a subject of an FIR filed u/ss. 295 A and 505 (1) (b), IPC. The senior advocate in his petition before the Supreme Court (for quashing the FIR) took the plea that the context of his tweet should be understood. He further contended that the object of the tweet was to criticize the minister (named in the tweet) for watching TV and relaxing during this pandemic in which thousands of migrant workers were suffering. 

It is pertinent here to mention that the test of ‘arbitrariness’ as provided for u/a 14, should be resorted to while testing whether any restriction imposed on a freedom is justified or not. In order to carry on this test, the primary need is to see if: (a) there is legislation in place; (b) there’s a benevolent state object which is sought to be achieved by imposing such restrictions; and (c) there’s a reasonable nexus between the means adopted by the state and the object sought to be achieved, that is, if the law made (which restricts freedom) is relevant and in compliance with the reason for imposing such restrictions.  

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Monika is a fourth year student of Law (B.A., LL.B.) at the University Institute of Legal Studies (UILS), Chandigarh. 

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(1) Propounded by Jurist and political thinkers like Thomas Hobbes and John Locke

 (2) Article 19 

 (3) The provision which was to contain restrictions was proposed to have ‘likely to cause hatred’ as on the grounds- but this proposal did not make it to the final draft 

 (4) Which is now Article 19 of Constitution of India 

 (5) Excerpts of Constituent Assembly Debate, accessible at https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-01?paragraph_number=195%2C228%2C194%2C193#7.64.228

 (6) Accessible at http://ili.ac.in/pdf/csi.pdf 

 (7) Pravasi Bhalai Sangathan v Union of India, AIR 2014 SC 1591

(8) Accessible at http://ili.ac.in/pdf/csi.pdf 

 (9) Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony

 (10) Imputations, assertions prejudicial to national integration

 (11) Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs

 (12) Uttering words, etc., with deliberate intent to wound religious feelings

 (13) Statements conducing public mischief

(14)  Power to issue directions for interception or monitoring or decryption of any information through any computer resource 

 (15) Power to issue directions for blocking for public access of any information through any computer resource

 (16) Disqualification on conviction for certain offences

 (17) Corrupt Practices 

(18) Promoting enmity between classes in connection with election

(19)  Punishment for other offences arising out of “untouchability”

 (20) Prohibition of use of religious institutions for certain purposes- for the doing of any act which promotes or attempts to promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities

(21) No person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code

 (22) No person shall transmit or re-transmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code

 (23) Examination of films

 (24) Principles for guidance in certifying films

 (25) Penalties for contraventions

 (26) Power to declare certain publications forfeited and to issue search warrants for the same

(27) Security for keeping the peace in other cases

 (28) Power to issue order in urgent cases of nuisance of apprehended danger

 (29) Arrest to prevent the commission of cognizable offences

(30)  Police officer’ s power to require attendance of witnesses

 (31) More information on the parameters of tests discussed in this portion can be found in the 267th report of Law Commission of India on Hate Speech 

 (32) Ramji Lal v State of UP, AIR 1957 SC 620 

 (33) (2013) 12 SCC 73

 (34) Ramesh v Union of India, AIR 1988 SC 775

(35) K A Abbas v Union of India,  1971 AIR 481

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