AMITY SCHOOL OF COMMUNICATION

Assignment for the Partial Fulfillment of

Media Laws and Ethics (LAW325)

Report on the evolution of the concept of Freedom of

Speech and Expression in Independent India.

Submitted By:
ASHISH VERMA (A2079817074)
BA( J&MC) 4th Semester, Section E
Batch: 2017-2020

Submitted To:
Dr. Deep Moni Gogoi
Assistant Professor,
Amity School of Communication(ASCO)

Date Of Submission:
5th MARCH 2019
SUMMARY
What is Freedom of Speech ?
Freedom of speech is a principle that supports the freedom of an individual or a community to
articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The
term "freedom of expression" is sometimes used synonymously but includes any act of seeking,
receiving, and imparting information or ideas, regardless of the medium used. Freedom of
expression is recognized as a human right under article 19 of the Universal Declaration of
Human Rights (UDHR) and recognized in international human rights law in the International
Covenant on Civil and Political Rights (ICCPR).

Article 19 of the UDHR states that "everyone shall have the right to hold opinions without
interference" and "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 in print, in the form of art, or through any other media of
his choice". The version of Article 19 in the ICCPR later amends this by stating that the exercise
of these rights carries "special duties and responsibilities" and may "therefore be subject to
certain restrictions" when necessary "or respect of the rights or reputation of others" or "or the
protection of national security or of public order (order public), or of public health or morals".
Freedom of speech and expression, therefore, may not be recognized as being absolute, and
common limitations or boundaries to freedom of speech relate to libel, slander, obscenity,
pornography, sedition, incitement, fighting words, classified information, copyright violation,
trade secrets, food labeling, non-disclosure agreements, the right to privacy, the right to be
forgotten, public security, and perjury. Justifications for such include the harm principle,
proposed by John Stuart Mill in On Liberty, which suggests that: "the only purpose for which
power can be rightfully exercised over any member of a civilized community, against his will,
is to prevent harm to others." The idea of the "offense principle" is also used in the justification
of speech limitations, describing the restriction on forms of expression deemed offensive to
society, considering factors such as extent, duration, motives of the speaker, and ease with
which it could be avoided. With the evolution of the digital age, application of the freedom of
speech becomes more controversial as new means of communication and restrictions arise, for
example the Golden Shield Project, an initiative by Chinese government's Ministry of Public
Security that filters potentially unfavorable data from foreign countries.
Freedom of Speech in India
The Constitution of India provides the right of freedom, given in articles 67, 45, 87 and 92 with
the view of guaranteeing individual rights that were considered vital by the framers of the
constitution. The right to freedom in Article 19 guarantees the freedom of speech and
expression, as one of its six freedoms.

In a landmark judgment of the case Maneka Gandhi v. Union of India, the Supreme Court held
that the freedom of speech and expression has no geographical limitation and it carries with it
the right of a citizen to gather information and to exchange thought with others not only in
India but abroad also. The constitution of India does not specifically mention the freedom of
press. Freedom of press is implied from the Article 19(1)(a) of the Constitution. Thus the press
is subject to the restrictions that are provided under the Article 19(2) of the Constitution. Before
Independence, there was no constitutional or statutory provision to protect the freedom of
press. As observed by the Privy Council in Channing Arnold v. King Emperor: "The freedom
of the journalist is an ordinary part of the freedom of the subject and to whatever length, the
subject in general may go, so also may the journalist, but apart from statute his privilege is no
other and no higher. The range of his assertions, his criticisms or his comments is as wide as,
and no wider than that of any other subject".
The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression.
Freedom of the press has been included as part of freedom of speech and expression under the
Article 19 of the UDHR. The heart of the Article 19 says: "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." In Romesh Thapar v. State of Madras, Patanjali Shastri, Chief Justice observed:
"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 process of popular government, is possible." The Supreme Court observed in Union of
India v. Assn. for Democratic Reforms: "Onesided information, disinformation,
misinformation and non-information, all equally create an uninformed citizenry which makes
democracy a farce. Freedom of speech and expression includes right to impart and receive
information which includes freedom to hold opinions". In Indian Express v. Union of India, it
has been held that the press plays a very significant role in the democratic machinery.
The courts have duty to uphold the freedom of press and invalidate all laws and administrative
actions that abridge that freedom. Freedom of press has three essential elements. They are:
freedom of access to all sources of information, freedom of publication, and freedom of
circulation. In India, the press has not been able to practise its freedom to express the popular
views. In Sakal Papers Ltd. v. Union of India, the Daily Newspapers (Price and Page) Order,
1960, which fixed the number of pages and size which a newspaper could publish at a price
was held to be violative of freedom of press and not a reasonable restriction under the Article
19(2). Similarly, in Bennett Coleman and Co. v. Union of India, the validity of the Newsprint
Control Order, which fixed the maximum number of pages, was struck down by the Supreme
Court of India holding it to be violative of provision of Article 19(1)(a) and not to be reasonable
restriction under Article 19(2).

The Court struck down the rebuttal of the Government that it would help small newspapers to
grow[how?]. In Romesh Thapar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC 124),
entry and circulation of the English journal "Cross Road", printed and published in Bombay,
was banned by the Government of Madras. The same was held to be violative of the freedom
of speech and expression, as "without liberty of circulation, publication would be of little
value". In Prabha Dutt v. Union of India ((1982) 1 SCC 1; AIR 1982 SC 6.), the Supreme Court
directed the Superintendent of Tihar Jail to allow representatives of a few newspapers to
interview Ranga and Billa, the death sentence convicts, as they wanted to be interviewed. There
are instances when the freedom of press has been suppressed by the legislature. The authority
of the government, in such circumstances, has been under the scanner of judiciary. In the case
of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship previous to
the publication of an English Weekly of Delhi, the Organiser was questioned. The court struck
down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher
of a newspaper "to submit for scrutiny, in duplicate, before the publication, till the further
orders , all communal matters all the matters and news and views about Pakistan, including
photographs, and cartoons", on the ground that it was a restriction on the liberty of the press.
Similarly, prohibiting newspaper from publishing its own views or views of correspondents
about a topic has been held to be a serious encroachment on the freedom of speech and
expression.
Introduction - Evolution of the concept of Freedom of Speech and Expression.

The right to freedom of speech is one of the important rules in The Declaration of Human
Rights. According to Gold (2011), “Freedom of speech is said to be the most cherished of our
constitutional rights. It is the essence of our democracy”. The key function of freedom of speech
in a democratic society is to achieve individual liberty by allowing ordinary citizens to
participate freely in the spread of ideas and opinions to shift their culture and to help establish
themselves as achievers in society. Freedom of speech is considered a fundamental human right,
according to UNESCO (n.d) “Freedom of expression and information are pillars of a healthy
democratic society and for social and economic growth, allowing for the free flow of ideas
necessary for innovation and bolstering accountability and transparency.” Free speech has
always been important because it has been used to fight for change; if we want a more modern
democracy change is essential. Today social media plays an essential role in free speech,
because it is through social media that people express themselves. Unfortunately, social media
undermines these fundamental freedoms by censoring what people post the way they see fits.
Social media platforms are private companies, but that does not make them eligible to define
their own free speech policies.

A democratic culture is where individuals participate equally in society; to participate they use
freedom of speech that reinsures their self-fulfillment as active citizens. Today in the 21st
century, the most commonly used medium of communication is the mass media. According to
Balkin (2004), “The digital revolution makes possible widespread cultural participation and
interaction that previously could not have existed on the same scale” (p.2), thus, showing that
this evolution has a positive side to communication and freedom of expression. On the other
hand, mass media today establishes limits to what goes on their online platforms and what does
not, mass media are held by relatively few people, and their ownership gives this small group
enormous power to shape public discourse and public debate. Thus, creating new opportunities
for limiting and controlling cultural participation and interaction, for instance the case of Nick
Ut’s photo of the naked Vietnamese children running from an attack during the war was posted
on Facebook. Facebook removed the photo because it violated its regulations, yet when people
demanded it back and wanted to view the photo, Facebook put the image back.

According to Rosen (2016) “although the decisions now are being made with some sensitivity
to First Amendment Values, all the commercial pressures that are driving the companies to
increase their user base will threaten these values, and that we need more transparency and more
accountability to ensure that the companies are upholding free speech values, rather than
threatening them”. Other examples, such as expressions of racial and religious hatred are posted
depending on the media platforms perception towards the issue. According to Rosen (2016),
when president Obama and the president of Egypt told both YouTube and Facebook to remove
the “Innocence of Muslims” video that is causing many problems, they both refused, because
they perceive it as only criticizing Mohamad but not the religion. It is true that the platforms are
not formally bound by the First Amendment, but they have to at least embrace a constitutional
standard to prevent violence. Both presidents know the danger this video is causing, yet the
media platforms ignored all opinions. Thus, betraying free speech principals due to
commercialization and going against their laws.

The lack of regulation can cause problems, such as internet mobs. When a person posts
something online, one can freely reply it is called counter-speech. Although, it depends on how
the reply is sent and perceived, because it can lead to other reply’s thus creating an internet mob.
According to Rosen (2016), “more speech on the internet may lead to less exposure to
competing points of view, less reason and deliberation and more group polarization”. Freedom
of speech is not made to cause problems, but with no limitations and platforms allow hate speech
to flow problems are bound to happen. Media platforms tried to solve the issue of mass media
content, according to Rosen (2016),” in an effort to deal with this volume of content, the
companies moved away from their initial decider models, where individual content reviewers
would decide whether flagged content violated their user policies, toward a more algorithmic
review” therefore, making computers do the editorial work. Unfortunately this solution has
many draw backs, such as algorithms prioritize implicit bias towards majority views and
preferences, hence not providing credible, truthful and unbiased sources. For instance racist
news that is spread on the web becomes a “glitch” in the system because computers unlike
humans can’t differ right from wrong. Thus algorithmic media raise fundamentally new
challenges for ethical decision making in the Digital Age.

To conclude, many different places around the world have different views of free speech on
mass media. The US prefers liberty, unlike Europe who prefers dignity. Unfortunately both
communities are still are affected by the problems free speech is getting on media platforms. A
media platform could clearly state in its regulations that no hate speech that cause harm or
attacks the dignity of a person is to be shown on the platform and they should stick to all the
rules they launch and not be influenced by commercialized or social pressure. Free speech is
not harming people with words, it is giving your opinion and people should learn to speak their
mind politely and ethically or handle the consequences of being banned. Equal rights can be
established when people truly know the meaning and the privilege of freedom of speech and
when media platforms respect their laws and don’t bypass them just for extra views.

Evolution of the concept of Freedom of Speech and expression in Independent India.

 Freedom of speech is the most important freedom in any democracy, without which, it
would be impossible to reach at political truths in public life. It promotes a 'marketplace
for ideas' and allows society to progress continuously by spreading new ideas, thoughts
and discussion. It is equally necessary for self-expression, which is an important vehicle
of free conscience and self fulfillment, playing a pivotal role in facilitating artistic and
scholarly endeavors of all sorts. On 26th January 1950, an independent India adopted
the Constitution of India, which solemnly resolved to secure to all citizens the liberty
of thought, expression, belief and worship. The freedom of speech was explicitly
recognized as a fundamental right under Article 19(1)(a).
 However, this freedom is not absolute and is subject to 'reasonable' restrictions provided
under Article 19(2). It is often said that to know the true character of a society, one
needs to just glance at the limits imposed on the freedom of speech and expression in
it. This document attempts to simplify and demystify the legal framework around
freedom of speech, particularly freedom of artistic expression, in India.
 What constitutes freedom of speech and expression? It means the right to express one's
convictions and opinions freely, by word of mouth, writing, printing, gestures, signs,
pictures, or electronic media. It, therefore, includes the right to propagate one's views
through the print media or through any other communication channel; it further includes
the right to acquire information and to disseminate it.
 When are you not free to speak? The fundamental right to freedom of speech,
guaranteed under Article 19(1)(a), is not absolute. Our Constitution, under Article
19(2), provides eight grounds on which it may be 'reasonably' restricted by the
Parliament or ¨ the State Legislatures in India. These grounds are:
 Sovereignty and integrity: The objective is to restrict freedom of speech, by penalizing
and suppressing demands for secession, in the interest of preservation and maintenance
of the sovereignty of India.
 Public order: In the context of free speech, public order has been equated with the
“maintenance of social order”, that virtually includes every form of disorder, from the
most minor and trivial (even a mere law and order problem!) to the most aggravated
forms (like a rebellion).
 Security of the State: This refers to the most serious and cataclysmic happenings,
nothing less than endangering the foundations of the State or threatening to overthrow
it. For example, external aggression, war, rebellion against the Government, etc.
 Decency and morality: This restriction purports to protect people from depravity and
corruption by immoral influence. Any kind of speech or expression is considered
'obscene' and therefore, immoral, when it appeals to the carnal side of human nature,
without having any literary merit, social purpose or public interest.
 Contempt of Court: The freedom of speech and expression is limited by the law on
'criminal contempt'. Criminal contempt is defined as “publication (whether by words,
spoken or written, or by signs, or by visible representation, or otherwise) which
scandalizes or lowers the authority of any court (for instance, 'Judge bashing', making
scurrilous attacks against a pending proceeding) and/or which could interfere or
obstruct the administration of justice in any manner (for instance, a comment made by
a newspaper upon an ongoing litigation which is of a nature that will influence the
minds of the judges in passing judgement).
 Friendly relations with Foreign States: The objective behind this is to prevent
unrestrained and malicious propaganda against a 'friendly' foreign state that might
jeopardize maintenance of friendly relations between India and the other State.
 Defamation: Defamation is lowering of another person's reputation through a statement
or publication calculated to expose a person to hatred, contempt or ridicule or to injure
the person's reputation in his/ her trade, business or profession. A person who makes
and all those who participate in the making or publication of the defamatory statement
are liable for defamation. What is the scope and ambit of 'reasonable restrictions'? The
Supreme Court has in clear terms stated that there will be priority of free speech.
Freedom of expression which is legitimate and constitutionally protected cannot be held
to ransom by an intolerant group of people. The Court has held, “our commitment of
freedom of expression demands that it cannot be suppressed unless the situations
created by allowing the freedom are pressing and the community interest is endangered.
The anticipated danger should not be remote, conjectural or far-fetched. It should have
proximate and direct nexus with the expression. The expression of thought should be
intrinsically dangerous to public interest.”
CONCLUSTION
LGBT rights in India: Lesbian, gay, bisexual and transgender (LGBT) rights in India face
legal and social difficulties not experienced by non-LGBT persons. Over the past decade,
LGBT people have gained more and more tolerance in India, especially in large
cities. Nonetheless, most LGBT people in India remain closeted, fearing discrimination from
their families, who might see homosexuality as shameful. Reports of honour killings, attacks,
torture, and beatings of members of the LGBT community are not uncommon in
India. Discrimination and ignorance are particularly present in rural areas, where LGBT people
often face rejection from their families and forced opposite-sex marriages.

Sexual activity between people of the same gender is legal but same-sex couples cannot
legally marry or obtain civil partnerships. On 6 September 2018, the Supreme Court of
Indiadecriminalised homosexuality by declaring Section 377 of the Indian Penal
Code unconstitutional.

Since 2014, transgender people in India have been allowed to change their gender
without sex reassignment surgery, and have a constitutional right to register themselves under
a third gender. Additionally, some states protect hijras, a traditional third gender population
in South Asia, through housing programmes, welfare benefits, pension schemes, free
surgeries in government hospitals and others programmes designed to assist them. There are
approximately 4.8 million transgender people in India.
REFFERENCES

Balkin, J. (2004). Digital speech and democratic culture: A theory of freedom of expression for
the information society. (p.2)

Gold, L. (2011). Freedom of expression is the ‘essence of our democracy,’ according to Faust
Rossi. Cornell University. Retrieved from : http://news.cornell.edu/stories/2011/03/free-
speech-central-democracy-rossi-says

Patterson, T& Newton, P (2015). The girl in the picture: Kim Phuc’s journey from war to
forgiveness. CNN. Retrieved from: http://edition.cnn.com/2015/06/22/world/kim-phuc-where-
is-she-now/index.html

Rosen, J. (2016). The deciders: Future of free speech in the digital world. Harvard Kennedy
School. Rtrieved
from: https://elearn.lau.edu.lb/webapps/blackboard/execute/content/file?cmd=view&content_i
d=_199005_1&course_id=_24340_1

UNESCO, (n.d). Freedom of expression: A fundamental human right underpinning all civil
liberties. Retrieved from: https://en.unesco.org/70years/freedom_of_expression