i

Supplementary Examination – Political Science, Semester II

SUBMITTED TO:

Mr. Aashutosh Kumar Aahire

Asst. Professor

Submitted by:

PRASHANT KERKETTA

ROLL NO. 119

Semester- II
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Question 1 - If all mankind minus one were of one opinion, mankind would be no more justified
in silencing that one person than he, if he had the power, would be justified in silencing mankind,
Mill. In the light of the above statement, write a critical essay on freedom of speech and
expression in India in the contemporary context.

Introduction
"One of the most cherished rights under our Constitution is to speak one’s mind and write what
one thinks.1 These words by Justice Sanjay Kaul appositely put light on the importance of one
of the basic fundamental rights provided by the Constitution of India: The Right to Freedom of
Speech and Expression. It is one of the supreme human rights recognised in majority of the
world. Our Constitution provides every citizen the right to express his thoughts, opinions, and
criticism freely under article 19(1)(a).
However, this freedom is subject to reasonable restrictions which the legislative body may
impose. These restrictions are broadly described under Article 19(2).2
The essence of free speech is the ability to think and speak freely and to obtain information
from others through publications and public discourse without fear of retribution, restriction,
or repression by the government. It is through free speech, people could come together to
achieve political influence, to strengthen their morality, and to help others to become moral
and enlightened citizens.3
The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of the liberty, it is truly said about the freedom of speech
that it is the mother of all other liberties.
Freedom of Speech and expression means the right to express one’s own convictions and
opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern
time it is widely accepted that the right to freedom of speech is the essence of free society and
it must be safeguarded at all time. The first principle of a free society is an untrammelled flow
of words in an open forum. Liberty to express opinions and ideas without hindrance, and

1
Mira Kamdar, Do Indians Have Freedom of Speech?, PACIFIC COUNCIL (MAY 5, 2018, 12:41 AM)
https://www.pacificcouncil.org/newsroom/do-indians-have-freedom-speech
2
Freedom of Speech and Expression: Exigency for Balance - https://www.latestlaws.com/articles/freedom-of-
speech-and-expression-exigency-for-balance/
3
Freedom Of Speech And Expression - https://www.lawctopus.com/academike/freedom-of-speech-and-
expression/
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especially without fear of punishment plays significant role in the development of that
particular society and ultimately for that state. It is one of the most important fundamental
liberties guaranteed against state suppression or regulation.

Freedom of Speech and Expressions – with Special reference to John Mills

Quote - Meaning and Scope

John Stuart Mill (1806-1873), the social and political theorist, presented the following scenario
in his essay, On Liberty:

“If all mankind minus one, were of one opinion, and only one person were of the contrary
opinion, mankind would be no more justified in silencing that one person, than he, if he had
the power, would be justified in silencing mankind.”

If everyone in the whole world, minus one, shared the same opinion about something, we
can only imagine how reviled the opinion of the single outlier would be. Surely, such
deviance would be explained as wretchedness, and doubtlessly the possessor of such an
aberrant belief would be the object of scorn and ridicule. How much easier it would be,
ardent defendants of the truth would argue, if that peculiar voice could simply be
silenced? In the name of harmony, why not simply eliminate the lone trigger of discord?
Why should one antagonist be allowed to ruin the otherwise unanimous confidence
shared by everyone else?

Perish the thought, argued Mill: exactly the opposite should occur. The lone dissident must
have the protection of the state on his or her side. The one voice in a million that is
audacious enough to declare that all other nine hundred, ninety-nine thousand minds are
mistaken – that lone voice must be protected from the mob that would eagerly silence it.

Mill founded his position first on a principal of universal, individual liberty. “Over himself,
over his own body and mind, the individual is sovereign.” (I.9) If this individual liberty is only
enjoyed by those who share in the public opinion of the majority, then there is in fact no
individual liberty at all. Therefore, the freedoms of the entire population must be equally shared
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by the individual who critiques the rest of the population. A selectively bestowed liberty is no
liberty. Or, in the words of revolutionary Rosa Luxemburg (1871-1919):4

Freedom only for the supporters of the government, only for the members of one party –
however numerous they may be – is no freedom at all. Freedom is always and exclusively
freedom for the one who thinks differently. Not because of any fanatical concept of “justice”
but because all that is instructive, wholesome and purifying in political freedom depends on
this essential characteristic, and its effectiveness vanishes when “freedom” becomes a special
privilege.

Right of Freedom of Speech and Expression – under Constitution

Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom
of speech and expression. The law states that, “all citizens shall have the right to freedom of
speech and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the
exercise of this right for certain purposes. Any limitation on the exercise of the right under
Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1)(a) includes the right to express one’s views and
opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture,
film, movie etc. It thus includes the freedom of communication and the right to propagate or
publish opinion. But this right is subject to reasonable restrictions being imposed under Article
19(2). Free expression cannot be equated or confused with a license to make unfounded
and irresponsible allegations against the judiciary.5

It is important to note that a restriction on the freedom of speech of any citizen may be placed
as much by an action of the State as by its inaction. Thus, failure on the part of the State to
guarantee to all its citizens irrespective of their circumstances and the class to which they
belong, the fundamental right to freedom of speech and expression would constitute a violation
of Article 19(1)(a).

The fundamental right to freedom of speech and expression is regarded as one of the most basic
elements of a healthy democracy for it allows its citizens to participate fully and effectively in
the social and political process of the country. In fact, the freedom of speech and expression

4
Everyone Minus One - By James Shelley https://jamesshelley.com/2016/10/21/everyone-minus-one/
5
Radha Mohan Lal v. Rajasthan High Court,(2003) 3 SCC 427
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gives greater scope and meaning to the citizenship of a person extending the concept from the
level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is,
however, not absolute and it allows Government to frame laws to impose reasonable
restrictions in the interest of sovereignty and integrity of India, security of the state, friendly
relations with foreign states, public order, decency and morality and contempt of court,
defamation and incitement to an offence.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve
to secure to all its citizen liberty of thought and expression. The Constitution affirms the right
to freedom of expression, which includes the right to voice one’s opinion, the right to seek
information and ideas, the right to receive information and the right to impart information. The
Indian State is under an obligation to create conditions in which all the citizens can effectively
and efficiently enjoy the aforesaid rights.

In Romesh Thappar v State of Madras 6the Supreme Court of India held that the freedom of
speech and expression includes freedom to propagate ideas which is ensured by freedom of
circulation of a publication, as publication is of little value without circulation.

The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation.

This right includes the right to communicate, print and advertise the information. In India,
freedom of the press is implied from the freedom of speech and expression guaranteed by
Article 19(1)(a). The freedom of the press is regarded as a “species of which freedom of
expression is a genus7. On the issue of whether ‘advertising’ would fall under the scope of the
Article, the Supreme Court pointed out that the right of a citizen to exhibit films is a part of the
fundamental right of speech and expression guaranteed by Article 19(1)(a) of the Constitution.8

6
1950 AIR 124, 1950 SCR 594
7
Sakal Papers V. Union of India AIR 1962 SC 305
8
Odyssey Communications Pvt.Ltd. V. Lok Vidyayan Sanghatana AIR 1988 SC 1642
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Report on Critical Contemporary Challenges to Freedom of Expression

Freedom of speech and Expression is in hazard. Scores of writers around the globe are
accounted for missing, kept, tormented or executed, and bloggers have been severely killed
on the grounds that their work infuriates strict dogmatists. Governments are building up
dubious offenses against the glorification of fanaticism and psychological oppression, and
punishments for slander and rebellion are more draconian than any other time in recent
memory. Online restriction has become a regular reality, and significant media
communications organizations and Internet stages have been transformed into spying
machines. 9
In this report, the Special Repporter inspects basic contemporary difficulties to freedom of
speech, in light of a study of his correspondences to UN part States. Sorted out around the
lawful structure set out by worldwide common liberties law, the report assesses abuses and
maltreatments of the reason for genuine impediments of freedom of expression. The
standpoint is terrible. Whether on the web or disconnected, there is a very regular world view
that envisions words as weapons. To switch the tide, the Special Rapporteur urges States to
make in any event the accompanying strides, with regards to their commitments under the
human rights law-10
(a) Review and, where necessary, revise national laws. National legislation increasingly
adopts overly broad definitions of key terms, such as terrorism, national security, extremism
and hate speech, that fail to limit the discretion of executive authorities. Legislation often
limits the role of judicial or independent and public oversight. Proponents often give limited
demonstration of how new legal rules are necessary to protect legitimate interests and
proportionately address specific threats, and the legislative process often limits public
engagement and debate. I would urge all States considering new legislation to ensure that
their laws meet these requirements, and I encourage States to implement regular public
oversight of laws that implicate freedom of expression to ensure that they meet the tests of
legality, legitimacy and necessity. Where possible, States should not only adopt legal

9
TENTH ANNIVERSARY JOINT DECLARATION: TEN KEY CHALLENGES TO FREEDOM OF EXPRESSION IN THE NEXT
DECADE -
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=784&lID=1 accessed on 1/10/2020
10
The challenge to free speech and freedom of the press - https://kartavyasadhana.in/view-article/N.Ram-the-
challenge-to-free-speech-and-freedom-of-the-press accessed on 1/10/2020
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frameworks but also implement training, particularly among independent oversight bodies, of
the principles of freedom of expression.11
(b) Engage with special procedures of the Human Rights Council. As has been shown in
the present report, while the response rate to communications is quite low, several States
engage with the mandate holder in good faith. Engagement with communications and
invitations to conduct country missions add significant value to the work of the mandate
holder, since they allow us to seek an understanding of why States pursue certain policies
(and, where those policies are adverse to freedom of expression, a possibility of encouraging
officials to adopt other measures).
(c) Support or establish regional or subregional monitoring. Several regions have
developed or are developing independent approaches to supporting freedom of expression.
The Inter-American Commission on Human Rights, the African Commission on Human and
People’s Rights and the Organization for Security and Cooperation in Europe have
established monitoring mechanisms on the basis of norms that are consistent with the
international and regional standards. Human rights courts serve as critical watchdogs in these
regions, including subregional courts such as the East African Court of Justice and the Court
of Justice of the Economic Community of West African States. At this time, however, no
such monitors, expert- oriented or judicial exist in the Middle East and North Africa or Asia.
I strongly encourage States, in collaboration with United Nations and regional political
bodies and civil society, to begin the process of developing independent monitoring
mechanisms in those regions that do not currently enjoy them on the basis of international
standards. I also strongly encourage civil society actors to make active use of the existing
regional and global mechanisms, whether through supportive fact-finding and reporting or
litigation, and to develop approaches to creating regional monitoring. The Special Rapporteur
stands ready to support such efforts.12
(d) Support independent media and civic space. In the face of State repression of reporting,
it is critical that States make an extra effort to support independent voices in the media and
civil society at large. At a minimum, I encourage States to avoid imposing restrictions on
reporting and research that may be seen to criticize the Government and its policies or to

11
Should restrictions on free speech be reviewed? - https://www.thehindu.com/opinion/op-ed/should-
restrictions-on-free-speech-be-reviewed/article30694970.ece accessed on 1/10/2020
12
Report on key issues and challenges facing freedom of expression - https://ifex.org/report-on-key-issues-
and-challenges-facing-freedom-of-expression/ accessed on 01/10/2020
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share information about sensitive subjects, including terrorism. States should especially avoid
imposing obstacles, such as accreditation procedures or penalties through defamation
lawsuits or intermediary liability, that undermine independent media. At the same time, those
with the means such as private donors and foundations should make a special effort to
support independent media and to foster strong scrutiny of media conglomerations that
squeeze out the less well-financed outlets.13
(e) State leadership. One of the most disappointing aspects of the current situation for
freedom of expression is that many States with strong histories of support for freedom of
expression — in law and in their societies — have considered measures liable to abuse in
their own countries or to misuse when applied elsewhere. In particular, Governments
pursuing new policies to enhance surveillance or to limit Internet security should reconsider
those efforts, as they often fail to meet the tests of necessity and proportionality. I strongly
urge all States to consider that attacks on security on the Internet pose long-term threats not
only to freedom of expression but also to national security and public order itself.14

CONCLUSION

Expression through speech is one of the basic guarantees provided by civil society. However
in modern world Right to freedom of speech and expression is not limited to express ones view
through words but it also includes circulating one’s views in writing or through audio-visual
instrumentalities, through advertisements and through any other communication channel. It
also comprises of right to information, freedom of press etc. It is a right to express and self-
realization. Two big democracies of world i.e. America and India have remarkably protected
this right. As far as India is concerned, this important right is mentioned in Article 19(1) (a),
which falls in fundamental right category. Indian courts have always placed a broad
interpretation on the value and content of article19 [1] [a], making it subjective only to the
restrictions permissible under Article 19(2). The words in the interest of public order, as used
in the Article 19 include not only utterances as are directly intended to lead to disorder but also

13
The Ongoing Challenge to Define Free Speech -
https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-
challenge-to-define-free-speech/the-ongoing-challenge-to-define-free-speech/ accessed on 1/10/2020
14
Report on Critical Contemporary Challenges to Freedom of Expression- https://freedex.org/report-on-
critical-contemporary-challenges-to-freedom-of-expression/
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those that have the tendency to lead to disorder. There should be reasonable and proper nexus
or relationship between the restriction and achievement of public order. Initially, the American
constitution was not having any provisions directed to protection of freedom of speech and
expression. It was inserted in the Constitution vide first amendment of the Constitution. The
first Amendment has been drafted in broad and sweeping terms, and for this reason, the text of
the First Amendment does not contain any standard for determining permissible restrictions on
freedom of speech. The restrictions that are permissible now are those that have been developed
by the Supreme Court in its interpretation of the First Amendment. The United States has a
complex First Amendment jurisprudence that varies the protection offered free speech
according to form. Similarly, India developed its own free speech jurisprudence that applies a
“reasonable restrictions” test based on eight mentioned restrictions. The real difference in
freedom of speech enjoyed in the United States and India is a question of degree. This
difference in degree is attributable to the reasonable restrictions provision and the moral
standard of the communities.

Freedom of expression is a fundamental human right that must be upheld in democratic

societies. Yet there is a worrying global trend of governments unjustifiably limiting freedom
of speech, targeting journalists, protesters and other persons considered to be dissenting from
government views. Even in western democracies, laws are curtailing protest activities and
threatening press freedom and free speech through mandatory metadata retention schemes. It
is imperative that civil societies across the globe are vigilant in defending freedom of
expression. This is necessary for the enhancement of people’s lives and the creation and
maintenance of strong, health democratic societies.
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Bibliography/Webliography

1. TENTH ANNIVERSARY JOINT DECLARATION: TEN KEY CHALLENGES TO

FREEDOM OF EXPRESSION IN THE NEXT DECADE
- http://www.oas.org/en/iachr/expression/showarticle.asp?artID=784&lID=1 .
2. The challenge to free speech and freedom of the press -
https://kartavyasadhana.in/view-article/N.Ram-the-challenge-to-free-speech-and-
freedom-of-the-press .
3. Should restrictions on free speech be reviewed? -
https://www.thehindu.com/opinion/op-ed/should-restrictions-on-free-speech-be-
reviewed/article30694970.ece .
4. Report on key issues and challenges facing freedom of expression -
https://ifex.org/report-on-key-issues-and-challenges-facing-freedom-of-expression/ .
5. The Ongoing Challenge to Define Free Speech-
https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home
/the-ongoing-challenge-to-define-free-speech/the-ongoing-challenge-to-define-free-
speech/ .
6. Social Media and Freedom of Speech and Expression: Challenges Before the Indian
Law - https://www.nationalaffairs.com/publications/detail/the-insoluble-problem-of-
free-speech .

Articles from Journals and Blogs-

1. Outrageous Challenge To Freedom Of Expression

https://www.ndtv.com/opinion/outrageous-challenge-to-freedom-of-expression-
1206664 .
2. The challenges of freedom of expression - https://www.dw.com/en/the-challenges-of-
freedom-of-expression/a-16250089 .

3. Why is free speech different from hate speech?- https://www.theleaflet.in/why-is-free-speech-

different-from-hate-speech/# .