“Proclaim the truth and do not be silent through fear.” 1
― Catherine of Siena
The blog located at “http://loccitaneprotest.blogspot.in/” titled, ‘My Horrible Experience With L’Occitane’ (hereinafter referred to as “this blog”) is operated by me, the official author of this blog, Debarati Sen Roy. I want to prove through this blog page titled ‘Freedom of Speech’ that all the contents appearing in this blog are in accord with the Right to Freedom of Speech and Expression as stated in the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights and The Constitution of India.
Let us have a look at what the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights and The Constitution of India have to say about the Right to Freedom of Speech and Expression. Although The Constitution of India grants Freedom of Speech and Expression to all its citizens, it is still not absolute. We’ll also have a look at all the restrictions that are imposed by The Constitution of India on the Fundamental Right to Freedom of Speech and Expression.
India was one of the 48 countries that had signed the Universal Declaration of Human Rights.2
The Preamble to the Universal Declaration of Human Rights states:
“…Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,…”3
Article 19 of Universal Declaration of Human Rights states:
The International Covenant on Civil and Political Rights“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.”4
India acceded to The International Covenant on Civil and Political Rights on 10th April, 1979.5
Part 3 Article 19 of The International Covenant on Civil and Political Rights decrees:
“1. Everyone shall have the right to hold opinions without interference.
2. 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.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals”6
The Constitution of India on Freedom of Speech and Expression
The Preamble to The Constitution of India states that it secures to all its citizens: “LIBERTY of thought, expression, belief, faith and worship;”7
The Constitution of India Part III [Fundamental Rights] Article 19 [Right to Freedom] states in clause (1) sub-clause (a): “All citizens shall have the right to freedom of speech and expression.”8
The Supreme Court of India has provided the following explanation for the scope of freedom of speech and expression:
Restrictions to Freedom of Speech and Expression in India“The words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.”9
The Constitution of India Part III [Fundamental Rights] Article 19 [Right to Freedom] states in clause (2):
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”10
The following serve as grounds of restriction to the fundamental right provided in Article 19(1)(a):
- Security of the State
- Friendly Relations with Foreign States
- Public Order
- Decency or Morality
- Contempt of Court
- Defamation
- Incitement to An Offence
- Sovereignty and Integrity of India
Let us dive in a bit deep on the aforementioned points on the restrictions to Freedom of Speech and Expression (as mentioned in Article 19(2) of The Constitution of India) and then I’d leave it totally upon you to compare and see if this blog is violating any of these.
The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.11
2. Friendly Relations with Foreign States
The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India, and that state.12
A provision like the one mentioned above does not exist in any other Constitution of any other country in the world. The Foreign Relations Act (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government.13
3. Public Order
'Public order' is an expression of wide connotation and signifies "that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established." 14
Disturbance of public order means anything that disturbs public tranquillity or public peace which also includes public safety. Seen from an external aspect, ‘public order’ would mean protection of the country from foreign aggression.15
4. Decency or Morality
The Indian Penal Code’s sections 292, 293 and 294 provide instances of restrictions on freedom of speech and expression with respect to ‘decency or morality’. Till now, no exacting standards have been defined as to what is moral and indecent. The standard of morality depends on time and place.16
5. Contempt of Court
The Contempt of Courts Act, 1971 in Section 2 defines ‘contempt of courts’ in subsection (a) as civil contempt and criminal contempt.17
Subsection (b) of the aforementioned section defines ‘civil contempt’ as, “Wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”.18
Subsection (c) of the aforementioned section defines ‘criminal contempt’ as:
“The publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”19
6. Defamation
Defamation is a public statement about individuals, products, groups, or organizations which is untrue and may cause them harm.20
The Indian Penal Code in Section 499 has defined defamation as:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”21
Please notice the phrase ‘except in the case hereinafter expected’ in the definition given above. With respect to defamation, the civil law in India has still not codified defamation and the charges related to it are subjected to certain exceptions.22
IPC 499 provides a total of ten exceptions to charges related to defamation.23
7. Incitement to an Offence
Freedom of speech and expression cannot confer a right to incite people to commit offence. Offence has been defined as any act or omission made punishable by law for the time being in force.24
8. Sovereignty and Integrity of India
It is the prime duty of any government to maintain the sovereignty and integrity of its nation. Taking this into account, freedom of speech and expression has been limited so that no citizen can challenge the sovereignty of India and no citizen can preach anything that would cause a threat to the integrity of India.25
Conclusion
Patrick Henry said and I quote:
“The Constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.”26
Even though exclusive strict restrictions have been provided in The Constitution of India for Fundamental Right to Freedom of Speech and Expression it must be noted that Article 19 (2) contains the phrase ‘reasonable restrictions’.
Hanumant’s Law Journal defines the phrase ‘reasonable restriction’ as follows:
“Reasonable restriction means intelligent care and discussion that the restriction is not beyond what is required for public interest. It should not be arbitrary and excessive. Further, the restriction can only be imposed by law and not by executive or departmental decision.”27
Reasonable restrictions as mentioned in Article 19 (2) means that if any law is restricting the freedom of speech and expression, it must satisfy the grounds mentioned in Article 19 (2) and must also satisfy the criteria of reasonableness.28
Over a span of several cases, The Supreme Court of India has laid down the following guidelines as a test of reasonable restrictions:29
(i) It is the courts and not the legislature that will decide whether a law is reasonable or not.
(ii) Reasonable means that the law is not arbitrary and the restriction is not beyond what is required in public interest. The time and duration of the restriction cannot be unlimited.
(iii) There is no fixed standard for reasonableness. Each case must be decided on its own merits.
(iv) The restriction must be reasonable from substantiative as well as procedural stand point.
(v) Restrictions imposed due to implementation of Directive Principles may deemed to be reasonable.
(vi) The test of reasonability must be objective in the sense that it does not matter what a Judge or Court thinks what is reasonable but what a normal reasonable person would think.
(vii) The restriction must have a relation to the object that is sought through the law and must not be excessive.
(viii) It is the reasonableness of the restriction that a count has to determine and not the reasonableness of the law itself.
(ix) Restriction may amount to prohibition.
Contact Me
Should you find any content appearing in this blog that violates the UDHR, ICCPR and The Constitution of India, please do not hesitate to contact me through email by writing to me at debaratimou (at) gmail (dot) com
You must mention the following in your email to me:
- A list of content(s) appearing in this blog that is unlawful or unconstitutional.
- The section of the legal document (part, section, article, act number etc) whose declaration (including definitions of legal terms stated therein) states that the contents present in this blog are unlawful or unconstitutional.
- Solid arguments with substantial premises which satisfies the requisites of the law of The Republic of India.
- You must also provide in the email:
- Your full name
- Your nationality
- Your current location with the name of city/town/village and country (e.g. Tokyo, Japan)
- Your current occupation
- Your current designation
I will not be able answer your email if you’ll fail to provide me with the aforementioned list of pre-requisites in your email to me.
I would like to thank you for reading this page and look forward to hearing from you soon.
2. Pauline Savage, "Who Signed The Universal Declaration Of Human Rights?", AnswersTM, 2015 <http://www.answers.com/Q/Who_signed_the_Universal_Declaration_of_Human_Rights> [accessed 22 December 2015].
3. UNITED NATIONS, "The Universal Declaration Of Human Rights | United Nations", 2015 <http://www.un.org/en/universal-declaration-human-rights/> [accessed 22 December 2015].
4. Ibid.
5. National Human Rights Commission, "Core International Human Rights Treaties, Optional Protocols & Core ILO Conventions Ratified By India", A Handbook on International Human Rights Convention, 2015, p. 22, <http://nhrc.nic.in/documents/india_ratification_status.pdf> [accessed 22 December 2015].
6. OHCHR, "International Covenant On Civil And Political Rights", 2015 <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> [accessed 22 December 2015].
7. National Portal of India, THE CONSTITUTION OF INDIA, 2015, p.1, <http://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf> [accessed 22 December 2015].
8. Ibid., p. 9.
9. LawTeacher, "Freedom Of Speech And Expression | Law Teacher", 2015 <http://www.lawteacher.net/free-law-essays/constitutional-law/freedom-of-speech-and-expression-constitutional-law-essay.php#content> [accessed 22 December 2015].
10. National Portal of India, op.cit., p. 9.
11. Dheerajendra Patanjali, "Freedom Of Speech And Expression India V America - A Study", India Law Journal, 3/4 (2007) <http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html> [accessed 22 December 2015].
12. Ibid.
13. LawTeacher, loc. cit.
14. Dheerajendra Patanjali, loc.cit.
15. LawTeacher, loc.cit.
16. Ibid.
17. SLSA Union Territory Chandigarh, THE CONTEMPT OF COURTS ACT, 1971, 2015 <http://chdslsa.gov.in/right_menu/act/pdf/contempt.pdf> [accessed 22 December 2015]
18. Ibid.
19. SLSA Union Territory Chandigarh, loc. cit.
20. Oxford Reference, "Search Results - Oxford Reference", 2015 <http://www.oxfordreference.com/search?q=defamation&searchBtn=Search&isQuickSearch=true&specialSearchOption=true> [accessed 22 December 2015].
21. Indian Kanoon, "Central Government Act | Section 499 In The Indian Penal Code", 2015 <http://indiankanoon.org/doc/1041742/> [accessed 22 December 2015].
22. Dheerajendra Patanjali, loc. cit.
23. Indian Kanoon, loc. cit.
24. LawTeacher, loc.cit.
25. Dheerajendra Patanjali, loc. cit.
26. Goodreads, "A Quote By Patrick Henry", 2015 <http://www.goodreads.com/quotes/75082-the-constitution-is-not-an-instrument-for-the-government-to> [accessed 22 December 2015].
27. Hanumant Deshmukh and Sunil Ramchandani, "Freedom Of Speech And Expression In Indian Constitution", Hanumant's Law Journal, 2015 <http://hanumant.com/SpeechAndExpression.html> [accessed 22 December 2015].
28. Ibid.
29. Hanumant Deshmukh and Sunil Ramchandani, loc. cit.
