Free Speech & Expression in 21st Century: Analysis of Global Standards, Cheat Sheet of Administrative Law

Download Free Speech & Expression in 21st Century: Analysis of Global Standards and more Cheat Sheet Administrative Law in PDF only on Docsity! 36 AUGUST - 2017 Odisha ReviewISSN 0970-8669 ABSTRACT: A right set out in Article 10 of the (European conventions on Human Rights) and the Human Right acts 1998. In the key case Handyside vs. UK (1976) 1 EHRR737, the European court of human rights declared that : "freedom of speech and expression”constitutes one of the essential foundation of a democratic society , one of the basic conditions for its progress and for the development of every man ….it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also not those that offend shock or disturb…. such are the demands of that pluralism , tolerance and broadmindedness without which there is no democratic society. Convention jurisprudence gives different weight to different kinds of expression .The most important expression - Political speech-therefore is likely to be protected to a much greater extent than the least important– Commercial speech.Freedom of speech and expression is a qualified right. The modern Indian Constitution declares certain fundamental rights for individuals under Part III, Article 12 to 35.Some of these rights are only for the citizens whereas others are available equally to the non-citizens also. These fundamental rights are inviolable subject to the qualification defined in the Constitution itself. It establishes that no laws ordinance, custom usage or administration order can abridge or take away a fundamental right, these rights are binding upon both legislative and the executive and any law which violates the fundamental right, is void. A fundamental right cannot be taken away by a constitutional amendment if it forms the basic structure of the Constitution. Article 19 (1) (a) secures to every citizens the freedom of speech and expression. The freedom of speech and expression means the right to express once conviction and opinions freely by word of mouth, writing, printing,picture or any other mode. Freedom of speech is bulwark of a democratic government and it attaches great importance to this freedom, because without the freedom of speech appeal to reason, which is the basis of democracy, cannot be made. Freedom of speech opens the channels of free discussion of issues and plays a crucial role in public opinion on social,political and economic matters. The honourable Supreme Court has interpreted the phrase, “Speech and expression” of having a wide connotation and thus many rights not expressly found under the articles plain words has been Freedom of Speech and Expression in 21st Century Dr. Sudarshan Behera 37AUGUST - 2017 Odisha Review ISSN 0970-8669 recognized. Thus in this paper an attempt is made to find out as to how relevant and effective has been such dynamic interpretation of the right. KEY WORDS:-Pluralism, Jurisprudence, Ordinance, Conviction, Bulwark. INTRODUCTION The Right to Freedom of Speech and Expression as per the Indian Constitution- means the right to express one’s own conviction and opinions freely. 1) The word “freely” means the freedom of a citizen to express his views and opinion in any conceivable means including by words of mouth, writing, printing, banners,and signs and even by way of silence. 2) The Supreme Court of India has held that the participation in sports in an expression of one’s self and thus it is a form of freedom of speech. 3) The Supreme Court has also held that hoisting the National Flag by citizens is a form of freedom of speech and expression (see Union of India vs Naveen Jindal &Anr on 23 January,2004). 4) Freedom of Press is an inferred right implicit under Article 19(1)(a). 5) The Right to Information (RTI) emerges as a fundamental right under article 19(1)(a) as freedom of speech and expression are meaningless without access to information. 6) The right to political dissent. Restrictions- under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restriction” on the exercise of the right freedom of speech and expression “in the interest of” the public on the following grounds: — Security of State — Friendly relation with foreign states — Public Order — Decency or morality — Contempt of court — Defamation — Incitement to an offense Sovereignty and integrity of India. As regards the point on Defamation- there have been a few cases that have tried- most recently when a group of lawyers filed a defamation suit against Shahrukh Khan (dt 20/8/ 2007) which was subsequently quashed by the Court). The summary of the cases are as under. Defamation cases are not easy to win (extremely tough to be precise), but still can be used as a potent weapon on those without resources (as in- we have work to do- we can’t be maneuvering the courts day in and day out –unless you have resources or you are a politician)- did I just make the statement that politician have resources ad no work to do ? Therefore in my opinion- this particular curtailment is actually against the poor /the common man and aptly suitable for a public interest litigation suit. HISTORICAL DEVELOPMENT Concepts of freedom of speech can be found in early human rights documents. England’s Bill of Rights 1689 granted ‘freedom of speech in Parliament ‘and is still in effect. The Declaration of the Rights of Man and of the citizen, adopted 40 AUGUST - 2017 Odisha ReviewISSN 0970-8669 historic judgment, SC has held that one has the right to publicize his expression as well. A game of cricket is an expression and the organizers have a right to propagate it everywhere in the world. So Doordarshan must provide its uplinking facilities to cab for transmitting the signals out of country. Art 19 (2) does not allow restrictions on 19 (1) (a) on the grounds of creating monopoly of the govt. NEW DIMENSIONS Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press implicit in the right to freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. V. Union of India court observed the importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.” The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for 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. This explains the constitutional viewpoint of the freedom of press in India. 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 audiovisual 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 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 41AUGUST - 2017 Odisha Review ISSN 0970-8669 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. References: Dr. D.D. Basu-Constitutional law of India. P.M. Bakshi-Commentary on the Constitution of India. Dr. J.N. Pandey-Constitutional law of India. Dr. Sudarshan Behera, Lecturer in Law, Biraja Law College, Utkal University Guest Faculty of Law, Madhusudan Law College, Cuttack. "Moments" : 22nd Asian Athletics Championships-2017