RESTRICTIONS ON DISSENT: PART & PARCEL OF DEMOCRACY AS PER FREEDOM OF SPEECH
Author: Ipsita Sarkar, II Year of BBA.,LL.B(Hons) from Alliance University, Bengaluru.
Freedom of speech and expression is a fundamental right guaranteed to every citizen in India, which allows growth and progress by expressing views, raising concerns dubious authorities, and holding those in power accountable when they deceive. Free speech has been important to fight for and achieve the desired change, which is more than one's right to speak; it is also about one's ability to listen and allow other people's points of view to be heard. Outlined in Part III of the Constitution and is been stated in Article 19(1)(a). What is needed to be looked at is Article 19(2), which establishes "reasonable restrictions" on the rights granted in Article 19(1)(a).
The right to dissent, the right to protest government actions, and the right to express one's opinion and criticism are all part of our constitutional framework. Such control and decisions over a person's comment, which in no way promotes hate speech or qualifies as derogatory comments against the nation's most important institution, are only seen in controlled countries, not in India. As long as a person does not break the law or incite conflict, he has the right to differ and dissent from every other citizen and those in power, and to spread what he considers to be his belief.
In Shreya Singhal v Union of India, the Supreme Court stated that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount importance under our constitutional scheme. In June 2014, Prime Minister Modi indicated that our democracy will not survive unless we ensure freedom of speech and expression.
The British government enacted the Indian Sedition law, protected under Section 124A of the IPC, in 1870 to combat revolution and dissent against them.
During the 19th and early 20th centuries, the law suppressed nationalist dissent in India, the government is using it now to deal with legitimate criticisms. Criticism of the executive, judiciary, bureaucracy, or armed forces cannot be characterised as ‘anti-national.' If there is an effort to stifle criticism of the foundations, the nation will become a police state, which the founding fathers never expected.
The Constitution (First Amendment) Act included “reasonable restrictions” in the Indian Constitution. These had the dual purpose of granting validity to laws that would be void under the previous Article 19(1)(a) and 19(2) and instead of holding them up to the new standard, saving many such laws from being struck down by the courts. When Rajendra Prasad signed the amendment, it returned freedom of speech to India, where considerations of necessity trumped an individual's freedom to express themselves.
This could have been seen through words like "public order" and "state security interests." The possibility and scope of free speech protection in India are determined by the definitions of the terms "reasonable restrictions" and "in the interests of," as well as the various grounds mentioned in article 19 (2). In contrast to the original sentences, which did not include the word "public order" and only applied if someone "undermined the security of or tried to overthrow the State."
Following the amendment, the government's powers of speech in the interests of public order and security became much broader in scope, and in fact, the Supreme Court in Kedar Nath v State of Bihar 1962 AIR 955 SC saved sedition as an offence from being struck down as a violation of the right to free speech because public order and national security were appropriate constraints under Article 19(2).
In Binod Rao v. M.R. Masani, Bombay HC that the censor who barred several news items from publishing was corrupt and stated "Dissent from the majority's opinions and views, as well as criticism and disapproval of measures launched by a party in power, contribute to a healthy political climate, and it is not for the Censor to inject the lifelessness of forced conformity into this. It is not enough to prohibit the publication of dissent, disapproval, or criticism because it is expressed in strong language."
In Ramesh v. Union of India, whether the television show "Tamas" should be stopped because it could incite violence and disrupt public order, the Supreme Court ruled in 1988 that: "The effect of the words must be judged from the standards of reasonable, strong-minded, firm, and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point." The Supreme Court has also ruled that encouragement of detested causes is protected by the constitution as long as it does not rise to the level of incitement as is criticism of government action.
It has been encountered by people while exercising their right that the utilitarian and prudent limit, overlooking the fact that they are subject to the same Rule of Law to which the pillars of democracy are held accountable. This is accomplished by subjecting Article 19's Right of Dissent to Reasonable Restrictions under various laws passed by the legislature to ensure that freedom of speech and expression is not violated and exploited to jeopardise society's peace and stability, as well as the state's smooth functioning.
However, if any substantial percentage of a community is led to believe based on false facts and to destruct the image of the judiciary and hinder the administration of justice provided by the courts, that either because of naive ignorance of the law or because of a wrong reason, the public cannot rely upon the courts to administer justice then, it becomes a threat to the respect and dignity of the Court and its judgments and hence must for the court to protect its dignity and to punish those who are willing to malign its reputation and respect based on allegation having no factual basis and of which there is no evidence.
The Contempt of Court Act of 1971 determines and restricts the powers of such courts in punishing contempt of court, governs their practice in this regard, and ensures that the public's integrity and reverence for the court and the justice system are preserved.
Section 124A IPC states: “Whoever brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection against, the Government formed by law in India, by words, either spoken or written, or by signs, or by visible representation, or otherwise, shall be punished with imprisonment for life, to which a fine may be added; or with imprisonment for three years, to which a fine may be added.”
In Kedarnath Singh v the State of Bihar, the Supreme Court in 1962 upheld the constitutional validity of the provisions of the IPC that penalized sedition. The Court said that the penalization of sedition is a valid constraint on the right to freedom of expression only when the words are intended to disturb public peace by fierceness. The Supreme Court provided that every citizen has a right to criticise or comment on the government, only if it does not “incite people to violence” against the government established by law or create public disorder.
The government uses draconian laws like the sedition provisions of the penal code, the criminal defamation law, and laws handling hate speech which are vaguely worded, overly broad, are repeatedly used for political purposes against critics at the national and state level.
In Balwant Singh v. the State of Punjab, the Hon’ble Court held that “Advocating revolt, or even violent overthrow of the state, does not constitute sedition unless there is incitement to violence, and more specifically, unless the incitement is to ‘imminent violence.”
In Arup Bhuyan v. the State of Assam, the SC settled with a US Court decision in Brandenburg v. the State of Ohio to state that membership in a prohibited organisation would not incriminate an individual unless he uses violence, incites others to use violence, or commits a violent act.
In current democracy where freedom of speech and expression is an important right among other fundamental rights, the sedition law is often distorted by over-enthusiastic and politically inclined investigating agencies. However, from 2014 -2016, 179 people were arrested under charges of sedition, and the police failed to file a charge sheet in over 80% of the cases and 90% of those filed have been pending trial.
Even in the Constituent Assembly, KM Munshi opposed the move and said, “if the supply was allowed to remain, and erroneous impression would be created that we would like to perpetuate 124A of the IPC or its meaning, which was considered good law in earlier days.” It's reprehensible and discouraging that the government still uses it for the very purpose that the colonial government used it.
We moved far away from colonization to democracy, but these oppressive laws still rule the statute books. It is time, and the government must issue guidelines stating clear grounds of jurisprudential parameters of the law of sedition, otherwise, it'll be misused continuously, and therefore, the state will fail to make sure right to dissent and democratic fabric of the country.