Paper v/s Proper - Freedom of Expression(Fundamental Rights Part 2)
Freedom of expression or Article 19(1)(a) has always been a controversial topic in Indian politics. Every political party has its own definition of this fundamental right and it also changes with the fact if they are in opposition or in power. With the advent of reasonable restriction in the freedom of expression, the true sense of the freedom is already lost as the state has the power to censor some speeches that they consider inflammatory or can disturb the societal and communal harmony.
Governments in the past have done everything in their power to curb the various freedoms given in Article 19, of which the important ones that are taken away very easily are the Right to assemble peacefully without any arms and Right to freedom of expression. The epitome of the government crackdown on free speech was at its best during the National Emergency Period (1975 to 1977) when even courts sold their souls and sided with the governments. The Indira Gandhi government for the first time in the history of independent India, defined the term “anti-national” and jailed thousands of citizens on the tag of anti-national.
With the extensive use of social media, where people started to label others as per their whims and fancies, targeting them for their ideologies or their mental construct of society. Government failure in protecting these have been a major setback to the free speech activists in India. Far-left radical communists who are infamously called ‘Naxalites’ or ‘Maoists,’ have also been a major threat to the free flow of speech. Many journalists have been killed by the far-left radical communists.
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Government’s position on reasonable restrictions is also very dangerous. If we look at the details, we will find the devil and that devil is the reasonable restriction. As per the constitution, nothing in sub-clause (a), where subclause (a) is Right to freedom of speech and expression, 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.
In very simple terms, the constitution allowed the government to take away the right to freedom of expression if the government wants to. It is also quite astonishing to see that although the constitution provides the people with a free society, it has also made the government a moral guardian of the society where governments can restrict the free speech on the grounds of maintenance of morality and decency.
With laws like section 295(a) and section 298, the colonial legacy, anyone can file an FIR on the people speaking their mind and even with no intention to insult or cause animosity between any communities or groups. As the saying goes, “Religion is made for humans, humans are not made for religions,” the saying has just lost its relevance and people have started to care more about living ones than dead.
The murder of Shri Kamlesh Tiwari has not only showed the failure of government in protecting a life who has been threatened to beheaded because of his speech but also shows the level of acceptance of free speech as a society. This poses a question of failure of our society, in prevailing freedom of speech. This also raises a question about the kind of religious sentiments some groups carry, which can be dangerous for others.
The ranking of India in the Reporters without Borders press freedom index is also not very enchanting and is only deteriorating. As per the reporters without borders index, restrictions in Kashmir is responsible. With the rise of ideological politics in India and the sudden face reveal of ‘unbiased’ journalists has also caused distrust in the general public against the mass media. The bias of media channels, along with the line they are towing has created a rift in the society, which is also responsible for the loss of the real sense of the freedom of expression.
With the Indian society entering a new normal after COVID-19 pandemic, the question of freedom of expression will be tougher. The new normal will bring its own problems along with the existing ones, as to how one can define the freedom of expression so that it will no longer need the intervention of governments and the courts.