Freedom of Speech and Expression: Different Arenas, Same Fight

The scope of the freedom of speech and expression has a long history in terms of judicial clarification.

It has been five years since the dark comedy crime drama ‘Udta Punjab’ was released in India. The movie was heavily censored for its use of profanity, names of cities in Punjab and reference to government authorities in the context of the drug menace in Punjab. The incident raised several questions on freedom of speech and artistic license. Five years since its release, the questions remain, with added issues on how the rights under Article 19(1)(a) function in India.

In the past decade, Article 19(1)(a) has been discussed in various contexts including politics, art, and individual rights. This article examines the recent direct and indirect restrictions on the freedom of speech in India, and traces various judgements that carve out the scope of Article 19(1)(a)

Harder to make ‘bold’ movies?

The abolishment of the Film Certification Appellate Tribunal (FCAT) has raised several questions on its effect on the freedom of speech of the film industry in India. Previously, a party aggrieved by the decision of the Central Board of Film Certification (CBFC) had to approach the FCAT whose quick decision making process gave clarity to the artistic community. The current process requires aggrieved parties to approach the High Courts. Film makers around the country raised concerns that this will discourage film makers from making movies with strong or unpopular views.

The FCAT had been considered to be more supportive of the freedom of speech and expression of the film industries in India. Examples of this include Lipstick Under my Burkha (2016), Margarita with a Straw (2014), and Bandit Queen (1994) where the FCAT overturned decisions of the CBFC to refuse certification of these movies. Taking issues of censorship to the High Court could allow for a more well reasoned judgement. However, film makers fear that the issues of the litigious process being long and expensive will hinder the industry from making bold movies at all.

Overseas Citizens of India have the same right to dissent as any other citizen 

Section 7D(b) of the Citizenship Act, 1955 states that if an overseas citizen of India (OCI) shows any dissatisfaction towards the Constitution of India, their registration as an OCI will be cancelled. A group of 80 OCIs filed a petition in the Supreme Court stating that this provision violated their right to freedom of speech and expression.

The petitioners claim that the provision has a direct effect on the OCI holder’s ability to express peaceful dissent against the government, in the fear of losing the OCI status. The petitioners contended that their basic rights were being violated, and subjected OCI holders to extreme uncertainty. OCI holders claim that the dual nature of citizenship granted under the Citizenship Act, 1955 is defeated.

Is Sedition the new tool for curbing the freedom of speech and expression?

There have been nearly 800 cases of sedition in the last decade, with 65% of those cases being filed since 2014. On June 3rd 2021 the Supreme Court quashed a sedition charge filed against journalist Vinod Dua, stating that sedition must not apply to journalists. News channels TV5 and ABN Andhrajyoti were charged with sedition for broadcasting ‘offending speeches’ made by a YSR Congress lawmaker. Sedition charges against activists like Disha Ravi, 10,000 Adivasis in Jharkhand and other such cases are instances where the Court has acquitted the accused. The number of charges of sedition however have risen significantly, with 35 cases registered in 2016 to 96 in 2019.

All of this has been occurring in the background of Kishorechandra Wangkhemcha v Union of India, where there has been a constitutional challenge of Sedition under Section 124A of the Indian Penal Code. The petition challenges the applicability of Kedar Nath where the Supreme Court had laid down the scope of sedition and its applicability.

Supreme Court is clear on the scope of Freedom of Speech

In Bennett Coleman and Co. v Union of India in 1973 recognized the freedom of press to be an integral part of Article 19(1)(a). In S. Rangarajan v P. Jagjivan Ram the Supreme Court held that if the reasonable restrictions under Article 19(2) did not apply to a film, the mere threat of public outrage or demonstrations should not be a ground to curtail the freedom of speech of the film makers. In Rangarajan, the Court noted that the State cannot plead its inability to handle hostilities from the audience, and that the State must be receptive to social changes.

With regards to rights of overseas citizens of India, in Dr. Christo Thomas Philip v Union Of India, the Delhi High Court held that apart from Articles 16, 58, 66, 124 and 217 of the Constitution of India and certain provisions of the Representation of People Act, 1950, Section 7B of the Citizenship Act, 1955 conferred all the rights to an OCI holder. The applicability of the freedom of speech under Article 19(1)(a) on Section 7D is yet to be decided by the Court.

In his dissent in Romila Thapar v Union of India, Justice D.Y. Chandrachud stated that voices raised in opposition by those who take up unpopular causes cannot be muzzled, because this dissent is a symbol of a vibrant democracy. In Shreya Singhal v Union of India the two judge Bench consisting Justices Chelameswar and Rohinton Nariman held that vague grounds for curtailing freedom of speech such as “grossly offensive” or “causing annoyance or inconvenience” had a chilling effect on Article 19(1)(a).