Free Speech Then and Now

The right to freedom of speech and expression under the Indian Constitution is not an absolute right. A cursory look at Article 19 (2) reveals there are no less than eight broad restrictions that can be imposed on a citizen’s right to free speech and expression. It states that a law will continue to be valid

…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.

I revisited this article recently after encountering a fascinating passage in the Law Commission Report on hate speech. This passage notes the wording of one of the very first versions of this provision, which said that the right would be subject to the following proviso (this proviso was, in fact, dropped when the freedom clause was introduced during the Constituent Assembly debates):

Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter actionable or punishable.

Here are a few thoughts I had on this:

One, we seem to have more restrictions on this right at present than were originally proposed. The Constituent Assembly debates and a few subsequent cases and amendments hold the key to understanding the circumstances behind such expansion. It would be fascinating to further study this evolution.

Two, it is encouraging to see that obscenity and blasphemy did not make the final cut. But this is tempered by the existence of decency and morality in the article as it exists today. We could do with thicker skins in this country.

Three, should defamation have a place as a reasonable restriction, particularly when recourse in the form of civil damages is available? The continued existence of criminal defamation in the rule books points towards the shortcoming of this status quo.

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