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CENSORSHIP: AN ISSUE OF THE INTERNATIONAL HUMAN RIGHTS (By-Malvika Gupta & Rajat Singh)
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CENSORSHIP: AN ISSUE OF THE
INTERNATIONAL HUMAN RIGHTS[1]
Authored By-1. Malvika Gupta
2. Rajat Singh
1.
Introduction
The assignment discusses an
inherently important value that Free Speech carries in a society where Human
Rights are sacrosanct from various international and regional human rights
perspectives and conventions. Censorship
is the control of speech and other forms of human expression. In many
cases, it is exercised by governing bodies. The visible motive of censorship is
often to stabilize or improve the society that the government would have
control over. It is most commonly applied to acts that occur in public circumstances,
and most formally involves the suppression
of ideas by criminalizing or regulating expression. Furthermore, discussion
of censorship often includes less formal means of controlling perceptions by
excluding various ideas from mass communication. While discussing the documents
on human rights, the much noted debate on universalism[2]
versus cultural relativism[3] a
proposition that any act of censorship to be a reflection of the norms of a
particular society and necessarily has to be culturally specific.
2.
Free Speech As An
International Human Right: International And Regional Conventions
Article 19 of the Universal
Declaration of Human Rights,[4] the Magna-Carta of International Human
Rights Law, states the general normative template that is largely followed by
both regional and international human rights systems, specifically on the
relevance of freedom of opinion and expression.
It states that:
“Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”
Article 19 of the International
Covenant on Civil and Political Rights[5],
which sets the globally accepted normative pattern derives its basis from the
UDHR, but also brings down several grounds that authrorize states to put
restraints on freedom of expression. It states that,
- “Everyone shall have the right to hold opinions without
interference.
- Everyone shall
have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art,
or through any other media of his choice.
- The exercise of
the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law
and are necessary:
- For respect of the rights or reputations of others;
- For the protection of national security or of public
order (ordre public), or of public health or morals.”
The American Convention on Human
Rights[6] looks at
the issue of prior restraints in a manner that is completely different as
compared to the other human rights conventions. It speaks of a model where
there is absolutely no prior restraint except in extreme cases such as to
protect the children and the adolescents, and to prevent racial and other forms
of hate speech. Article 13 of the ACHR states that:
1)
“Everyone has the right
to freedom of thought and expression. This right includes freedom to seek,
receive, and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing, in print, in the form of art, or through
any other medium of one's choice.
2)
The exercise of the right
provided for in the foregoing paragraph shall not be subject to prior
censorship but shall be subject to subsequent imposition of liability, which
shall be expressly established by law to the extent necessary to ensure:
- respect for the rights or reputations of others; or
- the protection of national security, public order, or
public health or morals.
3)
The right of expression
may not be restricted by indirect methods or means, such as the abuse of
government or private controls over newsprint, radio broadcasting frequencies,
or equipment used in the dissemination of information, or by any other means
tending to impede the communication and circulation of ideas and opinions
4)
Notwithstanding the
provisions of paragraph 2 above, public entertainments may be subject by law to
prior censorship for the sole purpose of regulating access to them for the
moral protection of childhood and adolescence.
5)
Any propaganda for war and any advocacy of
national, racial, or religious hatred that constitute incitements to lawless
violence or to any other similar action against any person or group of persons
on any grounds including those of race, color, religion, language, or national
origin shall be considered as offenses punishable by law.”
Article 10 of the European Convention
on Human Rights[7] is largely
based on the model of the ICCPR. This Article states that:
1)
“Everyone has the right
to freedom of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States
from requiring the licensing of broadcasting, television or cinema enterprises.
2)
The exercise of these
freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and
impartiality of the judiciary.”
The African Charter of Human and
People’s Rights,[8] one of the latest regional human rights
conventions, states in Article 9(2):
“Every individual shall have the right to express and disseminate his
opinions within the law.”
The Resolution on the Adoption of the
Declaration of Principles on Freedom of Expression in Africa,[9] while
explaining the scope and ambit of the Article, extends it to sectors of immense
contemporary relevance and significance like telecommunications and
broadcasting, both in the public and in the private sectors, and casts a very
modernist, pragmatic look into the need for regulation of speech and expression
in the contemporary Africa. It states that:
“Freedom of expression and information, including the right
to seek, receive and impart information and ideas, either orally, in writing or
in print, in the form of art, or through any other form of communication,
including across frontiers, is a fundamental and inalienable human right and an
indispensable component of democracy... No one shall be subject to arbitrary
interference with his or her freedom of expression... Any restrictions on
freedom of
expression shall be provided by law, serve a legitimate
interest and be necessary and in a democratic society... Freedom of expression
should not be restricted on public order or national security grounds unless
there is a real risk of harm to a legitimate interest and there is a close
causal link between the risk of harm and the expression.”
3. A Comparative Analysis Of The
Constitutional Developments In The United States And India
This section compares the
constitutional evolution of the This part analyzes the established advancement
of the freedoms, especially the rights relating to free discourse, and the
limitations on the liberated utilization of such rights with regards to the
Constitutions of India and the United States of America. The motivation behind
this activity is to take a look at how, in the two greatest vote based systems
of the world, freedom of thought and articulations attending thereto, something
that can be taken as a characteristic
subordinate, didn't find it simple to acknowledge such parts in the
constitutions to begin with. It shows that through a continuous, orderly plan,
the shapes of these teachings have taken the state of how they exist today.
3.1 First Constitutional Amendment of the
United States of America[10]
The American Constitution can be
traced back to July 4, 1776 when the Continental Congress declared its
independence from England. It is very
interesting to note that during the constitution-making process, people’s
liberties and democracy were looked at by the members with complete unanimity.[11] Thus,
when George Mason, the author of the Virginian Bill of Rights, moved a plan ‘to preface the constitution with a
declaration of the liberties of the
people’,[12] his plan
did not have a significantly large number of takers. In fact, it has been
documented that when members
like Roger Sherman had mentioned to
him that the states have their respective bills of rights anyways and
therefore, there was no need for a constitutional assertion of a centralized
bill of rights, Mason had countered by stating that since the constitution was
providing for powers on the national government to override the states’ powers
in any case, a clear constitutional assertion of the Bill of Rights is an
absolute necessity, because only then would the rights of people be kept secure[13]. However,
this argument was not accepted by the majority and the motion to appoint a
committee to draft a Bill of Rights was defeated[14].
It is because of this tirade between these two
groups of constitution makers that from the text of the original US
Constitution, inalienable natural rights like liberty remained conspicuous by
their absence, apart from a cursory reference in the Preamble stating ‘and secure the blessings of liberty to ourselves’. This raised a lot of
criticism in the states, some of whom refused to ratify the Constitution. To
appease them, promises were made that amendments respecting and protecting the
rights of individuals would soon be brought in. Only after these assurances,
the states promised to ratify the Constitution. Thus, respecting the promises
made and bringing in the Bill of Rights became more of a political than a
constitutional necessity[15].
Committee of the Whole was decided to be set up to look into the issue of these
amendments. On July 21, when Madison pressed for the issue again because the
Committee had not yet been set up, it was decided by a majority (predominantly
on suggestions of Fisher Ames, Theodore Sedgwick and George Partridge, who
constituted the anti-Madison group in the House) that the matter be referred to
a select committee[16]. The
Select Committee Report submitted on August 13, 1789 suggested a number of
amendments, including one that said that
“The
freedom of speech and of the press
and the right of the people peacefully to assemble and consult for their common
good and to apply to the government for redress of grievances shall not be infringed.”[17]
On the basis of this Select Committee
Report, The Committee of the Whole agreed to most of the amendments and decided
to incorporate these amendments as a supplement to the Constitution, as opposed
to Madison’s suggestion that they be incorporated in the body of the
Constitution itself.
This was confirmed by the House of
Representatives who referred it to a three-member committee to arrange the
amendments and make a report. The House also resolved to submit these
amendments for consideration of the state legislatures. This resolution was
sent to the Senate, who agreed to most of the amendments. After making
necessary alterations to the tenor of the amendments, they were sent to the
states for ratification by at least three-fourths of them, as per the requirements
set forth in the Constitution. Out of the twelve amendments that were sent for
ratification, two failed to meet the requisite number of ratifications. The
remaining ten, duly ratified, became the symbols of the indomitable human
spirit and thrust towards the principles of liberty and notions of democracy –
the Bill of Rights.[18] The first
of these amendments is the repository of the right of free speech and the free
press. The First Amendment states:
“Congress
shall make no law...abridging the freedom of speech or of the press...”
3.2 Article 19(1) (a) and 19(2) of
the Constitution of India
The development of the law governing
free speech and censorship in India has, just like its American counterpart,
undergone a series of twists and turns in different stages of its evolution.
From the Constituent Assembly to the text of Article 19(1) (a) and 19(2) that
we see today, this law has seen everything –
Supreme Court decisions declaring
significant executive decisions as illegitimate, constitutional amendments
coming in response and several such interesting events. This part of the
chapter tries to briefly encapsulate this chequered evolution of the free
speech law in India.
In the Constituent Assembly, the
Advisory Committee on Fundamental Rights under the chairmanship of Sardar
Vallabhbhai Patel, in its interim report dated 29th April, 1947, referred to
the expressional freedoms along with
the restrictions thereon in clause 8, which states[19]:
“There
shall be liberty for the exercise of the following rights subject to public
order and morality or to the existence of grave emergency declared to be such by the government of the
union or the unit concerned, whereby the security of the union or the unit, as
the case may be, is threatened.
(a) The right of every citizen to freedom of speech and expression:
provision may be made by law to make the publication or utterance of seditious,
obscene, blasphemous,
slanderous, libellous or defamatory matter actionable or punishable.
Other members like Somnath Lahiri and
N.G. Ranga also had significant problems with clause 8. Subsequently, when the
Constitutional Adviser B.N. Rau prepared the draft constitution, the
expressional freedoms found their place in Section 15. One could make out that
this section was significantly different in its content and ambit from clause
8. The part of section 15 that is pertinent for the instant discussion reads[20]:
“15. (1) There shall be liberty for the exercise of the
following rights subject to public order and morality, namely,
(a) The right of every citizen to freedom of speech and expression...
(2) Nothing in this section shall restrict the power of the state to make
any law or to take any executive action which under this Constitution it has
power to make or take, during the period when a Proclamation of Emergency
issued under Sub-section (1) Section 182 is in force, or in the case of a unit
during the period of any grave emergency declared by the Government of the init
whereby the security of the unit is threatened.
(3) Nothing in this section shall affect the operation of any law which
in the interests of the public including the interests of minorities and
special tribes imposes restrictions on the exercise of any of the rights
conferred by this section.”
Hukum Singh decided the scope of
legislative interference that Article 13(2) provided for, when he observed:[21]
“But as has been aptly remarked, "If the danger of executive
aggression has disappeared, that from legislative interference has greatly
increased, and it is largely against this danger that the modern declarations
of fundamental rights are directed, as formerly they were directed against the
tyranny of autocratic kings."
The very object of a Bill of Rights is to place these rights out of the
influence of the ordinary legislature, and if, as under clauses (2) to (6) of
article 13, we leave it to this very body, which in a democracy, is nothing
beyond one political party, to finally judge when these rights, so sacred on
paper and glorified as Fundamentals, are to be extinguished, we are certainly
making these freedoms illusory. If the other countries like the U.S.A. have
placed full confidence in their Judiciary and by their long experience it has
been found that the confidence was not misplaced, why should we not depend upon
similar guardians to protect the individual liberties and the State interests,
instead of hedging round freedom by so many exceptions under these
sub-clauses?”
However, this criticism of the
presence and the viability of the restrictions was met with a passionate
resistance by a number of members. Algu Rai Shastri said that
“Freedom of speech does not mean that we can give expression to whatever
comes to our mind without observing any limitation or rule in this respect. In legislatures we have to follow
certain rules and regulations. We are
here as the representatives of the sovereign people but even then there are
hundreds of restrictions upon us. Freedom
by its nature implies limitations and
restrictions.”[22]
According to another prominent member
T.T. Krishnamachari,
“I have
no doubt in my mind that... in this article, the Drafting Committee has chosen
the golden mean of providing a proper enumeration of those rights that are
considered essential for the individual, and at the same time, putting such
checks on them as will ensure that the State and the Constitution which we are
trying to bring into being today will continue unhampered and flourish.”[23]
B.R. Ambedkar was however clear in
his mind that the provisos to every Fundamental Right including Article 13 was
brought in based on some experience that the US Constitution had faced, that
had to be necessarily resolved judicially by the Supreme Court[24].Therefore,
according to Ambedkar, a certainty in the interpretation of these provisos
would help in getting rid of endless litigations and instil a degree of
certainty to the interpretation of the rights themselves.
Finally, when the Constitution was
enacted on 26th November, 1949 and came into force on 26th January, 1950, it
became quite evident that Draft Article 13 was more or less replicated in
Article 19, with some alterations like dropping ‘sedition’ from the list of
grounds based on which the state could impose restrictions through law. This
new Article 19 read:
“19(1) All citizens shall have the right – (a) to freedom of speech and
expression....
(2) Nothing in sub-clause (a) shall affect the operation of any existing
law in so far at it relates to, or prevent the state from making any law
relating to libel, slander, defamation, contempt of court or any matter which
offends against decency or morality or which undermines the security of, or
tends to overthrow the state.”
However, after the government
suffered major jolts from the Supreme Court in two significantly high-profile
cases of that era,[25] cases in
both of which the government tried to suppress dissident voices, that of the
Communist Party in the first case and the Rashtriya Swayamsevak Sangh in the
second case, by their interpretation of ‘security of state’ in Article 19(2) to
mean ‘public safety’. The government’s arguments on this aspect and the court’s
strong reactions are very appropriately summarized by Lawrence Liang, when he
writes[26]:
“The
government argued that the expression “public safety” in the Act, which is a
statute relating to law and order, means the security of the Province and,
therefore, “the security of the State”. Within the meaning of Article 19(2),
“the State” has been defined in Article 12 as including, among other things,
the Government and the Legislature of each of the erstwhile Provinces. The
court, however, stated that the phrase “public safety” had a much wider
connotation than “security of the state”, as the former included a number of
trivial matters not necessarily as serious as the issue of the security
of the state. It concluded that “unless a law restricting freedom of speech and
expression is directed solely against the undermining of the security of the
State or the overthrow of it, such law cannot fall within the reservation under
clause (2) of Article 19, although the restrictions which it seeks to impose
may have been conceived generally in the interests of public order. It follows
that Section 9(1-A), which imposition of restrictions for the wider purpose of
securing public safety or the maintenance of public order, falls outside the
scope of authorised restrictions under clause (2), and is therefore void and
unconstitutional.”
These judgments, according to Sardar
Patel, “knocked the bottom out of most of
our penal laws for the control and regulation of the press”[27]. As a
result, the government almost
immediately decided to bring in a Constitutional Amendment to change the tenor of the restrictions.
Constitution (First Amendment) Act,
1951 significantly altered the wordings of Article 19(2) by bringing in the
word ‘reasonable’ before ‘restrictions’ and changing a few grounds of
imposition of restrictions from the original article. This newly amended
Article 19(2) now read:
“Nothing
in sub-clause (a) 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 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.”
The Constitution (Sixteenth
Amendment) Act, 1963, further amended Article 19(2) by adding the words ‘sovereignty and integrity of India’ as
another ground of imposition of reasonable restrictions.
4. Imprints
In India
It is interesting to note in this
context that although the Indian Constitution has looked at the issues of freedom
of speech and expression and reasonable restrictions in a way that is
distinctly dissimilar to the US, at least etymologically if not anything else,
we can find distinct imprints of the guiding constitutional legal principles
from the US in India. Not so surprisingly, one always notices a typical
juristic resistance in the initial days of our constitutional existence to
incorporation of US doctrines, but gradually one finds a convenient
assimilation, in a way that makes pragmatic interpretations possible by means
of judicial activism and the like. The forthcoming sections of this chapter
therefore seek to explore instances where the Indian judiciary has decided to
rely upon the American principles of constitutional interpretation that have
been discussed in the previous section, and use them to substantiate its own
formulation of ‘reasonability’, when the case in hand demanded as such.
5. Conclusion
If one tries to critically locate the
value of free speech in the realms of human rights laws and the constitution,
one clear and cogent fact gets underlined every time – free speech is intrinsic
to a democratic existence, and any kind of intervention on this hallowed
premise, whether by the state or otherwise, needs to pass the siphons of the
strictest scrutiny by the judiciary.
A careful perusal of the different
International Human Rights conventions would by and large unequivocally point
out towards one fact – unless considered to be absolutely necessary in the
interest of territorial integrity or the like, there should not be any prior
restraint of any nature on freedom of speech or expression. The General Comment
to the ICCPR, when it extends the blanket protection even to ‘deeply offensive’
speech and expression, is kind of symptomatic of the fact that the ‘marketplace
of ideas’ should be resilient enough to accept the acceptable and reject the
rubbish. But the moment the state starts interfering in the sacrosanct domain
of creativity through broadly worded laws which are easily vulnerable to
draconian interpretations, it leads to an atmosphere of fear and distrust, a
‘chilling effect’[28]. Thus,
the broad consensus in the International Human Rights arena is towards
imposition of post facto liability if
the speech or expression has actually led to clear and tangible damages[29].
The same degree of reverence to the
intrinsic values of an unfettered freedom of speech and expression is
distinctly noticeable in the Constitutions of many countries. Article 5 of the
German Basic Law,[30] Article
29 of the Constitution of the Russian Federation[31]
and Article 21 of the
Japanese Constitution[32] are
glittering examples in this regard. Quite significantly, one of the most recent
constitutions, the Constitution of Egypt that came into force as late as in 2014
after a referendum, also significantly restricts the scope of the state to
censor the mass media.[33]
If one looks to the US Constitutional
Law and its approach towards the issue of censorship of free speech, a similar
pattern is clearly observable. Through clearly articulated tests like ‘Clear
and Present Danger’ and ‘Imminent Lawless Action’, the Judiciary in the US has
imposed a tremendous burden on the state to satisfy before imposing any prior
restraint on free speech and expression.
India, on the other hand, has had a
chequered history so far as the limits of the judicial scrutiny are concerned.
The reluctance to incorporate ‘Free Press’ and ‘Due Process of Law’ in Articles
19 and 21 respectively could lead one to believe that the Indian Constitution makers
were not so serious about the democratic values, but in reality, that has never
really been the case. The Constitution makers had their own well-defined
reasons of wording the articles of the constitution as they did.
As gradual threats on the democratic
fabric were felt in the mid-1970s, the Judiciary, hitherto rigorously
positivistic and strict observant of the Westminster model of Separation of
Powers, did not hesitate a single moment and became activist, activist to the
point that by interpretation, they have incorporated principles akin to Due
Process in the Indian Constitutional rubric.
Naturally, non-arbitrariness and
reasonableness of state action have become the biggest testing points for the
vigilant judiciary, based on which the judiciary can exercise a strict scrutiny
over all state action. Consequently therefore, the doctrines like ‘Clear and
Present Danger’ found their space in the rubric of the interpretational space.
But, all this churning has been happening at a time when India has still not
done away with pre-censorship from all realms of speech and expression.
Inasmuch as some forms of expression are only amenable to post facto impositions of liability, there are sectors like Cinema
which are still subject to stringent, and often curiously subjective,
censorship norms and practice. Some of this censorship is extensively in order
to preserve ‘public order’ or ‘territorial integrity’, but some of them are to
preserve the vague precincts of ‘decency and morality’. Thus the judicial interpretation
of the laws of obscenity becomes the basis of imposition of prior restraint on
the medium.
Article Information
CENSORSHIP: AN ISSUE OF THE INTERNATIONAL HUMAN RIGHTS (By-Malvika Gupta & Rajat Singh)
Authors: Malvika Gupta, Rajat Singh
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/30
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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