FREEDOM OF SPEECH AND EXPRESSION AND OBSCENE AND INDECENT ADVERTISEMENTS AND DISPLAYS BY - RADHIKA DWIVEDI
FREEDOM OF SPEECH AND EXPRESSION AND OBSCENE AND INDECENT ADVERTISEMENTS AND DISPLAYS
INTRODUCTION
The ability to think and speak
freely, as well as obtain information from others through publications and
public discourse, without fear of retribution, restriction, or repression by
the government, is the essence of free speech. Article 19(1) (a) of the Constitution
of India states, “right to freedom of speech and expression.”
The philosophy underlying this
Article can be found in the Constitution’s Preamble, where a solemn resolve is
made to guarantee liberty of thought and expression to all of its citizens. The
exercise of this right, however, is subject to “reasonable restrictions” for
specific purposes imposed by Article 19(2) of the Indian Constitution.
Nothing in subclause (a) of clause
(1) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restriction on the
exercise of the right conferred by the said subclause, all citizens shall have
the 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 the interests of the republic of India.
Main elements of right of freedom of
Speech and Expression:
1. This right is available only to
Indian citizens, not to foreign nationals.
2. According to Article 19(1)(a0,
freedom of expression includes the right to express on one’s views and opinions
on any issue through any medium, such as words of mouth, writing, printing,
picture, film, movie, and so on.
3. This right, however, is not absolute,
and it allows the government to enact laws to impose reasonable restrictions in
the interests of India’s sovereignty and integrity, security, friendly
relations with foreign states, public order, decency, and morality, and
contempt of court, defamation, and incitement
to an offence.
4. This restriction on any citizen’s
freedom of speech maybe imposed by the State’s action as well as its inaction.
Thus, failure on the part of the State to guarantee to all its citizens the
fundamental right to freedom of speech and expression would also constitute a
violation of Article 19(1)(a).
Meaning of Freedom of Speech and Expression
The Indian Constitution guarantees
its citizens a number of fundamental rights. Article 19’s right to freedom is
one such important right. This includes the right to free speech and
expression, the right to assemble peacefully and without arms, the right to
form associations and unions, the right to move freely throughout India’s
territory, the right to reside and settle in any part of India’s territory, and
the right to practise any occupation, trade or business. [1]
The right to freely express one’s own
conviction and opinions through words of mouth, writing, printing, pictures, or
any other mode is referred to as freedom of speech and expression. Thus, it
includes the expression of one’s idea through any communicable medium or
visible representations such as gesture, signs, and so on. The expression also
implies publication, so press freedom is included in this category. The freedom
of the press is regarded as a species, with freedom of expression as a
subspecies. The free dissemination of ideas is a necessary goal, which can be
accomplished on the platform or through the press.
Importance of Freedom of Speech and
Expression
“Give me
the liberty to know, to utter, and to argue freely according to conscience,
above all the liberties”. – John Milton [2]
John argued that without
human freedom, no progress in science, law, or politics could be made, which he
believed required free debate. Mill’s on Liberty, published in 1859, became a
classic defence of the right to free expression. According to John, truth
drives out falsity, so free expression of ideas, true or false, should not be
feared. The truth is neither stable nor fixed, but rather evolves over time.
John also argued that free debate is required to avoid the “deep slumber of a
decided opinion.” The discussion would propel the march of truth forward, and
by considering false views, the foundation of true views could be re –
affirmed.
Case:- John Rast v. Deman & Lewis Company
In this case Mr. Justice
Mckenna, dealing with advertisement said:-
Advertising is simply
the identification and description of quality and location. Its sole purpose is
to draw attention to the article to be sold, and the acquisition of the article
to be sold is the only inducement to purchase it. “The above advertisement
adopts the same characteristics as the object it seeks to promote or bring to
the public’s attention to be used by it. There are numerous examples that
demonstrate that advertisements dealing with trade and business are related to
the item “business or trade” rather than “free speech.” Because an opinion only
has intrinsic value to the person who holds it, silencing the expression of the
opinion is an injustice to a fundamental human right. According to Mill, the
only time sped can be justifiably suppressed is to prevent harm from a clear
and direct threat. Neither the economic or moral implications, nor the
speaker’s own well – being, would be justify speech suppression[3].
Today, a new era of advertising
has emerged that is both cost – effective and efficient on a global scale.
Online advertising is the fastest growing advertising medium, and it has proven
its effectiveness and stability in the advertising world. Advertising has a profound
impact on how people understand life, the world, and themselves in a developing
economy like India, particularly in terms of their values, choices, and
behaviour. Advertising is regarded as the bedrock of our socioeconomic system,
serving as the lifeblood of free media by covering costs and making media
widely available. Before creating and displaying advertisements for a specific
audience, advertising agencies conduct extensive research. Few platforms
dominated the advertising market, providing an opportunity for advertisers to
spread their message and market their product.
Right
To Advertisement As A Part of Freedom of Speech and Expression
Advertising which is
nothing more than a commercial transaction, is nonetheless the dissemination of
information about the advertised product. The information made available through
advertising benefits the general public. A free flow of commercial information
is essential in a democratic economy. Without being educated by the information
disseminated through advertisements, there can be no honest and economical
marketing by the general public.
The economic system of a
democracy would be hampered if there was no freedom of “commercial speech,” and
when viewed from another perspective, the public at large has a right to
receive “commercial speech.” Article (19) (1) (a) not only guarantees freedom
of speech and expression, but it also protects an individual’s right to listen
to, read, and receive the said speech. In terms of a citizen’s economic needs,
the information disseminated through advertisements must guide their fulfilment[4]. An advertisements
providing information about a life – saving drug may be far more important to the
general public than to the advertiser, who may be motivated solely by
commercial considerations.
An advertisement is,
without a doubt, a form of speech, but it’s true character is reflected by the
object for which it is used. It assumes the characteristics and elements of the
activity under Article 19(1), which it seeks to aid by bringing to the public’s
attention. When it takes the formal of a commercial advertisement with an
element of trade or commerce, it no longer falls under the concept of free speech
because the object is not the propagation of ideas’ social, political, or economic,
or the advancement of literature or human thought; but, as in this case, the
commendation of the efficacy, value, and importance in the treatment of
specific diseases by certain drugs and medicines. In this case, advertising is
a necessary part of doing business.
The supreme court of
India has held that hosting the National Flag by citizens is a form of freedom
of speech expression in Union of India v. Naveen Jindal and Anr.
Case:- Virender v. State of Punjab and
Sakal Paper v. Union of India
In this case, it was
held that, there is no separate grantee of freedom of press, and it is included
in the freedom of expression, which is conferred on all citizens. This decision
also established that the freedom of the press under the Indian Constitution is
not superior to the freedom of the ordinary citizen.
Case:- Secretary, Ministry of Information
and Broadcasting v. Cricket Association of Bengal (1955) 5 SCC 161, SC
In this case, the
Supreme Court held that, while commercial advertising is a form of speech, its
true character is reflected by the object for which it is employed. Only when
an advertisement is concerned with the expression or propagation of ideas can it
be said to be concerned with the expression and speech. The determining factor
is the object and purpose for which the advertisement is published. When
dissemination of ideas and thoughts is insignificant, but the real purpose and
object is the promotion of sales of goods and services and personal benefit
without any social purpose, commercial advertisement cannot have the same
constitutional protection as social or political speeches[5].
Case:- Mahesh Bhatt and Anr v. Union of
India, 147 (2008)
This was the another
landmark decision on the subject – in this case, the Writ Petitions challenged
the legality and validity of some provisions of the Cigarette and Other Tobacco
Products (Prohibition of Advertisement and Regulation of Trade and Commerce,
Production Supply, and Distribution) Act, 2003, under which “advertisement” was
defined to include any visible representation by way of notice, circular,
label, wrap[6].
Case:- Tata Press Limited v. Mahanagar
Telephone –
Nigam, 1955 AIR 2438
In this case it was held
that, it cannot be said that every advertisement is a matter of free speech or
an expression of ideas. In each case, the nature of the advertisement and the
activity covered by Article 19(10 must be considered. The advertisement in this
case are about commerce or trade, not about spreading ideas; and advertising of
prohibited drugs or commodities whose sale is not in the best interest of the
general public cannot be speech under the definition of free speech and would
not fall under Article 19(1)(a). The main purpose and true intent and aim,
object and scope of the Act is to prevent self – medication or self –
treatment, and advertisements endorsing specific drugs and medicines have been
prohibited to that end.
OBSCENITY
Obscenity is a global
and complex issue because it is linked to other issues such as decency and
morality, which differ from society to society. What is immoral for one person
may not be for another. Because of the cultural, religious, and social diversity
in our society, it is difficult to provide a precise and particular definition
of obscenity. It is true that the definition of obscenity. It is true that the
definition of obscenity varies from time to time. What is obscene today should
not be considered obscene in the future. Both Indian laws and the Supreme Court
were unable to define obscenity. Indian courts initially adopted the Hicklin
test, but later deviated to another test to define obscenity.
The first condition of
liberty is freedom of speech and expression. It has preferred position in the
liberty hierarchy, providing support and protection to all other liberties. It
truly has been said that it is the mother of all liberties. It has been
referred to as a “basic human right,” “natural right,” and other terms.
The preamble to India’s
constitution resolves to guarantee citizens’ liberty of thought, expression,
and belief. Article 19(1)(a) of India’s constitution guarantees citizens
freedom of speech and expression, from which the media derives its right to
“freedom of press.” However, because this right is not absolute, it is subject
to certain limitations, the parameters of which are defined by the Constitution
itself. These restrictions are commonly referred to as “reasonable restrictions,”
and they are outlined in clause 2-6 of Article 19 of the Indian Constitution.
These grounds are the state’s sovereignty and integrity, security, friendly
relations with foreign countries, public order, decency and morality, contempt
of court, defamation and incitement to an offence. The State may, by law, limit
the enjoyment of the freedoms enshrined in Article 19(1). The use of the
state’s power to limit freedoms through legislation id known as executive
action.
Grounds
For Restriction
In a democracy, it is
necessary to maintain and preserve freedom of speech and expression, but it is
also necessary to limit this freedom in order to maintain social order. There
can be no absolute or completely unrestricted freedom. Article 19(2) specifies
the grounds for imposing reasonable restrictions on freedom of speech and
expression:
a)
Security
of State:
In the interest of state
security, reasonable restrictions on freedom of speech and expression can be
imposed under Article 19(2). The term ‘security of state’ refers only to
serious and aggravated forms of public disorder, such as rebellion, war against
the state, and insurrection, rather than ordinary breaches of public order and
public safety, such as unlawful assembly, riot, and affray. [7]
b)
Public
Order
The Constitution (First
Amendment) Act of 1951also included this ground. The concept of ‘public order’
is broader than state security. Public order is a broad expression that refers to the state of tranquillity that
exists among members of political society as a result of internal regulations
imposed by the Government that they have established. Public order is more than
just keeping the law and order. [8]The test for determining
whether an act affects law and order or public order is to see if the act
causes disturbances in the community’s current life, amounting to a disturbance
of public order, or if it affects only an individual, leaving the society’s
tranquillity undisturbed.
Anything that disrupts
public tranquillity or peace disrupts public order. Thus, communal disturbances
and strikes organised solely to cause unrest among workers are violations of
public order. Thus, public order denotes the absence of violence and an orderly
state of affairs in which citizens can go about their daily lives peacefully.
As a result, causing internal disorder or rebellion would have an impact on
public order.
c)
Decency
or Morality
These are terms with
variable content that have no fixed meaning for ideas about decency or
morality; they vary from society to society and over time depending on the
moral standards that prevail in the current society. Thus, the term morality
and decency have a broad range of meanings. Section 292 – 294 of the Indian
Penal Code provide examples of restrictions on freedom of expression in the
name of decency or morality. These sections make it illegal to sell,
distribute, or display obscene words, etc. in public places.[9]
It is easy to conclude
that the right to free expression is one of the most important fundamental
rights. It includes expressing one’ opinions verbally or in writing, as well as
through audio – visual media, advertisements, or any other form of
communication. It also includes the right to information, freedom of the press,
and so on. As a result, this fundamental right has a broad scope. According to
the preceding case law analysis, the Court has always placed a broad interpretation
on the value and contents of Article 19(1)(a), making it subject only to the
restrictions permitted by Article 19(1)(a)(2). Attempts by intolerant
authorities to curtail or choke this freedom have always been rebuffed,
especially when public officials have betrayed tyrannical tendencies.
[1] B, L. Freedom
Of Speech And Expression. Retrieved August 13, 2022, from https://www.legalserviceindia.com/legal/article-77-freedom-of-speech-and-expression.html
[2] B, L. Freedom
Of Speech And Expression. Retrieved August 13, 2022, from https://www.legalserviceindia.com/legal/article-77-freedom-of-speech-and-expression.html
[3] Advertisement
and Freedom of Speech and Expression. Retrieved August 10, 2022, from http://www.legalservicesindia.com/article/1317/Advertisement-and-Freedom-of-Speech-and-Expression.html
[4] Advertisement
and Freedom of Speech and Expression. Retrieved August 10, 2022, from http://www.legalservicesindia.com/article/1317/Advertisement-and-Freedom-of-Speech-and-Expression.html
[5] Advertisement
and Freedom of Speech and Expression. Retrieved August 10, 2022, from http://www.legalservicesindia.com/article/1317/Advertisement-and-Freedom-of-Speech-and-Expression.html
[6] Advertisement
and Freedom of Speech and Expression. Retrieved August 10, 2022, from http://www.legalservicesindia.com/article/1317/Advertisement-and-Freedom-of-Speech-and-Expression.html
[7] Kumar, A.
Freedom of Speech and Expression [Article 19(1)(a)] - Indian Polity. Retrieved
August 16, 2022, from https://byjus.com/free-ias-prep/freedom-of-speech/
[8] Kumar, A.
Freedom of Speech and Expression [Article 19(1)(a)] - Indian Polity . Retrieved
August 16, 2022, from https://byjus.com/free-ias-prep/freedom-of-speech/
[9] B, L. Freedom
Of Speech And Expression. Retrieved August 13, 2022, from https://www.legalserviceindia.com/legal/article-77-freedom-of-speech-and-expression.html