Today the basic question is not just of freedom of speech, but also freedom after speech

India Journalist Killed

By Sanjay Parikh*

Freedom of speech and expression is the most fundamental and most precious among all other human rights, on realization of which alone the other rights become meaningful. UN Human Rights Committee (in General Comment no. 34 on Article 19: Freedom of opinion and expression) had said that: “Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.” And that: “The freedoms of opinion and expression form a basis for the full enjoyment of a wide range of other human rights.”

It is, however, interesting to know the development of this most important right without which human freedom has no meaning. Despite Benjamin Franklin expressing his views as back as in 1731 in his paper “Apology for Printers” that “printers are educated in the belief that when men differ in opinion, both sides ought equally to have the advantage of being heard by the public…” and Franklin D. Roosevelt acknowledging that freedom of speech is the first among four essential human freedoms followed by freedom of religion, freedom from want and freedom from fear, when the United States Constitution was written, surprisingly, it contained no provision concerning the freedom of speech.

It came subsequently (1791) in the form of the “Bill of Rights” where it was said in no uncertain terms that Congress should make no law abridging the freedom of speech or of the press. But only a few years later, the Sedition Act was passed (in 1798) under which journalists, printers and editors were detained only on the charge of criticizing the public figures.

Realizing the draconian nature of the Sedition Act and that it runs totally contrary to the constitutional pledge, Sedition Act was put an end to and at that juncture Thomas Jefferson made the following famous statement: “The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate to prefer the latter. But I should mean that every man should receive these papers and be capable of reading them.”

In our Constitution Art 19(1)(a) recognized the freedom of speech and expression, which has been expanded by the Supreme Court to include the right to impart information, to receive information, including the freedom of press. In one of the judgments (LIC vs Manubhai) the Supreme Court said: “Freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.”

A free Press creates an atmosphere where criticism allows people to evaluate the governmental actions. It hardly matters whether it is for or against. Press gives a platform to the people to exercise their right of free speech – to express their views. Press creates the democratic space, which is needed for safeguarding constitutional rights and values or rather the constitutional morality – an expression used recently by the Supreme Court. This is why Press is called the fourth pillar.

But what happens when an atmosphere of fear is created. It divides the press; those who are weak and ambitious succumb to the pressure. Those who stand by the values, faith and the responsibility people have put on them, suffer. They face coercive actions, face defamation suits, criminal actions including sedition. They are physically assaulted and even killed. We are unfortunately faced with this situation today. Fali Nariman has rightly put it: “Today the basic question is not of freedom of speech but freedom after speech.”

The atmosphere impinges on the very Rule of Law, which is supposed to protect the people without any discrimination – to act in absolute good faith. Freedoms to express one’s views also include the right of dissent. No democracy in the world can survive without people expressing different opinions, even strongly critical, in the sphere of governance by the State. People have a right to criticise the government policies and actions as not being in accordance with the Constitution or the same not being in public interest or oppressive or shielding the corrupt.

Recently, in the famous case relating to the Right to Privacy, a Constitution Bench of the Supreme Court said that the right to question, to scrutinize and to dissent which enables citizens to scrutinize the actions of the Government, is a part of the constitutional rights; that power to scrutinize and reason enables the citizens of a democratic polity to make informed decisions on the basic issues which govern their rights and it is this scrutiny which ensures that socio-economic benefits actually reach the underprivileged for whom they are meant.

The Court gave an example by quoting Prof. Amartya Sen, as to how restrictions in reporting and criticism during the Bengal Famine of 1943, made situations worse. Prof. Sen said that the calamity became worse not only because of “lack of democracy in colonial India but also by severe restrictions on reporting and criticism imposed on the Indian press, and the voluntary practice of ‘silence’ on the famine that the British-owned media chose to follow.”

This right to speak emanates not only from the Constitution but because as human being we are responsible to react in a given situation, which is unjust and unfair to an individual or to the society. It is of fundamental importance for an individual, that he is able to convey, without fear of any authority or ensuing arbitrary actions, his feelings – his reactions.

His expression creates him, makes him, nurtures him, give his physical appearance a shape, his mind a dimension and his spirit – a hope to rise. His expression can come out as a poem, as a story, as a painting or as a powerful dissent against injustice and oppression. He wants others to know him through his expression, without which ‘He’ does not exist.

Freedom of expression gives him the existential freedom – to be: that ‘he’ exists. This is most important as set of human existence. One should be able to speak up the truth without any fear is most crucial, otherwise it becomes a vegetative existence where mind becomes captive of ambitions, greed, money and endless desires. Like caged parrot (expression used by the Supreme Court) you repeat whatever your boss says.

The importance of freedom of expression and how it is connected with one’s inner being, was realized when people who suffered solitary confinement, narrated their experiences: they said that it was not so much pain of body but the excruciating and unbearable pain of being isolated and not being able to communicate with others that kills the soul. Fear creates that isolation. In a society where communication of free ideas is constantly threatened with consequences, minds turn into a prison, continuously hounded by fear, suspicion and surveillance. A society without the basic human right of freedom of speech and expression suffers the collective mental death and then democracy becomes a farce.

Tom Bethell, Washington editor of Harper’s magazine, in one of his articles on the freedom of speech and expression, discussed various threats which freedom of press suffers from. He said: “The most serious threat to the freedom of the press, however, comes not from well-intended but misapplied government regulation, but from patriotic citizens who do not particularly like it when the press succeeds, as it does at times, in making the country look badly governed. When this happens, it is curiously enough, the right-wing and conservative elements in society that most often clamor for a muzzle on the press …”

Somewhat similar reactions are visible today in our society where under different nomenclatures – a fanatic cult has taken dangerous proportions. It has no fear of law and order. They firmly believe that the government will not act against them because they represent a particular ideology, which allows lynching, and it is not a crime, as per their belief. They think that for sins committed by some, they have been endowed with a right to punish. Journalists are paying the price of being brave and truthful. Press and publications are facing legal actions for being critical of the governmental actions. Still we believe of surviving in a democracy governed by the Rule of Law!

Deshbandhu Gupta, one of the members of the Constituent Assembly, had said then, which is more relevant now:

“We should not ignore the fact that after all newspapers have a mission to perform and that they are essential for the very existence of a democratic form of Government. They are essential for educating the electorate and for running the democratic form of Government in the country on proper lines. In these circumstances any step taken to weaken the Press will be calculated to harm the democratic form of Government, nay, the freedom of the people will be jeopardized as has been rightly pointed out by the U.S. Supreme Court Judges to whose memorable judgment reference was made the other day. According to them ‘Fettering the press is fettering ourselves’. So, in the name of the freedom of the Press and in the name of the future of Indian journalism, I appeal to this House always to bear in mind that newspapers as such to deserve a distinctive treatment. Newspapers are as essential for the Government, as for the good of the country and we must always regard them as such.”

*Vice-President, People’s Union for Civil Liberties, senior advocate, Supreme Court. Source: PUCL Bulletin

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