Can Freedom of Speech be Absolute
Summary: There has often been a demand for absolute freedom of speech from
various interest groups. However scope and limits of freedom of speech and
expression are limited by its constraints. Hence absolute freedom of speech and
expression is only a mirage.
Absolute freedom is what we all desire. Likewise we all want to enjoy absolute
freedom of speech and self expression. Therefore it is not surprising that freedom
of speech and expression has been granted to us even by law.
Freedom of speech and expression has been recognized as a fundamental right in
Article 19(1) of constitution of India. Freedom of speech is guaranteed not only by
the constitution or statutes of various states but also by various international
conventions like Universal Declaration of Human Rights, European convention on
Human Rights and fundamental freedoms, International Covenant on Civil and
Political Rights etc. These declarations expressly talk about protection of freedom
of speech and expression.
In the judgment of the case Maneka Gandhi v. Union of India the Supreme Court
held that the freedom of speech and expression has no geographical limitation
and it carries with it the right of a citizen to gather information and to exchange
thought with others not only in India but abroad also.
Why to protect freedom of speech?
Freedom of speech offers human being opportunity to express their feelings to
one another, but this is not the only reason; purpose to protect the freedom of
speech. There are four other reasons for freedom of speech –
1) Discovery of truth by open discussion - According to it restrictions on speech
shall prevent the ascertainment and publication of accurate facts and valuable
opinion. Therefore freedom of speech is essential for social well-being.
2) Free speech as an aspect of self- fulfillment and development – freedom of
speech is an integral aspect of each individual’s right to self-development and
self-fulfillment. Restriction on what we are allowed to say and write or to hear
and read will hamper our personality and its growth. It helps an individual to
3) For expressing belief and political attitudes - freedom of speech provides
opportunity to express one’s belief and show political attitudes. It ultimately
results in the welfare of the society and state. Thus, freedom of speech provides a
mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
4) For active participation in democracy – democracy is most important feature of
today’s world. Freedom of speech is there to protect the right of all citizens to
understand political issues so that they can participate in smooth working of
democracy. That is to say, freedom of speech strengthens the capacity of an
individual in participating in decision-making.
Thus we find that protection of freedom of speech is very much essential.
Protection of freedom of speech is important for the discovery of truth by open
discussion, for self- fulfillment and development, for expressing belief and
political attitudes, and for active participation in democracy.
However, there are several restrictions to freedom of speech and expression. In
British law, freedom of speech and expression is limited by legally prescribed
Supreme Court in a recent judgment has held that freedom of speech and
expression is "not an absolute" and remarked that journalists "should know the
lakshman rekha so that they don't cross the line of contempt."
Justice Kapadia also clarified that the postponement will be for a short period of
time and will not affect the trial. The doctrine, he added, has been evolved as a
"preventive measure" for "administration of justice and fairness of trial" and not
as a prohibitive and punitive measure.
Clause (2) of Article 19 of Indian constitution contains the grounds on which
restrictions on the freedom of speech and expression can be imposed: -
1) Security of State: Security of state is of vital importance and a government
must have power to impose restriction on the activity affecting it. Under Article
19(2) reasonable restrictions can be imposed on freedom of speech and
expression in the interest of security of State. However the term “security” is very
crucial one. The term "security of state" refers only to serious and aggravated
forms of public order e.g. rebellion, waging war against the State, insurrection,
criminal acts etc.
2) Friendly relations with foreign states: The object behind the provision is to
prohibit unrestrained malicious propaganda against a foreign friendly state, which
may jeopardize the maintenance of good relations between India, and that state.
In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by
Indian citizens against foreign dignitaries.
3) Public Order: Next restriction prescribed by constitution is to maintain public
order. Public order is an expression of wide connotation and signifies "that state
of tranquility which prevails among the members of political society as a result of
internal regulations enforced by the Government which they have established."
4) Decency or morality: The way to express something or to say something should
be decent one. It should not affect the morality of the society adversely. Sections
292 to 294 of the Indian Penal Code provide instances of restrictions on the
freedom of speech and expression in the interest of decency or morality. These
sections prohibit the sale or distribution or exhibition of obscene words, etc. in
public places. No fix standard is laid down till now as to what is moral and
indecent. The standard of morality is contextual.
5) Contempt of Court: Indian contempt law was amended in 2006 to make “truth”
a defense but with qualification that deliberate efforts to scandalize court are not
7) Incitement to an offence: Obviously, freedom of speech and expression cannot
confer a right to incite people to commit offence. The word 'offence' is defined as
any act or omission made punishable by law for the time being in force.
8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a
state freedom of speech and expression can be restricted so as not to permit any
one to challenge sovereignty or to permit any one to preach something which will
result in threat to integrity of the country.
From above analysis, it is evident that Grounds contained in Article 19(2) show
that they are all concerned with the national interest or in the interest of the
society. The first set of grounds i.e. the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States and public order are all
grounds referable to national interest; whereas, the second set of grounds i.e.
decency, morality, contempt of court, defamation and incitement to an offence
are all concerned with the interest of the society.
Similar legal situation prevails in various countries i.e. on one hand law confers
freedom of speech and expression and on the other hand undermines it by
imposing restrictions due to various reasons. Hence legally freedom of speech is
We exist as independent, discrete entities in dependent and interdependent
relationship with other discrete entities. No one exists in vacuum. Absolute
freedom of any kind is bound to often lead to conflict situations with other
independent entities existing in our ecosystem. These conflicts are likely to be a
threat to our peace and tranquility. These conflicts must be avoided all the time
and therefore we can exercise our freedom of speech and expression with
discretion only. Indiscriminate exercise of freedom can often be detrimental to
our own interest.
We all have to live as a part of a social system and no system can grant complete
independence to any of its parts.
A view has been advanced that let the individuals be granted absolute freedom of
speech and expression and let individual members of the society decide for
themselves, whether or not they want to get along. But no uncivil means should
be adopted to protest against things and events which individual members of the
society find objectionable. For example M.F.Hussain should not have been made
to flee the country and live in exile. I am afraid this is not an acceptable position.
If M.F. Hussain had his freedom, society and its members had their freedom to
have a view about his work and select the mode of protest. If M.F. Hussain was
unable to appropriately regulate his creative surge then he can’t expect society to
regulate its retaliatory urge and confine strictly to protest before a court of law.
Uncivilized people can’t claim protection from the civilized society for their uncivil
acts, means and methods. They can’t ask society to use only civil means against
them. It is an unfortunate situation but unavoidable too. One can’t demand
mature civil form of protest by others when one’s hands are not clean.
Misuse of freedom of speech and expression for the purpose of mass marketing is
widely rampant. Journalist, authors, painters, feature film makers and others
would deliberately create and publish material only to capture mass attention by
creating a controversy because they know that controversies generally sell well.
They are well aware of gullibility of people and know how to exploit it to further
their commercial interest. So first they commit acts injurious to interest of the
society and state and then seek protection under the right to freedom of speech
and expression. No civilized society can ever afford such misuse of its ideals and
Summing up freedom of speech and expression can’t be absolute. It is subject to
several constraints. Any society is well within its rights to preemptively employ
various means to enforce constraints to freedom of speech and expression.
Author: Dr Mahesh C. Jain is a practicing medical doctor and has written the
book “Encounter of Science with Philosophy – A synthetic view”. The book begins
with first chapter devoted to scientifically valid concept of God and then explains
cosmic phenomena right from origin of nature and universe up to origin of life
and evolution of man. The book includes several chapters devoted to auxiliary
concepts and social sciences as corollaries to the concept of God. This is the only
book which deals with origin of nature and universe from null or Zero or