If we support the truth really then, we must have ‘Right of Expression’ and ‘Freedom of Speech’ and should be properly supported by our society where we are living. We should always keep in mind, that the rights would not be available to anybody without any limitation or restrictions. There is always possibility if such right is awarded and recognized by the society that one’s right may violate the other’s right which is to be avoided for the protection of the rights of all the citizens living in the society and also for the peace of society. To avoid the confliction of the rights between two citizens, is has become always necessary to make available the right for the enjoyment of the citizens with certain, reasonable restrictions sothat there shall be harmony in the society where there are several and different followers of religions, faith and beliefs are living. That is necessary for the peace of society and ultimately for citizens with expected result of proper administration of society considering the concept of ‘Rule of Law’. If that is not properly, with reasonable definition expressed in the legislation and made available for the citizens of country then there shall be hardly any less than the anarchies situation after some time. This is always considered by the different countries of the world and also by us, our Constitution of India. The issue whether the restrictions are reasonable or not is always debateable hence raised, discussed and decided from time to time in the light of change of circumstances and beliefs of society. The relevant provisions in our Constitutional Law of India under Article 19, it is recognized with certain restrictions.
This right to freedom that is available to all citizens of India under different heads with restrictions as under –
This is sum and substance of the ‘Right to Freedom’ under Art. 19 as expressed in Constitution. The jurisdiction regarding proper interpretation of the provisions of different legislations including the Constitution is available to High Courts and Supreme Court. The high courts are established in India for different states under Art. 214 and the Supreme Court is established under Art. 124 and its powers and jurisdiction on different issues are stated thereafter. The vital jurisdiction is available to high court and Supreme Court is to interpret the provisions of the legislation, to decide its legality and virus in the light of our Constitution considering the different rights available and recognized under it in the light of the salient features of Constitution. There are several occasions since we accepted our Constitution to consider the legality of the different and several provisions of the legislation and entire legislation.
There are incidents when general people confuses about the right an freedom available to citizens as we saw in society –
This issue related to Freedom of Speech and Expression under Art. 19 was discussed and considered by Supreme Court –
a. When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of "degree" comes in. To elaborate, the "contemporary community standards test" becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene. While so concluding, we leave it to the poet to put his defense at the trial explaining the manner he has used the words and in what context. We only opine that view of the High Court pertaining to the framing of charge under Section 292, IPC cannot be flawed.
b. Coming to the case put forth by the appellant-publisher, it is noticeable that he had published the poem in question, which had already been recited during the Akhil Bhartiya Sahithya Sammelan at Amba Jogai in 1980, and was earlier published on 2-10-1986 by others. The appellant has published the poem only in 1994. But immediately after coming to know about the reactions of certain employees, he tendered unconditional apology in the next issue of the 'Bulletin'. Once he has tendered the unconditional apology even before the inception of the proceedings and almost more than two decades have passed, we are inclined to quash the charge framed against him as well as the printer. We are disposed to quash the charge against the printer, as it is submitted that he had printed as desired by the publisher. Hence, they stand discharged. However, we repeat at the cost of repetition that we have not expressed any opinion as to the act on the part of the author of the poem, who is co-accused in the case, and facing trial before the Magistrate in respect of the offence punishable under Section 292, IPC. It shall be open for him to raise all the pleas in defence, as available to him under the law. At this juncture, we are obliged to mention that Mr. Nariman, learned friend of the Court also in course of hearing, had submitted that the appellant having offered unconditional apology immediately and regard being had to the passage of time, he along with the printer should be discharged.
This article is written by Shri. Madhav Moreshwar Bhokarikar, Advocate, Aurangabad (Maharashtra), India. The expressions on the judgment are of his own personal views. This shall not be used anywhere by anybody except his express permission.
This right to freedom that is available to all citizens of India under different heads with restrictions as under –
- The nature of right is bifurcated in differently in several nature of rights that comes under ‘Right to Freedom’ – (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions or co-operative societies; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (g) to practise any profession, or to carry on any occupation, trade or business.
- The rights and nature of rights are expressed as above but are the restrictions over the rights are stated under the same provision sothat there should not be any conflict between the rights of two citizens or groups of two citizens. The restrictions and its interpretation regarding the same would be –
- The right to ‘freedom of speech and expression’ shall not 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 it 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.
- The right to ‘assemble peaceably and without arms’ shall not affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by it.
- The right to ‘form associations or unions or co-operative societies shall not affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of In dia or public order or morality, reasonable restrictions on the exercise of the right conferred by it.
- The right to ‘to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India’ shall not affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
- The right to ‘practise any profession, or to carry on any occupation, trade or business’ shall not affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by it. In particular, it shall not affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,— (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
This is sum and substance of the ‘Right to Freedom’ under Art. 19 as expressed in Constitution. The jurisdiction regarding proper interpretation of the provisions of different legislations including the Constitution is available to High Courts and Supreme Court. The high courts are established in India for different states under Art. 214 and the Supreme Court is established under Art. 124 and its powers and jurisdiction on different issues are stated thereafter. The vital jurisdiction is available to high court and Supreme Court is to interpret the provisions of the legislation, to decide its legality and virus in the light of our Constitution considering the different rights available and recognized under it in the light of the salient features of Constitution. There are several occasions since we accepted our Constitution to consider the legality of the different and several provisions of the legislation and entire legislation.
There are incidents when general people confuses about the right an freedom available to citizens as we saw in society –
- Zakir Naik who may call to be Islamic preacher. He delivers lectures, conduct debates and answers to the questions in front of public to spread the Islamic Ideology in world. In his propaganda of Islam, he mostly relies on malevolent, venomous and rancour talk about others. This ultimately results in disharmony in society amongst different groups of different ideology related to faiths, beliefs and religions living in society. That may be sugar coated sometimes but the ultimate result of disharmony and social stress. That compels the Government of different countries to take appropriate action to protect the law and order of their country hence is banned in some countries.
- Naxalite - Maoist Rebels that dispute is going this group and our Indian Government since mostly the formation of Communist Party of India (Maoist), rebel group of Peoples’ War Group. That is adverslt affect to major part of Andhra Pradesh, Bihar and Jharkhand. They themselves called to be supporters of the poor and rural people, Adivasis. The hundreds of peoples are killed by them as they are not allowing them to implement their philosophy or are taking steps against their goal. Our Government in February, 2009 announced ‘Integrated Action Plan’ for Naxlite problem as having badly affected on Karnataka, Chhattisgarh, Odisha, Andhra Pradesh, Maharashtra, Jharkhand, Bihar, Uttar Pradesh and West Bengal. This plan was on gross-root in this Naxalite area for their economic development that resulted in better performance and reduced in death and injuries by them. Due to unfortunate death of 24 Indian National Congress leaders including former state minister, Mahendra Karma and Chhattisgarh Congress Chief, Nand Kumar Patel. Then Prime Minister, Dr. Manmohan Singh called this issue to be ‘single biggest internal security challenge ever faced by our country’ in 2011, Indian Police accused the Chinese Government of providing help to the movement’s of leaders and accused Pakistani ISI of financial support.
- Different Movies – Sanjay Leela Bhansali, Film Director and his Hindi movie – ‘Bajirao Mastani’ that in the romantic story of great undefeated warrior, ‘Bajiro Peshva’ of Maratha empire headed by Chhatrapati Shahu Maharaj. That was very much on talk regarding the ‘right of expression’ whether that would be interference in the historic personalities. The similar issue related to ‘Maharani Padmavati’ was blasted lightly in Rajasthan that is related to ‘Allauddin Khilji’, sultan of Delhi wherein Rajput Karni Sena shown its part at Jodhpur at the time of shooting that movie. The question of distorting history, faiths and beliefs related to our culture since long is permissible under this freedom as there may and may not be the proofs available today. There are some other films, those were banned – ‘Neel Aksher Neechy’ was for two months related to Chinese wage labourer. ‘Gokul Shankar’ was representing the psychology behind the assassination by Nathuram Godse of Mahatma Gandhi. ‘Garam Hava’ was held up for some moths as was Muslim family during partition of India. ‘Andhi’ was during emergency by Indira Gandhi and subsequently released in 1977 after Janata Party was in rule. Latest television documentary ‘India’s Daughter’ was related to ‘Delhi Gang Rape’ was prevented to be broadcasted by court by stay order as to prevent from adverse effects of negative public sentiments including the defending the offending act of rape. That was uploaded on ‘You Tube’ and Indian Government requested to be removed.
This issue related to Freedom of Speech and Expression under Art. 19 was discussed and considered by Supreme Court –
- 1. Subramaniyam Swami Vs Union of India that is related to typical example of discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of "reasonableness" ingrained in the statutory provisions relating to criminal law to reviver and uphold one's reputation with prayer that Section 499 of Indian Penal Code, 1860 as ‘defamation’ and further provision regarding punishment for that be declared as contrary to ‘right of expression’ but Supreme Court declared constitutional validity of Section 499 and 500 of Indian Penal Code.
- 2. Anita Thakur Vs Government of Jammu and Kashmir, that migrants of the State of Jammu and Kashmir state that they had planned to take out a peaceful protest march up to Delhi for ventilating their grievances. However, when they reached near Katra in Jammu and Kashmir, the police personnel had beaten up and manhandled these migrants in a most brutal and barbaric manner on 07.08.2007. That this incident has violated their rights guaranteed to them under Articles 14, 19, 21 and 22 of the Constitution of India and prayers are made for taking criminal action against the erring officials and also to pay compensation who suffered serious injuries and also made to order the special investigation into the said episode of 07.08.2007. It was concluded that protestors who took the law into their hands by turning their peaceful agitation into a violent one and in the process becoming unruly and pelting stones at the police. On other hand, even the police personnel continued the use of force beyond limits after they had controlled the mob. In the process, they continued their lathi charge. They continued to beat up all the three petitioners even after overpowering them. They had virtually apprehended these petitioners making them immobile. However, their attack on these petitioners continued even thereafter when it was not at all needed. As far as injuries suffered by these petitioners are concerned, such a situation could clearly be avoided. The respondent misused their power to that extent fundamental right was violated due to police excess. The ratio of the these different precedents referred here can be explained thus:
- The Kerala Bar Hotels Association Vs State of Kerala, expressed that the Court cannot be blind to the fact that a social stigma at least as far as the family unit is concerned still attaches to the consumption of alcohol. Free trade in alcohol denudes family resources and reserves and leaves women and children as its most vulnerable victims.
- Devidas Ramchandra Tuljapurkar Vs State of Maharashtra, The issue has been arisen due to poem titled as ‘Gandhi Mala Bhetala’ in magazine ‘Bulletin’ published in July-August 1994 issue for private circulation to members of All India Bank Association Union would be resulted in framing charge under Section 292 of IPC against author, publisher and printer. After hearing the conclusions are –
a. When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of "degree" comes in. To elaborate, the "contemporary community standards test" becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene. While so concluding, we leave it to the poet to put his defense at the trial explaining the manner he has used the words and in what context. We only opine that view of the High Court pertaining to the framing of charge under Section 292, IPC cannot be flawed.
b. Coming to the case put forth by the appellant-publisher, it is noticeable that he had published the poem in question, which had already been recited during the Akhil Bhartiya Sahithya Sammelan at Amba Jogai in 1980, and was earlier published on 2-10-1986 by others. The appellant has published the poem only in 1994. But immediately after coming to know about the reactions of certain employees, he tendered unconditional apology in the next issue of the 'Bulletin'. Once he has tendered the unconditional apology even before the inception of the proceedings and almost more than two decades have passed, we are inclined to quash the charge framed against him as well as the printer. We are disposed to quash the charge against the printer, as it is submitted that he had printed as desired by the publisher. Hence, they stand discharged. However, we repeat at the cost of repetition that we have not expressed any opinion as to the act on the part of the author of the poem, who is co-accused in the case, and facing trial before the Magistrate in respect of the offence punishable under Section 292, IPC. It shall be open for him to raise all the pleas in defence, as available to him under the law. At this juncture, we are obliged to mention that Mr. Nariman, learned friend of the Court also in course of hearing, had submitted that the appellant having offered unconditional apology immediately and regard being had to the passage of time, he along with the printer should be discharged.
This article is written by Shri. Madhav Moreshwar Bhokarikar, Advocate, Aurangabad (Maharashtra), India. The expressions on the judgment are of his own personal views. This shall not be used anywhere by anybody except his express permission.
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