PUBLIC ORDER AS A GROUND FOR RESTRICTION OVER FREEDOM OF SPEECH & EXPRESSION
Symbiosis Law School, NOIDA
The thesis shall follow a theoretical research methodology. The primary research question is to comprehend the significance of public order as a ground for restriction over freedom of speech & expression.
OBJECTIVE OF STUDY
- To understand the concept of Public Order with respect to media and its other laws.
- To comprehend the articles of the Constitution of India in the field of media and the freedom of speech & expression.
SCOPE OF THE PROJECT
The scope of the project shall be limited to the value of public order with respect to the media industry.
Freedom of Expression relates to the degree of freedom afforded by the law to the individual to express opinions and to impart and receive information. The public do not necessarily have to agree with that individual’s views. The individual here includes the press as a non-government force. The press often claims that they should have greater rights and more freedom of expression to report on affairs than the individual since they act as the watchdog of the public interest. Sometimes what amounts to the public interest is clear cut.
From the Constitutional perspective, Freedom of Expression in relation to that degree of freedom needed in a democratic society to protect society from abuse by those in authority and to enable society to engage in democratic governance. Modern communications systems have only served to enhance this power since information can be put into the public domain so rapidly that there is little opportunity to respond to the information and counter its impact.
The term ‘public order’ means public peace, safety and tranquility. It was inserted by an amendment of 1951 to get over the effect of decisions of Romesh Thappar v. State of Madras and Brij Bhushan v. State of Delhi .
THE RIGHTS & RESTRICTIONS
Article 19(1)(a): Freedom of Speech & Expression
This FR has diverse facets, both with regard to the content of the speech & expression and in the means through which communication takes place. The concept has evolved with time & advances in technology.
It covers the right to express oneself by word of mouth, writing, printing, and picture or in any other manner including the freedom of communication and the right to propagate/ publish one’s views.
Article 19(2): Reasonable Restrictions
The restrictions specify that these freedoms are not absolute. These articles set limitations on the power of legislature to impose restrictions on these freedoms and to impose restrictions more than the aforementioned:
- aiming to prohibit anyone from making statements that challenge the sovereignty and integrity of India
- in the interest of the security of the State
- to prevent from jeopardizing the friendly relations with foreign States
- public order maintaining public peace, safety and tranquility.
- decency and morality
- contempt of court refers to civil contempt or criminal contempt
- preventing from making any statement that injures the reputation of another, defamation
- preventing from making any statement that incites people to commit offence, incitement to an offence
In St. of Gujarat v. Mirzapur Moti Qureshi Kasab Jamat, SC held that this prohibition doesn’t amount to total ban on activity of butchers as it was not a prohibition by any restriction. Rather was in the interest of general public and u/Art. 19(1)(g). Cow & her progeny are the backbone of the Indian agriculture and economy.
The 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.
Bringing order to speech: History
Sardar Patel, thought that the Crossroads decision “knocked the bottom (out) of most of our penal laws for the control and regulation of the press”, while Nehru was livid with the interpretation of the court. In February 1951, Nehru formed a cabinet committee to examine the proposed amendment. The home ministry recommended to the cabinet committee that ‘public order’ and ‘incitement to a crime’ should be included among the exceptions to the right of freedom of speech. It preferred dropping ‘to overthrow the state’ in favor of a wider formulation, ‘in the interests of the security of the state’. It is to be noted that the original Article 19 (2) did not have the word ‘reasonable’ before the word ‘restrictions’, and the law ministry was of the opinion that the word ‘reasonable’ as used in Article 19 should be retained and even added to Article 19 (2). The cabinet committee, however, strongly disagreed with Ambedkar.
Later on, the Cabinet accepted the recommendation in order to avoid a split in the Cabinet and ensure a two-thirds majority. On the first of June 1951, Parliament passed the bill by a vote of 228 to 20.
‘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.”
Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed.
Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In its external aspect ‘public safety’ means protection of the country from foreign aggression. Under public order the State would be entitled to prevent propaganda for a state of war with India. The words ‘in the interest of public order’ includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.
Reason to Incorporate
This insertion of ‘public order’ came after the Supreme Court’s invalidation of government pre-censorship of speech on public order grounds in Romesh Thapar, declaring that the Constitution required that “nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression”. Therefore, Parliament amended the Constitution to expand the grounds on which the state could restrict speech, and included ‘public order’ among the expanded grounds. The trouble with this is that the intolerant are now able to create a public order problem to silence speakers.
The SC in Babulal Parate v. St. of Maharashtra found that public order must be “maintained in advance in order to ensure it”, and ruled that restriction of Article 19 freedoms of expression and assembly in the interests of public order is permissible. However, all such restrictions must continue to satisfy the reasonability test laid down in the Constitution, providing our judiciary with the opportunity to ensure that intolerance does not continue to oppress speech.
Hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group.
- Ram Manohar v. St. of Bihar
The SC explained the differences between three concepts: law and order, public order, security of State. It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order.
- Superintendent, Central Prison v. Ram Manohar Lohiya
The court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquility.
- Dalbir Singh v. St of Punjab
SC held that the impugned provisions did not violate Article 19(1)(a) since there was a proximate connection between the provisions and the maintenance of public order.
FREEDOM OF SPEECH & EXPRESSION IN OTHER JURISDICTION
Two great democracies of world America and India very aptly recognize the right of freedom of speech and expression. The US & India almost have similar free speech provisions in their Constitutions. Article 19(1)(a) of COI corresponds to the First Amendment of the US Constitution which says, “congress shall make no law… abridging the freedom of speech or of the press”. However, the provisions in the US Constitution have two notable features i.e.:
- freedom of press is specifically mentioned therein,
- No restrictions are mentioned on the freedom of speech.
Whereas in India, SC has held that there are no specific provisions ensuring freedom of the press separately. The freedom of the press is regarded as a “species of which freedom of expression is a genus”. Therefore, press cannot be subjected to any special restrictions which could not be imposed on any private citizen and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen. In Express Newspapers (Private) Ltd. v. Union of India, held that “the FR to the FoSE enshrined in our constitution is based on (the provisions in) Amendment I of the Constitution of the United States and it therefore is legitimate and proper to refer to those decisions of the SC of the USA in order to appreciate the true nature, scope and extent of this right in spite of the warning administered by this court against use of American and other cases.”
Despite similarities in the constitutional provisions, distinction lies in their unique jurisprudence on freedom of speech. Consequently, they differ as to what is and what is not acceptable free speech. As mentioned, the real difference in freedom of speech enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions provision and the moral standard of the communities. It is important as the false statements made honestly are equally a part of freedom of speech.
At the same time, the expansive protection to FoS under the First Amendment ensures robust debate on all public issues and the widest dissemination of all ideas. As stated, under the First Amendment, there is no such thing as a “bad idea,” and the remedy for bad speech is said to be “more speech, and not enforced silence. It is part of our culture that people are “free to speak their mind” and need not fear that they will be sanctioned for saying something that is offensive or unpopular. The government is not required to and, more importantly, is not permitted to make decisions about what ideas may be expressed and what ideas may not be expressed. The constitutional guarantee of freedom of expression under the First Amendment then means freedom of expression in the fullest sense. For better or worse, this is the American way.
However in the case of India constitutional provisions have been widely influenced by the moral standard of the society. Constitution has tried to adapt and embody those freedom and restrictions enjoyed by the Indian people from long time. The provision of freedom of speech and restrictions are the result of that way of thinking, and this is the Indian way.
Freedom of speech and expression is the most important and fascinating facet of liberty and also is an inalienable human right and is at par with Article 19 of Universal Declaration of Human Rights which lays down that everyone has the right to freedom of information and expression and 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. The United Nation’s Charter as well as the Indian Constitution has recognized this basic fundamental human right with a guarantee to protect this inalienable fundamental right subject to reasonable restrictions.
The restriction upon freedom of speech and expression on the ground of Public Order was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the SC’s decision in Romesh Thapar’s case. The expression ‘public order’ connotes the sense of public peace, safety and tranquility.
The case of Romesh Thapar caused the government to bring into force the first amendment and introduce public order as a ground for reasonable restriction to this freedom as, stated in the content of the project, the Supreme Court precipitated in the minds of the government the first major crisis of the nation state by way of the said decision. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace, thus, disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety.
It can be safely comprehended that public order holds a lot of significance as a ground of restriction on this fundamental right. But, there should be reasonable and proper nexus or relationship between the restriction and achievement of public order. The words ‘in the interest of public order’ include not only utterances as are directly intended to lead to disorder but also those that have the prospective tendency to lead to disorder.
While there is a duty cast upon the media to report accurately and honestly and keep the citizen informed of what the government may choose to hide, there is a corresponding duty to avoid sensation, graphic pictures, strong adjectives and proactive display. Since there is a little or no time to edit or censure instantaneous coverage, there is an onerous burden on the reporter to use his discretion to report the truth but ensure that in doing so he does not incite further violence.
- Article19.org,. ‘India: Romesh Thappar V. State Of Madras · Article 19’. N.p., 2015. Web. 1 Mar. 2015.
- Liang, Lawrence. ‘Reasonable Restrictions And Unreasonable Speech | Freedom Of Expression | Agenda’.
Infochangeindia.org. N.p., 2015. Web. 2 Mar. 2015.
- Opines, Article. ‘Article 19(1)(A) – India Opines’. India Opines. N.p., 2015. Web. 3 Mar. 2015.
- Srivastava, R.R. ‘Test To Determine Reasonable Restrictions Under Article 19 Of The Constitution Of India’. SSRN Journal (2012): n. pag. Web. 1 Mar. 2015.
- Subhan, Jelis. ‘Emerging Rights Under Article 19(1)(A) Of The Constitution Of India’. Amity University (2012): n. pag. Print.
- Basu D.D. (2010). Law of the Press (pp. 119-122). New Delhi: Lexis Nexis Butterworths Wadhwa Nagpur
- Divan M.G. (2010). Facets of Media Law. Lucknow: Eastern Book Company.
- Pandey J.N. (2012). The Constitutional Law of India. Allahabad: Central Law Agency.
 AIR 1950 SC 124
FACTS: the case challenged a section of Public order Act of 1949 under which government of Madras had issued an order imposing a ban on the entry and circulation of the journal Cross Roads. The court drew a distinction between a breach of public order which affects the security of the state and that which involves a breach of a purely local significance.
 AIR 1950 SC 129
FACTS: The Court held that unless a law restricting freedom of speech & expression is directed solely against the undermining of the security of the State or its overthrow, such law cant fall within the restrictions which it seeks to impose may have been conceived generally in the interests of public order.
 AIR 2006 SC 212; the petitioners (Butchers), challenged the constitutional validity of ‘Bombay Animal Preservation Gujarat Amendment Act, 1994’ as violative of their FR to carry on a business of slaughtering of cows & calves. The legislation had put a total ban on the same.
 Then, the home minister
 Pt. Jawahar Lal Nehru, Prime Minister (then).
 Bhimrao Ramji Ambedkar, Chairman of the Constitution Drafting Committee
 AIR 1961 SC 884
 (1966) 1 SCR 709
 AIR 1960 SC 633
 AIR 1962 SC 1106
 91986) 1 SCC 133