INTRODUCTION
Certain positive rights are conferred by the Constitution in order to promote the ideals of liberty held out by the preamble. The foremost amongst these are the six fundamental rights in the nature of ‘Freedom’ which are guaranteed to the citizens by the Constitution of India (Article19). These were popularly known as the seven freedoms under our Constitution. It has already been pointed out that in the original Constitution, there were seven freedoms in Article 19 (1) but that one of them, namely, “the right to acquire, hold and dispose of property” has been omitted by the Constitution 44th amendment act, 1978, leaving only six freedoms in this article. They are –
1. Freedom of speech and expression.
2. Freedom of assembly.
3. Freedom of association.
4. Freedom of movement.
5. Freedom of residents and settlement.
6. Freedom of profession, occupation, trade or business.
The Author will endeavor to explain all these six fundamental freedoms under Article 19.
1. FREEDOM OF SPEECH AND EXPRESSION
Article 19 (1) guarantees to all citizens “the right to freedom of speech and expression”. Freedom of speech and expression has been held to be basic and indivisible for a democratic polity, the citizen’s most cherished and sacred right, the “prized privilege.” It has said to be the cornerstone of functioning of democracy. It is the foundation of a democratic society. It is essential to the rule of law and liberty of citizens. This right means the right to speak and to express one’s opinions or to air grievances by words of mouth, writing, printing, pictures or in any other manner.
It is to express one’s convictions and opinions or ideas freely, through any communicable medium or visible representation, such as gesture, signs, and the like. It means to freely propagate, communicate or circulate One’s opinion or views. It also means to lay what sentiments, a free citizen pleases, before the public. It thus includes the freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media regardless of frontiers. The phrase 'Speech and expression' is a very wide connotation that naturally presupposes a second party to whom the ideas are expected to be communicated. Freedom of expression thus includes the freedom of propagation of ideas, publication, and circulation.
Scope and content of the freedom
The different facets constituting scope and content of the freedom of speech and expression are discussed below –
A. Right to know and to obtain information
The right of information is indisputably a fundamental right, a facet of speech and expression as contained in Article 19(1) (a). It has been said that in a government of responsibility like ours, it is elementary that citizens ought to know what their government is doing. They have the right to know every public act, everything that is done in a public way, by their public functionaries. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It has also been said that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration.
Needless to say, an independent media is a sine qua non to create awareness. The concept of an open government is said to be the direct emanation from the right to know or the right to acquire information and to disseminate it, which seems to be implicit in the right of free speech and expression guaranteed under Article 19 (1) (a). Further that the citizens have the right to decide by whom and what rules, they shall be governed and they are entitled to call on those who govern on their behalf, to account for their conduct. So said, a citizen, prepared to pay requisite fee, is entitled to ask for the copies of public documents, to the inspection of such documents. To provide for freedom to every citizen to secure access to official information, to promote openness, transparency, and accountability in administration and relation to matters connected therewith or incidental thereto, the freedom of Information Act 2002 has been passed. The Act, provides for furnishing information by the Public Information Officer, on request from the person desirous of obtaining it, On payment of the prescribed fee. The freedom of information act, 2002 was amended in 2005, proving for constitution of information commission at the state level, which is to function, as a quasi-judicial authority.
The freedom of speech and expression, includes the right to educate, to inform, and to entertain and also the right to be educated, informed, and entertained. It also includes the right of the consumer to be apprised of the ingredients of food products, cosmetics, and drugs, so that he may make the right choice as per his beliefs and opinions. But such information can be given to the extent it is available and possible, without affecting the fundamental rights of others. The right of information, like other rights, is held subject to several exemptions/exceptions indicated in broad terms.
It has been agitated that while there is a rationale behind exempting areas like national security, military development, international relations, and the like from the RTI ambit the judiciary has no valid reason to claim such immunity from the public gaze.
B. Right of the examinee to have access to evaluated scripts –
In Secretary, West Bengal Council of Higher Secondary Education vs Ayan Das, the Apex Court ruled that the court should not normally direct the production of answer scripts, to be inspected by the examinees, unless a case was made out to show that either some questions had not been evaluated or that the evaluation had been done contrary to the norms fixed by the examining body. It has been held to be in the public interest that the results of public examinations, when published should have some finality attached to them.
C. Right of the citizens/voters to know the antecedents of the candidates at election
Article 19 (1)(A) which guarantees the right to speak and express oneself has been held to include the voters of speech or expression, in case of elections, in a democracy. It has been said that the voter speaks out or expresses by casting a vote. Explaining the democratic government is a continual participative operation, and that “ a successful democracy posits and the aware citizenry,” the Apex Court in Union of India v. Association for Democratic Reforms, ruled that the voters that right to know antecedents including criminal past of his candidate contesting election for MP or MLA, was fundamental and basic for survival of democracy. Holding that “democracy cannot survive without free and fair elections, without free and fairly informed voters,” the court said that the voter had the right to get material information, concerning a candidate contesting election for a post, which was of utmost importance in the democracy, was implied in the freedom of speech guaranteed by Article 19 (1) (A).
D. Right to reply or answer the criticism against one’s views
In Life Insurance Corporation of India V. Prof. Manubhai D. Shah, the Supreme Court held that the right to reply, that is, the right to get published once reply in the same news media in which something was published against or concerning a citizen, was a part of the freedom of speech and expression guaranteed under Article 19 (1) (A) .
In this case, the respondent, the executive trustee of the Consumer Education and Research Centre, Ahmedabad, after researching the working of the LIC, published a study paper titled “fraud on police holders-a shocking story”. The study paper portrayed the discriminatory practices adopted by the LIC which adversely affected the interest of a large number of policyholders. Shri NC Krishnan, a member of the LIC prepared a counter to the respondent study paper and published the same as an article in the ‘Hindu’ challenging the conclusions related by the respondent in his study paper. The respondent prepared a rejoinder which was published in the same newspaper. The LIC publishes a magazine called "Yogakshma" for informing the members, staff, and agents about its activities. Mr. Krishnan’s article which was in the nature of a counter to the respondents' study paper was also published in this magazine. The respondent thereupon requested the LIC to publish his rejoinder to the said article in its magazine. The LIC refused to accept the request and contended that the magazine was a house magazine and not put in the market for sale to the general public. The Supreme Court upholding, the right of the respondent held that the LIC created under the LIC Act 1956, being a Sate within the meaning of Article 12 must function in the best interest of the community. The community was therefore entitled to know whether or not this requirement of the statute was being satisfied in the functioning of the LIC. Referring to the earlier decisions, the Supreme Court explains the scope of the freedom of speech and expression granted under Article 19 (1) (A) and observed – once it is conceded, and it cannot indeed be disputed that freedom of speech… Includes freedom of circulation… Of ideas, there can be no doubt that the right extends to the citizens being permitted to use the media to answer the criticism leveled against the views propagated by him.
E. Compelled speech
The right to free speech and expression also includes compelled speech, often known as a must-carry provision in a Statute, if it further informed decision making. Therefore, the requirement into the various cinematograph legislations that in each cinema theatre, the exhibitor of films must show a film which maybe educational or scientific, documentary film, or fair and caring news or current events, along with the other films, has been held to not violative of Article 19 (1)( a).
F. Freedom of silence – Right not to speak
In Bijoe Emmanuel V. State of Kerala, the Supreme Court held that no person could be compelled to sing the national anthem “if he has genuine conscientious Objections based on his religious beliefs”. In this case, three children belonging to Jehovah's Witnesses were expelled from the school for refusing to sing the national anthem during school prayers. They used to stand up respectfully when the national anthem was being sung but did not join in singing it. The Kerala High Court upheld their expulsion from the school on the ground that it was their fundamental duty to sing the national anthem and that they committed an offense under the prevention of insults to the National Honour Act, 1971. The Supreme Court, however, reversed the decision of the High Court and observes that they did not commit any offense. It was held that the expulsion of the children from that school was a violation of their fundamental right in Article 19 (1) (A) which also included freedom of silence. It may thus be stated that the freedom of expression includes the right not to express.
G. Freedom of press
Unlike the American constitution, Article 19 (1) does not specifically separately provide for the liberty of the press. This omission was explained by Dr. BR Ambedkar when he observed – “ the press has no special rights which are not to be given or which are not to be expressed by the citizen in his individual capacity. The editor of a press or the manager are merely exercising the right of the expression, and, therefore, no special mention is necessary of the freedom of the press.” It is thus settled law that the right of freedom of speech and expression in Article 19 (1) (A) include the liberty of the press. This liberty has been held to be one of the great Bulwarks of liberty and can never be restrained but by the despotic government. The various aspects of freedom of the press are discussed below-