Freedom of expression stands as the bedrock of any vibrant democracy but the Constitution permits reasonable restrictions in the interest of India’s sovereignty and integrity.
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Freedom of expression stands as the bedrock of any vibrant democracy, enabling the free flow of ideas, criticism of power, and the cultivation of informed citizenship and decision among individuals as also groups-physical as well as virtual (on social media). In India, Article 19(1)(a) of the Constitution guarantees every citizen the right to "freedom of speech and expression." This right encompasses not just the spoken or written word but also the press, artistic expression, and digital communication. Yet, this freedom is not unfettered. The Constitution itself, under Article 19(2), permits "reasonable restrictions" 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, contempt of court, defamation, or incitement to an offence.
The tension between unfettered exercise of free speech and expression and the imperatives of law and order, public peace, and legal conformity has perennially been like a see-saw battle. In a nation as diverse as India—marked by strong religious, political, linguistic, caste, ethic, tribal and regional fault lines—unrestrained and irresponsible speech and/ or expressions can swiftly escalate into communal violence, misinformation pandemics, rumours or threats or public order, criminal acts, national unity leading to avoidable loss of life and/or property. Conversely, overly broad or vague restrictions risk a scenario where citizens self-censor out of fear, stifling dissent and innovation.
Striking this balance is not merely a legal and law enforcement exercise but a societal and philosophical responsibility, demanding judicial wisdom, legislative prudence, civic maturity and proactive law enforcement. The Supreme Court of India, the primary arbiter in this dialogue has leant toward robust protection of speech while acknowledging the State's duty to maintain public tranquillity and public order.
Historically, the framers of the Constitution envisioned a system where liberties could flourish within the bounds of collective welfare. In Romesh Thappar v. State of Madras (1950), the Supreme Court emphasised that freedom of speech and the press lies at the foundation of democratic organisations, without which public education and informed governance would be impossible. Similarly, in another matter pre-censorship was invalidated. These decisions underscored that restrictions must be narrowly tailored and not based on vague apprehensions of disorder.
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Parliament legislated "public order" as a ground for restriction, alongside others. However, the Supreme Court adjudicated that the distinction between "law and order" (a concept covering minor breaches) and "public order" (involving serious disruptions to societal tranquillity) needs to be drawn. Restrictions on speech require reasonable apprehension and "proximate and direct nexus" to public disorder.
The Court observed that the anticipated danger from speech and expression must not be "remote, conjectural or far-fetched" but akin to a "spark in a powder keg. The speech and/or expression must be "intrinsically dangerous" to public interest.
The digital age has amplified these challenges. Social media's speed and reach, and relative inability of Governments and responsible citizens to intercede quickly to tackle any posts/messages/communications which tend to foment public disorder, and tendencies to provide anonymity behind the screen and haemophilia (birds of the same feather/ thought, coming together) make information, misinformation, rumours or hate speech expression potent threats to public peace.
Through Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the Information Technology Act, 2000, which criminalized "offensive" online messages. The Court reiterated that restrictions must align strictly with Article 19(2) grounds, but the ‘reasonableness’ of restrictions to balance free speech and collective well-being of the society cannot be under-stated.
India's context and more so in the case of north-east India, a nuanced equilibrium is required. Freedom without responsibility breeds chaos; order without liberty breeds tyranny.
In our part of the country, where ethnic, tribal, and village-level lies are extremely strong, and, diverse identities, ethnicities and tribes have existed, sometimes in virtual isolation and inherent distrust and prejudices, inflammatory or irresponsible speech/expression- can ignite real-world violence, which can cause long-term hatred and chaos, throwing normal lives out of gear.
The State has a legitimate role in intervening to prevent attempts or irresponsible behaviour which can cause incitement, defamation, or threats to public order. Responsible behaviour and conformity to laws is not antithetical to expression; it is its enabler, providing the stable framework for discourse and peaceful co-existence.
We, as state shall endeavour to be insistence on reasonable and proportionate in carrying out our duties.
To maintain this balance requires a multi-stakeholder effort. While the executive must apply the law in a non-discriminatory manner; media and citizens should exercise self-restraint, conduct due diligence and fact-checking and try to think about the implications of their speeches and expression so that we can promote fraternity alongside liberty.
As we in the region navigate digital disruptions, polarisation, and global influences and virtual groups on social media, upholding this balance will determine whether we evolve as a pluralistic powerhouse or jeopardise our own well-being.
Liberty tempered by law is not compromise—it is the essence of constitutionalism and peaceful coexistence. Therefore, I call upon everyone to be responsible in our speech, expression and actions.
Rupin Sharma IPS
DGP Nagaland