Do you think whether the remnants of various colonial laws have undermined the true meaning of Freedom of speech and expression under Article 19 of Indian constitution?

Do you think whether the remnants of various colonial laws have undermined the true meaning of Freedom of speech and expression under Article 19 of Indian constitution?

Introduction:

Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country.

NEED FOR REGULATING FREEDOM OF SPEECH AND EXPRESSION

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order because no freedom can be absolute or completely unrestricted. For instance, freedom needs to be curtailed if it undermines the security of State or it jeopardizes the maintenance of good relations between India and that state.

VARIOUS COLONIAL LAWS UNDERMINING FREEDOM OF SPEECH AND EXPRESSION

In this context, here’s a look at some of the laws that restrict or criminalise free speech and expression.

1. Section 124A of IPC (1870): Sedition clause, which has been applied indiscriminately. Example: JNU students, Social activists like Kahturam Sunani for voicing acute hunger plight among tribals, artists, writers, etc. This section identifies sedition as a criminal offence and attaches with the provision excessive damages and penalties for instances of sedition which threatens the very inherent feature of a democracy. The freedom of free speech and fair criticism is often cowed down under threat of action. As per NCRB (July 2017) – 165 arrests in last 3 years under this section.
2. Section 499 and 500 of IPC -which makes defamation or hurting another person’s reputation a “criminal offence”- which is “unique” for a democratic country. Defamation laws in India were conceived by Lord Macaulay in 1837 in the first draft of the Indian Penal Code and subsequently codified in 1860. The offence of defamation was along the same lines of the prevailing English law. Criminalizing defamation is an unwarranted restriction on free speech.
3. Official Secrets Act (OSA) of 1923– It hampers transparency and accountability of the government as anything which is “secret” cannot be discussed despite being wrong.
4. Section 153 and 153A of IPC– Section 153A IPC penalises ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’.
5. Section 295, 295 A and 298 of IPC – Hurting religious feeling and religious beliefs which has led to the banning of the literary works like Satanic verses, The Hindus: An alternative History by Ideologist Wendy Doniger etc.

Freedom of speech and expression is the bulwark of democratic government. This freedom is essential for the proper functioning of democratic process and is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving protection to all other liberties. It has been truly said that it is the mother of all other liberties. Thus, a combination of retrograde legal provisions needs to be amended or diluted to restore the true meaning of Article 19. There have been suggestions like making IPC section 499 and 500 as only civil offence, Repelling of OSA 1923 by second ARC, clearer definitions of these laws as per changing times which are in line with our fundamental rights, fundamental duties and DPSP.