(Should the freedom of speech and expression include the right to offend the sentiments of certain sections of society?)
What is the freedom of speech and expression?
The freedom of speech and expression (commonly known as right to free speech) emanates from the elemental emotion of man to express intrinsic to his personality. Free speech fosters free dialogue and exchange of ideas deemed critical to the development of personality. The freedom of expression includes the ability “to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his other choice.”[1] It is considered fundamental to democracy. The right can only be restricted in accordance with the law and as necessary in a democratic society.[2] To this end, the right to free speech is well-entrenched in international jurisprudence. [3] Article 19 (1)(a) of The Constitution of India, 1950 guarantees to its citizens the right to freedom of speech and expression.
What are the restrictions?
As is the legal custom, exercise of every right extends insofar as the same does not infringe the right of another. In the same vein, the due franchise of free speech involves adherence to reasonable restrictions imposed by law. The Indian Constitution abridges the right by imposing various conditions.[4] The constitutionally enforced restrictions extend insofar as the collective sentiments of certain sections of the society are not offended. The rationale behind the limitation is based on the general policy of ensuring law and order enforcement in the state. Unscrupulous speeches are likely to evoke hatred and ill-will from the receiver that may subsequently disturb the harmony of the society. The law prohibits such an undue exercise of the right to free speech and thus prohibits the ‘right to offend’.
How can the balance be imposed?
The balance between the venerable right to freedom of speech and expression and reasonable restrictions imposed upon it is a precarious one. While the state must endeavour to foster free speech, it must disallow its misuse to offend sentiments of certain sections of society. Thus, the balance between the two may only be permissible by identifying key constituents that compose the right to offend and excluding them thereby from the ambit of protection. The point of deliberation must now shift to identification of such elements.
What includes the right to offend?
The state may identify the presence of the following core elements in any alleged offensive act and may thereby disallow its publication—
- Profane language—an act comprising of swear-words imbued with profanity and ill-will.
- Malice—the speaker intends only to harass, coerce or embarrass the listener without any regard to his esteem.
- Hurt sentiments—the act has actually resulted in hurting the sentiments of the section aimed for. To assess the same, the state must consider the viewpoint of a reasonable prudent man acting under the same circumstances.
- Addressed to a certain action—the speech, so made, must be directed to a specific section of population (grouped together by religion, profession, social-stratification, nationality, etc.). Stray remarks made against no specific section must be disregarded.
- Unlawful consequence—the likely consequence and reaction to listening to the speech must be one that is likely to result in breach of peace and public security. To this end, the state may again consider the behaviour of a reasonable man acting under the same considerations.
- Substantively offensive—the speech must be offensive in toto and must represent wholly a pestilential exercise of free speech.
Conclusion
In conclusion, the right to freedom of speech and expression must not include the right to offend. Each act must be analyzed individually and according to the facts and circumstances of the case. In order to assess what constitutes an act of offence, due regard may be made to the above core elements. Singularly or in accumulation, the presence of the above constituents characterize the right to offend and must be prohibited.
[1] Principle 1(b), Johannesburg Principles.
[2] Article 8, the European Commission on Human Rights, 1950.
[3] The Universal Declaration of Human Rights, 1948; The International Covenant on Civil and Political Rights, 1969; The European Commission on Human Rights, 1950; The American Convention on Human Rights 1969; The African Charter on Human and Peoples’ Rights, 1981; The Johannesburg
[4] Article 19(2), the Constitution of India reads—Nothing in sub clause (a) of clause ( 1 ) shall 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 the said sub clause 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.