Freedom of Speech & Expression – A Right or a Responsibility !

Freedom of Speech and Expression –  A Right or a Responsibility !

Let’s take up two divergent views on freedom of Speech and Expression:

First – “An intelligent, culturally aware, aesthetically evolved citizenry must take an uncompromising stance against bigotry and thought control “ – it makes a blistering case for freedom of expression in general and artistic freedom of expression in particular.

Second – “Freedom of expression without limits is like a car without brakes”.

Two contrasting views poses certain questions in the mind of thoughtful reader-

  • What then is the appropriate balance between the contrasting views?
  • Where to exercise it and in what manner and in what proportions?
  • Freedom of expression: A Right or a Responsibility.
  • Is there a difference between Individual’s freedom of expression Vs Artistic freedom of expression?

Questions could be numerous with differing voices in support and dissent.

17th century philosopher Spinoza tries to hit the balance between Individuals right to freedom of speech and expression but with a caveat attached. He states: “For no one can transfer to another person his natural right, or ability, to think freely and make his own judgements about any matter whatsoever, and cannot be compelled to do so”. Additionally, the freedom of opinion is an objective limit for the right to sovereignty: Each one therefore surrenders [to the Sovereign] his right to act according to his own resolution, but not his right to think and judge for himself.

Furthering it, Spinoza says, while a State must grant its citizens freedom of expression, ‘it is very dangerous to concede without any restriction. For this reason we must now ask how far this freedom can and ought to be granted to each person so as to be consistent with the stability of the state’. What was the context and the content of Spinoza’s, a vehement supporter of fundamental right of freedom of speech and expression, saying restrictions are a part of and compliment right to freedom of expression.  Spinoza thus recognized limits to the free expression of one’s views. For example, if a speech, book, painting or film might provoke or lead to large scale violence and anarchy, thereby threatening the survival or integrity of the state.

Having set the general tone and tenor, it is important to look into the recent controversies in Indian context.

Recently CBFC’s doctrine of prior restraint has led to a controversy popping up more often in India’s booming cinematic ecosystem.  Doctrine of Prior restraint is defined as “official restrictions imposed upon speech or other forms of expression in advance”. Thus an act of expression is prevented from taking place at all.

The censorship has a long history and the stated fact is that until the last decade of the 17th century English authors had to deal with the system of licensing wherein publisher had to secure a license for ‘lawful’ publication. And there was a section of enlightened and freedom loving individuals who severely criticized the system and after long opposition it was put to an end. Censorship in India started in the early 1900s during the British era when the British banned Indian films due to political reasons. The first Indian film to be banned was ‘Bhakt Vidur’. Now the word censorship does not occur in any form.

No one can put it succinctly and rightly than what Blackstone has written on the matter. An eminent English Jurist, whose commentaries on the Laws of England is known for their comprehensive and penetrative nature. He states:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity”.

So one thing is clear, staunch supporters of freedom of expression has also left the scope of reasonable restrictions and consider it justifiable under the framework of law and other considerations of National Security.

Let’s delve for a moment on the present position in India as far as Artistic freedom of expression is concerned in light of recent controversies:

The Cinematograph Act, 1952, specifies that it deals with two matters: examination and certification of films as suitable for public exhibition and regulation of cinemas including their licensing. Section 5B(1) of the Act reproduces Article 19(2) which deals with restrictions on freedom of speech and expression. In other words, according to section 5B(1) of the Act, a film shall not be certified for public exhibition if it violates any of the conditions provided therein.

The constitutional validity of CBFC was challenged before a five judge-bench of the Supreme Court in K.A. Abbas v. Union of India , wherein it was held that ‘the censorship of films including prior restraint is justified under our constitution’.

And the Supreme Court in Brij Bhushan v. State of Delhi , opined that the imposition of pre-censorship on a journal is a restriction on the liberty of the press guaranteed under Article 19(1)(a) of the Constitution.

So, the difference between two modes of expression has vastly different interpretation under the law which sometimes seem difficult to comprehend. Does that mean that the reader of a journal is more mature than the viewer who goes to cinema/theatre. What logic lies behind the differing stand of courts as far as two mass media are concerned is better be known to them. Nevertheless, the consistency in law and otherwise would be a much better way to deal with the issue, because, If doctrine of prior restraints violate the rights of the press guaranteed in Article 19(1)(a), the doctrine should apply equally to movies as well.

In recent years, two committees were constituted to suggest changes in the Cinematograph Act. The first headed by Justice Mukul Mudgal was of the view that CBFC must not take a moralistic view. Cinema is a form of art and by its inherent character capable of varied forms of representation and consequently myriad forms of interpretation. These concepts were incapable of surgically precise definitions and interpretation and would vary from person to person, it said.

The second by Shyam Benegal, constituted by the present government, recommended that the CBFC only remain a certifying body and have no role in imposing cuts and unduly curbing artistic expression and creative freedom of the director.

Another point to be discussed is the more number of cases related to certification ending up in Courts.

In this regard a persistent systemic issue that merits examination is the rising trend of film certification falling into the hands of the judiciary. There have been many such instances where, due to gaps in the CBFC’s reasoning, the courts have been compelled to go into the merits of suggested deletions. Will there be justice where a piece of art is judged through legal principles? Does legal luminaries posses the required expertise to judge a piece of art? What moral principles shall prevail, universal or local, if so required, to make a value judgement? These and perhaps many more such questions needs to be pondered over.

This issue was considered by Justice Hugo Lafayette Black. He observed that, “judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the Nation. In addition, the Justices of this Court seem especially unsuited to make the kind of value judgments – as to what movies are good or bad for local communities”.

Admittedly, owing to the institutional cracks in the CBFC at present, courts will continue to play watchdog.

Although the Indian Cinematograph Act provides legislative sanction to the CBFC and FCAT, the CBFC’s dual role as a certification and censoring body has been widely criticised. Whether the state should censor films or merely examine their aptness for public viewing is a matter of a larger debate involving the historical understanding of the pre-censorship of cinema, and the constitutional position and perspectives on expression of art vis-à-vis their impact on contemporary society. In the absence of such clarity in law and public discourse, courts become involved in an act that is best left to experts.

To conclude is not an easy task sometime. More so when stakes are high on both sides which require a fine, because it’s not about who wins and who loses – the question is about the fundamental human freedom. On one side, fundamental freedom of speech and expression needs to be protected and on the other one cannot have unlimited and unrestricted rights too. It is always morally mature to have it come from within rather to be imposed from outside.  So restricting speech and expression under three categories could be justified as far as restrictions are there:

  1. Obscenity
  2. Incitement to violence
  3. National security

So, let’s end with a quote from Machiavelli.

Niccolò Machiavelli in his epic treatise on Politics identifies three types of intelligence. “One kind understands things for itself, the second appreciates what others can understand, [and] the third understands neither for itself nor through others.” He goes on to say, “This first kind is excellent, the second good, and the third kind useless.” So, the maturity of democracy will only be reflected when there are fundamental freedoms with least of restrictions and dissent and disagreement exist but for an intellectual deliberation rather than giving rise to narrow narratives.

Therefore the case where we started with two opposing views, One with unlimited rights can only become a reality when the restrictions are of the nature of self imposed and come from within rather than the state interfering and dictating what is right and wrong, what to speak and what not to speak. We are a evolving society and this would come as our democracy matures.


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