Contours of freedom of expression

The constitutional mandate of freedom of expression should be seen in the light of evolving societal conditions

By Author Chittarvu Raghu   |   Published: 6th Nov 2020   12:05 am Updated: 5th Nov 2020   10:24 pm

The French Constitution discourages religious involvement in government affairs and policies of the state. The government is barred from involving in religious affairs with the 1905 French law separating churches and state. Their form of secularism emphasises respect for freedom of thought and freedom of religion. An individual is at liberty to express her/his thought on a religion without any reasonable restriction.

This concept of secularism propelled several violent acts such as attacks on satirical weekly ‘Charlie Hebdo’ in January, 2015, and the recent horrific murder of history teacher Samuel Patty. There is no ‘blasphemy law’ in France. In 2016, the then ‘blasphemy law’ existing only in two regions of Alsace-Moselle, which were the erstwhile parts of Germany, was also repealed and now entire France does not have any ‘blasphemy law’. This means any person would be free to express her/his thought on a particular religion irrespective of whether it would hurt the sentiments of that people.

‘Blasphemy No Crime’

French President Emmanuel Macron has stated that ‘blasphemy’ is no crime. The law in France as on today is that it is possible to insult a religion, its figures and symbols but it is prohibited to insult members of a religion. The question is whether the right to freedom of expression can be overstretched without any reasonable restrictions. France and other European countries have adopted a different meaning to freedom of expression on a premise that the right to speak freely is a basic moral right, which States should uphold and protect.

India extended support to France. The Ministry of External Affairs released an official statement deploring the personal attacks on Macron and also condemned the brutal terrorist attack that killed the French teacher.

Indian Position

However, the Ministry was careful to confine its statement only to the personal attacks made on the President and the brutal terrorist attack. It is silent with regard to the cause that led to such an attack. France has openly stated that ‘blasphemy’ is no crime. But in India we have ‘blasphemy law’ and the same is a crime.

Like the French Constitution, the Indian Constitution also does not provide for state religion. Freedom of expression is provided under Article 19(1) (a). It states that all citizens shall have right to freedom of speech and expression. The Preamble resolves to secure all its citizens’ liberty of thought and expression. Article 19(2) enables state to enact law imposing reasonable restrictions on the exercise of right conferred by Article 19(1) in the interest of public order, decency and morality, etc. Therefore, there is no absolute constitutional right in relation to freedom of expression provided under the Indian Constitution.

freedom of expression

IPC Provisions

Various provisions of the Indian Penal Code such as Sections 124A, 153A, 153B, 292,293 or 295A make certain expressions a crime. More particularly Sec 153A contemplates that whoever by words either spoken or written or by signs or by visible representations or otherwise promotes or attempts to promote, on the grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious groups, etc, or commits any acts which is prejudicial to the maintenance of harmony between different religious groups or others, shall be punished with imprisonment. This provision takes into its fold all the acts that may disturb harmony and public tranquillity. It is a reasonable restriction imposed by law on the freedom of expression provided by the Constitution.

Section 295A, enacted in 1927, also contemplates that whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class shall be punished. A reading of Sec 295A shows that insulting a religion or attempting to insult a religion is punishable. Whereas in France any act committed against religion which constitutes ‘blasphemy’ is not punishable but is punishable if s/he commits any act against a person of the said religion.

Sections 153A and 295A are the forms of reasonable restrictions imposed upon the citizen, vis-vis the freedom of expression. The concept of freedom of expression under the shelter of secularism in France is without any reasonable restrictions. The argument is that freedom of expression is one of the fundamental freedoms in France. The Constitution of France confers powers upon the legislature to prescribe limitations in relation to freedom of expression. However, no specific ‘blasphemy law’ is made unlike India. In this context, Macron made the statement that ‘blasphemy’ is no crime.

US Constitution

In the United States of America, there is no federal law, which forbids religious vilification or religious insult or hate speech. However, some States have ‘blasphemy’ statutes and the same are challenged on the ground that they are unconstitutional and violative of the first amendment to the United States Constitution.

Any caricature pertaining to religion constitutes an offence in India if such caricatures tend to disturb the public order and tranquillity. But in France, the same is not an offence. Violence as such is condemnable and to that extent, none of the peace-loving countries would countenance such incidents. But insofar as the freedom of speech is concerned, it has to be controlled by imposing reasonable restrictions. It is more important in countries which have complex and diversified societies.

Ultimately, the objective of any law should be to protect the public order and tranquillity. The constitutional mandate of freedom of expression should be understood in contemporaneous conditions. Though there is an argument that the ‘blasphemy’ law is an antithesis of freedom of expression, it may not be so.

(The author is Advocate, High Courts of AP & Telangana)

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