This Article is written by DEEPANJALI TIWARI,  3rd year law student pursuing B.A. LLB, from Asian Law College, Noida, Uttar Pradesh affiliated with Chaudhary Charan Singh University. 

“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”

George Washington

Abstract

Freedom of speech is glaringly essential to any credible electoral process. If politicians are not able, not allowed, to express themselves freely, or citizens cannot have in-political discussions there cannot be unique, free and honest elections. In particular, governments need not to use their power to stifle criticism. They must allow a free pass and similarly essential, need to provide opposition forces a reasonable chance to express their case on national television

Yet, there are legitimate or reasonable restrictions to freedom of speech and expression.

Especially in times of struggle, war it is reasonable to restrain politicians from discussing public affairs in a manner likely to betray military secrets and techniques to the enemy. Even in peacetime a few topics must remain personal. Unfortunately, the government will frequently be enticed to request irrationally to the requirements of public safety to keep away from investigation and analysis. In all social orders, particularly those broken with the guide of morals, pressure, un-limited free discourse demonstrates danger when any fair, brutal components choose to utilize their opportunity to prompt viciousness and scorn. It is a difficult problem for democracies to decide how long they must tolerate extremists, Rhetoric and to what volume they must permit potentially violent public meetings. A contention for most extreme resilience is that it is all too simple for the public authority to utilize the supposed need to keep up with peace and lawfulness to restrict genuine articulations of dispute. To save the right of valid disagreement, it is additionally important to have the option to contend, to allow even individuals who seem outrageous and hostile to vote based on themselves.

Keywords- Democratic, Elections, Citizens, Violence, State, Freedom Of Speech And Expression.

Introduction

Speech is a God’s gift to mankind. With the help of speech and expression people can easily convey their opinion, ideas, thoughts, sentiments and feelings to others. So, basically the right of freedom to speech and expression is a natural right which is given by God itself. Nobody has the right to curtail our basic rights until and unless it curtails others’ rights. Freedom of speech and expression is a right which a human being acquired on birth. Expression is a matter of liberty and right, and the first condition which fulfills the liberty of an individual is freedom to speech and express ourselves. In general terms freedom of speech and expression means the right to express one’s own opinion freely by words of mouth, writing, printing or through any media. It incorporates any transmittable medium or apparent portrayal like signal, moans, and such. As a statement said truly by someone about the freedom of speech and expression is the mother of all other liberties. As India is a democratic, secular, republic, and sovereign country having a diverse culture, it means people living in one country with different culture so they have their different opinions too. Everyone has their own ideas, thoughts towards others, so it’s not always necessary to have the same opinion on two different subjects. It may differ from each other’s view towards the same subject. 

Freedom of speech and expression is a matter of liberty and rights. It is one of the most important elements for a good, open-minded, healthy and wealthy democracy. The first principle of a free society is an untrammelled flow of words in an open forum. Liberty to express opinion and ideas without any hindrance and especially without the fear of punishment play significant role in the development of that particular society and ultimately for the state

It is quite possibly the main central freedom ensured against state concealment or guideline.

Place Of This Right In Indian Constitution

Personal liberty is the most important right. Article 19 to 22 deals with different aspects of these basic rights. These 4 Articles provide the backbone of Fundamental rights. Altogether there are six fundamental rights in the nature of freedom given in the Constitution of India. They are guaranteed to the citizens of India under the Article 19 of the Constitution. All those six rights are not absolute in nature. Absolute individual rights cannot be guaranteed by any modern State. There is no right which creates hatred among the public or the community as a whole. Freedom of Speech and Expression is defined under Article 19(1)(a) of the Constitution of India which states that all the citizens of India have a right to freedom of speech and expression. The philosophy behind this Article lies in the Preamble of the Constitution of India- “where a solemn resolve is made to secure to all its citizens, their liberty of thought and expression“. The exercise of this right is, however, subjected to reasonable restrictions for some purposes being imposed under Article 19(2) of the Constitution of India. 

Freedom of Speech and Expression under the Constitution of India

Article 19 of The Constitution of India, 1949 states:

Protection of certain rights regarding freedom of speech etc

1.  All citizens shall have the right:

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) to practise any profession, or to carry on any occupation, trade or businesses.

Freedom Of Speech And Expression Includes

According to Article 19(1)(a) of Indian Constitution, all citizens shall have the right to freedom of speech and expression.

1. It includes that all citizens have the right to express their conviction and opinions freely.
2. This includes not only word of mouth, but also a speech by way of writings, pictures, movies, banners, etc.
3. The right to speech also includes the right not to speak.
4. Freedom of the press is an inferred freedom under this Article.
5. This right also includes the right to access information because this right is meaningless when others are prevented from knowing/listening. It is according to this interpretation that the Right to Information (RTI) is a fundamental right.
6. The Supreme Court has also ruled that freedom of speech is an inalienable right adjunct to the right to life (Article 21). These two rights are not separate but related.
7. The right to freedom of speech and expression also includes the right to communicate, print and advertise information.
8. This right also includes commercial as well as artistic speech and expression. According to the Article 19(2) of Indian Constitution there is some reasonable restriction over every right;

 (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State

The restriction on the rights under Article 19(1) can only be imposed by a “LAW” and not executive or departmental instructions. The word reasonable restriction in this Article cannot mean absolute restriction but can be some reasonable restriction that the limit forced on an individual in the pleasure in his right ought not be subjective or of an over-the-top nature, past what is really needed in light of a legitimate concern for general society or until and except if it doesn’t disregard others right the word reasonable basically implies thought, deliberation and wise consideration.

Essentials Of Freedom Of Speech And Expression

1. It is applicable only for the citizens of India not for the foreign nation.
2. The freedom of speech under 19(1)(a) involves the right to express one’s views and opinions at any issue through any medium, for example by expressions of mouth, composing, printing, picture, film, film and so forth.
3. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence.
4. This limit on the freedom of speech of any citizen may be imposed as tons through an action of the State as by way of its state of being inactive. Thus, failure on the part of the State to guarantee to all its residents the essential right to freedom of speech and expression might also constitute a contravention of Article 19(1)(a).

Freedom of Speech and Expression play a vital role in a democracy. In case of Romesh Thapper v. State of Madras , Patanjali Shastri,J, rightly observes that-

“Freedom of Speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no education, so essential for the proper functioning of the process of popular Government, is possible.”

Freedom Of Speech And Expression And Freedom Of Press

Freedom of speech includes the right to propagate one’s view through print media or any other communicable medium e.g., radio, television, but there are also some reasonable restrictions imposed under Article 19(2)(a). In the above mentioned case Romesh Thapper v. Union of India turned into among the earliest instances to be determined by the Supreme Court asserting freedom of press as a part of freedom of speech and expression. Freedom of Press includes freedom of book, freedom of circulate, and freedom of pre-censorship.

In another case of Indian Express v. Union of India (1985)1 SCC 641, it has been held that the Press plays a very vital role in a democracy. The courts have responsibility to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom.

Freedom Speech And Expression And Right To Information

A Division Bench of S.C. Dharmadhikari and R.I. Chagla, JJ., addressed a Public Internet litigation that sought effective enforcement and implementation of The Right to Information Act, 2005. For the above, the bench said that orders have been handed from time to time to ensure that the RTI Act, 2005 does no longer turn out to be a useless letter.

The Court stated that, 

“Enactment is in the larger public interest. Right to Information is implicit and inbuilt in the right and freedom guaranteed to a citizen under Article 19(1)(a) of the Constitution of India. Right to free speech and expression includes within it the right to information. That is how this constitutionally recognised and permitted right is made meaning and its enforcement is now serving a larger public purpose. It is only the enforcement machinery which is created by the RTI Act, 2005.”

It is surprising that in our independent India, a guaranteed constitutional right to freedom of speech and expression existed without ‘right to information’ for 45 years. Freedom of thought is an outright right which none could meddle with. Without practicing this freedom of reasoning, a citizen can’t communicate, and without data freedom or information of thought can’t be put to use. The right to information is, most fundamental prerequisite to talk and compose. 

Article 19 of Universal Declaration of Human Rights says: Everyone has the option of opportunity of assessment and articulation; this right incorporates the opportunity to hold sentiments without impedance and to look for, get and grant data and thoughts through any media and regardless of any frontiers.

The freedom of ‘speech and expression’ includes not just the option to communicate, distribute and proliferate data, its dissemination yet additionally to get data. This was held by the Supreme Court in a progression of decisions which have examined the right to data in shifted settings from notices empowering the residents to get crucial data about existence saving medications, to one side of sports darlings to watch cricket and the right of citizens to know the predecessors of electing competitors.

Grounds Of Restrictions On Freedom Of Speech And Expression

Clause (2) of Article 19 contains the grounds on which restrictions on freedom of speech and expression can be imposed. Some of these grounds are as follows:

1. Sovereignty and integrity of India
2. Friendly relations with foreign states.
3. Security of State.
4. Decency or Morality.
5. Public order.
6. Defamation.
7. Contempt of court
8. Incitement of an offence.

Sovereignty And Integrity Of India: It was added under clause (2) of Article 19 by the 16^th Amendment Act, 1963. It states that freedom of speech and expression can be restricted until and unless it was not against the sovereignty and integrity of India means it does not allow anyone to challenge sovereignty of India or preach cession of any part of India from the Union.

Friendly Relations With Foreign States:  It was added to the constitution of India by the (1st amendment) Act, in 1951. Under this it was stated that the State can impose some reasonable restrictions on freedom of speech and expression if it hampers friendly relations with other states.

Security Of State: Some reasonable restrictions can be imposed under Article 19 (2) on freedom of speech and expression in the interest of Security of State. The concept of national security is pivotal to every nation which refers to the situation where the government ensures that the states and their citizens are protected and safe and assures these via political, economic, diplomatic and military mightiness. Government has the power to put restrictions on the activities which affect the security of the state. For security of state refers to serious and aggravated forms of public disorder, example rebellion, waging war against the state.

Decency and Morality: The words decency and morality are defined in Section 292 to Section 294 of IPC. It empowers the government to put sure regulations on freedom of speech and expression under this. These sections of IPC restrict the distribution or sale of obscene books and so forth in public.

Contempt of Court: Restriction on freedom of speech and expression can be imposed if anybody disobeys the law of court or it exceeds the reasonable and fair limit and amount of contempt of court. Contempt of court may be either civil contempt or criminal contempt.

Freedom Of Speech And Expression And Election In Digital Age

Right to vote is a fundamental right everybody has right to vote and the voters right to know about their candidates that means who is representing our state. 

In case of Union of India v. Association for democratic ReformsA three-judge bench held that the amended Electoral reforms law passed by Parliament is unconstitutional as being violative of a citizen’s right to know under Article 19(1)(a) of the constitution. 

In this case the petitioners for democratic Reforms filed a PIL and requested the Court for a direction to implement the recommendation made by the Law Commission in its 170^th Report. In May, 2002 the Supreme Court conveyed a judgment and guided the Election Commission to give notice making it mandatory for the individuals who challenge races to make accessible data about their schooling, resources, liabilities, and criminal precursors for the advantages of electors.

Progresses in data and correspondence innovation have been basic to working with admittance to data and the free progression of thoughts during races. Nonetheless, State and non-State entertainers have additionally taken advantage of these advances to interrupt with popularity-based investment and admittance to realities sooner or later of political race periods, and to sabotage the trustworthiness of electing methodology.

Section 33 of the amended RPA provided ‘notwithstanding’ anything contained in any judgement of any court or any order of the Election Commission no candidate no candidate will be responsible to reveal or supply such a data, in respect of his election, which isn’t always required to be disclosed or supplied below this Act or the regulations made thereunder. Thus, the amended RPA stipulated that handiest candidates who’re elected were required to present info in their property and liabilities to the concerned presiding officials of other Houses, and not MP’S who are not elected. Article 19(1)[2] defines freedom of speech and expression. As mandated by way of the Constitution, freedom of speech and expression is a natural right which means that citizens collect this properly through beginning.

 All the citizens hold the freedom of speech and expression however, it does not act as an unconditional licence. Therefore, sure reasonable restrictions are placed underneath Article 19(2) of the Constitution. Section 123(3) of the Act prohibits canvassing by using an electoral candidate to woo citizens within the call of race, caste, faith, community and language. It also prohibits usage of spiritual symbols or national symbols or flags for canvassing purposes. Usage of the aforesaid are considered to be corrupt practices. The electoral applicants cannot promise any public policy which they recommend to put into effect on being a success. Article 25 of the Constitution ensures the residents of India, freedom of conscience and allows every citizen the right and freedom to profess, practice and propagate the faith of 1’s preference subject to public order, fitness and morality.

Duties Of Election Commission

The Election Commission endeavours to take all of the vital measures to ensure free, fair and peaceful elections inside the country. However, it has been located in exercise, that the pointers issued through the Election Commission are not accompanied strictly, rather there may be an attempt to flout the guidelines, which leads us to an inevitable end, that there’s a robust need for electoral reforms in the country. The Preamble of the Indian Constitution states that India is a democratic and an earthly country. The word “democratic” means that we’ve the right to pick our personal representatives. A Government of the People, For the People and By the People. “Secular”, alternatively, approach that our USA does now does not have a professional State subsidized faith unlike many other countries of this world. For example, Pakistan is thought by way of the authentic name – 

“The Islamic Republic of Pakistan” which actually suggests that Pakistan has a state religion but, then again India’s Constitution bars any State religion. The election being the maximum crucial and essential a part of any democracy, must stay sacrosanct and therefore, it is once more critical to reiterate the truth that the applicants ought to now not enchantment for votes in the call of faith or some other class differentiation; it defeats the ethos of a healthy democracy.

Safeguard For The Protection Of Freedom Of Opinion And Expression During Election

Article 19 has been addressing troubles associated with freedom of expression and information and elections for more than 25 years. Back in 1994, Article 19 posted its fashionable-placing report in this vicinity, Guidelines for Election Broadcasting in Transitional Democracies. The Guidelines are built on international requirements on broadcasting at some point of elections and first-rate comparative exercise; they represent the benchmark to which all international locations protecting elections need to work toward. Article 19 has analysed a number of election and media associated legislative proposals, and several Article 19 offices work on the issue to the nearby degree.

Pluralism and the Media

States should encourage an ideologically pluralistic political process. A pluralistic political process is a “regulatory environment that facilitates a diverse range of political positions and ensures that voters have access to comprehensive, accurate and reliable information about all aspects of the electoral process”. The media plays a critical role in promoting pluralism, “framing electoral issues, informing the electorate about the main developments, and communicating the platforms, policies and promises of parties and candidates”. 

Finally, to promote pluralism, States should ensure that the media is free, independent and diverse. The Human Rights Committee has seen that “excessive media predominance or fixation by secretly controlled media gatherings”, might be “destructive to the variety of sources and perspectives” openly talk. As needs be, the State’s obligation to safeguard the variety of media sources and forestall “monopolistic circumstances” is basic to the spread of contradicting perspectives during races and establishing a media climate that is helpful for informed independent direction.

Furthermore, instead of imposing onerous and punitive restrictions that are likely to censor the media, States should encourage and promote robust self-regulatory mechanisms that develop and monitor. compliance with ethical standards. When media stores are State-owned, felony frameworks need to be in the area to make sure all parties have the same entry to the media. Such frameworks should also prevent incumbents from the usage of their function to persuade State-owned media in their desire.

Transparency 

States should strive for transparency in all aspects of the electoral process. One critical method for freedom of expression is for States to give significant data that permits public examination of the electoral process. For example, disclosure necessities concerning marketing campaign price range are critical to ensuring the fairness and integrity of elections. Information regarding how the integrity of elections is assured (along with approaches regarding how ballots are counted and how voting machines are maintained) is critical to ensuring public self-assurance in unfastened and honest elections. Electoral authorities must also provide meaningful get right of entry to ballot counting and consequences tabulation so as for citizens and parties can verify the accuracy of election results. States should establish legal frameworks that ensure transparency about media ownership and their potential influence over the political process. As mentioned above, a free and impartial media is critical to public discourse and democratic participation during elections. Pertinent divulgences about media possession and combination furnish the general population with data about potential wellsprings of monetary and political impact and inclination in the media . 

Accountability

States ought to have systems set up to screen, record, address, and give review to infringement of opportunity of articulation during the electoral process. 

In particular, States need to create electoral commissions with responsibilities to assure elections that meet global duties and requirements along with “election monitoring, the regulation of political funding, the provision of direct get right of entry to public broadcasting media and the tracking of political speech”. Upon creating electoral commissions, States must devote the assets vital for the commissions to perform efficiently. Opinion polls also are every other powerful device for holding politicians responsible. However, opinion polls can also be manipulated to influence electoral processes “on the basis of the opinions of a small and non-representative segment of society”. 

Thus, States must make sure transparency by means of requiring the disclosure of methodologies utilized in polling to save you the spread of deceptive statistics derived from non-representative pattern organizations.

Elections within the Digital Age

Digital technology has provoked massive modifications to elections during the last few many years: Internet structures have massively improved the ability of voters to get entry to and engage with information about political events and applicants. Political parties, specifically small ones, are greater capable than ever earlier than to get their message out to larger audiences, spending less by using the use of unfastened blogs, video sharing systems and social media.

But as is increasingly clear from latest elections, the identical openness can pose extreme challenges to the proper of citizens to freely pick elected representatives. The use of focused political advertising and marketing and coordinated inauthentic behaviour to disseminate incorrect information have caused fears over the integrity of elections.

Many of the conventional safeguards to make sure the fairness of elections is difficult to apply online. The rules relevant to political communications for the duration of election intervals, transparency of and boundaries on electoral spending, appreciation for silence durations and equal remedy of applicants, are increasingly complicated by using virtual technology. It is pressing to remember whether or not, and how, “offline” electoral policies may be tailored to campaigns which might be an increasing number of runs online.

Challenges to Elections in the Digital Age 

In recent years, States and non-country actors have more and more used the digital area to threaten freedom of expression for the duration of elections. These threats encompass, however aren’t limited to, network disruptions, anti “fake information” initiatives, Direct Denial of Service (“DDoS”) attacks, and interferences with voters’ records and information.

A growing number of States are intentionally disrupting internet and telecommunications access during election periods. Network shutdowns disruptions that “involve measures to intentionally prevent or disrupt access to or dissemination of information online in violation of human rights law” Network shutdowns are fundamentally incompatible with Article 19(3) of the ICCPR. The Human Rights Committee has stated that “generic bans” on the operation of “websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines”, are not compatible with Article 19(3). Shutdowns might also occur in a variety of ways. In addition to network outages, governments may throttle access to mobile communications, messaging structures, social media and other websites, rendering them effectively unusable. 

During election durations, such disruptions inhibit the transmission and receipt of records about candidates and their policies. This implicates the right of citizens to recognize who and what they’re balloting for, and the right of candidates and political businesses to talk with citizens. Shutdowns additionally save you electorate from gaining access to crucial and time-sensitive updates concerning their polling locations and other election day statistics.

 Anti- “Fake Information” Initiative: 

It signifies less intrusive means of addressing the spread of online disinformation are available to both States and companies. Accordingly, strategies for fighting disinformation should be evidence-primarily based and tailored to demonstrated or documented effects of disinformation and propaganda. Rather than imposing undue restrictions on freedom of expression and onerous middleman legal responsibility duties, efforts to cope with on-line disinformation should promote a permitting environment for freedom of expression. These measures encompass: requiring or encouraging heightened transparency concerning advertisement placements and sponsored content. developing and promoting independent fact-checking mechanisms; 2017 Joint Declaration. providing support for independent and diverse public service media outlets instituting measures to improve public education and media literacy and collaborating with social media platforms to ensure that their approaches to content moderation, including the use of artificial intelligence-driven tools, reinforce and respect human rights.

DDoS Attacks During elections

State actors have historically denied access to unfavourable views and information concerning incumbent office holders. In the digital age, technological advances have enabled perpetrators to increase the scope and frequency of these attacks on freedom of expression. One common practice involves the use of Distributed Denial of Service (“DDoS”) attacks, where a network of online systems is compromised and directed to flood another online system with Internet traffic, effectively rendering the target inaccessible. These attacks have targeted the websites of political parties, 0 Diana Beth Solomon, Cyber-attack on Mexico campaign site triggers election nerves journalists and media outlets, and human rights defenders and civil society organizations. See e.g., Cyber-attacks increasing against civil society in Azerbaijan ahead of election 

Perpetrators have also targeted the websites of States’ election commissions, which publicize critical information such as changes to ballot locations. DDoS attacks are also potentially a cover for coordinate hacks on voter registration and other electoral databases and other attempts to steal the data of voters, candidates and public officials.64 Given that online media have become the primary resource of news and information for many voters, and the integration of electronic systems into electoral processes, DDoS attacks are likely to increase in magnitude and frequency. Furthermore, in the Internet of Things era, the growing number of connected devices makes them attractive targets for DDoS attacks.

Interference with Voter Records and Voters’ Data:

Interferences with electoral databases and voters’ data are also critical threats to the integrity of elections. Voter records maintained by government authorities, such as voter registration databases, are particularly susceptible to hacking and other malicious attacks. 

Leah Rosenboom says, Transparency Is Solution to Shameful Lack of Security for US Voting Systems Revealed by NSA Leak, American Civil Liberties Union 

The lack of adequate security protocols and safeguards may also lead to inadvertent exposures of private and confidential voter information. 

Joseph Lorenzo Hall, Campaign Data Breaches: Political Toxic Waste, Centre for Democracy and Technology  says 

Whether deliberate or inadvertent, such data breaches not only interfere with the right to privacy but also the rights to freedom of expression and genuine democratic elections. As a result, they engage the State’s obligations to conduct appropriate investigations and provide effective remedies. Interferences with personal data held by social media and other Internet platforms may facilitate efforts to covertly manipulate or influence voters. Such data was reportedly used to identify and profile voters and target them with political messages.

Carole Cadwalladr and Emma Graham-Harrison, revealed that more than 50 million Facebook profiles harvested for Cambridge Analytica in major data breach.

These occasions show the cosy connection between the protection of clients’ information and the activity of opportunity of articulation and the option to cast a ballot during decisions. Organizations that hold a lot of clients’ information ought to foster powerful and genuinely straightforward security approaches and cycles in interview with common society and different partners, reliable with their obligations to regard basic freedoms.

Conclusion

Threats to elections in the digital age are complex and multi-faceted, and implicate a wide range of State and non-State actors. Network shutdowns stifle access to critical information and public discourse during electoral periods. While the rise of “fake news” has raised concern about their impact on political discourse, censorship-based efforts to counter disinformation also threaten to suppress legitimate expression and compromise genuine democratic processes. The growth of digital attacks, such as DDoS attacks and the hacking of voter records, pose critical threats to individuals and societies as a whole. Thus, as public discourse gradually migrates to private online infrastructure, companies must play an essential role in safeguarding the exercise of freedom of expression, particularly during elections.

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