This article has been written by Manaswini Vakubharanam, a student studying BA.LLB from Pendekanti law college, Hyderabad. The author is a second-year student.
Free speech and Emergency in India is one of the contentious topics. When we talk about Free speech and Emergency, the first thing that crosses our mind is the year 1975, which is often regarded as the dark phase, the year when the Prime Minister of India, Indira Gandhi declared an emergency throughout the country and for the next two years, the fundamental rights of the people got suspended. The Fundamental Rights are the crucial privileges given to the citizens of India by the Constitution under Part III articles 12 – 35. The provisions of Emergency are discussed under the articles 352-360 (Part XVIII).
The Freedom of Speech and expression is covered under Article 19(1) (a) of the Indian Constitution. The Indian Constitution awards various Fundamental freedoms to the citizens of India. The Right to Freedom of speech and expression is one of the Fundamental freedoms protected under 19(1) (a) of the Indian Constitution and many international treaties of which India is a part. Article 19(1) (a) assures the citizens of India the freedom of speech and expression. This can be in any form of communication such as word of mouth, written texts, broadcasting etc.
The notion of Free speech stood the test of time. In almost all the historical constitutions the freedom of speech was restricted. The constitution of India Bill, 1895 is the first document that contains such a freedom of speech as a provision that gave the citizens the right to free speech but made citizens accountable for the abuses, which they may commit in the exercise of their right to free speech. The terms ‘Public Order’ and ‘Morality’ used in the Indian constitution as restrictions on freedom of speech were used for the first time in the Commonwealth of India Bill 1925. Almost all other historical constitutions that were produced after this bill contained the terms ‘Public Order’ and ‘Morality’ as the fundamental restrictions in the formulation of the right to freedom of speech.
On thorough examination of the critical documents that are a part of Indian Constitution, it becomes very clear that freedom of speech was never viewed as an absolute right.
Emergency in the year 1975, under Indira Gandhi’s government was considered to be one of the ‘darkest periods’ India could have ever witnessed. Over 1lakh people were arrested including the eminent personalities like Atal Bihari Vajpai, Jaya Prakash Narayana, and Chandra Shekar, etc. Our Indian Constitution gives the President of India the authority to declare emergency in the country. The President can declare three types of emergencies, they are:
- National Emergency (Art.352)
Article 352 of the Indian Constitution articulates about the National Emergency. The National Emergency is declared when there is a grave threat to the security of the country or any of its territory due to war, external aggression or armed rebellion. Such Emergency can be declared by the President on the written request of the council of ministers headed by the Prime Minister, when they think that there is a threat to the security of the territory. A special majority is required to get the proposal approved. Once approved, the emergency shall operate for a maximum of 6 months and can be revoked by the president any time before 6 months.
National Emergency has been imposed thrice in the country, during the Chinese aggression in the year 1962; during the Indo-Pak war in the year 1971 and on the grounds of internal disturbance in the year 1975.
- State Emergency or President’s Rule (Art. 356)
The article 356 articulates the failure of constitutional machinery in the state also known as the President’s rule. If the president on Governor’s report or otherwise thinks that a situation has arisen that the Government can’t be carried in accordance with the constitutional provisions then he may issue State emergency. During the state emergency the state assembly either gets dissolved or suspended. But the MLA’s do no lose their membership of the assembly. The state ordinances are made by the President. The uncritical use of Article 356 came down to a greater extent after the Supreme Court’s landmark judgment in the S. R. Bommai case in 1994.
- Financial Emergency (Art. 360)
The article 360 articulates the authority of the president to declare the Financial Emergency. This emergency is declared when the president is satisfied that there is no financial stability or credit standing of the country or any of the territory of the country is threatened.
Fundamental rights are not absolute in nature. The government of India may impose restrictions on the Fundamental rights on the three grounds. The government might show that the values protected by the original right are not really at stake in the marginal case or stake at only in some attenuated form. Alternatively if it may show that if the right is defined to include the marginal case, then some competing right, in the strong sense, would be abridged. This is the principle of competing rights of other members of society as individuals. Making this ‘rights’ choice and protecting the more important at the cost of the less important, does not weaken the notion of rights. Hence the government may limit rights if it believes that a competing right is more important.
The third possibility is if it may show that if the right were so defined then the cost to society would not be simply incremental but would be of a degree far beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity of the individual it may result in.
But another principle is there which is used in many human rights treaties and in national constitutions as well. Government may not arbitrarily deprive persons of their fundamental rights, Most of debates on the issue assume a necessary ‘trade off’ between rights and security, however it is submitted that the relation between the two is more complex than that.
Restrictions on rights on ground of security are not justified per se. This may be because the trade off is unnecessary where the government may pass effective laws which do not violate rights or when harsh laws restricting rights will not yield results. However tensions do arise. If the security strategy genuinely implicates rights, then it may be justified and must be governed by the principle of proportionality. Proportionality analysis is an uphill task and involves balancing of the two social goods of liberty and security.
It involves analyzing, if there exists a rational connection between the aims of the legislation and the means employed, if there is a less restrictive means available in order to achieve the aim. Thirdly, comparing the effectiveness of the means with the infringement of rights.
Reference
https://www.legalservicesindia.com/article/589/Position-of-Fundamental-Rights-during-Emergency.html
https://www.indiatimes.com/news/india/freedom-of-speech-and-expression-in-india-554739.html
https://www.constitutionofindia.net/blogs/freedom_of_speech_in_the_historical_constitutions
https://blog.finology.in/Legal-news/emergency-declared-in-1975-india
https://thediplomat.com/2022/10/why-is-free-speech-limited-in-india/
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