This article has been written by ms. Nainci rani, a student studying B. A. LL. B. (H.) from teerthanker mahaveer college of law and legal studies, moradabad. The author is a 3rd year law student.
- Introduction :
In this part II and in parts III and IV, we examine the right to freedom of speech and expression guaranteed under article 19(1) (a) of the Constitution, which provides that “All citizens shall have the right to freedom of speech and expression”. A discussion on the scope of the right and expression would involve an examination of what this guaranteed right comprises and also what limitations can be imposed on the exercise of this right. Both these considerations which underlie that guaranteed of the right of speech and expression. Thought media freedom is an aspect of the freedom of expression, but, since it has certain special problams of its own, we shall discuss it separately in part IV.
- Right to silence under article 19(1) (a) :
It is to be noted that article 19(1)(a) confers on all the citizens not the right to speech and expression as such, but a right to the freedom of speech and expression. And there are at least two kinds of freedom that a citizens can claim here : freedom to decide what to speak or not to speak. In other words, there is a freedom against any kind of coerced speech. This can be illustrated with the help of two cases decided by the supreme Court.
- Case : Bijoe Emmanuel v. State of Kerala :
In this case the supreme court invalidated the expulsion order passed against three children belonging to the sect of Jehovah’s witnesses for not joining in the daily singing of the national anthem in the school though they showed due respect to the anthem by remaining standing when it was being sung. The court held that the punitive action taken against them was in violation of their fundamental rights guaranteed under article 19(1) (a) and 25(1). Here our discussion is confined only to the first issue. There were certain circulars issued by the education department of the state government which required that the start of the classes in every school on every day should be preceded by an assembly wherein the whole school should join in collectively singing the national anthem. When judged in the context of article 19(1) (a) right. Insofar as the circulars required an unwilling members to join in the singing, they had to be in consonance with the requirements of article 19(2) which defines how and what kind of restrictions can be imposed on the right of speech and expression which had become the right not to speak in the facts of the present case.
- Case : union of India v. Motion pictures association :
Where the respondents had challenged the Constitutionality of a practice which was prevalent since mid-fifties of the last century. Every picture hall was required to show films prepared by the films division of the government of india for about 15 minutes before the start of the movie which was scheduled to be screened. The owners of the picture theatres had also to pay something for it, though the cost of the production was estimated to be higher than what the films division is able to collect from the theater- owners. The justification for showing these films was that they were informative and had some educational value. And the theatre – owners were given the licence subject to the condition that they would abide by this practice.
- Right to silence under article 20(3) :
The ‘Right to silence’ is a common law principle. It suggests that no court of law in encouraged to conclude, that a suspect or a person accused is guilty of an offense merely because he was choose not to respond to the questions put forth by the court or police.
Indian Constitution by the virtue of article 20(3) take into its ambit the right to silence, making it a fundamental right available to any person accused of an offense. The principle of “beyond reasonable doubt” is followed in the Indian criminal jurisprudence which means that no accused is liable to be harassed or his rights to be seized unless his guilt is proved in the court of law beyond reasonable doubt. In case of D. K BASU V. STATE OF WEST BENGAL, the Hon’ble supreme court held that as soon as person is arrested he should be expressly informed his right to remain silent as under article 20(3) as every person so accused have all the right to know that such rights exists in his favour.
The observation made by krishna Iyer J. In the case of nandini stapati is still very much accurate. The learned judge held the accused to be entitled to keep his mouth shut if he feels the questions asked are of such nature which would expose him to guilt, be it before trial or during the trial. It was observed that “whether we consider the Talmudic law or the magna carta, the fifth amendment, the provisions of others Constitutions or article 20(3) , the driving force behind the refusal to permit forced self-incrimination is the system of torture by investigators and courts from medieval times to modern days. Law is response to life and the English rule of the accused’s privilege of silence may easily be traced as a sharp reaction to the court of star chamber when self-incrimination was not regarded as wrongful. Indeed then the center feature of the criminal proceedings, as Holdsworth noted, was the examination of the accused”.
Thereby, if a person choose to remain silent upon his arrest for instance, he cannot be liable for remaining silent as it is not an offense but his right guaranteed the law of the land, this right gives him this personal choice to speak or not. Right to silence can also be covered under the right to freedom of speech and expression as under article 19(1) (a) of the Constitution.
- Right to remain silent in other laws :
Some aspects of the right to remain silent are mentioned in the international treaties and declarations. Article 11.1 of the universal Declaration of human rights, 1948 stated that everyone has a right to be presumed innocent until proven guilty beyond reasonable doubt according to the law in a court trial where an accused has all the guaranteed rights for his defense.
- Conclusion :
In the landmark case of maneka gandhi v. Union of India (1978) , the supreme court said that it is possible that a right does not find express mention in any clause of article 19(1) and yet may be covered by some clause of that article. This is true for freedom of the press is one such important fundamental rights which, though not expressly mentioned , is implicit in article 19(1) (a) .
Lastly, it is noteworthy that earlier article 19 (1) provided for seven fundamental freedoms i. e. Clause (f) provided property which was deleted by the Constitution (forty -fourth Amendment) act, 1978.
The law says that an accused is presumed to be innocent until proven guilty, and the provision under article 20(3) is required for this purpose. Article 20 (3) of the indian Constitution safeguards the right of the accused and protects him against any inhuman treatment. Three essentials are provided to invoke this section.
- Reference :
- https://blog.ipleaders.in/article-19-indian-constitution/
- https://www.ijlmh.com/paper/right-against-self-incrimination-a-detailed-study-analysis-of-laws-prevailing-in-india
- Fundamental rights and their enforcement
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