Meaning and Scope

The Right to Freedom of Speech and Expression is a fundamental human right, considered essential for individual autonomy, democratic governance, and the free exchange of ideas in society. It is enshrined in numerous international and national legal instruments. Article 19 of the Universal Declaration of Human Rights (UDHR) broadly states that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides a more detailed articulation of this right, which is legally binding on States Parties.

Article 19(1) of the ICCPR states: "Everyone shall have the right to hold opinions without interference." Article 19(2) elaborates on the freedom of expression: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

Includes freedom of thought, conscience, religion, opinion

The scope of freedom of speech and expression is very broad and encompasses various related freedoms:

• Freedom of Opinion: Article 19(1) ICCPR specifically protects the right to hold opinions without interference. This is an absolute right that cannot be subjected to any restrictions. The state cannot control or punish what individuals think or believe internally.
• Freedom of Expression: This is the external manifestation of one's opinions or thoughts. It includes any form of communication or conveying of ideas, information, or thoughts to others. This covers spoken words, written texts, art, music, clothing, symbols, conduct intended to convey a message, and communication through any medium (print, broadcast, internet, etc.).
• Freedom to Seek, Receive, and Impart Information and Ideas: This highlights different facets of the right. It protects the right to actively look for information, the right to access information held by others (including the government, often referred to as the right to information), and the right to share information with others. This makes freedom of expression crucial for journalism, academic research, and public discourse.
• Relationship with other freedoms: Freedom of expression is closely linked to and supports other fundamental freedoms, including:
  • Freedom of Thought, Conscience, and Religion (Article 18 ICCPR): The ability to express one's thoughts, beliefs, or religious views is a necessary complement to the freedom to hold these beliefs.
  • Freedom of Assembly (Article 21 ICCPR) and Association (Article 22 ICCPR): These rights enable individuals to collectively express their views and pursue common interests. Public protest, for example, is a form of expressive assembly.
  • Right to Political Participation (Article 25 ICCPR): Freedom of expression is essential for individuals to participate effectively in the political process, discuss public affairs, and hold their leaders accountable.

The right applies regardless of frontiers, meaning states should not prevent the flow of information across international borders, although this is also subject to certain restrictions.

Restrictions on Freedom of Expression

Unlike the freedom to hold opinions, the freedom of expression is not absolute. It can be subjected to certain limitations or restrictions. However, international human rights law requires that any such restrictions must be narrowly defined and strictly necessary. Article 19(3) of the ICCPR sets out a stringent test for permissible restrictions:

"The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are:

($a$) Provided by law; and

($b$) Necessary: ($i$) for respect of the rights or reputations of others; ($ii$) for the protection of national security or of public order (*ordre public*), or of public health or morals."

Both conditions (a) and (b) must be met for a restriction to be permissible under the ICCPR.

As provided by law and necessary in a democratic society

Provided by law: This requirement means that any restriction on freedom of expression must have a legal basis in domestic law. The law must be sufficiently precise to enable individuals to foresee the potential consequences of their actions, and it must be accessible to the public. This prevents arbitrary restrictions imposed solely at the discretion of the executive. However, the law itself must also be compatible with the requirements of the ICCPR.

Necessary in a democratic society: This is a key test that requires the restriction to be proportionate and genuinely needed to achieve a legitimate aim. The restriction must be in pursuit of one of the specific purposes listed in Article 19(3)(b), and it must be the least restrictive means available to achieve that purpose. This involves balancing the importance of the freedom of expression against the importance of the ground for restriction. The Human Rights Committee interprets this strictly, emphasising the high value placed on freedom of expression in a democratic society.

National security, public order, public health or morals, rights and reputations of others

Article 19(3)(b) lists the exhaustive legitimate grounds for restricting freedom of expression. Any restriction must be necessary to protect one or more of these interests:

• For respect of the rights or reputations of others: This includes protecting individuals from defamation, hate speech that infringes on their rights to equality and dignity, and protecting privacy. However, restrictions must be proportionate and should not unduly stifle legitimate criticism or public debate.
• For the protection of national security or of public order (*ordre public*): This ground allows restrictions necessary to protect the state from genuine threats (like espionage, incitement to terrorism) or to maintain public peace and safety. However, "national security" and "public order" are grounds often invoked by states to suppress dissent, so international bodies scrutinise restrictions based on these grounds very carefully to ensure they are not used arbitrarily. The restriction must be directly linked to and necessary to prevent a clear and present danger.
• For the protection of public health or morals: This allows for restrictions necessary to protect public health (e.g., regulations on advertising of harmful products) or widely accepted societal morals. Restrictions based on 'morals' must be based on principles that are not discriminatory and are understood within a democratic society.

Restrictions are also permissible under Article 20 ICCPR, which requires states to prohibit by law any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. While Article 20 creates positive obligations to restrict certain forms of expression, these restrictions must still be balanced against the principle of freedom of expression itself, particularly regarding what constitutes "incitement".

Indian Constitutional Provisions (Article 19(1)(a))

In India, the right to freedom of speech and expression is a cherished Fundamental Right enshrined in the Constitution. Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression.

The scope of Article 19(1)(a) has been expansively interpreted by the Indian judiciary, particularly the Supreme Court. It is understood to include:

• Freedom of the Press.
• Right to Information (now also partially covered under the Right to Information Act, 2005).
• Freedom of silence.
• Right to hoist the national flag.
• Right to peaceful demonstration and picketing (but not the right to strike).
• Right to privacy of communication.

Reasonable Restrictions under Article 19(2)

Like the ICCPR, the Indian Constitution also subjects the freedom of speech and expression to restrictions. However, unlike the single test in ICCPR Article 19(3), Article 19(2) of the Indian Constitution provides an explicit and exhaustive list of grounds on which restrictions can be imposed. Any restriction on the freedom must fall within one of these grounds and must be a "reasonable restriction".

Article 19(2) states: "(2) Nothing in sub-clause ($a$) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes, in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."

The grounds for restrictions under Article 19(2) are:

1. Sovereignty and integrity of India (Added by the 16th Amendment Act, 1963).
2. Security of the State.
3. Friendly relations with foreign States.
4. Public order.
5. Decency or morality.
6. Contempt of court.
7. Defamation.
8. Incitement to an offence.

Comparison with ICCPR Article 19(3)

There is a significant overlap between the grounds listed in Article 19(2) of the Indian Constitution and Article 19(3) of the ICCPR, particularly regarding national security (security of the State), public order, public health/morals (decency or morality), and the rights and reputations of others (defamation). However, the Indian list is more specific (e.g., contempt of court, friendly relations with foreign states, incitement to an offence are explicitly listed, whereas under ICCPR they might fall under broader categories like 'rights of others' or 'public order').

The critical difference lies in the test applied. While ICCPR requires restrictions to be "necessary in a democratic society" for a legitimate aim, Article 19(2) requires restrictions to be "reasonable". The Indian judiciary has developed the concept of "reasonableness" through numerous judgments, balancing the freedom with the need for restriction. A restriction is generally considered reasonable if it has a proper purpose, is not arbitrary or excessive, and there is a rational nexus between the restriction and the object sought to be achieved.

The balancing of the right to freedom of speech and expression with the permissible restrictions under Article 19(2) is a constant exercise for the Indian judiciary, involving complex considerations of the specific facts, the nature of the expression, and the potential impact on the specified grounds. This ensures that while freedom of expression is protected, it is not exercised in a manner that harms the broader interests of society or the fundamental rights of others, aligning with the idea that rights come with duties and responsibilities (as mentioned in ICCPR Article 19(3)).

International Recognition of the Right to Information

The Right to Information (RTI) is a fundamental human right that is increasingly recognised at the international level, although it is often understood as a crucial component or corollary of existing, broader rights, rather than a standalone right in early human rights treaties. The ability of individuals to seek, receive, and impart information is essential for numerous aspects of human dignity, autonomy, and participation in society.

Derived from Freedom of Expression

The international recognition of the Right to Information is primarily rooted in the guarantee of Freedom of Expression. Key international instruments frame this right in terms that explicitly include the aspects necessary for the Right to Information:

• Universal Declaration of Human Rights (UDHR): Article 19 states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." The phrases "seek, receive and impart information and ideas" are understood to encompass the active right to access information.
• International Covenant on Civil and Political Rights (ICCPR): Article 19(2) provides: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." Similar to the UDHR, this legally binding provision for States Parties (including India) is interpreted by the UN Human Rights Committee as including a right of access to information held by public authorities.

The rationale is that informed opinions, meaningful participation in public affairs, and the ability to hold governments accountable depend critically on the free flow of information and the ability of individuals to access information, particularly that held by the state. Without access to information, freedom of expression becomes less meaningful.

State Obligations

Based on this interpretation, international human rights law imposes obligations on states regarding the Right to Information:

• Obligation to Respect: States must not arbitrarily withhold information from the public.
• Obligation to Protect: States must ensure that private entities do not unduly restrict access to information that is essential for the exercise of human rights.
• Obligation to Fulfill: States have positive obligations to proactively disclose information of public interest, create legislative frameworks (like RTI laws) that grant access to information held by public authorities, and establish mechanisms for individuals to seek and receive such information efficiently and affordably. They must also ensure that information is recorded and maintained appropriately.

Regional human rights systems (like the European and Inter-American systems) and numerous national jurisdictions have further elaborated this right, often through specific laws granting public access to government information. The global trend is towards recognising the Right to Information not just as an abstract principle but as a concrete entitlement supported by legal frameworks.

Right to Information Act, 2005 (India)

India took a significant step towards realising the Right to Information by enacting the Right to Information Act, 2005. This landmark legislation replaced the weaker Freedom of Information Act, 2002, and became effective on 12 October 2005. The Act was passed with the objective of promoting transparency and accountability in the working of every public authority and empowering the citizens to secure access to information under the control of public authorities, in order to promote a more open and accountable government.

The Act is seen as a crucial tool for empowering citizens, combating corruption, and fostering good governance in India. It operationalises the fundamental right to information, which had already been recognised by the Supreme Court as implicit in the right to freedom of speech and expression (Article $19(1)(a)$ of the Constitution).

Access to information held by public authorities

The RTI Act, 2005, grants citizens of India the right to access "information" held by "public authorities".

Key Definitions

• Information (Section 2(f)): Defined broadly to mean any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
• Public Authority (Section 2(h)): Includes any authority or body or institution of self-government established or constituted:
  • by or under the Constitution;
  • by any other law made by Parliament;
  • by any other law made by State Legislature;
  • by notification issued or order made by the appropriate Government.
  • Includes any body owned, controlled or substantially financed, or non-governmental organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

Process of Seeking Information

Any citizen of India can request information from a public authority by submitting a written or electronic application to the designated Public Information Officer (PIO) (or Assistant Public Information Officer) of the concerned public authority (Section 6). The application should specify the information required. A nominal fee is prescribed, typically ₹ 10, although persons below the poverty line are exempted from paying the fee.

Timelines for Response (Section 7)

The PIO is generally required to provide the requested information or reject the request (citing valid grounds) within 30 days of receiving the application. If the information concerns the life or liberty of a person, it must be provided within 48 hours. Failure to respond within the stipulated time is deemed a refusal.

Exemptions from Disclosure (Section 8 & 9)

The Act does not mandate the disclosure of *all* information. Section 8 and 9 list specific categories of information that are exempt from disclosure. These exemptions are intended to protect competing public interests, such as national security, relations with foreign states, cabinet deliberations, third-party commercial confidence, or personal privacy, or to avoid impeding the process of investigation or prosecution. Importantly, Section 8(1) includes a public interest override: information otherwise exempt may be disclosed if the public interest in disclosure outweighs the harm to the protected interest. Also, exempted information that cannot be denied to Parliament or State Legislature shall not be denied to any person (Section 8(1) proviso).

Appeal Mechanism (Sections 19)

If an applicant is not satisfied with the PIO's decision (either refusal or insufficient information), they can file a first appeal with the First Appellate Authority (a senior officer within the same public authority) within 30 days. If still not satisfied, a second appeal can be filed with the respective Central Information Commission (CIC) or State Information Commission (SIC) within 90 days. The Information Commissions are high-level independent statutory bodies that have the power to order the disclosure of information, impose penalties on PIOs for unwarranted delays or refusals, and hear appeals.

Role in promoting transparency and accountability

The RTI Act, 2005, plays a vital role in promoting transparency and accountability in government functioning, which are crucial elements of good governance and respect for human rights.

Promoting Transparency

Transparency means making the operations of public authorities visible and understandable to the public. The RTI Act achieves this by:

• Opening up Government Records: It grants citizens the legal right to access government files, decisions, and data, making the internal workings of public bodies visible.
• Mandatory Proactive Disclosure (Section 4): The Act requires public authorities to proactively disclose certain types of information suo motu, even without specific requests. This includes details of their organisation, functions, budget, decision-making processes, employee directories, etc. This places the onus on the public authority to be open by default.
• Reducing Secrecy: It challenges the traditional culture of secrecy in government administration by creating a presumption in favour of disclosure.

Enhancing Accountability

Accountability means that public officials and institutions can be held responsible for their actions and decisions. RTI enhances accountability by:

• Enabling Scrutiny: Citizens can use RTI to scrutinise government expenditure, the rationale behind policies and decisions, the progress of development projects, and the performance of public officials.
• Checking Abuse of Power: Access to information helps expose instances of corruption, mismanagement, arbitrariness, and abuse of power by public servants.
• Empowering Citizens: By providing access to information, the Act empowers citizens to demand better services, question inaction, and participate more effectively in democratic processes.
• Basis for Advocacy and Grievance Redressal: Information obtained through RTI can be used as evidence in litigation, complaints to vigilance authorities, or public campaigns to demand action against wrongdoing or secure entitlements.

The RTI Act has been widely used in India by citizens, activists, and journalists to uncover information on diverse issues, from local civic problems and functioning of ration shops to large-scale corruption scandals and details of government expenditures. It has enabled citizens to track the implementation of welfare schemes, challenge administrative decisions, and hold public officials answerable for their conduct.

While facing challenges in implementation, including delays, resistance from some parts of the bureaucracy, and unfortunately, attacks on RTI activists, the Act remains a powerful instrument in the hands of the people, significantly contributing to the realisation of the right to information and fostering a more transparent and accountable system of governance in India, aligning with international human rights standards.