DR.
M. CHALAPATHI RAU, M.A., B.L., D. Litt.
Editor,
“National Herald”, New Delhi
Freedom
of Expression is among the fundamental freedoms in all democratic countries. It
is the largest of the freedoms because it includes a wide range of expression
through every medium, a word spoken, a word written or printed, blob of paint,
lines of drawing or physical gesture. It includes freedom of speech, freedom of
the press and so on. The right to Freedom of Expression or other freedoms was
usually recognized in all bills of rights. But absolute freedom is absolute
nonsense, and there is need for legitimate limits to it, for others also must
enjoy that freedom. The question that should be asked in the exercise of
freedom, particularly Freedom of Expression, is: freedom for whom, freedom for
what?
In India, the right to Freedom of Expression does not arise merely because it is enumerated among the Fundamental Rights in the Constitution. For long years, the Indian people, like peoples elsewhere, had to fight for Freedom of Expression as for other freedom, what was recognized in the Constitution was what had been won and recognized. India adopted parliamentary democracy in conditions of adult suffrage and mass illiteracy but with strong faith in it. It is a refined form of democracy but has been working successfully. It permits dissent and opposition and the existence many parties. Such a system requires a large degree of tolerance. Without Freedom of Expression, parliamentary democracy, or any democracy, cannot work.
There
are limits to the exercise of the right; some of the limits laid down by
amendment in 1951.
The
law now limits it in the interest 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, or incitement
to an offence. Decency and morality, which are matters more of taste than of
law, concern even works of art, the paintings of a Picasso, the sculptures of
an Epstein, or the novels of a Henry Miller. Exercise of freedom cannot be
allowed to destroy the basic foundations of a democratic order or to impinge on
the freedom of others, especially in a country of many religions and many
communities. Abraham Lincoln legitimately asked the question: must a
government, of necessity, be too strong for the liberties of its own people or
too weak to maintain its own existence?
Freedom
of Expression is subject to reasonable restrictions but it cannot be easily
contained. The test of civil liberties is political liberty, more especially
the liberty of the opposition. There is thus the political aspect of Freedom of
the Expression, and it is not confined to Freedom of the press. It would be odd,
if scurrility in the press, for instance, were punished but not scurrility in a
book. Public men who are of standing and are popular can propagate their ideas
by addressing public meetings more than newspapers, in spite of their
circulation, can do. The press in India, following the British concept of
freedom of the press, has not claimed more than the liberty of the citizen, and
has been opposed to special legislation as far as expression is concerned.
The
history of freedom shows that changing restraints have fashioned changing
concepts. Freedom had to be fought for in the old days of the absolutism of the
state or of the church. It was the result of a struggle for expression of ideas
which were opposed to the existing religious, political or economic order. Not
every intellectual was on the side of freedom. Socrates wanted the supremacy of
the individual conscience and insisted on the public value of free discussion,
but Plato’s ideas amounted to a demand for regimentation of thought. After the
reformation rival sects persecuted each other and what was orthodox one day
became heterodox the next. People went to the stake for Freedom of Expression,
for propagation of faith.
The
contest between philosophic truth and accepted faith took a political turn in
countries like Britain with the growing participation of a wider public
in Government. After Papal prohibitions, Star Chambers, punishment of blasphemy
by ecclesiastical courts, censorship came into vogue. The eighteenth century
saw the rise of excessive champions of freedom of speech and of the press.
Milton, Volataire, Wilkes and Paine were the leading fighters and they had a
ready reception in the American Colonies which were becoming ripe for the
American Revolution. “Give me liberty or give me death”, said Patrick Henry,
one of the pioneers of American freedom. Political freedom was known to be the
only way to secure Freedom of Expression.
In
lighting for “Life, Liberty and the Pursuit of Happiness”, the founding fathers
of the U. S. Constitution almost forgot to muke freedom of Expression secure
but recognised it early by the First Amendment to the Constitution. Men like
Jefferson knew the history censorship and intellectual tyranny and were afraid
that Congress in the exercise of its undoubted authority over other matters,
might set up a censor, suppress newspapers and punish critics. On the other
side, Hamilton thought little of the proposition which he considered useless.
Whatever declarations on the subject might be inserted in the Constitution, he
said, freedom would depend altogether on “public opinion and on the general
spirit of the people and of the Government”. If people believed in liberty,
they would have it; if they did not, guarantees would not matter.
The
famous British historian, Lord Acton, wanted to write a “History of Liberty”;
he left behind only fragments. But his view of freedom is shared even now. He
thought that political rights proceeded direct from religious duties. For him,
conscience was the fount of freedom and its claim superior to that of the
state. If democracy could not restrain itself, liberty would be lost. He found
threats to liberty even in democracy, particularly in socialism. The nation is
responsible to Heaven for the acts of the state, he said. The test of a
country’s freedom was the amount of security enjoyed by minorities. In his
judgment of politics as of history, morality was a matter of life and death.
Hamilton would have agreed with him; the late Rajagopalachari did. It is
difficult for such thinkers to believe that there can be no democracy without
socialism and no socialism without democracy or that in socialism the
individual’s rights can be reconciled with the rights of the community.
India
is one of the freest of countries by the test of Freedom of Expression.
Tolerance is general; intolerance is rare. The law of libel needs change and
the law of contempt is outdated. But there has been little need to use the law
of sedition or to curtail Freedom of Expression. There are no prosecutions
under the Official Secrets Act. Freedom has been exercised more than it has
been punished. The question in developing societies like India, however, is how
with Freedom of Expression a competition in free ideas can be maintained. It is
not always a struggle between the individual and the state but often between
the individual and some vested interests. The freedom of which Milton sang and
for which Wilkes fought may come into conflict with interests of a section of
the community.
The
crux of the problem of freedom of the press is how Freedom of Expression can
operate within the framework of an industry. No one can publish a newspaper or
even a pamphlet without the help of a printing press but freedom of the press
cannot be the freedom of the proprietor of the printing press. The printing
press gives rise to industrial conditions but this should not make Freedom of
Expression less free. There has to be constant effort, as Justice Frankfurter
said, to ensure the freedom of what is known as the free press.
The
conditions in the United States or in Britain are different from the conditions
in India. In the United States, industrial barons have not become press barons.
There is nothing like a Ford press or a Rockefeller press in the United States,
a Nuffield or a Carnegie press in Britain; in India, their counterparts exist.
There are varying degrees of concentration because of inequalities. The recent
controversies over freedom of the press as a part of Freedom of Expression are
not over the content of that freedom, which is governed by Article 19 (1) and
(2), but over the business aspect of the press.
There
is a strong denial of monopoly. Monopoly does not mean monopoly in the literal
sense; it can be round in its variation, oligarchy which is concentration of
similar vested interests, operating separately in form but jointly in effect.
This can lead to effective monopoly and this is present in the newspaper
industry. If certain industrial houses holding dominant positions in their
industries have a dominant control over the newspaper industry and its allied
activities, there is a monopolistic position which does not permit free and
fair competition. Without such competition, the free press is not free.
In
countries with written constitutions, the Constitution is what the Supreme
Court says it is. But in all countries which claim to be democratic, freedom
depends ultimately on the climate, the political climate and the social
climate. Men like Gandhi and Nehru had greater circulation than any newspaper.
Whether it is freedom of speech or freedom of the press or any other part of
Freedom of Expression, it is on the state of economic development, on the level
of political consciousness, on the degrees of tolerance that the extent of
freedom depends. The more it is exercised responsibly, the more it will prevail. The citizen of a free country must
deserve his freedom. It must be a country of truly free and truly equal
citizens.
-By
courtesy All India Radio