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Reasonable restriction on Freedom of speech

Gautam Navlakha’s (an accused in the Bhima Koregaon case) plea for quashing the criminal proceedings against him was turned down by Bombay High Court, observing that there was some material to indicate that the accused was in contact with Naxalites. But being in contact with a militant organisation cannot by itself be a crime, as it does not result in any imminent lawless act.

Freedom of speech

Freedom of speech and individual liberty are enshrined in Articles 19(1)(a) and 21 of the Constitution. However, these rights are not absolute but subject to reasonable restrictions.

What would be a reasonable restriction?

The U.S. Supreme Court tests to determine whether the restriction is reasonable or not

Bad tendency’ test : free speech or acts could be prohibited if they were likely to adversely affect the welfare of the public

Clear and present danger’ test : restriction would be reasonable only if the speech or action constitutes a clear and present (and not remote) danger to state security or public order.

Imminent lawless action’ test : The constitutional guarantees of free speech and free press do not permit the state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed to inciting or producing imminent lawless action

The word ‘imminent’ means ‘likely to happen very soon,’ ‘at hand,’ or ‘fast approaching.’

Position In India

The ‘clear and present danger’ test is followed (Indra Das v. State of Assam (2011) and Arup Bhuyan v. State of Assam (2011))

Being in contact with a militant organisation cannot by itself be a crime, as it does not result in any imminent lawless act. One could be a writer who contacts Naxalites for doing research about them, or a social activist, or even a sympathiser. That would be legal, being within the ambit of the ‘clear and present danger’ test.

To conclude, it is the higher judiciary which must do its duty as guardians of the citizens’ constitutional rights. The court must not succumb as it did during the Emergency.

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