ABSTRACT
The right to freedom of speech and expression is guaranteed to the citizens of India under Article 19(1)(a) of the Indian Constitution, being subject to reasonable restrictions, one of which is the ground of public order. The term public order has been distinguished from the term law and order and is called to be synonymous to public peace and public tranquillity. Public Order hasn’t been clearly interpreted as yet. Numerous tests have evolved through precedents which help in deciding cases. There has been a change in the position of Article 19(1)(a) before and after the First Amendment, due to addition of the ground of public order. The research paper is regarding the application of Public Order as the ground of reasonable restriction to the fundamental right to freedom of speech and expression guaranteed by the Indian Constitution. There is a dire need for a conclusive and comprehensive judgment of the Supreme Court laying down the guidelines to set a standard for deciding the cases relating to public order as a ground of reasonable restriction. Over the years, wide interpretations have been made and added to the concept of public order and consequently, in the present scenario, despite the adoption of numerous tests by the courts in varied circumstances, there lays an ambiguity regarding a definite and fixed criteria to decide cases. Hence, the discretion to restrict the speech and expression is in the hands of the judges, as per their rationale. It becomes extremely easy for the defence to raise the argument that there exist reservations and ambiguity and therefore the courts have to give the benefit of doubt to the defence. The uncertainty and the fact that there is no statute and no uniform binding precedent, thus pose to be a drawback in this area of law.
ARTICLE 19(1)(A) AND PUBLIC ORDER – A GENERAL PERSPECTIVE
The Indian Constitution incorporates few basic, inalienable rights and gives immense importance to ensuring the possession and protection of these rights by every citizen, even foreigners in some cases. One such right under Part III of the Constitution is the right to freedom of speech and expression, as mentioned under Article 19(1)(a). It is the first condition of autonomy. It basically means that every citizen of India is allowed to use numerous means of expressing their opinions to others including communication through picture, mouth, books and other writings etc. to ensure free and uninterrupted propagation of ideas. It helps in encouraging the public to speak up about the laws, economy, politics, science and various other fields and thus, acts as a feedback to the central governing system. In India, such a right is available only to the citizens of India and not to foreigners. Right to speech also covers within its ambit right to silence and right to receive information[1]. The purpose of according this right to people is to ensure discovery of truth, self-fulfilment of individuals, healthy and participative decision making and communication of beliefs and opinions. Over the time, greater attention has been paid to this right by the Hon’ble Supreme Court.
One of the most remarkable judgments concerning this right was Maneka Gandhi v. Union of India[2], which increased the application of Article 19(1)(a) to territories even outside India. Thus, the right observes no geographical limitations. Further, Article 19 & Article 21 shall not be read in isolation to each other. Except in the cases of the members of the parliament, legislatures, committees etc., under Art.105 & Art.194, the right to freedom of speech and expression is subject to the reasonable restrictions, constituted under Article 19(2) which include Security of State, Friendly relations with Foreign States, Decency and Morality, Contempt of Court, Defamation, Incitement to an offence, Sovereignty and Integrity of India, Sedition and Public Order. Each of these grounds has been under great debate and has yielded a series of judgments of the Hon’ble Courts regarding the validity of its imposition. The aforementioned restrictions shall be imposed only by an enacted law and not by any executive action[3].
The term public order generally means the maintenance of general idea of the society relating to normal social behaviour, incorporating within it the moral values that the society follows. Whenever an act shakes the conscience of the society at large, it is regarded as the cause of public disorder. Such acts include minor offences like disorderly conduct, publishing of obscene material on internet as well as major crimes like those related to drug smuggling, terrorism involvement and rape. A mere generation of threat and insecurity in the minds of the people can also lead to the disruption of public order. Public order thus, has a very wide connotation[4]. It is considered to be the basic need of an organized society, a clear state of order in which the inhabitants can carry on their normal activities peacefully[5].
A situation of ‘Public disorder’ in the society completely depends upon the nature of the State in which it is being examined. For example, in well developed countries, which are governed by the rule of law, even small infractions of law might be regarded as against the public order. In countries which are comparatively less rigid, only serious disturbances would be considered to be breaking down the harmony of the society. However, in a monarchy, an autocratic society, even peaceful gatherings and small scale protests will be punished to be disturbing the public order.
The Supreme Court has given a distinct meaning to the term ‘public order’ as per the scenario of India, taking into consideration the customs, values and the factors affecting the conscience of diverse Indian society.
EMERGENCE AND INTERPRETATION OF THE TERM PUBLIC ORDER
The Indian history relating to the ground of public order can be divided into phases. Prior to the First Amendment in 1951, the ground of ‘undermining the Security of the State and tending to overthrow the government’ acted as a reasonable restriction to the Right to Freedom of Speech and Expression. The application and the boundaries of this ground were interpreted by the Supreme Court in the judgments of two important cases –RomeshThappar v. State of Madras[6] and BrijBhushanv.State of Delhi[7]. A distinction was made between the terms ‘Security of State’ and ‘Public Order’, by referring to the noticeable differentiation in the two terms as per Entry 3 of the Concurrent List, and the latter was elucidated to be a broader term, covering within its ambit, the former. The court held that a prohibition on the circulation of newspapers in anticipation of harm to public order, i.e. even before the circulation, is not justified. Thus the two aforementioned cases paved way to the addition of the ground of public order to Article 19(2) under the First Amendment. It refers to the that State of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the Government, being synonymous to Public Peace, Safety and Tranquillity. The implication evident here is that anything that disturbs public peace and public tranquillity harms public order[8]. Further, in the judgment of the case The Superintendent, Central Prison, Fatehgarh v. Ram ManoharLohia[9], it was held that a situation of Public Order refers to the absence of disorder involving reaches of local significance in contradistinction to national upheavals, such as revolutions, civil strife, war, affecting the security of the State. During the period of emergency, another interpretation that was given to public order differentiated it from the term public tranquillity saying that the two terms are not always synonymous and overlapping[10].
The Supreme Court has held that the expression ‘law and order’ is not synonymous with ‘public order’. ‘Law and order’ is a comprehensive term covering the concepts of public order, public peace, tranquillity, orderliness and many other matters, and for that matter, any breach of law of the land. This clearly evinces the broader nature of the expression ‘law and order’ as compared to that of public order[11]. The example furnished here was that the quarrel between two drunkards does not hamper the public order but it does hamper the law and order. Whereas, if the two fighters belong to two different rival communities or social groups and they raise communal passions, the situation might lead to public disorder.[12] But, on the other hand, this does not imply that there is no scope of overlapping or similarity in the acts leading to public disorder and those leading to disturbance in law and order. Acts committed in varied contexts might result in varied reactions – they might affect few individuals or an entire community.[13] This evinces that the potentiality of the act of affecting the tempo of the life in a society needs to be judged to arrive at just conclusions. The principle has been upheld in the recent judgment of the Kerala High Court saying that mere disturbance of law and order shall not become the basis of curtailing the freedom of movie makers[14].
Thus, acts leading to internal disorder and chaos and rebellions would affect the public order and public safety. But mere and sole criticism of the Government would not invoke the ground of public order under Art. 19(2). The duty of the State is to prevent a possibility of war. The expression ‘in the interest of public order’ incudes utterances directly aimed at creating disorder and also those which have the tendency to lead to the same. Hence, a speech and writing published with the intention of hurting the religious sentiments of a particular group shall be controlled and restricted, as it has the tendency to bring disorder.
Public order is a relevant ground of restriction not only under the constitution of India but also under many other provisions, which again aim at prohibition of such speech and expression that might distort public harmony[15].
- Section 153A of IPC which prohibits by words and expression, any promotion of enmity between groups that are different on the basis of race, residence, language, place of birth etc.
- Section 295A of IPC which prohibits malicious and deliberate acts clearly aimed at outraging religious feelings, in the form of speech, oral or written and expression in any manner possible.
- Section 95 of CrPC which allows the seizure of books and newspapers that contain matter that cannot be published in accordance with sections 153A and 295A of IPC.
DECIDING CRITERIA AND TESTS
Over the years, the judgments of the Supreme Court laying down the principles to test the infringement of public order in varied situations have led to the emergence of a standard against which the facts and circumstances of particular cases are judged. Mere violation of penal provisions and other laws does not lead to public disorder. Thus, the precedents play the primary role in deciding the cases involving disputes over the freedom of speech and expression.
The Hon’ble court has made it very clear that all restrictions to art. 19(1)(a) shall be able to satisfy the reasonability test which has been laid down by the constitution. The point that public order should be maintained in advance so as to ensure it presence, shall be given due consideration in the concerned matters.[16] Hence, to maintain a balance between the multiple tests and to ensure a rigorous pass through of these cases across the test standards is the main task of the courts. The fundamental right to speech and expression shall be withdrawn from any citizen only in cases of absolute surety of occurrence of disorder and unambiguity regarding the same.
Following are the numerous tests devised through the Supreme Court precedents –
- TEST BASED ON DISTINCTION BETWEEN ‘LAW AND ORDER’ AND ‘PUBLIC ORDER’.
In The Superintendent, Central Prison, Fatehgarh v. Ram ManoharLohia, public order was said to embrace more of the community as compared to law and order. Public order is clearly the even tempo of the life of the community taking a country as a whole or a particular locality.
As per ArunGhoshv.State Of West Bengal[17], disturbance in the even tempo of living of society and the community is the first requirement of raising the ground of public order. It depends upon the degree and extent of the harm and its impact on the society at large. The question ‘Whether it leads to a disturbance in the current of life of the community at large to an extent that it amounts to a disturbance of the public order or it merely affects an individual’ shall always be considered before deciding any case in this respect. The example of an assault on girls which leads to a fear among the girls and women of an area and that of a man stabbing another man is encompassed in this judgment. The same has been upheld by the Supreme Court in HaradhanSaha v. The State of West Bengal[18]and in State of Uttar Pradesh versus SanjaiPratap Gupta [19]
- TEST BASED ON PROXIMITY AND CLOSE CONNECTION AND REASONABILITY
There needs to be a close and proximate connection between the application of a restriction on the freedom of speech and expression and the achievement of a state of public order as per the judgment of the SC in Virendra v. The State of Punjab, upheld in The Superintendent, Central Prison, Fatehgarh v. Ram ManoharLohia. There shall be no ignorance to the necessity for an intimate connection between the act and the public order sought to be maintained by the act. The restriction imposed shall be a reasonable and proportionate one. Restrictions must not go in excess of the object that legislation seeks to achieve. In absence of a proximate relationship to the achievement of public order, the restriction is clearly unreasonable. This test was further affirmed in Dalbir Singh v. State of Punjab.
- RELIGIOUS FEELINGS NOT TO BE CONSIDERED
A different and strict opinion regarding the ground of public order emerged from the judgment of SC in S. Rangarajan v. P. Jagjivan Ram wherein it was held that having only the fear of violence and demonstration shall not be considered to be a reason for hampering the right to freedom of speech and expression. Hurting of the religious sentiments of a community does not invoke the ground of public policy. A suppression based on religious grounds would be against the rule of law and would lead to surrender to blackmail and intimidation. The relation between the speech and public disorder must be like that of a ‘spark in a powder keg’.
- SECTION 144 OF CRPC TO BE APPLIED IN EMERGENCY SITUATIONS
The application of Section 144 of CrPC that gives powers to the executive magistrates to take measures in apprehension of any disturbance to the public peace and public order and hence prevent assemblies of people as and when felt dangerous, shall only be in emergency cases[20]. Thus, the test of proximity and direct nexus between the prohibition and the achievement of public order shall be used in the cases invoking Section 144 of CrPC[21].
CONCLUSION AND SUGGESTIONS
Based on the information derived from various precedents, it is quite clear that the position related to the ground of public order as a reasonable restriction to the freedom of speech and expression is highly ambiguous in the present scenario. The judgments of the Hon’ble courts are largely based on the facts and circumstances of the case in hand, leading to the creation of a new precedent. This series of precedent has been continuing since the incorporation of the ground by the first amendment. Because of the existence of these precedents, the issue cannot be termed as a penumbral area of law. Yet, it has to be dealt with by reason rather than by law. There is a clear lacking on the part of the legislature and the judiciary. Every judge of every high court has a different opinion, adding to the already complex debate with every new decision for every new collection of facts. Further, the extent of rigidity that the State exercises concerning this issue is not defined. However, apart from these limitations, the court has been able to improve its stand, as evident in the series of landmark judgments. A distinction has been drawn between the terms public order, law and order and security of state, few tests have been formulated to decide cases and the synonymous nature of the terms public peace, public tranquillity and public order has been conceptualised. A long way still lies ahead of the legislature and the judiciary, until a reasonable and satisfactory set of rules is drafted –
- There shall be a new legislation regarding the issue of public order, as existing in many other countries, within which, deep interpretation of the term shall be furnished. The legislation shall analyse the issue from every possible angle and define the law for every situation that might occur. The tests that shall be conducted to decide a restriction based on this shall be clearly defined to avoid any confusion while the decisions of the cases are given.
- This era is completely concerned with narrowing the law to remove ambiguity. Right from the law on GST to the law on privacy, the field of law is ever growing. In such a phase, such an important issue shall not be left behind. A lot of time is consumed in deciding cases for which no particular and apt law has been made. The cases related to public order are thus proving to be a burden on the courts. The judiciary and legislature need to work on this issue.
- It is high time to come up with a separate legislation defining clearly, the rigidity of the Indian State regarding the issue of public order so as to give clarity to the public about what constitutes a disruption of public order.
- The assemblies shall continuously and regularly debate the issue. Experts shall be called to furnish their opinions.
- The law commission of India shall also release reports concerning the present matter. A committee can also be appointed to work on this issue. This may serve to be the first step towards developing the statute.
- A detailed analysis of the statute regarding public order of different countries needs to be drawn. This shall then be compared with the prevailing conditions in India, including customs, values and present law. This will give a foundation for the Indian statute.
The issue of public order is not a small one; it is in relation to a right which is fundamental to every citizen of India. Thus strict decisions are needed to be made by the judiciary and the legislature. The constitution of India is a written one unlike that of UK. Provisions regarding a subject matter which is as important as that of public order need to be drafted. This will mark a new phase in the legal standing of the fundamental rights of India.
[1] Free Speech Includes Inmate’s Right to Silence, MolyZilli, FIND LAW (May 11, 2018, 5:59AM), https://blogs.findlaw.com/decided/2018/05/free-speech-includes-inmates-right-to-silence-court-rules.html.
[2]Maneka Gandhi v. Union of India, 1978 A.I.R. 597.
[3]Bijoe Emmanuel v. State of Kerala, (1986) 3 S.C.C. 615.
[4]Freedom of Speech and Expression, Lavanya B., LEGAL SRVICES INDIA, http://www.legalserviceindia.com/legal/article-77-freedom-of-speech-and-expression.html.
[5]Kamlakar Shankar Patil v. B. Akashi, (1994) Cr. L.J. 1870.
[6]RomeshThappar v. State of Madras, A.I.R. 1950 S.C. 124.
[7]BrijBhushan v. State of Delhi, A.I.R. 1950 S.C. 129.
[8]Om Prakash v. Emperor, A.I.R. 1948 Nag. 199.
[9] The Superintendent, Central Prison, Fatehgarh v. Ram ManoharLohia, 1960 A.I.R. 633.
[10]MadhuLimaye v. Sub Divisional Magistrate, Monghyr, A.I.R. 1971 S.C. 2486.
[11]Sriram, Difference between Law and Order and Public Order, LAW AND WORLD (April 18, 2015), https://sriramsias.wordpress.com/2015/04/18/difference-between-law-and-order-and-public-order/.
[12] Ram ManoharLohia v. State of Bihar, 1960 A.I.R. 633.
[13]Ashok Kumar v. Delhi Administration & Others, (1982) 2 S.C.C. 403.
[14] The Kerala State Chalachitra Academy v. Union of India And Ors.,2016 K.H.C. 234.
[15]6.Gautam Bhatia, Freedom of Speech: A Round-Up of Recent Judicial Pronouncements, INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY, (Jun. 5, 2018), https://indconlawphil.wordpress.com/category/free-speech/public-order/.
[16]BabulalParate v. State of Maharashtra, A.I.R. 1961 S.C. 884.
[17]ArunGhoshv.State Of West Bengal, A.I.R. 1970 S.C. 1228.
[18]HaradhanSaha v.The State of West Bengal, 1975 S.C.R. (1) 778.
[19]State of Uttar Pradesh versus SanjaiPratap Gupta, A.I.R. 2014 S.C. 726.
[20]BabulalParate v. State of Maharashtra, A.I.R. 1961 S.C. 884.
[21]MadhuLimaye v. Sub-Divisional Magistrate, A.I.R 1971 S.C. 2486.
