Safeguarding Fundamental Rights

In recent times, the right to speech, expression and the right to protest have been constantly undermined. An attack on these rights runs contrary to the spirit of civilised democracy. We need to exercise these rights within the Constitution’s conditions and the government is duty-bound to provide these conditions.

Justice Lokur delivered the 2020 BG Verghese Memorial Lecture organised by the Media Foundation, New Delhi.

In this article, I would like to address the gradual erosion of one of our most precious fundamental rights—the inalienable right to freedom of speech and expression—an erosion that is leading to the gradual destruction of our human right to dissent and protest. This lethal cocktail is adversely affecting the liberty of all those who dare to speak up. Article 21 of our Constitution, the right to life and personal liberty, is under a silent threat, and we all know the consequence of losing our liberty; simply put, we will cease to be a democratic republic. Of course, our fundamental rights cannot be absolute, and so our Constitution has placed a few reasonable restrictions on the exercise of the right to free speech, and these include restrictions placed in the interests of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation and incitement to an offence. Yet, it is important to note that these restrictions can be imposed only by a law enacted by Parliament and the restrictions have to be reasonable.

Our freedom of speech is being eroded and mauled through the twisting and turning of the law, if not abusing it altogether. The law needs to be objectively interpreted but subjective satisfaction has taken over and the consequences are unpalatable: dissent or expression of a different point of view has become an issue to the extent that bona fide speech sometimes becomes a security threat. Some cynics glibly suggest that if the speaker is not guilty, they will be acquitted of the charges framed, but the fact of the matter is that detention as an undertrial is a gut-wrenching experience for anyone, and particularly for a person whose cries of innocence fall on deaf ears. Such a person looks to the judiciary for protecting their freedom of speech and liberty but gets overwhelmed by the painfully slow justice-delivery system.