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Abstract
Roscoe Pound- “Law is the product of an inexorable mechanism of social forces.” After emerging from a grim battle against the British for recognition of the fundamental rights, the makers in the Constituent Assembly focussed on restrictions on freedom of speech and expression, as a means of safeguarding these rights in their pristine purity. The reason given was that there are persons in Society who can misuse those rights and may create anarchy. Hence limits were put on the operation of fundamental rights. Art. 19(1)(a) is limited in its scope by sub clause (2) as amended by the Constitution First Amendment Act (1951) with retrospective effect and (Sixteenth Amendment) Act, 1963.The philosophy is found in Preamble where a solemn resolve is made to secure to all its citizens , liberty of thought and expression.
In Collin’s Dictionary the word “Militant” is defined to describe people who believe in
Something very strongly and are active in trying to bring about political and social change, often in extreme ways that other people find unacceptable. The Unlawful Activities (Prevention) Act, 1967(UAPA) as amended, defines “Terrorist” in Section 15 as “whosoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India ---“ which covers the restrictions imposed under Sub-clause(2) of Art. 19(1) .
In Writ Petition (Civil) No. 1031 Of 2019 Anuradha Bhasin …Petitioner Versus Union Of India And Ors- Respondent and connected petitions, the Hon’ble Supreme Court laid down certain principles which the Govt has to follow to strike a balance between the freedom guaranteed by any of the sub clauses of clause 1) of Article 19 and the social control permitted by any of the clauses (2) to (6). The position that emerges is that the valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests , needs and necessities to preserve the very core of democratic life,preservation of public order and rule of law .
Any speech which incites imminent violence does not enjoy constitutional protection. However the doctrine of proportionality is enshrined in Article 19 itself which is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law . The phrase ‘reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary
or of an excessive nature , beyond what is required in the interests of the Public. The Order is subject to judicial review .
Various Laws have been enacted for curbing militancy. controlling law and order situation and internal Security viz for cross border terrorism in Jammu and Kashmir, insurgency related violence in some of the North, North Eastern (NE), Central and southern States and Naxal violence in several parts of the Country. The Schedule I to UAPA Act lists various Terrorist Organisations.
The adoption of a resolution on “freedom of opinion and expression” at the UN Human Rights Council was adopted on 16 June 2020. The resolution calls on States to “ensure that all measures taken to counter threats related to terrorism and violent extremism are in full compliance with international human rights obligations, including the principles of lawfulness, legitimacy, necessity and proportionality”.
However Human rights violations issues do crop up like arbitrary restrictions on freedom of expression and the press, unjustified arrests or prosecutions, use of criminal libel laws etc.
This article analyzes the interaction between judicial review evolving various doctrines viz. the Proportionality doctrine, the test of ‘direct impact’ as laid down in A.K. Gopalan v. State of Madras, test of ‘direct and inevitable consequence’ aslaid down in Rustom Cavasjee Cooper v. Union of India, widening the former test ,Chilling effect concept (as in USA in the decision in Weiman v. Updgraff ) etc. and state responses to militancy in India in the context of freedom of speech and expression.
Amnesty International calls for –“Your voice matters”- not to hate speech or other incitement to discrimination and violence but to speak out or protest peacefully.