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a critique of article 19(1)(a)

A few days ago I came across which shook me to my bones. Something I heard and believed for a long time turned out to be not inaccurate but downright false. Indian Constitution really changes the meaning of "fundamental rights". To kick-start analysis of the Fundamental rights in India, lets first look at the "Freedom of Speech and Expression" provided in Indian constitution under Article 19(1).

All citizens shall have the right -
  (a) to freedom of speech and expression;
  (b) to assemble peaceably and without arms;
  (c) to form associations or unions;
  (d) to move freely throughout the territory of India;
  (e) to reside and settle in any part of the territory of India; and
  (f) *** (repealed)
  (g) to practice any profession, or to carry on any occupation, trade or business.

At first sight it might seem that "Indians" have right to express themselves in any shape and form they desire. But if you are thinking to use this freedom granted by Indian Constitution, I would seriously advice you to reconsider this because Indian constitution and hence (almost) no one in India cares about freedom of expression. It might be my biased observation but I couldn't help notice that freedom of expression was put in the category with many other freedoms and considerably vague enough so that people can ignore. And note the title of Article 19 is "Protection of certain rights regarding freedom of speech, etc." It is the language that is used that bugs me. It's like saying Protection of certain rights ... freedom of speech whatever who cares. It is India constitution for fuck sake. If Constitution itself have this ignorant the demeanour toward the "freedom of speech and expression", can one blame an average Indian?

Maybe you are thinking that this is simply not the right criticism since I am only criticizing the words not the spirit in which it was written and we should only remember the spirit of what our "forefathers" wanted to convey. The problem with this approach comes to an embarrassing halt when you move to article 19(2).

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests 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, defamation or incitement to an offence.

Holy shit! what is left now? The Constitution takes whatever freedom of expression it gave. What is the point of having the freedom of expression if their existence solely rely on the laws passed by right wing, corrupt MP's who simply misuse their power. BTW this hypocritical trend of giving the conditional freedom seems to be more frequent in Constitution. Blaming the people who made/assembled it is not going to help, however it is interesting to note that they, probably, more worried keeping the India together and merge of the other kingdoms into India. And as a result they deliberately underpowered the most basic rights. Probably they hoped that the future leaders will change it in stable times of India.

Even though you might think that I am exaggerating, I am pretty sure after reading the article 19(2) you did not feel the same way about the "freedom of speech and expression" provided to us. And as for my exaggeration of the situation, let me cite a thehindu article about how the state of freedom of speech and expression has gone from vaguely existent to completely eroded. In the article the author, Mr. Ramachandran, gives an account of remarks made by Justice M. Saldanha.

He began, stating that the entire episode was “distressing, misguided and misdirected,” and went on to comment that while charging a person under Section 153 A, especially a writer or a journalist, the concerned officers “should carefully evaluate the matter,” and then concluded: “This is very necessary if constitutional guarantees are to be safeguarded and concepts that hold good in the dark ages are not to be allowed to turn the clock backwards” (delivered on April 23, 1993). Indian authorities do not seem to have learnt any lesson from this judgement, delivered two decades ago; if anything, things have gone from bad to worse.

Beside these he also gives a list of works and people which have been affected by the conditional freedom of Speech existent in country. According to the article whatever freedom was left, after the article 19(2) of the constitution, "has almost been nullified". (Throughout the article I have assumed the freedom of speech and expression, without any explanation, as something which is should be held above most laws. Although I wish to explain it in the near future due to the subtleties involved.)