Introduction

A constitutional debate has begun in the Supreme Court  through the case of Kasuhal Kishor V. State of U.P before a constitutional bench.  An issue has been framed that is pertinent in today’s time as it deals with the fundamental rights of the citizens. The issue is- Whether the free speech right conferred under Article 19(1)(a) is controlled singularly by the language employed under Article 19(2) or might also be obstructed by Article 21 of the Constitution? Through this issue, a discourse has been initiated to see whether Article 19(1)(a) is only restricted by Article 19(2) or whether it can also be restricted by Article 21 of the Constitution?  This article discusses the jurisprudence of Article 19 and analyses how Article 19(1) can also be obstructed by Article 21 of the Constitution as there is a need to balance the rights. 

Freedom of Expression and Speech Vis-À-Vis Article 19

Article 19 of the Constitution grants the citizens’ rights pertaining to freedom of speech and expression. As rightly stated by the Court in the case of State of W.B. v. Subodh Gopal,, “Article 19 guarantees those great and basic rights which are recognized and guaranteed as the natural rights inherent in the status of a citizen of a free country”. Therefore, the importance of safeguarding this right is to disseminate the opinions of masses without any fear and threat from state coercion as the flow of ideas is essential to sustain the collective life of the citizenry.

Self-governance, societal tolerance, and autonomy are the pillars of inscribing this right in Part III of the Constitution. A democracy is run on the principles of criticism as the government is made of elective representatives by the citizens itself; therefore, it is the citizen who in reality governs the nation. A democracy cannot survive when there are no dissenting opinions. o suppose that every citizen is happy with the ruling government is just utopianism and panglossianism assumption. Emphasis is to be added when it comes to the word responsible government; as the government remains responsive to the will of people when there is a peaceful exchange of ideas even if it is disgraceful in nature.  It shows the importance of Article 19 in the democracy of India constituting the touchstone of individual liberty.

Whether the Right Under Article 19 (1)(a) is Subject to Article 21? RIGHT UNDER ARTICLE 19(1)(A) IS SUBJECT TO ARTICLE 21?

Free speech is not absolutely free in the truest sense due to reasonable restrictions that are followed in the Constitution. absolute or unrestricted rights in a democracy are an Elysian concept and cannot be accepted in a modern state.  In a welfare society, one shall promote common good rather than selfish interest. Unfettered liberty is a threat to liberty itself; it is the duty of the state to put a restraint on the freedom of wrong-doing of one person to secure the liberty of the intended victims.  Freedom of speech is not a license to abuse, but a higher sense of responsibility. In light of the same, Article 19 (2)  has been engraved in the Constitution that restricts the freedom provided under Article 19(1)(a).

Even so, can a set of limited restrictions articulated in these provisions be sufficient to keep a check on such wider application of freedom as provided and interpreted under Article 19(1)(a)?  If we remember the golden triangle or the trilogy of Article 14,19, and 21 which was carved out in the case of Maneka Gandhi v. Union of India, it is held that they are not mutually exclusive and share no border amongst them. Basic tenet to propose the trilogy was to empanel a suitable ecosystem where a human being can have enjoyed its right without any fear of life. It was stated by the court in the case of A.K. Gopalan that rights guaranteed by Article 19(1) are capable of being enjoyed only so long a person remains free under Article 21. 

As rightly held in the case of K.S. Puttuswamy v. Union of India, a constitutional document has to be read as whole rather in isolation. One cannot interpret the provisions of the Constitution by reading it in a closed sphere. It is and it should be a deemed practice to give a full play approach to the document where its width shall be counted from the first letter to the last word of the Constitution. This sacred document has to be interpreted to accommodate the competing rights of the citizens to meet each emerging challenge which shall affect the balance of the society.

It will be a threat to any right if it is not given an organic approach where one article supports the other. One’s right can be a duty to another and therefore, it is unreasonable to even think that Article 19(1)(a) can only be restricted by the restrictions as mentioned in the other provisions of the same article. The constitution is a document to protect not the right of some but of the whole society. The basic fabric of the constitution binds the right and obligations together. When we say that the articles have to be read in conjunction i.e. 14, 19, 21; it ultimately means that we are keeping all these rights in the same basket. The famous Cooper case has observed that the Article 21 stands as a self-contained code is not correct and to say that, Article 19 on one hand and Article 21 on the other constitutes two water-tight compartments is also wrong. The settled position also portrays that when the constitutionality of the statues has to be challenged, the court has to test its validity on the anvil of the trinity of Articles, read together.

There can be instances where the right to freedom of expression and speech is abused by any citizen or by any governmental institution or its members but they are not restricted by Article 19(2) to (6) as they don’t fall under any of the restrictions given them  a strict interpretation. Whether the judiciary should allow such abuse to take place violating as many rights as it could impact or whether it should devise a mechanism to fill the vacuum? The constitutional court built on the mandate of the Constitution will ensure zero tolerance to abuse of any given right and may boldly fight against such legislative vacuum. India’s fragile democratic system will come in danger if a strict interpretation has been given even in cases where there is a manifest abuse of rights.

Taking the example of right to privacy which is a part of Article 21. The recently celebrated judgment of right to privacy has defined privacy in both the context; the positive as well as the negative. The latter part has been discussed to characterize and protect the human being from being intruded by any agency whether State or private into someone’s life, especially the character of a person whereas the positive right to privacy entails an obligation of States to remove obstacles for an autonomous shaping of individual identities. 

The moot question here is, can we claim immunity on violation of privacy just on the ground that there was another fundamental right of expression and speech which allows anyone to peek into someone’s bedroom and speak any statement whatever the person thinks of? Harder it is to state the reality that privacy isn’t a luxury just for the aristocrats who hold the power. Privacy is a common good and every human is equitable to it and thus there is no greater loss than violating and interfering with someone’s privacy. Article 19(1)(a) cannot be an escape route to intrude the privacy of the other. Privacy is protected on the principles of negative freedom where the state can curtail the power of another person to not violate the privacy of another.

The courts are well aware of the dichotomy between Article 19(1)(a) and Right to Privacy under Article 21. In the case of Thalappalam Service Cooperative Bank Ltd v. State of Kerala, the court has ruled that a balance should be created between the rights that fall under Article 19(1) and Article 21 with a special reference to Right to Privacy so as to protect the competing interests of the individual and society at large as Right to privacy is the sacrosanct facet of the Article 21. This case pertained to excessive right under RTI act but the court held that it should not outwit the privacy of the person. 

Substantiating this, similarly in a recent case of Central Public Information officer  v. Subhash Agarwal,  it was held that Chief Justice of India office comes under the purview of RTI act but with conditions, and it was settled by the court that right to information under Article 19 and right to privacy under Article 21 both are important, however, when in conflict, the test of larger public interest or comparative examination of public interest should be the guiding path. It was also said that if one’s right to know is absolute, then the same may assault another’s right to privacy and breach confidentiality, and, therefore, the former right has to be harmonised with the need for personal privacy and hence, it was ordered that invasion of privacy will not be tolerated and thus the court curtailed the power of right to know. Privacy is not subject to freedom of expression but rather an opposite situation shall be the law of the land. The former cannot be sacrificed on the anvil of fervid desire of some individual who is welcome with open arms to intrude the privacy just because he has the right to enjoy the liberty of expression.

Balancing of Rights as a Solution

 The doors of the Supreme Court are ajar for everyone to try one last fling. The Constitution is such a document that its interpretation is dynamic in nature and changes with time. The concept of transformative constitutionalism was propounded in seeing such circumstances that may occur in future. The dichotomy that is being raised in the current case of Kaushal Kishore v State of U.P. shall be seen in the light of this concept.  The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of ‘liberty’ and ‘equality’ and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature. Transformative Constitutionalism is there to fill the vacuum wherever it has been created in the society for the betterment as whole as transformative constitutionalism is the fundamental pillar of the Constitution. The idea of inheriting the Constitution with such progressive views is to guide the nation towards a resplendent future.

The solution to the debate of contradicting rights is the propounded theory of balancing of rights. This theory can be the appropriate remedy to interpret the statute as it weighs and balances the contradicting rights and determine which outweighs the other. It is relevant while weighing that the importance of constitutional morality shall be one of the driving forces and a key element to be weighed. The Preambular goals of our Constitution which comprehends the noble objectives of Justice, Liberty, Equality and Fraternity can only be realized through the commitment and loyalty of the organs of the State to the principle of constitutional morality as the concept of constitutional morality which endeavours and urges the organs of the State to maintain a heterogeneous fibre in the society in a multifarious ways. The culture of the Constitution shall always be preserved if the Fundamental rights are ensured to every human being in its truest sense. 

Sahajveer Baweja is currently a Law Student at Rajiv Gandhi National University of Law, Patiala. His research interests are Criminal Law, Constitutional Law, Artificial Intelligence and Human Rights. He can be contacted at sahajveerbaweja@gmail.com.