There’s a very particular reason why the Fundamental Rights have been enshrined in Part IV of the Indian Constitution.
The intention of the legislature was not merely pompous and ostentatious, rather the intention of the legislature was to uphold the enforcement of democratic values, especially the ‘right to dissent’ and the ‘right to fair criticism’.
The principles which govern the retention and propagation of democratic ideals could never be upheld without the freedom of speech and expression which is an essential element of discerning the evolution of civilisation from Locke’s Barbarian State into a polity where checks and balances impose fetters upon the capriciousness of governmental authority.
And rightly so, no law enacted by the legislatures nor even the executive powers being exhorted by the governments can never ever evade Judicial Review which has been envisaged in article 13 of the Constitution of India.
It is undeniable that there exists a fine line between communal insinuations and the principle of fair criticism when it comes to initiating prosecutorial action under the auspices of Article 19 (2) of the Constitution of India.
If public memory serves right, then what the people of Goa have seen in the recent past with the inflammatory comments being made by a person of political persuasion against the sacrosanct religious facts of a Goan Saint’s historical journey from ordainment to veneration, still remains a comment made in the gray area of the law and the guilt cannot be effectively ascertained without an intricate and long drawn trial.
But consider this other scenario on the flip side when the Sarpanch of the Panchayat of Calangute was forced to apologise and was made to withdraw the letter which had directed the removal of a Statue which was erected at the entrance of colonially historic Calangute and although no religious battles were ever fought in the said village, the disciples found it appropriate to glean, gloat and ostracise the rule of law in order to have their right to freedom of expression be preserved.
And just as the Chief Justice of India has recently remarked:
“Public trust applies to us differently from other wings of the government. The doctrine of public trust is linked with accountability. Now the reason judges are peculiarly placed in the context of public trust is this – ‘accountability’ is typically associated with elected representatives in democratic theory,” (D. Y. Chandrachud, CJI, 2024).
There is greater inspiration to be found in the subsequent part of the current CJI’s speech:
“Elected representatives are directly accountable to their constituents and to the legislative institutions to which they are elected. By and large, they are voted in by popular mandate and continue in office subject to the people’s enduring confidence in them. Courts and judges, on the other hand, derive their powers from the mandate of the Constitution or statutory laws.” (D. Y. Chandrachud, CJI, 2024).
Consequently, a common man of general prudence needs to ask the question: Why is the right to freedom of speech and expression so subjective?
Especially, when the fundamental freedoms have been guaranteed.
Is there no duty of the State to uphold these freedoms so as to ensure the continuance of democratic civility?
In the above context, Democratic Civility necessitates a definition “that the effort to conjoin rights of democratic participation with tolerance and equality represented a novel formula for political integration, and is the basis of the values we know as democratic civility.” (Democratic Civility | Institute on Culture, Religion & World Affairs: CURA, n.d.).
On the point of freedom of speech and expression, a two judge bench of the hon’ble Supreme Court of India in a recent Criminal Writ Petition 402 of 2024 has succinctly observed:
“In democratic nations, freedom to express one’s views are respected. The rights of the journalists are protected under Article 19(1)(a) of the Constitution of India. Merely because writings of a journalist are perceived as criticism of the Government, criminal cases should not be slapped against the writer.”
In this regard, it would be apt to quote the views of journalist Stanley Carvalho expressed in his article entitled: Supreme Court steps in to protect journalists, published in the Deccan Herald:
“It is a sad irony that despite being the largest democracy, with constitutional guarantees of freedom of speech and expression and a diverse media landscape, Indian journalists are constantly harassed and threatened.”
In light of recent events which witnessed the physical assault of a humble and hardworking Goan photojournalist by the Police personnel while following orders of lathi charge, the following excerpt from Stanley Carvalho’s article deserves reiteration:
“In recent years, media professionals have been routinely obstructed from performing their duties through intimidation, raids on newsrooms, police interrogation, notices, detention, first information reports, arrests, and even physical assaults.”
Therefore the question which would serve as the pivotal point of confluence between a state’s duties and an individual’s rights with regards to the freedom of speech and expression, is that if the endeavour of journalism itself isn’t safe from the state’s domineering, then how are the individuals in the State of Goa supposed to freely express their dissent, except as a figment of their fundamental right?
