Right to freedom of speech and expression

The freedom to express dissent forms the bedrock of the broader right to freedom of speech and expression which is enshrined in the Constitution under Article 19(1)(a). The right of citizens to register their protest and criticise their leaders is integral to the proper functioning of any democracy. However, this right has repeatedly come under attack from those who are unable to tolerate any opposition to their regime.

Recently, BJP politician Tajinder Pal Singh Bagga was booked by the Punjab Police over his statements criticising AAP Chief Arvind Kejriwal for his views on the film The Kashmir Files (2022). The Punjab Police, which is under the administrative control of the AAP government, registered what appears to be a clearly frivolous and mala fide case against Mr. Bagga for allegedly making provocative statements, spreading rumours, and trying to create communal enmity.

The complaint was registered reportedly at the instance of Sunny Singh Ahluwalia, one of the leaders of the AAP’s Punjab wing. It appears that the Punjab police, in the course of its ‘investigation’ into the trumped-up charges, has violently arrested Mr. Bagga from his home in Delhi, without having followed any of the safeguards laid down in law for an out-of-State arrest. The flippant manner in which the AAP regime has treated freedom of speech and expression in this case undermines the very fundamentals of democracy and sets an extremely worrying precedent with respect to using political power and police force to silence opposition.

As per the law of the land, freedom of speech can only be restricted on extremely limited grounds, such as 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. None of these grounds are made out in Mr. Bagga’s case, and the Punjab Police’s actions are ill-considered and extremely disproportionate.

The Hon’ble Supreme Court has emphasized the importance of freedom of speech and tolerance towards criticism in a catena of its decisions. For instance, as far back as in 1962, a Constitution Bench of the Supreme Court in Kedar Nath Singh v. State of Bihar (1962 AIR 955) held that mere criticism of the government is not enough to impose a restriction on freedom of expression. Only incitement of violence is grave enough to justify a restriction on speech.

In S Rangarajan v. P Jagjivan Ram (1989 2 SCC 574), the Supreme Court observed in clear terms that the fundamental right to freedom of speech cannot be held to ransom by an intolerant group of people. Furthermore, the Court had reiterated in this case that criticism of government policies and operations is not a ground for restricting expression.

In its more recent decision of Mazdoor Kisan Shakti Sangathan v. Union of India (2018 17 SCC 324) the Court pertinently noted that “legitimate dissent is a distinguishable feature of any democracy.” It went on to observe that the right of citizens to voice their grievances is fundamental to democratic rule, and that this right had to be protected regardless of the substantive content of the dissenters’ concerns.

Evidently, the actions of the AAP government in Punjab in terms of filing the complaint and arresting Mr. Bagga over his critical comments is clearly contrary to settled law and violates his civil liberties. It amounts to misusing the police forces of the State for enacting a political vendetta. These actions must be condemned by all right-thinking members of society regardless of whose opinion they substantively agree with, since such actions offend the very right to hold an opinion in the first place.

Dr. Rajeshwar Singh