When Free Speech Meets Limits: Decency and Morality under Article 19(1)(a)
ABSTRACT
Freedom of speech and expression under Article 19(1) (a) of the Indian Constitution is considered one of the most treasured fundamental rights but it is not absolute. Article 19(2) puts the reasonable restrictions in the regard of sovereignty, security, public order, decency, and morality. Of these, decency and morality are notably problematic in that their definition is not explicit in the Constitution, and therefore courts will be left to interpret these terms. These notions have always been recognized by the courts as subjective, fluid and formed out of changing societal values. Traditionally, works which were capable of corrupting a vulnerable mind were governed by the Hicklin Test, borrowed by the Victorians of England. This absolutism of standard has been exercised in the case of Ranjit D. Udeshi v. The State of Maharashtra (1965) had a suspicious view of sexual content as it came no matter what the artistic result achieved. The judiciary however changed their maxim to the Community Standards Test as the culturally acceptable cultural norms changed with Aveek Sarkar v. The case of West Bengal (2014) looks into the context of expression and its intention. This development makes it clear that decency and morality are changing, between the individual and the social values. The current dilemma is to make these restrictions sufficiently restrictive to prevent society against obscenity and harm, and at the same time flexible enough to preserve artistic, political, and creative expression- depicting the fine balance between freedom and responsibility of the democratic society.
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“The most stringent protection of free speech would not protect a man in falsely shouting ‘Fire!’ in a theatre and causing a panic.”
– Justice Holmes[1]
Simply imagine your friend saying, “I can say whatever I want, it is called freedom of speech” You agree with them until they get up in a quiet library and begin shrieking about whether the alien constructed the pyramids. All of a sudden you find yourself rethinking their freedom of expression. There is a longstanding battle between the right to free speech and restrictions to that right, particularly when the arena of freedom of speech in India includes the aspects of decency and morality.
Freedom of speech is a bit akin to having a very outspoken friend- good, needed, but sometimes, there should be a filter. In India, such a filter is provided by our Constitution itself, in particular, Article 19(2) that acknowledges the existence of restrictions, which are reasonable to the fundamental right guaranteed in Article 19(1)(a). Some of the leading actors of these restrictions include decency and morality- both terms that have led to numerous court battles, government uproars and philosophical arguments.
Then, how much can one go until your so-called free speech becomes the so-called indecent or immoral speech? So shall we dive right in-to it, legally and a little cheekily.
The Indian Constitution in article 19(1)(a)[2] states that there is a right to freedom of speech and expression. This implies that we are free to speak what we want, express a disagreement, tweet jokes and even abstract art that resembles political appeal.
The twist however is that Article 19(2)[3] is the internal censor board to the Constitution. It tells you that your freedom is not absolute, as it may be abridged in the pursuit of the sovereignty, safety, good order, decency, morality, and some other matters.
Yes, you can say what you like, but you can never shout obscenities in the streets, encourage obscenity in the arts out of its context, or interfere with the moral Fiber of society in a manner unacceptable to the law.
Now here is the first twist in the story, according to the constitution of India, decency and morality are not defined, they are there in Article 19(2) but not with the proper definition and then the question arises, “who determines what is called as decent or moral?”
The Judiciary in practice acts as referee to interpret what these terms mean, based on context, societal norms and common sense. The truth is that decency and morality are subjective and courts have acknowledged that severally. They are not fixed borders, and at the same time not arbitrary. The test most often consists of modern community standards, or in other words what the general, normal, reasonable individual in our society considers good or appropriate, but here is the twist: such standards change. If the morality in the law were to possess a wardrobe, it would have changed itself over the decades, that is, from khadi to skinny jeans.
In layman language, Decency is a factor to do with the upholding of decorum in the society and at the same time not violating the sense of propriety among others, whereas Morality deals with the ethical centring of the community; what is good or bad as per the cultural values existing.
These two together serve as a guard to the freedom of speech and expression, in their absence, the freedom of expression may slip to encouraging obscenity, hate, and pandering to an act that would end up damaging the fabric of society. The dilemma is how to maintain these guards solid enough to exclude its actual harm but soft enough to enable creative, political and even provocative expression to thrive. One place where decency and morality seem to be continuously stretched is in the law of obscenity. This is where the question arises what constitutes art versus being indecent and this is more dramatic than the work themselves.
Shall we just go back to one of the most well-known cases in regard of this conflict that is “Ranjit D. Udeshi v State of Maharashtra (1965)[4]” A book salesman in Mumbai was prosecuted by the court over selling an uncensored edition of a novel called Lady Chatterley Lover by D.H. Lawrence which was famous because of its details of the love making rather than the twist in the plot. The Supreme Court held that the book was obscene under the Indian Penal Code Section 292[5] and its selling could be restricted under the Art. 19(2). The court used the Hicklin Test[6] (borrowed from Victorian England) which determines obscenity based on its impact on the minds of the most vulnerable members of the population, i.e. if it had the power to corrupt delicate minds, then it is prohibited. This was a very conservative test and as a result, it usually meant that work that contained any form of sexual content was treated with suspicion no matter how artistically good.
But times change and so the law
Here on the part of Aveek Sarkar v. In the State of West Bengal (2014)[7] case, the Supreme court finally refuted the ancient Hicklin test[8], and introduced the community standard test, and the test is more liberal in taking the context, purpose and the entire impact of the work. In this example Sports world magazine released a nude photograph of a tennis player Boris Becker and his fiancée. It was held by the court that the image was not an obscene one since it was aimed to criticize racism in sports and should not be interpreted as an instance to provoke arousal.
This shift from the rigid to a more flexible standard suggests that in law decency and morality are dynamic concept, they are evolving with the time, culture, technology, attitude and social norms and because of this the court chooses the approach on the basis of the cases, looking into the contemporary values while balancing the freedom of speech and expression with the responsibility to protect the public feelings.
[1] Schenck v. United States, 249 U.S. 47, 52 (1919).
[2] India Const. art. 19, §§ 1(a)
[3] India Const. art. 19, §§ 2.
[4] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
[5] Indian Penal Code, No. 45 of 1860, § 292, India Code (1860).
[6] Regina v. Hicklin, [1868] L.R. 3 Q.B. 360 (U.K.).
[7] Aveek Sarkar v. State of W.B., (2014) 4 S.C.C. 257 (India).
[8] Regina v. Hicklin, (1868) L.R. 3 Q.B. 360 (U.K.).
