A sign reading “Silence is golden,” (Photographer: Adrian Moser/Bloomberg)

Freedom Of Speech And Protection From Compelled Speech

BloombergQuintOpinion

Does the right to freedom of speech and expression under Article 19(1)(a) of our Constitution include the right not to speak when the government wants you to speak? The government may try to force you to say something that you do not want to say or to learn a language which you do not want to speak in. For example, it may force cinemas to run advisories warning viewers that cigarette smoking is injurious to health, or it may force students in primary schools to study the regional language of the state. Can a citizen of India resist the government’s attempts to compel him or her to speak, and invoke Article 19(1)(a) for this purpose?

Freedom Of Speech And Protection From Compelled Speech

The judgments of the Supreme Court which belong to this conceptual category suggest that a government’s attempts to force citizens to speak will be considered reasonable so long as two conditions are satisfied.

Firstly, the condition must not impose a very heavy burden on the speaker. For example, requiring cinema owners to mandatorily display short documentary films, 15-20 minutes in duration, is fine, but it might not be fine if the documentary films were substantially longer, for example two or three hours. Likewise, requiring students to learn the official language of a state is constitutionally permissible, but it is not permissible to make the state language the medium of instruction and to force students to study all their subjects in that language.

Secondly, the state’s attempts to compel speech will be considered constitutionally valid so long as the message which the state wants its citizens to carry is informative, educational or useful, unconnected with political propaganda of any kind.

Union of India v. Motion Picture Association (1999)

The Supreme Court was considering the validity of laws which made it mandatory for cinema owners in certain parts of India to display government-approved documentary films. For example, the state of Uttar Pradesh issued directions requiring licensed cinemas to exhibit “approved films at every performance open to the public”. “Approved films” were those “approved by the central government” like “scientific films, films intended for educational purposes, films dealing with news and current events or documentary films”. Films of this kind were typically produced by the Films Division of the Government of India. Cinema owners said that this violated Article 19(1)(a) of the Constitution.

Two factors seemed to weigh with the court. Firstly, the court observed that the duration of these “approved films” which were required to be shown at cinemas was relatively short in comparison with commercial films which the cinemas would typically exhibit.

In other words, the court considered it important that the Government’s compelled speech did not impose a very heavy or onerous burden on the cinema owners.

The court was also convinced that the rules did not appear to impose a heavy economic burden on cinema owners. It was held that license conditions may require cinema owners to incur expenses, like purchasing fire-fighting equipment, but such expenses could not be considered unreasonable. It was also found that the cinema owners had not submitted sufficient material to support their argument that the requirement of exhibiting films was “economically onerous”.

Secondly, it was found that since the objective of the government approved films was to promote education, news and scientific knowledge, unconnected with partisan political propaganda, the compelled speech of the government did not violate the right to free speech under the Constitution since it “furthers informed decision-making”.

However, the court perhaps overlooked the fact that even supposedly educational or informative documentaries can have partisan propaganda embedded within them.

The court gave two examples of beneficial compelled speech: manufacturers of food are required to display the ingredients used in their food products on the packaging, and cigarette cartons are required to carry a warning that cigarette smoking is injurious to health. It was held that “[s]uch mandatory provisions although they compel speech cannot be viewed as a restraint on the freedom of speech and expression.”

Usha Mehta v. State of Maharashtra (2004)

The Supreme Court was considering the validity of an order passed by the state government of Maharashtra, under which the study of Marathi was made mandatory from the fifth grade. It was argued that this violated a student’s right to free speech and expression under Article 19(1)(a). The court upheld the policy. It was held that since a large part of the official business of the State was conducted in Marathi, it would be useful for students in schools to learn Marathi. The court also found that linguistic minorities would do well to learn the regional language as this would promote national and cultural integration and prevent “fragmentation within the State”.

State of Karnataka v. Associated Management (2014)

The Supreme Court was evaluating a decision of the government of Karnataka to make the medium of instruction in all schools in Kannada from Standards 1 to 4. It was held that the right to freedom of speech and expression under Article 19(1)(a) includes “the freedom of a child to be educated at the primary stage of school in a language of the choice of the child.”

It was not open for the State to dictate that education at the primary stage must be conducted in the mother tongue.

Interestingly, the court quoted from John Stuart Mill’s “On Liberty” where Mill wrote that we ought to have the freedom of “doing as we like…without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.” This passage resonated with the court, and it was held that “each individual must in certain matters be left alone” and “even if he decides to act foolishly in such matters, society or on its behalf the State should not interfere with the choice of the individual.” An important passage for an uncertain time.

Abhinav Chandrachud is an advocate at the Bombay High Court.

The views expressed here are those of the author’s and do not necessarily represent the views of Bloomberg Quint or its editorial team.