The biggest problems in constitutional law are the tension between freedom of speech and national security. Freedom speech and expression is regarded as essential to both individual liberty and for the advancement of society in a democracy. The Article 19(1)(a) guarantees citizens freedom to raise their thoughts, dissent, and opinions without worrying about reprisal from the government. In situations where speech may threaten public order, national security, or national sovereignty, Article 19(2) provides with the reasonable restrictions for the same.

It has always been a challenge to maintain a balance between protecting the state and safeguarding citizens' right to freedom of speech. Sometimes governments used security concerns more to restrict freedom of speech, for a contentious manner, in response to growing risks to national security, whether they came from terrorism, internal conflict, or false information. The judiciary also makes sure that these limitations don't go too far in upholding democratic principles and safeguarding state interests.

Constitutional Framework In Terms Of Article 19

Article 19(1)(a) provides each and every individual the basic right that is liberty of speech and expression, allowing individuals to freely express their views, opinions, and thoughts without unnecessary interference. This right includes non-verbal means of expression like art, protests, and symbolic speech in addition to written and spoken communication. It serves as the cornerstone of a democratic society by encouraging free speech, disagreement, and debate—all of which are necessary for a robust democracy to thrive.

These liberties are guaranteed by Article 19(1)(a), but Article 19(2) lays out with the certain conditions under which they may be restricted for the sake of integrity, dignity, public safety, and—above all—state security. It states clearly that speech may be subject to reasonable limits if it threatens India's security, integrity, or sovereignty. Although people are free to express their thoughts, opinions, there freedom does not extend to actions that results in threating the country's interest.[1]

Freedom Of Speech V. National Security: Conflicts And Controversies

Every country understands the concept of the national security, which refers to the condition in which the government employs its political, economic, diplomatic, and military resources to ensure the safety and protection of its states and citizens.

Most importantly, nations hold a significant duty to safeguard citizens' fundamental rights, ensure that proper functioning of democracies, and foster an environment of harmony and peace. There is always a conflict between the national security and the freedom of speech.[2]

Censorship In India:

In an emergency situation (1975-1977), government placed extensive restrictions on the press in the name of preserving a national security. At that time India's democratic history faced a troubling chapter that revealed how easily the concept of national security could be misused to suppress dissent and weaken democratic principles.

The debate over free expression and national security has resurfaced in the wake of counterterrorism initiatives in recent years. For example, there has been much discussion about the application of sedition laws to people who oppose the government or call for the autonomy of particular areas (like Kashmir). When these rules are enforced, they often prompt questions about whether free speech is being restricted and dissent is being punished on the grounds of national security.[3]

Judicial Interpretation

Indian judiciary also made a number of significant rulings to balance the national security and the free speech. Here are some of the cases are given in which supreme court gave judgment to maintain balance between free speech and national security.

• Romesh Thappar V. State Of Madras (1950):

  under this case the Supreme Court of India pertaining to the right to freedom of speech. Romesh Thappar, who was the editor of a newspaper known as "Cross Roads," which the Madras Maintenance of Public Order Act, 1949 banned from being distributed in the Madras State. The state administration cites public order as the reason for the prohibition. Thappar objected to the order, claiming it infringed upon his basic right to freedom of speech and expression. Madras State. The supreme court ruled that article 19(2), which only allowed limits in the name of "security of the State," did not support restrictions on free expression on the basis of "public order."[4]
   

• Vinod Dua Vs. Union Of India (2021):

  This case highlights the freedom of speech and expression as a fundamental right, especially in the field of journalism, which is acknowledged as a key tenet of democracy. In one example, a well-known journalist named Vinod Dua uploaded a video to YouTube criticizing the Indian government's response to the COVID-19 outbreak, pointing out in particular that the government was not prepared and did not have enough testing facilities. In addition to being charged of inciting unrest and disseminating false information, Dua was also accused of claiming that Prime Minister Narendra Modi exploited terrorist attacks and fatalities in order to win support.
  
  The FIR filed against Dua was invalidated by the Supreme Court, which was decided by Justices U.U. Lalit and Vineet Saran. The Court did not discover any proof that Dua accused the Prime Minister of doing these things directly. Dua did not directly accuse Modi, although criticizing India's attacks in Balakot as a political ploy. In addition, the Court decided that Dua's complaints concerning testing facilities were legitimate grievances over how the government was responding to the pandemic.[5]
   

• Doctrine Of Proportionality:

  According to the proportionality doctrine, an administrative judgment can be deemed illegitimate if it is not appropriate for the offense committed at the time it was made. The administration's actions ought to be in line with the goal it is trying to achieve. When exercising discretionary power, a decision-making authority must be able to strike a balance between the objective it is pursuing and any unfavourable effects that its choice may have on people's rights, liberties, or concerns. All things considered; the decision-maker needs to have a sense of proportion.

Legislative And Executive Measures:
The legislative and executive branches of the Indian government have frequently enacted laws and implement policies that prioritize national security, sometimes at the expense of free speech.

• Sedition Laws:

  One of the most controversial laws pertaining to India's freedom of speech is the sedition law. The law was originally intended to address acts that threaten the stability of the state, Critics contend that It's frequently employed to repress political disapproval and restrain free expression. Even, the courts have established standards for the implementation of sedition laws, worries about their improper use to restrain free expression to continue. Recently in 2016JNU Kanhaiya Kumar, the president of JNU was arrested under sedition charges. The arrest was based on allegations that Kumar and other students had raised "anti-national" slogans during an event on the university campus commemorating the hanging of Afzal Guru, a convicted terrorist in the 2001 Indian Parliament attack. The Delhi High Court granted Kanhaiya Kumar interim bail in March 2016, citing the need for a clear link between his actions and actual incitement of violence. This case highlights the misuse of sedition laws with reference to the freedom of the speech.[6]
   

• Unlawful Activities (Prevention) Act (UAPA):

  The UAPA was first passed in 1967 to prevent the unlawful activities. Since then, it has undergone substantial expansion to address rising terrorism-related concerns, especially in the wake of the 2008 Mumbai attacks. Under this the government is allowed to arrest those who are thought to be engaged in activities that are endanger for the national security.[7]
  
  The Bhima Koregaon case is a noteworthy example, in which a number of activists were detained under the UAPA on charges of instigating violence and participating in anti-national actions. These arrests, which have drawn a lot of criticism, show how national security laws are being used to quell dissent and cast doubt on the fairness and proportionality of such measures. Due to the wide use of UAPA, there is rising worry that it permits the arbitrary imprisonment of people without enough justification, which will restrain protest and free speech.[8]
   

• Surveillance And Digital Platforms:

  In today's world internet is no more a luxury it is rather become a common thing. Internet is the fastest and the quickest medium of the circulating information. With the removal of Article 370 in 2019, India has the uncertain contrast of having the most internet shutdowns worldwide. The most notable example is the extended break of communication services in Jammu and Kashmir. While the government protects these measures as necessary to uphold law and order and stop the spread of false information, critics contend that they substantially restrict economic activity, free speech, and access to information. Furthermore, since regulations such as the Information Technology Act and its related Intermediary Guidelines and Digital Media Ethics Code Rules (2021) were introduced, there has been greater vigilance of digital platforms. These regulations, which compel social media companies to abide with takedown requests from governments and track the source of specific communications, raise questions about censorship and digital surveillance. The government says that these steps are required to protect national security and prevent cyber threats, but their execution has sparked concerns about invasions of privacy and the potential to hinder online dissent.[9]

International Comparative Perspectives
Not only India who is struggling to achieve balance between the freedom of speech and national security all across the world is struggling with this to manage the balance between the both. In 2001 US passed 'Patriot Act', this increased the power of law enforcement agencies to investigate, apprehend, and punish terrorists. It also led to stiffer penalties for those who carry out and support terrorist activities. Law enforcement can now more easily gather intelligence and information against potential terrorists, spies, and other adversaries of the United States. This act main aim was to protect the national security.[10]

UK also passed "UK National Security Act 2023" which aim to protect the UK's national security against evolving threats, particularly foreign states and non-state actors.[11]

These cross-border parallels highlight how challenging it is for democracies to strike a compromise between free speech and national security. The world's largest democracy, India, has scared neighbouring nations with its stringent implementation of internet regulations, the UAPA, and sedition laws.

Conclusion
Democratic country like India, striking balance between the national security and freedom of speech is very difficult. Although India comes with the laws such as UAPA, digital surveillance, Sedition laws etc, these measures often run the risk of compromising fundamental rights but are necessary to protect the national security. Freedoms are not unrestricted; instead, they are limited by measures that are appropriate for the security, norms, and/or national order.

The primary authority for judging this fine line between personal liberties and the greater good is vested in the judiciary. This entails determining if a restriction is legitimate, appropriate, or necessary. In the end, safeguarding national security does not entail hinder dissent or restricting the constitutional right to free speech. A balanced approach that is based on civil liberties and security is effective functioning of any democracy.

End Notes:

1. Ministry of external affairs, https://www.mea.gov.in/Images/pdf1/Part3.pdf (last visit 12 September 2024)
2. Article 19-defending freedom of expression and information, https://www.article19.org/resources/foe-and-national-security-a-summary/ (last visit 12 September 2024)
3. Singh, Kumar Bal Govind, The Debate Over Freedom of Speech and Censorship in India (January 18, 2024).
4. AIR 1950 SC 124
5. Covid-19 litigation, https://www.covid19litigation.org/case-index/india-supreme-court-india-vinod-dua-v-union-india-others-2021-06-03 (last visit 19 September 2024)
6. Internet freedom foundation, https://internetfreedom.in/sc-sedition-update-larger-bench/ (last visit 21 September 2024)
7. The unlawful activities (prevention) act, 1967, § 3, No. 37, Acts of Parliament, 1967(India).
8. Supreme court observer, https://www.scobserver.in/journal/the-bhima-koregaon-arrests-the-story-so-far/ (last visited 21 September 2024)
9. Orfonline.org, https://www.orfonline.org/expert-speak/the-state-of-surveillance-in-india (last visited 22 September 2024).
10. Geoffrey R. Stone, Free Speech and National Security, 84 Indiana Law Journal 939 (2009).
11. Womble Bond Dickinson, https://www.womblebonddickinson.com/uk/insights/articles-and-briefings/national-security-act-2023-what-changing-and-what-do-you-need-know (last visit 22 September 2024).

Written By: Nikita Baloda, B.A., LL.B. (Hons.), 3rd year, NMIMS, Navi Mumbai.