Law As A Means Of Justice – Right To Free Speech

Introduction

The common-sense description of law has three basic components. Firstly, that it is necessary for order; secondly, that it defines things that must and must not be done, and thirdly, that it is about rules that are discoverable and known, and are superior to the ordinary world.[1] Law provides legitimation to much of what happens in the society, though first it itself requires to be legitimate. The rule of law rests on the proposition that everyone in the society is equal and thus, the laws in essence must be applied to everyone equally. The fact that whether we are rich or poor, white or black, male or female, etc. becomes less significant than that we are equal in the attribute of ‘humanness’.[2] As human beings, we do not perceive ourselves as social beings first, but rather as individuals with goals and ambitions who want individual achievement, even if it is secured at the expense of others in society.

Rule of law in a society helps resolve this dispute in a manner that makes resolution inevitable. Justice refers to the balance in the interests of one individual as against the society. It reinforces the particular social reality in which it exists. The idea of justice largely depends on the attitudes and notions of society prevalent then. To make people follow a law, it is essential that it must be consonant with the societal norms; otherwise, it often leads to social unrest. Though there are accompanying shortcomings of law as a system as it is often perceived to be political in the sense that it serves the interests of some over others, revealing itself as a mechanism of power. But, the alternative to it is a lawless society that plunges into chaos and antagonism.[3]

When people resort to law, they expect that the principles are applied in a fair manner. The essence of the rule of law is that every individual is perceived to be equal and legal principles are applied in the same way. Law exists even without each person knowing it; it does not need the sanction of every individual being governed by it. Though the law has evolved over the years, its basic role lies in the creation of a fair and just society. One essential element of the law is uniformity. This can be done by measuring the situations of controversy by reason. And if left at the discretion of the judge or people, no consistency can ever be achieved given the subjective will of everyone in the society. As laws have become numerous and people have become ready to punish their adversaries in the courts, it is imminent that the law is predictable. Predictability, or “reckonability”, is a needful characteristic of any law worthy of its name.[4]

The Need For Law

On the question of the need for law, we must delve into its history. As Thomas Hobbes has put it, in the state of nature primitive man lived without law in a constant state of fear. There are no notions of right and wrong in such a society, it is dependent on to what extent a person can go to protect his life and property.[5] To get out of this state of nature, a contract was formulated to give birth to a civilized society. The course of legal development has been towards more certainty.

The need for equity was a reason to move away from justice without law. The discretional authority of the judge began to narrow and the circumstances of each case were given more attention.[6] There is a saying of Amos to affirm the nexus between law and equity: “The alternative appearances of law and equity as the mutual checks and correction of one another are lasting and not transitory phenomena.” We need a law to regulate the interactions among people and punish those who violate the law. The law has validity at all times and is constant under all circumstances. The need for law arises to secure against errors of individual judgment or ill motives of those who administer justice. Law fosters the easy adoption of social change. It may have an impact on society directly by formulation or an indirect effect by interacting with the basic social institutions. This helps in the accommodation of people that belong to different ethnicity, culture, background, etc.

Earlier in India when codification and legislation were not prevalent, reliance was on personal laws. However, they were often considered unjust or inapplicable where gaps were left between them giving rise to a conflict. This was solved by recourse to the law. As civilization increases, so does its complexity, which requires compliance with the law so that men act assuredly in the future. People are themselves compelled to comply with the law because of their commitment to law-abiding behaviour that stems from procedural fairness. If the process itself leads to unfair decision-making and disrespectful treatment, people will not comply with it. Thus, people follow the law merely not because of the fear of punishment or because they agree with it, but because they think it is morally right to abide by it.[7]

Law As The Basis Of Justice

Justice evolves through the object of love and natural inclination for the basic good of society. During British rule, it was confined to “justice, equity, and good conscience”. This still has significance but precedence is given to the rigid and defined rule of law. For the growth of the society, we not only find means to live in the society but we are required to do this well.[8] This involves judging the actions of others to live in harmony. This speculative reason dictates us towards the concept of justice. The two principles of administration of justice are that no man shall be a judge in his own cause and both sides must be heard. These two are regarded as fundamental for the cause of justice.

Human liberty must not be curtailed due to the subjective sense of what justice is which might be incoherent to the collective conscience. There will be no predictability in such a system. Thus, a rational approach would be to make law the basis of judicial decision-making to maintain predictability and security. Though justice is an inextricable part of the law, it cannot be made the basis of it. Our sense of justice is shaped by the laws that are in place. In order to render full justice to the parties, facts of the case must be considered and be taken into account by the decision-maker. Sometimes extravagant power is given to the jury to apply rough standards of justice because these powers are approved by the public sentiment. Law is not essential in granting justice, for it may be administered according to the discretion of the judge. But the efficacy of such a judgement will then come to be questioned.

There is indeed an element of the will of the judge through obiter dictum which forms some part of the ratio of the case but this must not take preponderance over the defined law of the land.[9] Though the concept of justice is imprecise at its core, it has substance beneath which is clear and essential in maintaining the liberty of individual and social cohesion. The synthesis of law and liberty is incomplete without justice; for it can be used as a last resort which can be used as a yardstick to determine to what extent the law can encroach upon the liberty of an individual, especially in an era where competing demands are made to let people go their own way without legislative regulations.[10]

Right To Free Speech

Article 19(1) of the constitution of India provides the citizens with the right to freedom of speech and expression. The right to free speech is recognised internationally as an amalgamation of the right to free conscience. Article 19, Universal Declaration of Human Rights states that- “ Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, review and impart information and ideas through any media regardless of frontiers.” There are two schools of thought on free speech: First is the libertarian view which believes that citizens are autonomous beings who must have access to complete information. The state must not enter into the private sphere of other individuals in a way that obstructs their access to others’ opinions. The other school of thought is narrower in its interpretation as it believes that free speech is mostly restricted to political discourse. However, both these theories are extreme which are not possible to implement in a democracy.[11]

Freedom Of Press

This subject in this discussion will be dealt with primarily from the aspect of constitutional guarantee guaranteeing this right to the press. This freedom is not mentioned specifically in article 19(1)(a) of the Constitution as there is mention of only freedom of speech and expression. In the drafting committee, it was made clear that a special mention of freedom of the press was not necessary as press and individual were the same while dealing with freedom of expression.[12] The constitutional guaranty is qualified and can be infringed upon in case of an outrageous publication that amounts to libel. Some valid grounds for such qualifications are- Sovereignty and integrity of the state, security, public order, decency, contempt of court, defamation, friendly relations with foreign states, or incitement to offence.[13]

In a thriving democracy, there is always a conflict between different perspectives and the interpretation of what constitutes public interest. These disagreements are essential provided that they do not cross boundaries of civil discourse. In the case of Indian Newspapers v Union of India, it was held that the objective of the press is to serve the public interest by providing them with the facts and opinions to form well-informed rational judgements. Mainly the printing press facilitates the expression of opinions and through the press, the governments are made responsible to the people. Mr. Erskine opined, “It is because the liberty of the press resolves itself into this great issue that it has been, in every country, the last liberty which subjects have been able to wrest from power. Other liberties are held under governments, but the liberty of opinion keeps government themselves in due subjection to their duties.”[14] No right is unrestrained, the government reserves the right to punish the author or publisher of such matter as it may deem unlawful. It may seem like an autocratic government under normal conditions to deprive the citizen of their rights, but it is not so when the owner of the material is to be held accountable for any improper use of the same.

Hate Speech

Freedom of expression allows a person to attain self-fulfillment and grants the capacity to fully enjoy freedom. However, the aggravated form of this freedom sometimes blurs the line of distinction and takes the form of hate speech. Hate speech is a kind of an effort to marginalize individuals using expressions that expose them to hatred. It is treated differently in different countries. For instance, the American approach to hate speech is tolerant of offensive or derogatory speeches. While on the other hand, other jurisdictions seek to protect individuals, especially minorities, from verbal assaults that are even remotely distressful.[15] In India, hate speech is made an offense under Section 153- A and Section 295-A of Penal Code, 1860.

However, the courts are extremely cautious of restraining rights granted by article 19 of the constitution.  For instance, in Ramesh v. Union of India[16], it was held that, “Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and community interest is endangered. The anticipatory danger should not be remote, conjectural, or farfetched. It should have proximate and direct nexus with the expression.” Freedom of expression was incorporated in the Bill of Human Rights and is considered the cornerstone of every democracy. Thus, even if sometimes a speech is vehement and sharp, it is protected from state scrutiny. Perhaps this is the reason behind deferring a commonly accepted definition of hate speech.

The Constraints Defined By Law

Even in the Constitution of India, there is a clause which states that reasonable restrictions can be imposed on the right to free speech as it is not absolute. These restrictions can be seen as a necessary evil that curtails one individual’s right to uphold the community’s rights. The reasons for restriction are contempt of court, integrity, sovereignty, morality, and decency, and friendly relations with other states. Government action is often seen as an infringement of the rights of the citizens. However, on the contrary, the government has an obligation to act for free speech. Even if one were to argue against government action, it has to be presupposed that there is absolute equality among all the speech. This is a flawed assumption as there are varied factors like gender, class, race, etc that decide how the speech will be taken by the people.

Every person has an individual frame of mind and for reaching a public consensus on limits of free speech, government intervention becomes necessary. Participation in the labour force cannot exist without restraints on the liberty of each person in the interest of community freedom. John Stuart Mill states that “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” This is true in today’s society as no man lives in isolation; the actions of one person have an impact on the entire community. Even those who value freedom utmost, for instance, the libertarians, cannot expect to live in an unregulated society without legal control as these are both necessary and just.

Conclusion

Individuals in a society have the self-preservation instinct. They believe in serving their own interest before being concerned with the common good of society. To mediate between the interests of the individual concerning the society, there arises the need for law. It is not applied according to the subjective will of the individual but uniformly upon everyone. Law as the basis of justice gives certainty to the procedure. Even when an ill-willed judge tries to vitiate the fair process of justice, the codification of law is relied upon. Public sentiment and emotional appeal cannot and should not be given precedence over a defined law. The state does not have a negative role in encroaching upon human rights. Contrary to this notion, it protects their rights because it helps in fostering a well-regulated society.

Even the constraints that are imposed are often to prevent social unrest in the society. Even if one is to follow a law against his will, it is in the interest of the larger public. Another contention is that human rights are not guaranteed by the sovereign, they are in existence just by the virtue of the attribute of humanness. However, this is a way too utopian concept to materialise into reality. Because without the sanction of the state, humans will have no regard for the rights of others and will be concerned solely with their own well-being. It will only lead to a ruckus. The idea of human beings not needing any external vigilance on their rights seems plausible, but it is not practical. People’s rights, liberties, and justice, all require constant vigilance and this cannot be exercised by the public alone. Constant vigilance of the other vital organs of a state, for example, an independent press, judiciary, legislature, etc. is vital.[17]

[1] Wade Mansell, A Critical Introduction to Law ( 4th edn, Routledge Taylor and Francis Group 2017)

[2] ibid

[3] ibid

[4] Antonin Scalia, ‘The Rule of Law as a Law of Rules’ [1989] CLR 1175

[5] Abiyou Girma Tamirat, ‘Law As a Means of Justice’ (Abyssinia Law, 15 June 2015) https://www.abyssinialaw.com/blog-posts/item/1477-law-as-a-means-of-serving-justice accessed 24 November 2021

[6] Roscoe Pound, ‘Justice According to Law’ [1913] 13 Column L Rev 696

[7] Jonathan Jackson, Ben Bradford, Mike Hough, and others, ‘ Why Do People Comply With the Law’ [2012] BRIT J CRIMINOL 1051

[8] Jeffrey J Maciejewski, ‘Justice as a Nexus of Natural Law and Rhetoric’ [2008] 41 PSUP 72

[9] Roscoe Pound, ‘Justice According to Law’ (n6)

[10] Sir Norman Anderson, Liberty, Law and Justice (Stevens Publishing 1978)

[11] Anupama Sharma, ‘Addressing the Roadblocks to Gender Neutrality in Sexual and Domestic Violence Laws: A South Asian Perspective’ [2020] JILS 79

[12] Manmeet Singh, ‘Freedom of Press- Article 19(1)(a)’ (Legal Services India) http://www.legalservicesindia.com/article/1847/Freedom-of-Press—Article-19(1)(a).html accessed 26 October 2021

[13] C.A. Peairs Jr., ‘Freedom of the Press’ [1940] 28 Ky LJ 369

[14] Jos. R. Long, ‘Freedom of the Press’ [1918] 5 Va L Rev 225

[15] Iqbal Ali Khan and Kalpana Rani Jayas, ‘Hate Speech and Freedom of Speech: A Legal Scrutiny’ [2016-17] ALJ 15

[16] Ramesh v Union of India 1988 AIR 775, 1988 SCR (2)1011

[17] Sir Norman, n(10)

This article has been written by Navya Bassi, 1st Year BA. LL.B Student at National Law University, Odisha.

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