By Tenzin Tsering (Delhi, India)
In 1960 His Holiness the Dalai Lama declared democracy for Tibetans and subsequently, in 1963 based on the principles of modern democracy the His Holiness promulgated a constitution for a future Tibet, which is named “The Charter of Tibetans in-Exile”. The Charter enshrines freedom of speech, belief, assembly and movement, which are the basic essential foundations of a democratic society. It provides for a system of separation of powers & check and balance between Executive, Legislature and Judiciary. It governs the functioning of three wings of Government and also provides detailed guidelines on the functioning of the Tibetan government in-exile. It also has important provision allowing for the impeachment of His Holiness the Dalai Lama. The constitutional provision of freedom of speech and expression is an important right under the Charter of 1963, which widely gives right to the citizens to express their social and political views freely, even those viewed as extreme or fringe. However, right of freedom of speech and expression in Tibetan community is facing serious challenge in recent time, which is evident from the fact that critics are often been viewed as enemy of the State calling them “Anti-Dalai Lama”. I believe such a bigot have no place in liberal democracy. The understanding of freedom of speech within our Tibetan community is very narrow. Recent episode like statement by Penpa Tsering, speaker of the Tibetan Parliament and one of the five candidates for Sikong, that he will not share any platform with individuals who have made derogatory remarks against His Holiness the Dalai Lama and Gaden Monastery abrogate Lukar Jam’s public address, are very unfortunate and such incident are not only undemocratic but will jeopardize our democratic process. Multifaceted opinions are the essences of democracy and every individual have right to propagate its ideology freely in democracy. Let us understand the right of freedom of speech and expression under Indian Constitution and the significant of Right to Information.
FREEDOM OF SPEECH AND RIGHT TO INFORMATION
Freedom of Expression and the right to seek information are interlinked and fundamental human rights as enshrined Article 19 of the Universal Declaration of Human Rights and Article 19(1) (a) of the Constitution of India. Freedom of Speech & Expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development. Freedom of speech is a basic human right and important essence of democracy. It is a fundamental right guaranteed by the Constitution of India. Freedom of speech cannot be effectively exercised without having access to pertinent information and hence, the right to information has also come to be regarded as a fundamental right, essential for the full enjoyment of the right to freedom of expression and meaningful participation in a democratic society. Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion.
Let us first understand the Fundamental Right of Freedom of Speech and Expression enshrined under the Constitution of India-
“Article 19- Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right-
(a) to freedom of speech and expression;”
Article 19(2)- Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 or in relation to contempt of court, defamation or incitement to an offence.”
The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under the Constitutional scheme.
The Freedom of speech and expression guaranteed by the Constitution of India, like the right to equality, life and liberty, have been liberally construed by the Supreme Court of India from inception. In the early case of Romesh Thappar v. State of Madras  S.C.R. 594, the Supreme Court stated that freedom of speech lay at the foundation of all democratic organizations. In Bennett Coleman & Co. & Ors. v. Union of India & Ors.,  2 S.C.R. 757, the Supreme Court held that the freedom of speech and of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Further, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 the Supreme Court held that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the culture of open dialogue is generally of great societal importance.”
Thus, the right of freedom of speech and expression embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information which would aid in the citizen’s understanding of the working of his Government and its various organs in a democracy. Every individual has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.
The freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution is subject to certain restriction and it is not absolute. The restriction could be imposed by law on the limited ground specified in Article 19(2) of the Constitution, provided that such restriction have to be ‘reasonable’ and cannot be arbitrary, excessive or disproportionate. As Hon’ble Supreme Court of India in one of its recent judgment in Devidas Ramachandra Tuljapurkar Versus State of Maharashtra & Ors, had stated that right of freedom of speech is a right of great value and transcends and with the passage of time and growth of culture, it has to pave the path of ascendancy, but it cannot be put in the compartment of absoluteness.
RIGHT TO DISSENT PART OF FREEDOM OF SPEECH:
Dissent is the quintessence of democracy. Today we favour democracy as the most acceptable form of governance because a citizen has a right to dissent without fear of victimization as long as such dissent does not lead to inhuman or unconstitutional action. Suppression or discouragement of dissent diminishes the essence of democracy. In a democratic society, including our Tibetan community, the need to accept difference of opinion is an essential ingredient of plurality. The multifaceted opinions are the essence of democracy. It reminded me of what Voltaire (Philosopher, Historian and Writer) said “I Disapprove of What You Say, But I Will Defend to the Death Your Right to Say It”.
Dissent as a right has been recognized by the Supreme Court of India as one aspect of the right of the freedom of speech guaranteed as a Fundamental Right by Article 19(1)(a) of the Constitution. It had time and again observed that "the restrictions on the freedom of speech must be couched in the narrowest possible terms". In a recent landmark judgment by the Supreme Court of India in Shreya Singhal Vs. Union of India (W P (Criminal) No.167 of 2012), while struck down Section 66A of the Information Technology Act of 2000 as unconstitutional, had recognized dissent as one aspect of the right of the freedom of speech guaranteed as a Fundamental Right by Article 19(1) (a) of the Constitution.
Even, Punjab and Haryana High Court while dealing with fundamental Right of freedom of speech and expression had said “Dissent and criticism often gives way to fertile breeding of an intelligent opinion generating healthy friction between various sections of a polity, and opinions, generated, often clonish of the truth are extremely necessary for an intellectual debate for the growth of a democratic society apart from ensuring accountability by putting the actions of persons in power to swords of dissection. A candid expression of an opinion often spouts another either confrontational or platitudinous, but always enlightening. In any case an intelligible opinion of one does not necessarily mean the conviction of the other. So there is no need to discourage it,”
While expressing his view on dissent as Constitutional rights, Justice Oliver Wendell Holmes, former judge of Supreme Court of the United States in United States v Schwimmer 279 US 644 (1929) had said “…if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought- not free thought for those who agree with us but freedom for the thought that we hate”
RIGHT TO INFORMATION-
"If one does not know, one cannot speak freely". As discussed above, Freedom of Expression and the right to seek information are interlinked and fundamental human rights as enshrined Article 19 of the Universal Declaration of Human Rights and Article 19(1) (a) of the Constitution of India. Right to Information is a mean to awakening the people and give power to the citizen apart from voting right. This empowerment supports participatory democracy by giving citizens the capacity to engage in public debate and to hold governments and its officials accountable. Right to Information has been described as “Information is the currency that every citizen requires to participate in the life and governance of society. The greater the access of the citizen to information, the greater would be the responsiveness of government to community needs”. It is also weapon to tackle and expose corruption and bring greater Administrative efficiency, transparency and public accountability in the functioning of government and its departments.
RIGHT TO INFORMATION AS A FUNDAMENTAL RIGHT:-
As early as in 1976, Right to information, was explicitly held to be a fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice KK Mathew in State of UP v. Raj Narain (1975) 4 SCC 428, wherein it was said that people cannot speak or express themselves unless they know. Therefore, right to information is embedded in Article 19 of the Constitution of India. In the said judgment the Court further held that “(1) In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security (2) To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.” This view was followed by the Supreme Court on a number of decisions like S.P. Gupta v. UOI AIR 1982 SC 149, Secy., Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal (1995) 2 SCC 161 & People’s Union for Civil Liberties v. UOI, 2004 (2) SCC 476 etc. Thereafter, under the demand and pressure from the citizens, the Government of India was compelled to enact the Right to Information Act, 2005, with object to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.
My argument, therefore, is twofold. Firstly, Democracy is a gift by His Holiness to all of us and it’s our moral responsibility to embrace it and make it more vibrant and liberal democracy. One of the key aspects of democratic culture is the concept of a "loyal opposition", where political competitors may disagree, but they must tolerate one another and acknowledge the legitimate and important roles that each play. Secondly, there is a need of enact law relating to Right to Information in Tibetan Govt. in-exile to provide for setting out the practical regime of right to information for its citizens to secure access to information under the control of public authorities, in order to promote transparency, accountability in the working of every public authority and make our democracy work for the people in real sense.