Right to Free Speech vs. State Control – A balancing dilemma

This article as published in Kuensel for Saturday Legal Column Series 

Right to publish forms the basic essence of freedom of speech and expression. Kuensel’s news on refusal of publication of Dasho Sonam Kinga’s book has generated numerous discourses on social media. This article makes no attempt in whether BICMA should or shouldn’t register the book, but dwells more on this complex issue of balancing fundamental rights and state’s authority to impose restrictions. 

In an ideal democracy, right to publish must follow the principle of “prior restraint”. Sir William Blackstone said, a freeman shall have right to publish what he wishes to but if he “publishes improper, mischievous or illegal, he must take the consequence of his own temerity”.  This is because, the right to free speech forms the fundamental tenets of any democracy. In a landmark decision, the Indian Supreme Court stated “Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free and general discussion of public matters is absolutely essential”. Any state action to control right to free speech would undermine the democratic values of public discourse, debate and rule of law. Constructive criticisms and debate on public policies and political actions must be encouraged and tolerated.

However, as Prof. Gelber said, “free speech is not absolute, and like any human right, free speech carries with responsibilities” because secure and stable society, peace and harmony, proper law and order are equally essential for any vibrant democratic nation. Thus, Article 7(22) of our Constitution authorizes the state to impose reasonable restriction on any of the fundamental rights. For example, Dasho Sonam Kinga or any other person aggrieved by the decisions of BICMA has the right to approach the High Court to determine the reasonableness of restriction imposed by the state. With the advancement of modern technology and emergence of social media, imposition of such restrictions has become challenging. There are thousands of hate speeches, defamatory statements which could incite violence, create regional divisions, political chaos, infringe on other’s rights under the anonymous accounts. Yet the state agencies like BICMA, ECB have not been able to impose any restrictions on the authors.

Therefore, one way to reduce such anonymous publications is to encourage individuals with known identities to publish because when known identities are restricted, public will be forced embrace anonymous publications. This is also because, known publishers can be held accountable for their writings while those on social media with fake accounts may never face any consequences, no matter how damaging their publications may be.

It is true that, balancing the fundamental right to free speech and imposition of reasonable restriction by the state remains challenging. But, both the individual citizens and state agencies must be mindful of the repercussions of one’s action to the society while exercising the right to free speech or imposing the reasonable restrictions. Abuse of the right to free speech or too much state control, both will harm the growth of democracy and democratic culture. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.