Public Order As a Ground for Restriction Over Freedom of Speech & Expression

INTRODUCTION

Freedom of Expression relates to the degree of freedom afforded by the law to the individual
to express opinions and to impart and receive information. The public do not necessarily have
to agree with that individual’s views. The individual here includes the press as a non-
government force. The press often claims that they should have greater rights and more
freedom of expression to report on affairs than the individual since they act as the watchdog of
the public interest. Sometimes what amounts to the public interest is clear cut.
From the Constitutional perspective, Freedom of Expression in relation to that degree of
freedom needed in a democratic society to protect society from abuse by those in authority and
to enable society to engage in democratic governance. Modern communications systems have
only served to enhance this power since information can be put into the public domain so
rapidly that there is little opportunity to respond to the information and counter its impact.
The term ‘public order’ means public peace, safety and tranquility. It was inserted by an
amendment of 1951 to get over the effect of decisions of Romesh Thappar v. State of Madras[1]
and Brij Bhushan v. State of Delhi [2].

THE RIGHTS & RESTRICTIONS

Article 19(1)(a): Freedom of Speech & Expression

This FR has diverse facets, both with regard to the content of the speech & expression and in
the means through which communication takes place. The concept has evolved with time &
advances in technology.
It covers the right to express oneself by word of mouth, writing, printing, and picture or in any
other manner including the freedom of communication and the right to propagate/ publish one’s
views.

Article 19(2): Reasonable Restrictions

The restrictions specify that these freedoms are not absolute. These articles set limitations on
the power of legislature to impose restrictions on these freedoms and to impose restrictions
more than the aforementioned:
aiming to prohibit anyone from making statements that challenge the sovereignty and integrity
of India
in the interest of the security of the State
to prevent from jeopardizing the friendly relations with foreign States
public order maintaining public peace, safety and tranquility.
decency and morality
contempt of court refers to civil contempt or criminal contempt
preventing from making any statement that injures the reputation of another, defamation
preventing from making any statement that incites people to commit offence, incitement to an
offence
In St. of Gujarat v. Mirzapur Moti Qureshi Kasab Jamat[3], SC held that this prohibition
doesn’t amount to total ban on activity of butchers as it was not a prohibition by any restriction.
Rather was in the interest of general public and u/Art. 19(1)(g). Cow & her progeny are the
backbone of the Indian agriculture and economy.

Critical Analysis
The Grounds contained in Article 19(2) show that they are all concerned with the national
interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity
of India, the security of the State, friendly relations with foreign States and public order are all
grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality,
contempt of court, defamation and incitement to an offence are all concerned with the interest
of the society.

PUBLIC ORDER

Bringing order to speech: History

Sardar Patel[4], thought that the Crossroads decision “knocked the bottom (out) of most of our
penal laws for the control and regulation of the press”, while Nehru[5] was livid with the
interpretation of the court. In February 1951, Nehru formed a cabinet committee to examine
the proposed amendment. The home ministry recommended to the cabinet committee that
‘public order’ and ‘incitement to a crime’ should be included among the exceptions to the right
of freedom of speech. It preferred dropping ‘to overthrow the state’ in favor of a wider
formulation, ‘in the interests of the security of the state’. It is to be noted that the original Article
19 (2) did not have the word ‘reasonable’ before the word ‘restrictions’, and the law ministry
was of the opinion that the word ‘reasonable’ as used in Article 19 should be retained and even
added to Article 19 (2). The cabinet committee, however, strongly disagreed with
Ambedkar[6].
Later on, the Cabinet accepted the recommendation in order to avoid a split in the Cabinet and
ensure a two-thirds majority. On the first of June 1951, Parliament passed the bill by a vote of
228 to 20.
The Concept
‘Public order’ is an expression of wide connotation and signifies “that state of tranquility which
prevails among the members of political society as a result of internal regulations enforced by
the Government which they have established.”
Public order is something more than ordinary maintenance of law and order. ‘Public order’ is
synonymous with public peace, safety and tranquility. The test for determining whether an act
affects law and order or public order is to see whether the act leads to the disturbances of the
current of life of the community so as to amount to a disturbance of the public order or whether
it affects merely an individual being the tranquility of the society undisturbed.
Anything that disturbs public tranquility or public peace disturbs public order. Thus communal
disturbances and strikes promoted with the sole object of causing unrest among workmen are
offences against public order. Public order thus implies absence of violence and an orderly
state of affairs in which citizens can peacefully pursue their normal avocation of life. Public
order also includes public safety. Thus creating internal disorder or rebellion would affect
public order and public safety. But mere criticism of government does not necessarily disturb
public order. In its external aspect ‘public safety’ means protection of the country from foreign
aggression. Under public order the State would be entitled to prevent propaganda for a state of
war with India. The words ‘in the interest of public order’ includes not only such utterances as
are directly intended to lead to disorder but also those that have the tendency to lead to disorder.
Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings
of any class of persons is valid because it imposes a restriction on the right of free speech in
the interest of public order since such speech or writing has the tendency to create public
disorder even if in some case those activities may not actually lead to a breach of peace. But
there must be reasonable and proper nexus or relationship between the restrictions and the
achievements of public order.

Reason to Incorporate
This insertion of ‘public order’ came after the Supreme Court’s invalidation of government
pre-censorship of speech on public order grounds in Romesh Thapar, declaring that the
Constitution required that “nothing less than endangering the foundations of the State or
threatening its overthrow could justify curtailment of the rights to freedom of speech and
expression”. Therefore, Parliament amended the Constitution to expand the grounds on which
the state could restrict speech, and included ‘public order’ among the expanded grounds. The
trouble with this is that the intolerant are now able to create a public order problem to silence
speakers.
The SC in Babulal Parate v. St. of Maharashtra[7] found that public order must be “maintained
in advance in order to ensure it”, and ruled that restriction of Article 19 freedoms of expression
and assembly in the interests of public order is permissible. However, all such restrictions must
continue to satisfy the reasonability test laid down in the Constitution, providing our judiciary
with the opportunity to ensure that intolerance does not continue to oppress speech.
Hate speech is any speech, gesture or conduct, writing, or display which is forbidden because
it may incite violence or prejudicial action against or by a protected individual or group, or
because it disparages or intimidates a protected individual or group.

Cases
Ram Manohar v. St. of Bihar[8]
The SC explained the differences between three concepts: law and order, public order, security
of State. It is also necessary that there must be a reasonable nexus between the restriction
imposed and the achievement of public order.
Superintendent, Central Prison v. Ram Manohar Lohiya[9]
The court upheld the validity of the provision empowering a Magistrate to issue directions to
protect the public order or tranquility.
Dalbir Singh v. St of Punjab[10]
SC held that the impugned provisions did not violate Article 19(1)(a) since there was a
proximate connection between the provisions and the maintenance of public order.

FREEDOM OF SPEECH & EXPRESSION IN OTHER JURISDICTION

Two great democracies of world America and India very aptly recognize the right of freedom
of speech and expression. The US & India almost have similar free speech provisions in their
Constitutions. Article 19(1)(a) of COI corresponds to the First Amendment of the US
Constitution which says, “congress shall make no law… abridging the freedom of speech or of
the press”. However, the provisions in the US Constitution have two notable features i.e.:
freedom of press is specifically mentioned therein,
No restrictions are mentioned on the freedom of speech.
Whereas in India, SC has held that there are no specific provisions ensuring freedom of the
press separately. The freedom of the press is regarded as a “species of which freedom of
expression is a genus”. Therefore, press cannot be subjected to any special restrictions which
could not be imposed on any private citizen and cannot claim any privilege (unless conferred
specifically by law), as such, as distinct from those of any other citizen. In Express Newspapers
(Private) Ltd. v. Union of India[11], held that “the FR to the FoSE enshrined in our constitution
is based on (the provisions in) Amendment I of the Constitution of the United States and it
therefore is legitimate and proper to refer to those decisions of the SC of the USA in order to
appreciate the true nature, scope and extent of this right in spite of the warning administered
by this court against use of American and other cases.”
Despite similarities in the constitutional provisions, distinction lies in their unique
jurisprudence on freedom of speech. Consequently, they differ as to what is and what is not
acceptable free speech. As mentioned, the real difference in freedom of speech enjoyed in the
United States and India is a question of degree. This difference in degree is attributable to the
reasonable restrictions provision and the moral standard of the communities. It is important as
the false statements made honestly are equally a part of freedom of speech.

At the same time, the expansive protection to FoS under the First Amendment ensures robust
debate on all public issues and the widest dissemination of all ideas. As stated, under the First
Amendment, there is no such thing as a “bad idea,” and the remedy for bad speech is said to be
“more speech, and not enforced silence. It is part of our culture that people are “free to speak
their mind” and need not fear that they will be sanctioned for saying something that is offensive
or unpopular. The government is not required to and, more importantly, is not permitted to
make decisions about what ideas may be expressed and what ideas may not be expressed. The
constitutional guarantee of freedom of expression under the First Amendment then means
freedom of expression in the fullest sense. For better or worse, this is the American way.
However in the case of India constitutional provisions have been widely influenced by the
moral standard of the society. Constitution has tried to adapt and embody those freedom and
restrictions enjoyed by the Indian people from long time. The provision of freedom of speech
and restrictions are the result of that way of thinking, and this is the Indian way.

CONCLUSION

Freedom of speech and expression is the most important and fascinating facet of liberty and
also is an inalienable human right and is at par with Article 19 of Universal Declaration of
Human Rights which lays down that everyone has the right to freedom of information and
expression and this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers. The
United Nation’s Charter as well as the Indian Constitution has recognized this basic
fundamental human right with a guarantee to protect this inalienable fundamental right subject
to reasonable restrictions.
The restriction upon freedom of speech and expression on the ground of Public Order was
added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising
from the SC’s decision in Romesh Thapar’s case. The expression ‘public order’ connotes the
sense of public peace, safety and tranquility.

The case of Romesh Thapar caused the government to bring into force the first amendment and
introduce public order as a ground for reasonable restriction to this freedom as, stated in the
content of the project, the Supreme Court precipitated in the minds of the government the first
major crisis of the nation state by way of the said decision. The test for determining whether
an act affects law and order or public order is to see whether the act leads to the disturbances
of the current of life of the community so as to amount to a disturbance of the public order or
whether it affects merely an individual being the tranquility of the society undisturbed.
Anything that disturbs public tranquility or public peace, thus, disturbs public order. Thus
communal disturbances and strikes promoted with the sole object of causing unrest among
workmen are offences against public order. Public order thus implies absence of violence and
an orderly state of affairs in which citizens can peacefully pursue their normal avocation of
life. Public order also includes public safety.

It can be safely comprehended that public order holds a lot of significance as a ground of
restriction on this fundamental right. But, there should be reasonable and proper nexus or
relationship between the restriction and achievement of public order. The words ‘in the interest
of public order’ include not only utterances as are directly intended to lead to disorder but also
those that have the prospective tendency to lead to disorder.

While there is a duty cast upon the media to report accurately and honestly and keep the citizen
informed of what the government may choose to hide, there is a corresponding duty to avoid
sensation, graphic pictures, strong adjectives and proactive display. Since there is a little or no
time to edit or censure instantaneous coverage, there is an onerous burden on the reporter to
use his discretion to report the truth but ensure that in doing so he does not incite further
violence.

BIBLIOGRAPHY

Article19.org,. ‘India: Romesh Thappar V. State Of Madras · Article 19’. N.p., 2015. Web. 1
Mar. 2015.
Liang, Lawrence. ‘Reasonable Restrictions And Unreasonable Speech | Freedom Of
Expression | Agenda’.
Infochangeindia.org. N.p., 2015. Web. 2 Mar. 2015.
Opines, Article. ‘Article 19(1)(A) – India Opines’. India Opines. N.p., 2015. Web. 3 Mar. 2015.
Srivastava, R.R. ‘Test To Determine Reasonable Restrictions Under Article 19 Of The
Constitution Of India’. SSRN Journal (2012): n. pag. Web. 1 Mar. 2015.
Subhan, Jelis. ‘Emerging Rights Under Article 19(1)(A) Of The Constitution Of India’. Amity
University (2012): n. pag. Print.
Basu D.D. (2010). Law of the Press (pp. 119-122). New Delhi: Lexis Nexis Butterworths
Wadhwa Nagpur
Divan M.G. (2010). Facets of Media Law. Lucknow: Eastern Book Company.
Pandey J.N. (2012). The Constitutional Law of India. Allahabad: Central Law Agency.

Endnotes
[1] AIR 1950 SC 124
FACTS: the case challenged a section of Public order Act of 1949 under which government of
Madras had issued an order imposing a ban on the entry and circulation of the journal Cross
Roads. The court drew a distinction between a breach of public order which affects the security
of the state and that which involves a breach of a purely local significance.
[2] AIR 1950 SC 129
FACTS: The Court held that unless a law restricting freedom of speech & expression is directed
solely against the undermining of the security of the State or its overthrow, such law cant fall
within the restrictions which it seeks to impose may have been conceived generally in the
interests of public order.
[3] AIR 2006 SC 212; the petitioners (Butchers), challenged the constitutional validity of
‘Bombay Animal Preservation Gujarat Amendment Act, 1994’ as violative of their FR to carry
on a business of slaughtering of cows & calves. The legislation had put a total ban on the same.
[4] Then, the home minister
[5] Pt. Jawahar Lal Nehru, Prime Minister (then).
[6] Bhimrao Ramji Ambedkar, Chairman of the Constitution Drafting Committee
[7] AIR 1961 SC 884
[8] (1966) 1 SCR 709
[9] AIR 1960 SC 633
[10] AIR 1962 SC 1106
[11] 91986) 1 SCC 133
Freedom of Speech and Expression
India v America - A study

"Give me the liberty to know, to utter, and to argue freely according to conscience, above all
liberties". John Milton

The essence of free speech is the ability to think and speak freely and to obtain information
from others through publications and public discourse without fear of retribution, restriction,
or repression by the government. It is through free speech, people could come together to
achieve political influence, to strengthen their morality, and to help others to become moral
and enlightened citizens writes Dheerajendra Patanjali.

Introduction

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of the liberty, it is truly said about the freedom of speech
that it is the mother of all other liberties. Freedom of Speech and expression means the right to
express one's own convictions and opinions freely by words of mouth, writing, printing,
pictures or any other mode. In modern time it is widely accepted that the right to freedom of
speech is the essence of free society and it must be safeguarded at all time. The first principle
of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions
and ideas without hindrance, and especially without fear of punishment plays significant role
in the development of that particular society and ultimately for that state. It is one of the most
important fundamental liberties guaranteed against state suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but
also by various international conventions like Universal Declaration of Human Rights ,
European convention on Human Rights and fundamental freedoms, International Covenant on
Civil and Political Rights etc. These declarations expressly talk about protection of freedom of
speech and expression.

Why to protect freedom of speech?

Freedom of speech offers human being to express his feelings to other, but this is not the only
reason; purpose to protect the freedom of speech. There could be more reasons to protect these
essential liberties. There are four important justifications for freedom of speech –

1) For the discovery of truth by open discussion - According to it, if restrictions on speech are
tolerated, society prevents the ascertainment and publication of accurate facts and valuable
opinion. That is to say, it assists in the discovery of truth.

2) Free speech as an aspect of self- fulfillment and development – freedom of speech is an

integral aspect of each individual’s right to self-development and self-fulfillment. Restriction
on what we are allowed to say and write or to hear and read will hamper our personality and
its growth. It helps an individual to attain self-fulfillment.

3) For expressing belief and political attitudes - freedom of speech provides opportunity to
express one’s belief and show political attitudes. It ultimately results in the welfare of the
society and state. Thus, freedom of speech provides a mechanism by which it would be possible
to establish a reasonable balance between stability and social change.

4) For active participation in democracy – democracy is most important feature of today’s

world. Freedom of speech is there to protect the right of all citizens to understand political
issues so that they can participate in smooth working of democracy. That is to say, freedom of
speech strengthens the capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom
of speech is important for the discovery of truth by open discussion, for self- fulfillment and
development, for expressing belief and political attitudes, and for active participation in
democracy. The present study is intended to present the provisions of the American and Indian
Constitution which recognize the freedom of speech and expression, the basic fundamental
rights of human being. It is also to be examined that what is judicial trend in interpreting the
freedom of speech and expression provisions. The study also covers the comparison between
the approaches of both countries as far as freedom of speech is concerned.

Freedom of Speech in America

America is leader country as far as protection of freedom of speech and expression is

concerned. It provides very wide interpretation of freedom of speech to its citizen. Freedom of
speech, of the press, of association, of assembly and petition -- this set of guarantees, protected
by the First Amendment, comprises what we refer to as freedom of expression. However,
initially there was no provision for protecting freedom of speech in American Constitution, but
very soon realizing the importance of freedom of speech it amended its constitution and pave
way for protection of speech and expression. The first amendment of the American constitution
specially provides that -

“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances”.

The above Amendment to the American Constitution is the part of the United States Bill of
Rights. As per the Bill of Rights United States Congress has been prohibited from making laws,
infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably
assemble, etc. The sum total of the components of the law of the First Amendment provides a
great deal of protection to freedom of speech .Although, as per the provision, the First
Amendment only explicitly applies to the Congress, the Supreme Court of America has
interpreted it as applying to the executive and judicial branches. The Supreme Court has
interpreted the First Amendment's guarantee of freedom of speech very expansively, and the
constitutional protection afforded to freedom of speech is perhaps the strongest protection
afforded to any individual right under the Constitution.

We see then that in the United States freedom of speech receives a very high degree of
constitutional protection. It is not untrue to say that the constitutional protection afforded to
freedom of speech is perhaps the strongest protection afforded to any individual right under the
American Constitution, and the value of freedom of speech generally prevails over other
democratic values such as equality, human dignity, and privacy. American judiciary, too, has
played very important role in broadening the scope of freedom of speech.

Schenck v. United States was the one of the first important case where Supreme Court was first
requested to strike down a law violating the Free Speech Clause. It was a case related to
Sedition Act of 1918 which criminalized "disloyal," "scurrilous" or "abusive" language against
the government. Supreme court held in this case “ the question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to
prevent." Thus in this case court evolved a new doctrine of “clear and present danger”.

The "clear and present danger" test of Schenck case was extended in Debs v. United States
again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs,
a political activist. Debs had not spoken any words that posed a "clear and present danger" to
the conscription system, but a speech in which he denounced militarism was nonetheless found
to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a
"natural tendency" to occlude the draft. The test of clear and present danger was further upheld
by the court in Dennis v. United States. It was observed by the court that “clear and present
danger" test did not require the government to "wait until the putsch is about to be executed,
the plans have been laid and the signal is awaited", thereby broadly defining the words "clear
and present danger."

Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit
a multitude of restrictions on speech. Example such restriction is providing authority to state
to punish words that "by their very nature, involve danger to the public peace and to the security
of the state ." Moreover, Lawmakers were given the freedom to decide which speech would
constitute a danger.

• Press and freedom of speech

With regard to press freedom, America has again adopted very liberal attitude towards it.
Freedom of press is the heart of social and political intercourse. It is the primary duty of the
courts to uphold the freedom of press and invalidate all laws or administrative actions, which
interfere with it contrary to the constitutional mandate. It has provided broad freedom to press
(every sort of publication which affords a vehicle of information and opinion ) to provide
information to public. However, Freedom of the press, like freedom of speech, is subject to
restrictions on bases such as defamation law.

Again, American judiciary has approved content-based regulation. Content-based regulation

of television and radio has been sustained by the Supreme Court in various cases. For example
In Miami Herald Publishing Co. v. Tornillo the Court unanimously struck down a state law
requiring newspapers criticizing political candidates to publish their responses. The state
claimed that the law had been passed to ensure press responsibility. Finding that only freedom,
and not press responsibility, is mandated by the First Amendment, the Supreme Court ruled
that the government may not force newspapers to publish that which they do not desire to
publish.

• Obscenity

Since the freedom of speech is mainly governed by the first amendment of the constitution and
first amendment did not talk about obscenity and freedom of speech, The Supreme Court has
usually refused to give obscenity any protection. The governments, both federal and state, have
been permitted to make suitable legislation. However the court from time to time developed
various tests to examine obscenity. In Roth v. United States, Court applied a new test for
obscenity, which was "whether to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole, appeals to the prurient
interest." this is known as Ruth test of obscenity.

The Roth test was further expanded when the Court decided Miller v. California case. It is
commonly known as Miller test. Under the Miller test, a work is obscene if it would be found
appealing to the prurient interest by an average person applying contemporary community
standards depicts sexual conduct in a patently offensive way and has no serious literary, artistic,
political or scientific value. It thus includes the expression of one’s ideas through any
communicable medium or visible representation, such as gesture, signs and the like .It very
important to note that under Miller test, the “community" standards are followed, which might
be different from the national standard. Thus, material may be deemed obscene in one locality
but not in another. National standards, however, are applied whether the material is of value.

• Defamation and freedom of speech

American law also recognizes the liability for defamatory speech or publication i.e. slander and
libel. The nature of American defamation law was vitally changed by the Supreme Court in
1964, in deciding New York Times Co. v. Sullivan, The New York Times had published an
advertisement indicating that officials in Montgomery, Alabama had acted violently in
suppressing the protests of African-Americans during the Civil rights movement. The
Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that
the advertisement damaged his reputation. The Sullivan case provides the principal doctrinal
justification for the development, although the results had long since been fully applied by the
Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a
crystallization of ''a national awareness of the central meaning of the First Amendment, '' which
is that the ''right of free public discussion of the stewardship of public officials . . [is] a
fundamental principle of the American form of government.

This ''central meaning'' proscribes either civil or criminal punishment for any but the most
maliciously, knowingly false criticism of government. ''Although the Sedition Act was never
tested in this Court, the attack upon its validity has carried the day in the court of history. . . .
[The historical record] reflect[s] a broad consensus that the Act, because of the restraint it
imposed upon criticism of government and public officials, was inconsistent with the First
Amendment.'' Supreme Court unanimously overruled the $500,000 judgment against the
Times. Justice William J. Brennan suggested that public officials may sue for libel only if the
publisher published the statements in question with "malice.” The actual malice standard
applies to both public officials and public figures, including celebrities. Though the details vary
from state to state, private individuals normally need only to prove negligence on the part of
the defendant.
Hustler Magazine v. Falwell, extended the "actual malice" standard to intentional infliction of
emotional distress in a ruling which protected a parody. In the ruling, "actual malice" was
described as "knowledge that the statement was false or with reckless disregard whether or not
it was true.” It is clear from the above discussion that in American people enjoyed real freedom
of speech but at the same time, American judiciary has evolved very fair ground to put
restriction on freedom of speech. These restriction can be summarized as- Seditious Speech
and Seditious Libel, Fighting Words and Other Threats to the Peace, Defamation, Group Libel,
Hate Speech. Thus Despite the constitutional guarantee of free speech in the United States,
legal systems have not treated freedom of speech as absolute and have put some obvious
restrictions on the freedom to speech and expression.

Freedom of Speech in India

Freedom of speech enjoys special position as far India is concerned. The importance of freedom
of expression and speech can be easily understand by the fact that preamble of constitution
itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship.
The constitutional significance of the freedom of speech consists in the Preamble of
Constitution and is transformed as fundamental and human right in Article 19(1) (a) as
“freedom of speech and expression”. Explaining the scope of freedom of speech and expression
Supreme Court has said that the words "freedom of speech and expression" must be broadly
constructed to include the freedom to circulate one's views by words of mouth or in writing or
through audiovisual instrumentalities. Freedom of Speech and expression means the right to
express one's own convictions and opinions freely by words of mouth, writing, printing,
pictures or any other mode. It thus includes the expression of one's idea through any
communicable medium or visible representation, such as gesture, signs, and the like.

Moreover, it is important to note that liberty of one must not offend the liberty of others.
Patanjali Shastri,J. in A.K. Gopalan case, observed,“man as a rational being desires to do many
things, but in a civil society his desires will have to be controlled with the exercise of similar
desires by other individuals”. It therefore includes the right to propagate one's views through
the print media or through any other communication channel e.g. the radio and the television.
Every citizen of this country therefore has the right to air his or their views through the printing
and or the electronic media subject of course to permissible restrictions imposed under Article
19(2) of the Constitution. In sum, the fundamental principle involved here is the people's right
to know. Freedom of speech and expression should, therefore, receive generous support from
all those who believe in the participation of people in the administration. We can see the
guarantee of freedom of speech under following heads.

• Freedom of Press
Although Article 19 does not express provision for freedom of press but the fundamental right
of the freedom of press implicit in the right the freedom of speech and expression. In the famous
case Express Newspapers (Bombay) (P) Ltd. v. Union of India court observed the importance
of press very aptly. Court held in this case that “In today’s free world freedom of press is the
heart of social and political intercourse. The press has now assumed the role of the public
educator making formal and non-formal education possible in a large scale particularly in the
developing world, where television and other kinds of modern communication are not still
available for all sections of society. The purpose of the press is to advance the public interest
by publishing facts and opinions without which a democratic electorate [Government] cannot
make responsible judgments. Newspapers being purveyors of news and views having a bearing
on public administration very often carry material which would not be palatable to
Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is essential for
the proper functioning of the democratic process. Democracy means Government of the people,
by the people and for 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 right of making
a choice, free and general discussion of public matters is absolutely essential. This explains the
constitutional viewpoint of the freedom of press in India.

• Obscenity

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution,
the text of India's Constitution clearly sets out restrictions on free speech. The freedom of
speech guarantee under Article 19(1) (a) can be subject to reasonable state restriction in the
interest of decency or morality. Obscenity in India is defined as "offensive to modesty or
decency; lewd, filthy and repulsive." It stated that the test of obscenity is whether the
publication, read as a whole, has a tendency to deprave and corrupt those whose minds are
open to such immoral influences, and therefore each work must be examined by itself .

With respect to art and obscenity, the Court held that "the art must be so preponderating as to
throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no
effect and may be overlooked ." The Court concluded that the test to adopt in India,
emphasizing community mores, is that obscenity without a preponderating social purpose or
profit cannot have the constitutional protection of free speech.
• Right to Information

Right to know, to information is other facet of freedom of speech. The right to know, to receive
and to impart information has been recognized within the right to freedom of speech and
expression. A citizen has a fundamental right to use the best means of imparting and receiving
information and as such to have an access to telecasting for the purpose. The right to know has,
however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act,
1923 which prohibits disclosure of certain official documents. Even, Right to Information Act-
2005, which specially talks about peoples’ right to ask information from Government official,
prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are generally
the grounds of reasonable restrictions over freedom of speech and expression under Article
19(1) of Constitution of India. One can conclude that 'right to information is nothing but one
small limb of right of speech and expression.

• Grounds of Restrictions

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some restrictions on this freedom for the maintenance of social
order, because no freedom can be absolute or completely unrestricted. Accordingly, under
Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable
restrictions” on the exercise of the right to freedom of speech and expression “in the interest
of” the public on the following grounds: Clause (2) of Article 19 of Indian constitution contains
the grounds on which restrictions on the freedom of speech and expression can be imposed:-

1) Security of State: Security of state is of vital importance and a government must have power
to impose restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can
be imposed on freedom of speech and expression in the interest of security of State. However
the term “security” is very crucial one. The term "security of state" refers only to serious and
aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and
not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray.
Thus speeches or expression on the part of an individual, which incite to or encourage the
commission of violent crimes, such as, murder are matters, which would undermine the
security of State.

2) Friendly relations with foreign states: In the present global world, a country has to maintain
good and friendly relationship with other countries. Something which has potential to affect
such relation ship should be checked by government. Keeping this thing in mind, this ground
was added by the constitution (First Amendment) Act, 1951. The object behind the provision
is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may
jeopardize the maintenance of good relations between India, and that state.
No similar provision is present in any other Constitution of the world. In India, the Foreign
Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign
dignitaries. Interest of friendly relations with foreign States, would not justify the suppression
of fair criticism of foreign policy of the Government. However it is interesting to note that
member of the commonwealth including Pakistan is not a "foreign state" for the purposes of
this Constitution. The result is that freedom of speech and expression cannot be restricted on
the ground that the matter is adverse to Pakistan.

3) Public Order: Next restriction prescribed by constitution is to maintain public order. This
ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression
of wide connotation and signifies "that state of tranquility which prevails among the members
of political society as a result of internal regulations enforced by the Government which they
have established."

Here it is pertinent to look into meaning of the word “Public order. Public order is something
more than ordinary maintenance of law and order. 'Public order' is synonymous with public
peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs
public order. Thus communal disturbances and strikes promoted with the sole object of
accusing unrest among workmen are offences against public order. Public order thus implies
absence of violence and an orderly state of affairs in which citizens can peacefully pursue their
normal avocation of life. Public order also includes public safety. Thus creating internal
disorder or rebellion would affect public order and public safety. But mere criticism of
government does not necessarily disturb public order.

The words 'in the interest of public order' includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a
law punishing utterances made with the deliberate intention to hurt the religious feelings of any
class of persons is valid because it imposes a restriction on the right of free speech in the interest
of public order since such speech or writing has the tendency to create public disorder even if
in some case those activities may not actually lead to a breach of peace. But there must be
reasonable and proper nexus or relationship between the restrictions and the achievements of
public order.

4) Decency or morality: The way to express something or to say something should be decent
one. It should not affect the morality of the society adversely. Our constitution has taken care
of this view and inserted decency and morality as a ground. The words 'morality or decency'
are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of
restrictions on the freedom of speech and expression in the interest of decency or morality.
These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public
places. No fix standard is laid down till now as to what is moral and indecent. The standard of
morality varies from time to time and from place to place.
5) Contempt of Court: In a democratic country Judiciary plays very important role. In such
situation it becomes essential to respect such institution and its order. Thus, restriction on the
freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit
and amounts to contempt of court. According to the Section 2 'Contempt of court' may be either
'civil contempt' or 'criminal contempt.' But now, Indian contempt law was amended in 2006 to
make “truth” a defence. However, even after such amendment a person can be punished for the
statement unless they were made in public interest. Again in Indirect Tax Practitioners Assn.
vs R.K.Jain, it was held by court that, “Truth based on the facts should be allowed as a valid
defence if courts are asked to decide contempt proceedings relating to contempt proceeding
relating to a speech or an editorial or article”. The qualification is that such defence should not
cover-up to escape from the consequences of a deliberate effort to scandalize the court.

6) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status another
person. A person is known by his reputation more than his wealth or any thing else. Constitution
considers it as ground to put restriction on freedom of speech. Basically, a statement, which
injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to
hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India
and subject to certain exceptions.

7) Incitement to an offence: This ground was also added by the constitution (First Amendment)
Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people
to commit offence. The word 'offence' is defined as any act or omission made punishable by
law for the time being in force.

8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is prime
duty of government. Taking into it into account, freedom of speech and expression can be
restricted so as not to permit any one to challenge sovereignty or to permit any one to preach
something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are
all concerned with the national interest or in the interest of the society. The first set of grounds
i.e. the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States and public order are all grounds referable to national interest, whereas, the
second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to
an offence are all concerned with the interest of the society.

India and America- A Swot Analysis

Two great democracies of world America and India very aptly recognizes the right of freedom
of speech and expression. The United States and India almost have similar free speech
provisions in their Constitutions. Article 19(1) (a) of Indian constitution corresponds to the
First Amendment of the United States Constitution which says, “congress shall make no law…
abridging the freedom of speech or of the press”4. However, the provisions in the US
Constitution have two notable features i.e.:
freedom of press is specifically mentioned therein,
No restrictions are mentioned on the freedom of speech.
As far as India is concerned, Supreme Court of India has held that there is no specific provision
ensuring freedom of the press separately. The freedom of the press is regarded as a “species of
which freedom of expression is a genus”. Therefore, press cannot be subjected to any special
restrictions which could not be imposed on any private citizen,5 and cannot claim any privilege
(unless conferred specifically by law), as such, as distinct from those of any other citizen.

In the famous case, Express Newspapers (Private) Ltd. v. Union of India, Justice Bhagwati
stated, "[that] the fundamental right to the freedom of speech and expression enshrined in our
constitution is based on (the provisions in) Amendment I of the Constitution of the United
States and it would be therefore legitimate and proper to refer to those decisions of the Supreme
Court of the United States of America in order to appreciate the true nature, scope and extent
of this right in spite of the warning administered by this court against use of American and
other cases.” Despite similarities in their constitutional provisions, the United States and India
have their own unique jurisprudence on freedom of speech. Consequently, they differ as to
what is and what is not acceptable free speech. As mentioned, the real difference in freedom of
speech enjoyed in the United States and India is a question of degree. This difference in degree
is attributable to the reasonable restrictions provision and the moral standard of the
communities. India has progressed from an authoritarian system of control and is now
attempting a legislative model of control, quite similar to that of the United States.

Free speech is meaningless unless it has space to breathe. It is important to note that false
statements made honestly are equally a part of freedom of speech. The supreme court of India
applied the famous doctrine of New York Times v Sullivan standard of American constitutional
law against public officials. Accordingly, statements made against persons in the public eye
cannot be considered defamatory unless they were made with “actual malice”. The reason for
this is very simple, democratic governance mandates the strict scrutiny of public official duties.

The consequence of this very high degree of constitutional protection to freedom of speech in
the United States is that ideas most Americans consider very repugnant, and that may be hurtful
to some people, such as racial hatred, can be expressed freely. At the same time, the expansive
protection to freedom of speech under the First Amendment ensures robust debate on all public
issues and the widest dissemination of all ideas. As stated above, under the First Amendment,
there is no such thing as a "bad idea," and the remedy for bad speech is said to be "more speech,
and not enforced silence. It is part of our culture that people are "free to speak their mind" and
need not fear that they will be sanctioned for saying something that is offensive or unpopular.
The government is not required to and, more importantly, is not permitted to make decisions
about what ideas may be expressed and what ideas may not be expressed. The constitutional
guarantee of freedom of expression under the First Amendment then means freedom of
expression in the fullest sense. For better or worse, this is the American way.

However in the case of India constitutional provisions have been widely influenced by the
moral standard of the society. Constitution has tried to adapt and embody those freedom and
restrictions enjoyed by the Indian people from long time. The provision of freedom of speech
and restrictions are the result of that way of thinking, and this is the Indian way.

Conclusion

Expression through speech is one of the basic guarantees provided by civil society. However
in modern world Right to freedom of speech and expression is not limited to express ones’
view through words but it also includes circulating one's views in writing or through
audiovisual instrumentalities, through advertisements and through any other communication
channel. It also comprises of right to information, freedom of press etc. It is a right to express
and self realization. Two big democracies of world i.e. America and India have remarkably
protected this right. As far as India is concerned, this important right is mentioned in Article
19(1) (a), which falls in fundamental right category. Indian courts have always placed a broad
interpretation on the value and content of Article 19(1) (a), making it subjective only to the
restrictions permissible under Article 19(2).

The words 'in the interest of public order', as used in the Article 19 include not only utterances
as are directly intended to lead to disorder but also those that have the tendency to lead to
disorder. There should be reasonable and proper nexus or relationship between the restriction
and achievement of public order. Initially, the American constitution was not having any
provisions directed to protection of freedom of speech and expression. It was inserted in the
constitution vide first amendment of the constitution. The First Amendment has been drafted
in broad and sweeping terms, and for this reason, the text of the First Amendment does not
contain any standard for determining permissible restrictions on freedom of speech. The
restrictions that are permissible now are those that have been developed by the Supreme Court
in its interpretation of the First Amendment.

The United States has a complex First Amendment jurisprudence that varies the protection
offered free speech according to form. Similarly, India developed its own free speech
jurisprudence that applies a "reasonable restrictions" test based on eight mentioned restrictions.
The real difference in freedom of speech enjoyed in the United States and India is a question
of degree. This difference in degree is attributable to the reasonable restrictions provision and
the moral standard of the communities.
Freedom Of Speech And Expression
Speech is God's gift to mankind. Through speech a human being conveys his thoughts,
sentiments and feeling to others. Freedom of speech and expression is thus a natural right,
which a human being acquires on birth. It is, therefore, a basic right. "Everyone has the right
to freedom of opinion and expression; the right includes freedom to hold opinions without
interference and to seek and receive and impart information and ideas through any media and
regardless of frontiers" proclaims the Universal Declaration Of Human Rights (1948). The
people of India declared in the Preamble of the Constitution, which they gave unto themselves
their resolve to secure to all the citizens liberty of thought and expression. This resolve is
reflected in Article 19(1) (a) which is one of the Articles found in Part III of the Constitution,
which enumerates the Fundamental Rights.
Man as rational being desires to do many things, but in a civil society his desires have to be
controlled, regulated and reconciled with the exercise of similar desires by other individuals.
The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger
interest of the community. The right to freedom of speech and expression is subject to
limitations imposed under Article 19(2).
Public order as a ground of imposing restrictions was added by the Constitution (First
Amendment) Act, 1951. Public order is something more than ordinary maintenance of law and
order. Public order in the present context is synonymous with public peace, safety and
tranquility.
Meaning And Scope
Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech
and expression. Freedom of Speech and expression means the right to express one's own
convictions and opinions freely by words of mouth, writing, printing, pictures or any other
mode. It thus includes the expression of one's idea through any communicable medium or
visible representation, such as gesture, signs, and the like. This expression connotes also
publication and thus the freedom of press is included in this category. Free propagation of ideas
is the necessary objective and this may be done on the platform or through the press. This
propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to
that freedom as the liberty of publication. Indeed, without circulation the publication would be
of little value. The freedom of speech and expression includes liberty to propagate not one's
views only. It also includes the right to propagate or publish the views of other people;
otherwise this freedom would not include the freedom of press.
Freedom of expression has four broad special purposes to serve:
1) It helps an individual to attain self-fulfillment.
2) It assists in the discovery of truth.
3) It strengthens the capacity of an individual in participating in decision-making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
5) All members of society would be able to form their own beliefs and communicate them
freely to others
In sum, the fundamental principle involved here is the people's right to know. Freedom of
speech and expression should, therefore, receive generous support from all those who believe
in the participation of people in the administration. It is on account of this special interest which
society has in the freedom of speech and expression that the approach of the Government
should be more cautious while levying taxes on matters of concerning newspaper industry than
while levying taxes on other matters.
Explaining the scope of freedom of speech and expression Supreme Court has said that the
words "freedom of speech and expression" must be broadly constructed to include the freedom
to circulate one's views by words of mouth or in writing or through audiovisual
instrumentalities. It therefore includes the right to propagate one's views through the print
media or through any other communication channel e.g. the radio and the television. Every
citizen of this country therefore has the right to air his or their views through the printing and
or the electronic media subject of course to permissible restrictions imposed under Article 19(2)
of the Constitution.
Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle,
suffocate or gag this right would sound a death knell to democracy and would help usher in
autocracy or dictatorship. The modern communication mediums advance public interest by
informing the public of the events and development that have taken place and thereby educating
the voters, a role considered significant for the vivacious functioning of a democracy.
Therefore, in any setup more so in a democratic setup like ours, broadcasting of news and views
for popular consumption is a must and any attempt to deny the same must be frowned upon
unless it falls within the mischief of Article 19(2) of the Constitution.
The various communication channels are great spreaders of news and views and make
considerable impact on the minds of readers and viewers and our known to mould public
opinion on vitals issues of national importance. The freedom of speech and expression includes
freedom of circulation and propagation of ideas and therefore the right extends to the citizen to
use the media to answer the criticism leveled against the views propagated by him. Every free
citizen has undoubted right to lay what sentiments he pleases. This freedom must, however, be
exercised with circumspection and care must be taken not to trench on the rights of other
citizens or to jeopardise public interest.
New Dimensions Of Freedom Of Speech And Expression
Government has no monopoly on electronic media: The Supreme Court widened the scope and
extent of the right to freedom of speech and expression and held that the government has no
monopoly on electronic media and a citizen has under Art. 19(1)(a) a right to telecast and
broadcast to the viewers/listeners through electronic media television and radio any important
event. The government can impose restrictions on such a right only on grounds specified in
clause (2) of Art. 19 and not on any other ground. A citizen has fundamental right to use the
best means of imparting and receiving communication and as such have an access to telecasting
for the purpose.
Commercial Advertisements: The court held that commercial speech (advertisement) is a part
of the freedom of speech and expression. The court however made it clear that the government
could regulate the commercial advertisements, which are deceptive, unfair, misleading and
untruthful. Examined from another angle the Court said that the public at large has a right to
receive the "Commercial Speech". Art. 19(1)(a) of the constitution not only guaranteed
freedom of speech and expression, it also protects the right of an individual to listen, read, and
receive the said speech.
Telephone Tapping: Invasion on right to privacy : Telephone tapping violates Art. 19(1)(a)
unless it comes within grounds of restriction under Art. 19(2). Under the guidelines laid down
by the Court, the Home Secretary of the center and state governments can only issue an order
for telephone tapping. The order is subject to review by a higher power review committee and
the period for telephone tapping cannot exceed two months unless approved by the review
authority.
Freedom Of Press
The fundamental right of the freedom of press implicit in the right the freedom of speech and
expression, is essential for the political liberty and proper functioning of democracy. The Indian
Press Commission says that "Democracy can thrive not only under the vigilant eye of
legislature, but also under the care and guidance of public opinion and the press is par
excellence, the vehicle through which opinion can become articulate." Unlike the American
Constitution, Art. 19(1)(a) of the Indian Constitution does not expressly mention the liberty of
the press but it has been held that liberty of the press is included in the freedom of speech and
expression. The editor of a press for the manager is merely exercising the right of the
expression, and therefore, no special mention is necessary of the freedom of the press. Freedom
of press is the heart of social and political intercourse. It is the primary duty of the courts to
uphold the freedom of press and invalidate all laws or administrative actions, which interfere
with it contrary to the constitutional mandate.
Right to Information
The right to know, 'receive and impart information has been recognized within the right to
freedom of speech and expression. A citizen has a fundamental right to use the best means of
imparting and receiving information and as such to have an access to telecasting for the
purpose. The right to know has, however, not yet extended to the extent of invalidating Section
5 of the Official Secrets Act, 1923 which prohibits disclosure of certain official documents.
One can conclude that 'right to information is nothing but one small limb of right of speech and
expression.
Grounds of Restrictions
Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech
and expression can be imposed-
1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of
speech and expression in the interest of security of State. The term "security of state" refers
only to serious and aggravated forms of public order e.g. rebellion, waging war against the
State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful
assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to
or encourage the commission of violent crimes, such as, murder are matters, which would
undermine the security of State.
2) Friendly relations with foreign states: This ground was added by the constitution (First
Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious
propaganda against a foreign friendly state, which may jeopardise the maintainance of good
relations between India, and that state. No similar provision is present in any other Constitution
of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel
by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States,
would not justify the suppression of fair criticism of foreign policy of the Government.
It is to be noted that member of the commonwealth including Pakistan is not a "foreign state"
for the purposes of this Constitution. The result is that freedom of speech and expression cannot
be restricted on the ground that the matter is adverse to Pakistan.
3) Public Order: This ground was added by the Constitution (First Amendment) Act. 'Public
order' is an expression of wide connotation and signifies "that state of tranquility which prevails
among the members of political society as a result of internal regulations enforced by the
Government which they have established."
Public order is something more than ordinary maintenance of law and order. 'Public order' is
synonymous with public peace, safety and tranquility. The test for determining whether an act
affects law and order or public order is to see whether the act leads to the disturbances of the
current of life of the community so as to amount to a disturbance of the public order or whether
it affects merely an individual being the tranquility of the society undisturbed.
Anything that disturbs public tranquility or public peace disturbs public order. Thus communal
disturbances and strikes promoted with the sole object of acausing unrest among workmen are
offences against public order. Public order thus implies absence of violence and an orderly
state of affairs in which citizens can peacefully pursue their normal avocation of life. Public
order also includes public safety. Thus creating internal disorder or rebellion would affect
public order and public safety. But mere criticism of government does not necessarily disturb
public order. In its external aspect 'public safety' means protection of the country from foreign
aggression. Under public order the State would be entitled to prevent propaganda for a state of
war with India.
The words 'in the interest of public order' includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a
law punishing utterances made with the deliberate intention to hurt the religious feelings of any
class of persons is valid because it imposes a restriction on the right of free speech in the interest
of public order since such speech or writing has the tendency to create public disorder even if
in some case those activities may not actually lead to a breach of peace. But there must be
reasonable and proper nexus or relationship between the restrictions and the achievements of
public order.
4) Decency or morality: The words 'morality or decency' are words of wide meaning. Sections
292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech
and expression in the interest of decency or morality. These sections prohibit the sale or
distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down
till now as to what is moral and indecent. The standard of morality varies from time to time
and from place to place.
5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if
it exceeds the reasonable and fair limit and amounts to contempt of court. According to the
Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.'
6) Defamation: A statement, which injures a man's reputation, amounts to defamation.
Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating
to defamation is still uncodified in India and subject to certain exceptions.
7) Incitement to an offence: This ground was also added by the constitution (First Amendment)
Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people
to commit offence. The word 'offence' is defined as any act or omission made punishable by
law for the time being in force.
8) Sedition: As understood by English law, sedition embraces all those practices whether by
words, or writing which are calculated to disturb the tranquility of the State and lead ignorant
person to subvert the government. It should be noted that the sedition is not mentioned in clause
(2) of Art. 19 as one of the grounds on which restrictions on freedom of speech and expression
may be imposed.
Conclusion
From this article it can be easily concluded that right to freedom of speech and expression is
one of the most important fundamental right. It includes circulating one's views by words or in
writing or through audiovisual instrumentalities, through advertisements and through any other
communication channel. It also comprises of right to information, freedom of press etc. Thus
this fundamental right has a vast scope.
From the above case law analysis it is evident that the Court has always placed a broad
interpretation on the value and content of Article 19(1)(a), making it subjective only to the
restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or
suffocate this freedom have always been firmly repelled, more so when public authorities have
betrayed autocratic tendencies.
It can also be comprehended that public order holds a lot of significance as a ground of
restriction on this fundamental right. But there should be reasonable and proper nexus or
relationship between the restriction and achievement of public order. The words 'in the interest
of public order' include not only utterances as are directly intended to lead to disorder but also
those that have the tendency to lead to disorder.
In the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship
previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The
court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor
and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till
the further orders , all communal matters all the matters and news and views about Pakistan,
including photographs, and cartoons", on the ground that it was a restriction on the liberty of
the press. Similarly, prohibiting newspaper from publishing its own views or views of
correspondents about a topic has been held to be a serious encroachment on the freedom of
speech and expression.
In India, the press has not been able to exercise its freedom to express the popular views. In
Sakal Papers Ltd. v. Union of India,] the Daily Newspapers (Price and Page) Order, 1960,
which fixed the number of pages and size which a newspaper could publish at a price was held
to be violative of freedom of press and not a reasonable restriction under the Article 19(2).
Similarly, in Bennett Coleman and Co. v. Union of India, the validity of the Newsprint Control
Order, which fixed the maximum number of pages, was struck down by the Court holding it to
be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article
19(2). The Court struck down the plea of the Government that it would help small newspapers
to grow.
A series of high-profile incidents over the past few months have stirred up conversation among
Indians online on the subject of freedom of speech. Not surprisingly, parallels between the
cases have been drawn at will to make ever possible argument for and against every side of the
debate. This article is an attempt to look at the subject of free speech from a democratic and
humanistic point of view.
I begin by outlining the essentials of four cases from the recent past. This will be followed by
a short discussion on the notion of freedom of speech. Finally the implications of this
discussion will be applied to each case.
PRESENTING THE CASE STUDIES
1. Zakir Naik Banned from UK and Canada
The man in question is a self-styled medical doctor turned Islamic preacher who delivers
lectures, holds debates and answers questions in front of large audiences worldwide, all in the
effort to spread the ideology of Islam. Naik is known for his hate-filled propaganda, delivered
with a self-pretentious smugness designed to carry all the appeal of a tough inner-city kid
wrangling his pants around his knees as he delivers one cheeky ad hominem after another on
the MTV show “Yo’ Mama”. Its nothing short of cheap, logically incoherent, crowd pleasing
rhetoric- going for the PWND factor. This image is the vehicle that he uses to promote a
deceptively sugar-coated extremist ideology. He works with an Islamic television channel and
also frequently travels India and abroad, spreading his version of fundamentalist Islam.
Naik has been in the news recently after being disallowed entry into the UK and Canada. Both
governments within days of each other rejected his application to enter their respective
countries on his speaking tour of the world. Naik is appealing against both the bans.
2. Verbal Support of Maoist Rebels Banned
The ongoing Maoist insurgency against the government of India and the people who abide by
its constitution is comprised of members belonging to various indigenous tribes in the forests
of Central and North Eastern India. The Communist Party of India, Maoist, (not to be confused
with the CPI Marxist) has been designated a terrorist organization by the government. The
Maoists have been responsible for much destruction of life and property in recent years, as they
fight the government supported incursion of mining companies into their lands.
Early in May of 2010, the Indian government released a statement warning that those who
speak in support of Maoist terrorists could be prosecuted, under Section 39 of the Unlawful
Activities (Prevention) Act, 1967.
3. Supreme Court Clears Film Actress Kushboo
In 2005, Indian film actress Kushboo was charged on 22 counts of obscenity because she said
in an interview that it is acceptable for women to have premarital sex, “provided safety
measures are followed to prevent pregnancy and sexually transmitted diseases”. There were
mass protests in Tamil Nadu where Kushboo was worshiped by some as a goddess. Needless
to say, the temples built in her honor were destroyed after this incident. In April of this year,
the Supreme court dismissed all 22 charges brought against her.
4. Artist M F Hussain Gains Citizenship in Qatar
India’s most celebrated artist in modern times, Muqbool Fida Hussain, took up Qatari
citizenship in February of this year. Hussain was awarded the Padma Shri 1955, the Padma
Bhushan in 1973, the Padma Vibhushan in 1989 and was nominated to the Rajya Sabha in
1986. He gained notoriety in 1996 when pieces that he had painted in the 70s were reprinted in
a Hindi magazine. Initially 8 cases were filed against him which eventually escalated to a large
number of cases (about 900 or so) spread throughout the country. More details here.
In 2006, the death threats and acts of vandalism increased, forcing Hussain to spend an
increasing amount of time abroad. His decision to take up Qatar’s offer of citizenship requires
him to give up his Indian citizenship.
ON FREE-SPEECH
What does it mean to be Free to Speak?
Popular conceptions of political ideals vary depending on the cultural mindset of the population
in question. In secular democracies the freedom to speak as and when one wishes is tempered
with a sort of commonsense that many find comforting. You would be hard pressed to find
anyone who didn’t agree that some forms of expression should not be permitted. The problem
then is that in practice very few of us can agree on where to draw the line. It is because of this
that we must pay attention to the semantics involved in formulating such principles.
Common wisdom on the notion of freedom of speech is that we are free to say anything we
want as long as our speech does not impinge upon the ‘fundamental freedoms’ of others. The
idea is that one’s freedom of speech must not cause ‘harm’ to others. This sort of reasoning
leaves much unresolved, because in reality the problem of deciding what counts as
‘fundamental freedoms’ or ‘harm’ is not so simple. In fact, the reasoning often seen in the
media and as popular opinion is simply designed to ignore the question or pretend that it has
been answered. The problems begin just shy of where commonsense ends.
The law, when it is shaped by such general commonsense notions, remains ambiguous. Such
ambiguity is often necessary, given that moral problems are almost always situational.
However, there are practical limits to such ambiguity. These limits are to be determined by
objective facts and logic.
Limiting Ambiguity Using Logic and Reason
In order to present a clear understanding of the problem, we must focus on understanding the
semantic and political philosophy behind the idea of free-speech.
“…there ought to exist the fullest liberty of professing and discussing, as a matter of ethical
conviction, any doctrine, however immoral it may be considered.“
John Stuart Mill
This excerpt is from Mill’s seminal work ‘On Justice” which has been instrumental in shaping
modern conceptions of the rights of the individual in a democratic state. Let’s see in detail what
Mill was talking about.
The freedom to criticize/express all ideas is a stranger to every dictatorship on the planet. The
one thing we know for sure about freedom of speech is that the more it is practiced in a country,
the less oppressed the people. This includes the freedom to criticize everything, including the
state itself. It also includes the right to support any idea, however repugnant that idea might be
to you or I. So, it is clear that such freedoms are a good thing. But how do we reconcile this
right to support any idea with the ambiguous notion that freedom of speech must not impinge
on the fundamental freedoms of others?
According to Mill, there are two major clauses to free speech. The Harm Principle and The
Offense Principle. The first is valid (examples of use include hate speech, incitement of
violence and making death threats) and the second is not (examples of use include blasphemy,
criticizing an ideology, supporting an ideology/religion). This is the foundation of logic and
reason over which we can build an appropriately malleable legal structure. Without such a
logical framework, the ambiguity is a tool of oppression. The rest of this section is concerned
with understanding the democratic interpretation of the harm principle.
Understanding the Harm Principle
The only valid restrictions on freedom of speech are those that are clearly meant to prevent
harm. However, governments must go about doing this without stripping us off our freedom to
offend. We must find a balance between the two. But how do we determine where this line
lies? The only way to practice such a balance is to restrict the law to criminalize only those
aspects of speech that clearly are intended to cause harm. Consider a case of hate speech,
incitement of violence or making of death threats. A clear and intended causal effect must be
drawn between the act of expression and the harm done. This is the only legitimate way in
which the Harm Principle can be evoked to restrict certain forms of speech.
In order for an act of speech to violate the harm principle, it must call for and/or intend harm
against individuals, and/or target specific locations or events. That is, one must express intent
towards furthering specific harmful acts for the harm principle to be violated. On the contrary,
if an act of speech expresses support for the notion of harm, or argues that harm is the only way
for something to get done, it cannot be construed of as violating freedom of speech. This is the
nuance that is often missed. One instance involves verbally endorsing an act of physical
aggression (with the intention of furthering said act). The other is about simply supporting an
ideology (without calling for harmful action). Of course, the ideology can have unintended
harmful consequences, but that is immaterial. It can be argued that every influential ideology
has harmful consequences, including yours and mine. This distinction between action and
ideology makes a world of difference in real situations- the type of situations that such laws
are meant to help navigate. The reason why we need this clear distinction is to avoid ambiguity
in practice. This distinction prevents abuse by governments that want to get rid of certain
popular ideas, under the pretext that they are “terrorist” ideas.
Note: In this case, ‘harm’ must also be defined in logical and reasonable terms. I will forgo that
discussion here.
How Intent Separates Ideology from Action
There is possible overlap between support for ideology and support for action, which is why
the distinction between discussion of ideas and the intent to harm is important. For example, it
is perfectly OK for us to discuss the merits (or demerits) of destroying Israel or Palestine (just
as an example). But if we demonstrate an intent to destroy Israel or Palestine by supporting
specific actions, that should not be protected under free speech.
In order to clearly understand the role of intent, the colloquial interpretation of ideology must
be properly qualified. Intention is the key dividing factor here. Accordingly, we must separate
pure ideologies which have do not include intentions, from action-based ideologies which do.
For the sake of convenience, we classify the former as ideology and the latter as action.
Intention to cause harm is the difference between the two. Ideologies are very complex sets of
beliefs, and no ideology is a self-contained entity. The only way we have of preserving
freedoms and removing ambiguity is to clearly distinguish ideologies from acts that are
intended to harm. This is the form of the word ideology that we must use to preserve democratic
freedoms. This is very important, because politics, like everything else, needs careful analysis
of the semantics used.
Free Speech and Free Society
In general, countries with citizenry that are relatively more free have a better understanding of
the distinction between support of terrorist ideology and conspiring to commit acts of terror. In
India as with much of the world, we are unfortunately unable to find such nuance in our political
dialogue. The justification for allowing any ideology to be freely proclaimed and discussed is
a whole different subject. I will not venture to tackle it here, but suffice to say that such freedom
is one of the most highly valued commodities in the “free world”. In fact, it is the reason why
the “free world” is so relatively “free”. The instant we begin adding restrictions to the free
discussion of ideas we are in authoritarian territory.
However, when speech does indeed demonstrate intent to cause harm, democratic governments
have a duty to prosecute the speaker. The failure of this clamp-down on certain kinds of speech
is also a failure of democracy.
Note: In a democracy, you are free to choose any platform that is willing to express your views,
but you may not demand that a private entity provide you with a platform to air them.
REEVALUATING THE CASE STUDIES
1. Zakir Naik:
Why is Naik considered controversial in the UK and Canada and not in India? India has faced
more Islamic terrorism than either of the other two countries, and yet Naik has not been the
target of the Indian government.
A closer look at some of the most vile of Naik’s statements offers some clues. The one
statement of Naik’s that has been quoted the most in the aftermath of the recent incidents is
this: “If he (Osama) is terrorizing the terrorists, if he is terrorizing America the terrorist, the
biggest terrorist, every Muslim should be a terrorist.’
Terrorism is an ideology, and a repulsive one at that to any civilized human being. But, as we
have seen in the discussion above, specific terrorist acts must be described and endorsed before
one can be accused of violating the harm clause. So, in my opinion, the above sentence, if taken
by itself, is not grounds for prosecution. However, there are other statements made by Naik
that, together with the above statement, conspire to discredit the notion that Naik is not
endorsing violent acts. Specifically, Naik has made it clear multiple times that the ideology-
the specific form of Islam- that he supports, requires homosexuals and apostates be put to death.
Can you imagine him saying such a thing about Hindus? If Zakir Naik came out and said that
the belief system that he is promoting on TV and using loudspeakers requires all Hindus to be
put to death, he would be behind bars quicker than you can say “inshallah”! It is, however,
socially (and apparently, legally as well) acceptable in India to say such things about
homosexuals and kafirs.
By endorsing specific harmful acts against innocent civilians, through the process of spreading
a particular extremist ideology that, by Naik’s own admission, absolutely requires those acts,
Zakir Naik has violated the harm principle. He should have been prosecuted for hate speech
and incitement of violence by the Indian government, long before Canada and the UK made
clear the hateful deception that he represents. Naik’s fault is not the fact that he has defended
and even promoted the idea of terrorism, but that he has clearly and explicitly endorsed specific
acts of terror.
2. Maoist Rebels:
Under the conditions set by the democratic interpretation of free speech, the newly passed
amendment to Section 39 of the Unlawful Activities (Prevention) Act of 1967 is a violation of
our right to freedom of speech. There are two clear arguments to be made against the law..
a. The law is deliberately ambiguous.
This is the relevant portion of the statement, taken from the article:
“Any person who commits the offense of supporting such a terrorist organization (like
Communist Party of India (CPI)-Maoist) with inter alia intention to further the activities of
such terrorist organizations would be liable to be punished with imprisonment for a term not
exceeding 10 years or with fine or with both,” a home ministry statement said.”
The article goes on to say:
“It said such action would be taken under Section 39 of the Unlawful Activities (Prevention)
Act, 1967.”
Free speech can be preserved while respecting the harm clause. This requires a clear distinction
in the law between legitimate discussion of ideas and expression of intent to harm. This is
clearly missing in the law. A law restricting free speech becomes a tool to be used for
suppression of ideas when it is so purposefully unclear. The harm clause could easily be stated
very clearly and simply. Why could the lawmakers have not been more clear? One simple
change in the language of the law would make it perfectly acceptable. If the law said “… the
intention to further the terrorist activities of such organisations”, we would not be having this
conversation. This is a simple switch from “furthering the activities of terrorist organizations”
to “furthering the terrorist activities of these organizations”, but the effect is dramatic and
extremely significant. This switch would remove the ambiguity inherent in the current law, but
make the law ineffective as far as stifling of dissenting ideologies is concerned. My argument
is that that the ambiguity is deliberately designed and put in place to suppress public expression
and discussion of this ideology, through government intimidation.
b. The law is redundant
The new law is redundant regarding its stated purpose of targeting Maoist terrorism. It is not
required for the government to do what it should be doing to stop terrorist acts. Whatever the
contents of the Unlawful Activities (Prevention) Act prior to the addendum, it was fully
sufficient to address Maoist terrorism. The recent change only pushes through one addition that
makes any difference- the targeting of the Maoist ideology. This is why the new law is
redundant as far as the purpose of targeting terrorism is concerned. It does not bring anything
new to targeting the terrorist activities. The sole purpose of this law is to target the ideology.
Both these arguments (a and b) conspire to discredit the proposed intent and to lay unwarranted
power in the hands of the government.
Some Additional Points
The tyrannical suppression of the freedom to believe and to propagate particular ideologies is
commonplace in dictatorships and rare in true democracies. India does have a lot of freedoms
compared to dictatorships and tyrannical regimes, but this is a hard fought and hard earned set
of freedoms. In India, we can fight against tyranny confident that someday the truth will prevail,
despite the forces that tend to accumulate power. The process of dialogue is key to our
democracy, like it is to all democracies. The problem is that when laws are made to target
ideologies rather than actions, this freedom to discuss and debate ideas is compromised. It was
undemocratic when Stalin banned expression of religion and it is undemocratic if India bans
expression of Maoist ideology (this is not the case with the law, but it comes awfully close,
using intimidation to suppress ideas).
No ideology is self-contained, including Maoist ideology. Contained within the Maoist
ideology is a deeper political ideology with ideological roots in many other systems of thought
that must not be censored. It must be debated and discussed in the free-market of ideas. Simply
dismissing all Maoist ideology as terrorist is exactly the kind of thing that the distinction
between supporting actions (intended to cause harm), and supporting ideology (with no
intention of causing harm) is meant to prevent. This sort of attack on an ideology by the
government constitutes blatant censorship of ideas, under the pretext of protecting the people.
This is exactly the kind of authoritarian government intrusion into public life that democracy
is supposed to guard us from.
Under the current law, a professor of political science can easily be arrested for saying that the
Maoists have a point. Maybe it won’t stick in court, but in any case this law does not necessarily
have to be used to arrest individuals based on their ideological support, in order for it to have
its intended effect. It is more about intimidation and control of mainstream culture. An
objective observer must look at the language of the law and see how easily this law can be used
to shut down political and social dissent.
Finally, I would like to expose a key assumption in the arguments supporting the law- the
assumption that censoring Maoist ideology will somehow reduce Maoist terrorism. Where is
the evidence for this? I think a very good case can be made that it will have the opposite effect
by, for example, driving the Maoist elements underground and away from open and free
discussion with democratically-minded and peaceful people. There may be better counter
arguments, and there even may be studies on this subject. In any case, this particular point is
irrelevant to the case against the law, because the two arguments presented above are sufficient
to demonstrate that this law is draconian.
3. Kushboo
The events leading up to the cases against Kushboo, and the eventual dismissal of all the cases
by the supreme court, do not deserve to be on this list. But I have included this issue here to
make a specific point about free-speech. Adults are free to have consensual sex with other
adults. At a much more benign level, adults are free to say so. The cases against Kushboo are
an example of a primitive and dangerous slant in the public mindset towards restricting
democratic freedoms in India. The only thing scandalous about the conclusion of the events
here is that the government didn’t punish those who filed cases against Kushboo for saying
there is nothing wrong with premarital sex. The cases were clear examples of frivolous lawsuits
and constitute a waste of the court’s time (and are serving to intimidate free citizens). The
supreme court should have imposed stiff fines on those who filed the court cases against
Kushboo. However, ultimately the blame here lies with the public.
4. M.F. Hussain
As with the case of Kushboo, the issue of Hussain’s paintings and their widespread
condemnation by communal elements is more a failure of society than a failure of government.
The government’s inadequate response deserves its share of the blame for Hussain having to
eventually accept Qatari citizenship, but it was Indian society, polluted by an ideology that
demands automaton-like in-group behavior, that was the ultimate force that drove Hussain
away.
The standard arguments that I have come to expect from those who support Hussain’s move to
Qatar (instead of criticizing those violent factions that threaten his life) have to do with the
moral imperatives concerned. “Why does he paint nude Hindu goddesses?” “Why not the
Muslim prophet Muhammad?” “Hussain is mocking Hinduism” “Hussain’s ideas are offensive
to Hindus” “Hussain is a provocateur”. One is, of course, free to make these arguments, and
one may even be right. However, one may not in a democracy expect that these arguments are
sufficient cause to take legal action against Hussain.
Those who make these arguments are missing the point about free-speech. Hussain’s motives
are irrelevant as long as he is not promoting violent acts against people. The problem is that
where religion is concerned, people lose the ability to see that criticism of all ideas is a human
right. Moreover, many of those who criticize Hussain’s actions (which are protected under free-
speech law) have made death threats and even sabotaged Hussain’s shows and art works. These
are acts that are absolutely not protected by the law. Yet the outrage from the Indian community
and media has focused on the paintings and the “expert opinion” on whether they constitute
“offensive material”, and not on the truly undemocratic abuse of speech by those who have
threatened harm against Hussain.
CONCLUSION
To re-iterate, we must draw a clear distinction between discussion of ideas and endorsement of
acts that are intended to harm. It is understanding this distinction that can liberate India from
the popular undemocratic mindset that is constricting her, preventing the resolution of a vast
many social and political issues that need be addressed using reason.
The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression.
Freedom of the press has been included as part of freedom of speech and expression under the
Article 19 of the UDHR. The heart of the Article 19 says: "Everyone 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 and regardless of
frontiers."
In India, our constitution has guaranteed ‘Freedom of expression and speech’ under Article
19(1) (a) subject to certain restrictions. The current scenario is that "there are criminal laws in
provision that put little restraint on this right to maintain public order and individual/ national
privacy." These laws are imposed by the constitution under Article 19(2) but only on print
media or electronic media.
Interestingly, social Media is presently out of any regulatory scope of any such related
laws/provisions.
How free are we Indians to express ourselves?
Article 19(1)(a) of the Constitution makes the “right to freedom of speech and expression” a
fundamental right. But it is not an absolute right; there are qualifiers.
What are those qualifiers?
The First Amendment to the Constitution, made on June 18, 1951, states that “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” will be paramount and freedom of expression will not be
unconditional.
What led to the amendment?
"Journalist Romesh Thapar’s left-leaning magazine Cross Roads had been banned for being
critical of Nehru’s policies in Madras. Thapar challenged the ban in the Supreme Court, which
lifted the ban in May 1951. After that, independent India’s first government added the caveat
to the right to freedom of speech and expression".
How does the constitutional position get reflected in laws ?
The Indian Penal Code has several clauses that make it contingent upon the person
“expressing” himself or herself not to hurt sentiments or cause public discord, something that
is open to interpretation.
Section 153A: Deals with words, spoken or written, or representations that promote
disharmony and feelings of enmity, hatred or ill-will between groups. The penalty is 3 years in
jail and/or fine.
Section 292: Makes obscene publications (book, paper, pamphlet, writing, drawing, painting,
representation, figure or any object) an offence. The penalty is 2 years (first conviction) or 5
years (second conviction), and/or fine.
Section 295A: Criminalises “deliberate and malicious acts, intended to outrage religious
feelings, including words, signs, visible representations”; entails 3 years and/or fine.
Section 298: Penalises the “utterance of words” that might hurt the religious feelings of any
person; the penalty is 1 year and/or fine.
There are other laws including the Indecent Representation of Women (Prohibition) Act of
1986, and the SC and ST (Prevention of Atrocities) Act enacted to protect specific sections
from representations and speech which they find offensive or which mocks or insults them.

Freedom of speech vis-a-vis Constitution of India

Freedom of speech is one of the six fundamental rights conferred to the citizens of India under
Part III of the Constitution. It is one of the most important aspects in the hierarchy of personal
liberties provided under Article 19 to Article 22 of the Indian Constitution.
Article 19(1) (a) states that all citizens shall have the right to freedom of speech and expression.
But this right is subject to limitations imposed under Article 19(2) which empowers the State
to put ‘reasonable’ restriction on various grounds, namely, security of the State, friendly
relations with foreign States, public order, decency and morality, contempt of court,
defamation, incitement of offence, and integrity and sovereignty of India.
Land Mark Judgments!
In a National Anthem case, three children belonging to Jehovah’s witnesses were expelled from
the school for refusing to sing the national anthem, although they stood respectfully when the
same was being sung. They challenged the validity of their expulsion before the Kerala High
Court which upheld the expulsion as valid and on the ground that it was their fundamental duty
to sing the national anthem.
On appeal, the Supreme Court held that the students did not commit any offence under the
Prevention of Insults to National Honour Act, 1971. Also, there was no law under which their
fundamental right under Article 19(1) (a) could be curtailed.Accordingly, it was held that the
children’s expulsion from the school was a violation of their fundamental right under Article
19(1) (a), which also includes the freedom of silence.
Hamdard Dawakhana v. Union of India
The validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put
restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs
having magic qualities for curing diseases was challenged on the ground that the restriction on
advertisement abridged the freedom.
The Supreme Court held that an advertisement is no doubt a form of speech but every
advertisement was held to be dealing with commerce or trade and not for propagating ideas.
Advertisement of prohibited drugs would, therefore, not fall within the scope of Article 19(1)
(a).
Abbas v. Union of India
The case is one of the firsts in which the issue of prior censorship of films under Article 19(2)
came into consideration of the Supreme Court of India. Under the Cinematograph Act, 1952,
films are divided into two categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that
can be shown to adults only. The petitioner’s film was refused the ‘U’ certificate, and he
challenged the validity of censorship as violative of his fundamental right of freedom of speech
and expression. He contended that no other form of speech and expression was subject to such
prior restraint, and therefore, he demanded equality of treatment with such forms.
The Court, however, held that motion pictures are able to stir emotions more deeply than any
other form of art. Hence, pre- censorship and classification of films between ‘U’ and ‘A’ was
held to be valid and was justified under Article 19(2) of the Constitution.
Maneka Gandhi v. Union of India
The Supreme Court held that the freedom of speech and expression has no geographical
limitation and it carries with it the right of a citizen to gather information and to exchange
thought with others not only in India but abroad also.
How does the law address new, technology-enabled forms of expressing oneself?
The IT Act of 2000 has been the subject of much debate. Its Section 66A defines the
punishment for sending “offensive” messages through a computer or any other communication
device such as a mobile phone or a tablet, a conviction fetching a maximum of three years in
jail and a fine. What is offensive, however, is subject to interpretation.
The Supreme Court has been looking at the section’s constitutional validity for nearly a year
now and said last month that it lacks clarity and is open to misuse. Cases under this recently
include the arrest of two girls by Thane police in 2012 over a Facebook post, the arrest of
Jadavpur University professor Ambikesh Mahapatra for forwarding a caricature on Mamata
Banerjee on Facebook, and the arrest of Aseem Trivedi for drawing cartoons lampooning
Parliament and the Constitution to depict their ineffectiveness.
Use/Misuse of Right of freedom of speech on Social Networking Sites
Indeed, Social Media is not bound to any limitations and is free from all kinds of restrictions.
This virtual premise stores countless personal information as well as data in digital form and
gives open access or visibility to everyone. Nowadays, it has become a part of daily routine of
people to interact, share or get aware. Nevertheless, it comes with both merits and demerits.
It’s time to envisage the impact of its positive effect or negative impact on the society.
Undeniably, it opens the door of awareness and interface, where people get the chance to learn
deep about the cultures, traditions, aura, attributes, lifestyle of others. Moreover, social media
sites allow everyone to voice their thoughts and discuss openly. It can unite the perceptions
and perspective of people at one hand, where on other hand; it gives open privilege to devious
minds to allegedly post offensive material of one or another.
People capriciously or responsibly make use of social media by way of tweeting, video-sharing,
blogging or interacting. In most democratic countries like India, such posts/interactions are
often scrutinized with an intention to ensure that right to freedom of speech, expression is not
illicitly used. Also, that it doesn’t violate the individual right to privacy and data protection.
Another perspective is, that, such new face of interaction is restrained by several internet
regulations and thus, strangles the constitutional right of Indian democracy i.e. freedom of
speech.
Judgments and case studies exhibiting the ‘Status-quo’ of India -on violation of constitutional
right on social media sites.
On 20 November 2012, Police arrested two girls in ‘Bal Thackeray Facebook incident’,
whereby, a girl Shaheen Dhada posted a comment on their Facebook wall on the demise of
Shiv Sena Chief Bal Thakeray about his death. Her friend ‘liked’ her comment and later, ignited
controversy. They were arrested under Section 295(a) of IPC and Section 64(a) of IT Act, 2000.
Later, they were granted bail on surety of Rs.15,000 each and a written apology by them.
Another judgment as issued by Supreme Court, in view of public outrage over people being
arrested for making comments or liking posts on Facebook, on January 9 was applicable to all
states and UTs. It has advised and directed them not to arrest a person in any such case without
prior approval of a senior police officer.
In India, every citizen has the right to freedom of speech and expression without any unjustified
interference by public authority. Social Media is one such way for a common man to
opinionated without any fear of frontiers and after Supreme Court verdict find their human
rights protected. Though, the Government and Public Authorities may think differently. As per
their opinion, they find social media an unregulated medium in the hands of citizens to voice
and thus, carry an ample amount of untruthful, offensive and hurtful content.
“Free speech is the foundation of a democratic society. A free exchange of ideas, dissemination
of information without restraints, dissemination of knowledge, airing of different viewpoints,
debating and forming one’s own views and expressing them, are the basic ideas of a free
society. This freedom alone makes it possible for people to formulate their own views and
opinions on a proper basis and to exercise their social, economic and political rights in a free
society in an informed manner. Restraints on this right have been jealously watched by courts.”
This statement was rightly given by the Hon’ble Supreme Court, in the case of Union of India
v Motion Pictures Association (AIR 1999 SC 2334).
The preamble to our constitution defines our nation as a Sovereign, Socialist, Secular,
Democratic, Republic, however, given the actions of the authorities, in various cases in the past
few years, it seems as if the Nation is democratic only till the people do not express their
opinions.
In the case of Palko v Connecticut [302 US 319 (1937)], the right to freedom of speech and
expression was described as “the touch stone of individual liberty”, the matrix, and the
indispensable condition of nearly every form of freedom.
The Constitution of India has often been defined as the basic law of the land. It has been stated
in the statute itself as well as versed by various judgments, that no person, law or organization
is above the Constitution and that is what the fathers intended while framing this sacred
document.
Even though, the statute provides its own limitations for the rightful exercise of the Rights and
Liberties, in the present era, it seems as if the various politicians and the authorities have made
their own laws, thereby making a mockery out of the freedom of the people. The various cases
that were acted upon, by the various authorities, in the past ear and seek to raise that same issue
have been highlighted below:
The defamation Case against AIB for making a harmless meme of Hon’ble PM Mr. Narendra
Modi.
Earlier this year, the much known organization, AIB was slapped with a defamation case for
sharing a meme about our Hon’ble Prime Minister, Mr. Narendra Modi, when the pictures of
his lookalike surfaced on various social networking site.
The meme was allegedly reported to the authorities after it showed the Hon’ble PM’s face with
the much famous dog filter from Snap Chat. It was observed that while another such, more
important issue was ongoing, the authorities readily responded to this case.
The registration of the case was criticized on various levels. Mr. Shashi Tharoor, an honored
politician from Congress, as a rebuke to this incident, used his own face for the filter and
uploaded the same.
Defamation case registred against RJ Malishka for uploading a song video describing the plight
of people due to the Inactions of BMC.

Still a hyped issue, the case was started when the RJ uploaded a comical song describing the
state of the roads of Mumbai City. While she was right in her words, with the amount of
potholes on the roadways being more than the area square of roads, her fault was that she went
against the Bombay Municipal Corporation, who in turn, registered a Rs. 10.000/- defamation
suit and also slapped a fine under her name, for letting a breed pool outside her house.
The BMC, who are not only criticized by the citizens but also by various stars, was swift
enough to raid her house, without prior notice and book her for various issued a notice for
defaults on her part.
Devu Chodankar arrested for criticizing Hon’ble PM on Facebook.
Mr. Devu Chodnakar, 31 year old man from Goa, was recently arrested for posting certain
comments against the Hon’ble Prime Minister and raised some concerns about the Cristian
Community, under his term.
The reasons cited by the Goa Cyber Crime Department were that custodial interrogation of the
accused is very much essential to find out any motive of a larger game plan to promote
communal and social disharmony in the state.
The BSF Jawan, who was Involuntarily Retired after Raising Concerns about the quality of
food served to the military.
Mr. Tej Bahadur Yadav, a BSF Jawan, had uploaded a video expressing his issues with regards
to the degraded quality of food that is provided to the military personnel. Even though, the way
to do the same, was not entirely appropriate, however, compelling him to seek retirement and
his dismissal were some steps, which were to harsh for a person who has been serving for the
Nation.
Rajeesh Kumar, arrested for allegedly sharing abusive content on Facebook
The fault of the man was that during the election campaigning, he had shared a picture of the
Hon’ble Prime Minister with a shoe print on his face. Even though, the picture may be
considered as derogatory, however, an arrest considering that the man was just being a part of
the aggressive debates taking place on the social media.
A Class XI Student arrested for criticizing Mr. Azam Khan
When in school, every child has the tendency to develop some strong opinions, which he/she
likes to share with his friends on the social media platform. These pinions, however strong are
a way of the development of the child’s transformation into a citizen of the Nation.
In the present case, the student was jailed for a period of 11 days for sharing and allegedly
‘obnoxious’ post about the Minister for Urban Development. At such a tender age, an action
such as an arrest, not only curbs the freedom of a child but also sets an example where all the
students become scared enough till the extent of never using their Freedom of Speech and
Expression.
Shahin and Renu’s Mistake of Rightfully questioning the Shut Down of an entire city.
The two girls from Maharashtra were kept in a 14 day Judicial Custody, merely for asking a
question about the shutting down of the entire Mumbai city on the sad demise of Mr Bal
Thackeray.
More bizarre was the fact that while Shahin was the one, who uploaded the post, Renu was
arrested merely for liking the post. Maybe the freedom should only be kept to oneself, if this is
what happens when you try to ask questions.
Ambikesh Mahapatra’s fault of sharing a satirical depiction of a politician
Mr. Mahapatra, a chemistry professor of the Jadavpur University of Kolkata, was allegedly
arrested for sharing a cartoon depiction of Chief Minister Ms. Mamta Banerjee, in 2012. Later
on, he was also attacked by the members of the party.
Merely because of forwarding a simple cartoon, he was given a time, which would develop a
fer into the mind of anyone for speaking against the government, which has been elected to
‘represent’ the people.
Ravi arrested for sharing a tweet questioning the assets of Mr Chidambaram
A small plastic packaging businessman, belonging to the state of Tamil Nadu, was arrested for
sharing a tweet which questioned the assets and the net worth of Mr. Karti Chidambaram.
Even though it is a law that every politician should be transparent with regards to his assets,
this man was arrested for practicing his Right to Know. This action, criticized as much as can
be, only highlights the sensitivity that the Government has with regards to its establishment
that it has to arrest the aware citizens of the Country to emphasize on its presence.
The Halsbury’s Laws of India has stated that “Criticism of public measures or comments on
government action, however strongly worded, fall within reasonable limits and are consistent
with the fundamental right of freedom of speech and expression.”
This statement can be held to be true in a State, where democracy has been established in it’s
true faith and sense. However, a country, where a man is arrested or detained merely for
wording his opinion, cannot be held to be democratic or people specific in any way whatsoever.
Maybe, it is high time, when we, the people, the government and the authorities, take a stringent
step to become liberal and to give way to our opinions rather than curbing them.
What is Freedom of Speech?
The power or right to express one’s opinions without censorship, restraint or legal penalty is
known as Freedom of Speech.1 Unhindered flow of words in an open forum is the essence of
free society and needs to be safeguarded at all times. One’s opinions may, therefore, be
expressed by words of mouth, in writing, printing, pictures, or any other mode. This freedom
includes a person’s right to propagate or publish the views of other people.2
In India, freedom of speech is guaranteed under Article 19(1) (a) of the Constitution of India.
Apart from this, provisions relating to freedom of speech are also contained in various
international conventions like Universal Declaration of Human Rights (UDHR), European
Convention on Human Rights and Fundamental Freedoms, International Covenant on Civil
and Political Rights, etc.
Freedom of speech vis-a-vis Constitution of India
Freedom of speech is one of the six fundamental rights conferred to the citizens of India under
Part III of the Constitution. It is one of the most important aspects in the hierarchy of personal
liberties provided under Article 19 to Article 22 of the Indian Constitution.
Article 19(1) (a) states that all citizens shall have the right to freedom of speech and expression.
But this right is subject to limitations imposed under Article 19(2) which empowers the State
to put ‘reasonable’ restriction on various grounds, namely, security of the State, friendly
relations with foreign States, public order, decency and morality, contempt of court,
defamation3, incitement of offence4, and integrity and sovereignty of India.
Purpose of Freedom of speech and expression
Freedom of speech not only allows people to communicate their feelings, ideas, and opinions
to others, rather it serves a broader purpose as well. These purposes can be classified into four:
It helps an individual to attain self- fulfillment;
It assists in the discovery of truth;
It strengthens the capacity of an individual to participate in the decision-making process;
It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
Freedom of speech and of the press lays at the foundation of all democratic organizations, for
without free political discussion no public education, so essential for the proper functioning of
the popular government is possible.5
Freedom of Silence- National Anthem Case
Freedom of speech also includes the right to silence. In a case6, three children belonging to
Jehovah’s witnesses were expelled from the school for refusing to sing the national anthem,
although they stood respectfully when the same was being sung. They challenged the validity
of their expulsion before the Kerala High Court which upheld the expulsion as valid and on the
ground that it was their fundamental duty to sing the national anthem. On appeal, the Supreme
Court held that the students did not commit any offence under the Prevention of Insults to
National Honour Act, 1971. Also, there was no law under which their fundamental right under
Article 19(1) (a) could be curtailed.
Accordingly, it was held that the children’s expulsion from the school was a violation of their
fundamental right under Article 19(1) (a), which also includes the freedom of silence.
Freedom of Speech and Sedition
The offence of sedition, in India, is defined under Section 124-A of the Indian Penal Code as,
“whoever by words either spoken or written, or by signs, or by visible representation or
otherwise brings into hatred or contempt or excite or attempts to excite disaffection towards
the government established by law in India shall be punished”.
In the recent case of Kanhaiya Kumar v. State of Nct of Delhi7, students of Jawaharlal Nehru
University organized an event on the Parliament attack convict Afzal Guru, who was hanged
in 2013. The event was a protest through poetry, art, and music against the judicial killing of
Afzal Guru. Allegations were made that the students in the protest were heard shouting anti-
Indian slogans. A case therefore filed against several students on charges of offence under
Sections [124-A, 120-B, and 34]8. The University’s Students Union president Kanhaiya Kumar
was arrested after allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya
Kumar was released on bail by the Delhi High Court as the police investigation was still at
nascent stage, and Kumar’s exact role in the protest was not clear.
Case Study
Hamdard Dawakhana v. Union of India9
The validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put
restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs
having magic qualities for curing diseases was challenged on the ground that the restriction on
advertisement abridged the freedom. The Supreme Court held that an advertisement is no doubt
a form of speech but every advertisement was held to be dealing with commerce or trade and
not for propagating ideas.
Advertisement of prohibited drugs would, therefore, not fall within the scope of Article 19(1)
(a).
People’s Union for Civil Liberties(PUCL) v. Union of India10
In this case, public interest litigation (PIL) 11 was filed under Article 3212 of the Indian
Constitution by PUCL, against the frequent cases of telephone tapping. The validity of Section
5(2)13 of The Indian Telegraph Act, 1885 was challenged. It was observed that “occurrence of
public emergency” and “in the interest of public safety” is the sine qua non14 for the application
of the provisions of Section 5(2). If any of these two conditions are not present, the government
has no right to exercise its power under the said section.
Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of
reasonable restrictions under Article 19(2).
Indian Express Newspapers v. Union of India15
The Court, in this case, observed that, Article 19 of the Indian Constitution does not use the
phrase “freedom of press”16 in its language, but it is contained within Article 19(1) (a). There
cannot be any interference with the freedom of press in the name of public interest. The purpose
of the press is to enhance public interest by publishing facts and opinions, without which a
democratic electorate cannot take responsible decisions.
It is, therefore, the primary duty of courts to uphold the freedom of press and invalidate all laws
or administrative actions which interfere with it contrary to the constitutional mandate.17
Similarly, imposition of pre-censorship of a journal18, or prohibiting a newspaper from
publishing its own views about any burning issue19 is a restriction on the liberty of the press.
A. Abbas v. Union of India20
The case is one of the firsts in which the issue of prior censorship of films under Article 19(2)
came into consideration of the Supreme Court of India. Under the Cinematograph Act, 1952,
films are divided into two categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that
can be shown to adults only. The petitioner’s film was refused the ‘U’ certificate, and he
challenged the validity of censorship as violative of his fundamental right of freedom of speech
and expression. He contended that no other form of speech and expression was subject to such
prior restraint, and therefore, he demanded equality of treatment with such forms. The Court,
however, held that motion pictures are able to stir emotions more deeply than any other form
of art.
Hence, pre- censorship and classification of films between ‘U’ and ‘A’ was held to be valid
and was justified under Article 19(2) of the Constitution.
Bennet Coleman and Co. v. Union of India21
In this case, the validity of the Newsprint Control Order was challenged. The Order fixed the
maximum number of pages which a newspaper could publish, and this was said to be violative
of Article 19(1) (a) of the Indian Constitution. The government raised the contention that fixing
the newsprint would help in the growth of small newspapers as well as prevent monopoly in
the trade. It also justified its order of reduction of page level on the ground that big dailies
devote a very high percentage of space to advertisements, and therefore, the cut in pages will
not affect them. The Court held the newsprint policy to be an unreasonable restriction, and
observed that the policy abridged the petitioner’s right of freedom of speech and expression.
The Court also held that the fixation of page limit will have a twofold effect- first, it will deprive
the petitioners of their economic viability, and second, it will restrict the freedom of expression
as compulsorily reducing the page limit will lead to reduction of circulation and area of
coverage for news and views.
Hence, any restriction on the number of pages or fixation of page level of a newspaper invalid
and violative of Article 19(1) (a).
Notes :
Oxford Dictionary
Srinivas v. State of Madras AIR 1932 Mad 70
Defamation: A statement which injures a man’s reputation amounts to defamation. It consists
in exposing a man to hatred, ridicule, or contempt. Section 499, Indian Penal Code contains
the criminal law relating to defamation.
Incitement to an offence: Offence means any act or omission made punishable by the law for
the time being in force. Incitement to an offence, however, is to be determined by the Court
with reference to the facts and circumstances of each case.
Romesh Thapper v. State of Madras AIR 1950 SC 124
Bijoe Emmanuel v. State of Kerala 1986 3 SC 615
P. (CRL)558/2016
Section 124- A: Sedition; Section 120- B: Criminal Conspiracy; Section 34: Common Intention
AIR 1960 SC 554
AIR 1997 SC 568
PIL: It is a legal contest fought judicially for the protection of public interest. It may be
introduced in the court of law either by the court itself (suo motu) rather than the aggrieved
party or by any private party as well.
Remedies for enforcement of rights conferred by Part III of the Constitution of India.
Section 5(2), The Indian Telegraph Act: This section permits the interception of messages in
accordance of the provisions of the section.
(Latin); Black’s Law Dictionary: without which not, meaning something that is absolutely
essential
1985 2 SCC 434
Merriam Webster Dictionary: the right of newspapers, magazines, etc, to report news without
being controlled by the government
In Re, Harijai Singh AIR 1997 SC 73
Brij Bhushan v. State of Delhi AIR 1950 SC 129
Virendra State of Punjab AIR 1957 SC 896
AIR 1971 SC 481
AIR 1973 SC 106
References:
J.N. Pandey, Constitutional Law of India (52nd Edition)
Indian Law Journal
indiankanoon.org
lawyered.in
lexisnexis.co.in