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‘Freedom of Speech and Expression’ as a Fundamental Right in India and the

Test of Constitutional Regulations: The Constitutional Perspective

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 „Freedom of Speech and Expression‟ as a Fundamental Right in India and the Test of
Constitutional Regulations: The Constitutional Perspective
Aqa Raza*
Introduction

“No law shall be passed restraining the free expression of opinion, or restricting
the right to speak, write or print freely on any subject whatever.”
— Oregon Constitution, Article I, Section 8

Speech is God‟s gift to mankind. Through speech and expression 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. The freedom of
speech and expression 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. It thus includes the expression of one‟s ideas through any
communicable medium or visible representation, such as, gesture, sighs and the like.1 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
untrammelled flow of words in an open forum.

Throughout India‟s freedom struggle there was a persistent demand for a written Bill of
Rights for the people of India which included guarantee of free speech. Understandably, the
Founding Fathers of the Indian Constitution attached great importance to freedom of speech
and expression. Their experience of waves of repressive measures during British rule
convinced them of the immense value of this right in the sovereign democratic republic
which India was to under its Constitution. They believed that freedom of expression is
indispensable to the operation of a democratic system. They knew that when avenues of
expression are closed, government by consent of the governed will soon be foreclosed. 2 In
their hearts and minds was imprinted the message of Mahatma Gandhi, that evolution of
democracy is not possible if one is not prepared to hear the other side. They endorsed the
thinking of Jawaharlal Nehru who said, “I would rather have a completely free speech and

*LL. M. in Commercial Laws, The Faculty of Law, Aligarh Muslim University, Aligarh (Uttar Pradesh,
India), e-mail: aqaraza@outlook.com; Contact: +91 7417037864. This paper has been published in the
Indian Bar Review, ISBN No.: 978-81-931981-0-0, Volume XLIII (2) 2016, pp. 87-110.
1
Lowell v. Griffin, (1939) 303 US 444.
2
Soli. J. Sorabjee, “Freedom of Expression in India”, Law and Justice, 47 (1996), p. 3.

Page 1 of 22
expression with all dangers involved in the wrong use of that freedom than a suppressed of
regulated speech and expression.”3

Part III4 of the Indian Constitution guarantees a wide spectrum of judicially enforceable
fundamental rights which broadly corresponds to the civil and political rights guaranteed by
the International Covenant on Political Rights, 1966 (ICCPR). Freedom of speech and
expression is guaranteed as a fundamental right by Article 19(1) (a) of the Constitution.
Freedom of expression, like other fundamental rights guaranteed by the Indian Constitution,
is not absolute. It can be restricted provided three distinct and independent prerequisites are
satisfied.
(i) The restriction must have authority of law to support it. Freedom of expression
cannot be curtailed by executive orders or administrative actions which lack the
sanction of law.
(ii) The law must fall squarely within one or more heads of restrictions specified in
Article 19(2). Restriction on freedom of expression cannot be imposed on such
omnibus grounds as “in the interest of the general public” which is permissible in the
case of fundamental rights like freedom of trade and business.
(iii) The restriction must be reasonable. It must not be excessive or disproportionate. The
procedure and the manner of imposition of the restriction also must be just, fair and
reasonable.5

The researchers in this paper seeks to analyze the concept of the freedom of speech and
expression as a fundamental right guaranteed by the Constitution of India with an emphasis
on the test of the constitutional regulation. This paper has been divided into various parts
dealing with the various aspects of the freedom of speech and expression.

Importance of Freedom of Speech and Expression

Freedom of speech and expression is the bulwark of democratic government. This freedom is
essential for the proper functioning of the democratic process. The freedom of speech and
expression is regarded as the first condition of liberty. It occupies a preferred position in the

3
Nehru‟s speech on 20 June 1916 in the protest against the Press Act, 1910.
4
Part III of the Constitution of India deals with the Fundamental Rights.
5
Chintamani Rao v. State of Madhya Pradesh, AIR 1951 SC 118.

Page 2 of 22
hierarchy of liberties giving succour and protection to all other liberties. It has been truly said
that it is the mother of all other liberties.6
In a democracy, freedom of speech and expression open up channels of free discussion of
issues. Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matters. Freedom of speech and expression, just as equality clause and
the guarantee of life and liberty have been very broadly construed by the Supreme Court right
from the 1950s. It has been variously described as a “basic human right”, “a natural right”
and the like. The freedom of speech and expression includes liberty to propagate not one‟s
views only. It also includes the right o propagate or publish the views of other people, 7
otherwise this freedom would not include the freedom of the press.
Freedom of expression has four broad special purposes to serve:
(i) It helps an individual, to attain self-fulfilment;
(ii) It assists in the discovery of truth;
(iii)It strengthens the capacity of and individual in participating in decision making; and
(iv) It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change. All members of society should be able to
form their own belief and communicate them freely to others.8
Freedom of speech and expression has been held to be basic and indivisible for a democratic
polity. It s said to be the cornerstone of functioning of the democracy. It is the foundation of a
democratic society. It is essential to the rule of law and liberty of citizens. In Romesh Thaper
v. State of Madras,9 Patanjali Sastri, C. J. obersved:
“Freedom of speech and of the press lay at the foundation of all democratic
organisations, for without free political discussion no public education, so essential
for the proper functioning of the process of popular government, is possible. A
freedom of such amplitude might involve risks of abuse. But the framers of the
constitution may well have reflected with Madison, who was the leading spirit in the
preparation of the First Amendment of the Federal Constitution, what it is better to
leave a few of its noxious branches to their luxuriant growth than by pruning them
away, to injure the vigour of those yielding the proper fruits.”

6
M. P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, 6 th edn., 2012, p. 1078.
7
Srinivas v. State of Madras, AIR 1931 Mad 70.
8
J. N. Pandey, The Constitutional Law of India, Central Law Agency, 47 th edn., 2010, p. 183.
9
AIR 1950 SC 124.

Page 3 of 22
In Mahesh Bhatt v. Union of India & Anr.,10 the Supreme Court held that the freedom of
speech and expression is one of the pillars of the Constitution of India and indeed sustains its
democratic structure. The freedom of speech and expression is a prominent constituent of
democracy. A healthy democracy is sustained by informing and making aware the citizens of
conflicting and differing points of view and any inroads into the freedom of speech and
expression, and any rules made in the form of imposing curbs thereon would violate Article
19(1)(a) of the Constitution. Such curbs are not saved by Article 19(2)11 of the Constitution.
Freedom of speech is an intrinsic feature of the any genuine Democracy. The right of
freedom of expression is crucial in a democracy, information ideas help to inform political
debate and are essential to public accountability and transparency in government, for a
democratic system to function, people have to be able to form their own ideas. One must be
able to receive and impart many different ideas and information, reflecting many different
perspectives, before being able to see the truth. That is why freedom of expression is so
fundamental. It is essential to the functioning of our pluralist society. Freedom of expression
constitutes one of the essential foundations of a democratic society and one of the basic
conditions for its progress and each individual‟s self-fulfilment.

The Constituent Assembly Debate

The Constituent Assembly Debate on Article 13 (corresponding to Article 19 of the present

Constitution) was held on Wednesday, 1st December, 1948 which provides several freedoms
including freedom of speech and expression to citizens. The opinions of different members of
constituent assembly are relevant here to mention. Shri Damodar Swarup Seth argued that:
“Article 13, as at present worded, appears to have been clumsily drafted. It makes one
significant omission and that is about the freedom of the press. I think, Sir, it will be argued
that the freedom is implicit in clause (a) that is, in the freedom of speech and expression. But,
Sir, I submit that the present is the age of the Press and the Press is getting more and more
powerful today. It seems desirable and proper, therefore, that the freedom of the Press should
be mentioned separately and explicitly.

Prof. K. T. Shah said that "in sub-clause (a) of clause (1) of article 13, after the word
`expression'; the words `of thought and worship; of press and publication;' be added." He

10
2008 (147) DLT 561.
11
The reasonable limits or restrictions on the freedom of speech and expression can be imposed on the exercise
of the right to freedom of speech under Article 19(2) in the interest or on the grounds of: (i) Security of the
State, (ii) Friendly relations with foreign countries, (iii) Public Order, (iv) Decency or Morality, (v) Contempt of
Court, (vi) Defamation, (vii) Incitement to offence, and (viii) Sovereignty and integrity of India.

Page 4 of 22
thought that speech and expression would run more or less parallel together. Perhaps
"expression" may be a wider term, including also expression by pictorial or other similar
artistic devices which do not consist merely in words or in speech.
Shri K. M. Munshi argued to amend clause (2) of Article 13 and said, (2) Nothing in sub-
clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent
the State from making any law relating to libel, slander, defamation, or any matter which
offends against decency or morality or which undermines the security of, or tends to
overthrow, the State. He proposed that the words "in so far as it relates to" should be added;
in the place of "shall affect the operation of an existing law", because, that connects this
clause with "to libel, etc." This would make the meaning clear. He was also in favour to omit
the word sedition form clause (2) of Article 13.
The press has no special rights which are not to be given or which are not to be exercised by
the citizen in his individual capacity. The editor of a press or the manager is merely
exercising the right of the expression, and therefore, no special mention is necessary of the
freedom of the press”12

Constitutional Protection of “Freedom of Speech and Expression”

The concept of such freedom is to be able to speak and express ones thoughts and opinion
freely without censorship. Speech is considered to be one of the most basic faculties of the
human nature as it comes naturally to every person. It is also seen as one of the most
fundamental rights essential for a human living. Every person has the right to freedom of
expression & speech and this is usually guaranteed by the concerned national Constitutions.
This right includes the freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice13
The importance of free speech as a basic and valuable characteristic of society cannot be
underestimated. Freedom of speech serves a number of functions. One of its most important
functions is that decision-making at all levels is preceded by discussion and consideration of
a representative range of views. This is very helpful. The freedom of speech and expression

12
Dr. Ambedkar‟s Speech in the Constituent Assembly Debate, VII. 980.
13
Toby Mendel, Restricting Freedom of Expression: Standards and Principles Background Paper for Meetings
Hosted by UN Special Rapporteur on Freedom of Opinion and Expression, available at:
http://www.lawdemocracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf; last
retrieved on 08.04.2015.

Page 5 of 22
which flows as a natural right has been accorded protection under a number of international
and regional instruments:

(a) Article 19 of the Universal Declaration of Human Rights expressly provides that everyone
has the right to freedom of opinion and expression.

(b) Another significant protection at the international level is enshrined in the International
Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR elaborates on the
freedom, as protected under the UDHR. It provides in express terms, how the States can
restrict the freedom of expression, in accordance with law and in situations where it is
necessary.

(c) The European Union (EU) Convention for the Protection of Human Rights and
Fundamental Freedom, 1950, protects the individual‟s freedom of expression in Article 10.
This Article specifically provides for a restriction; that the right does not prevent states from
requiring licences for broadcasting, television or cinema enterprises. Further, Article 10 itself
sets out a fairly comprehensive list of allowed restrictions on freedom of expression by states.

(d) The American Convention on Human Rights is another regional instrument which
incorporates the freedom of thought and expression in Article 13 which also deals with
restrictions that may be imposed. The right of expression may not be restricted by indirect
methods or means, government or private controls over newsprint, radio broadcasting
frequencies, or equipment used in dissemination of information, or by any other means
tending to impede the communication and circulation of ideas and opinions.

(e) Mention with regard to protection of freedom of speech and expression has also been
made in another regional document- The African Charter on Human and Peoples‟ Rights‟.
Article 9 of the African Charter discusses about the right of every person to receive
information, as well as express and disseminate his opinions within the law.14

Position in India:

Almost all Constitutions of democratic nations including India have given prime place to the
right to free speech. About two decades ago while addressing the Newspaper Society, famous
Indian jurist Nani Palkhivala observed: “Freedom is to the Press what oxygen is to the

14
See, Mark Cooray, Freedom of Speech and Expression, 1997 edn., Chapter 6.

Page 6 of 22
human being; it is the essential condition of its survival. To talk of a democracy without a
free press is a contradiction in terms. A free press is not an optional extra in a democracy.”15

Franklyn S. Haiman observes that “the freedom of speech and expression benefits more the
hearer than the speaker. The hearer and the speaker suffer as violation of their spiritual
liberty if they are denied access to the ideas of each other. This freedom is essential for the
pursuit of truth.”16 The freedom of speech and expression is regarded as the first condition of
liberty.17

The Preamble of the Constitution of India itself secures, to the people, the liberty of thought,
expression, belief, faith and worship. Free speech is one of the most coveted fundamental
rights in the world. In India, the freedom of speech and expression is protected under Article
19(1)(a) of the Constitution of India. This is part of the basic fundamental rights. Though the
Indian Constitution does not use the expression “freedom of press” in Article 19, but it has
been included in one of the guarantees in Article 19(1) (a). This has been done by the wide
interpretation given to this right by the able judiciary of the country. Freedom of press has
always been regarded as an essential pre-requisite of a democratic form of government. This
freedom of press is not superior to that of an individual though. In fact, this freedom is
fundamental to the life of an individual.18

In Publisher, Sportstar Magazine Chennai v. Girish Sharma19 it was discussed that the
expression „freedom of press‟ means a freedom from interference from authority which
would have the effect of interference with the content and circulation of newspapers.

In Indian Express Newspapers (Bombay) Pvt. Ltd v. Union of India20 the Court discussed that
democratic constitutions all over the world have made provisions guaranteeing the freedom
of speech and expression laying down the limits of interference with it, with a view of
checking malpractices which interfere with free flow of information.

15
Nani. A. Phalkhivala, We The Nation- The Lost Decade, 1994 edn., p. 291. From the speech he delivered at
The Golden Jubilee Valedictory Function of the Indian Newspaper Society, Delhi, September 29, 1989.
16
Franklyn S. Haiman, Speech and Law in a Free Society, University of Chicago Press, 1981 edn.; see the
chapter “What is Speech” of the book.
17
Ramlila Maidan Incident, re, (2012) 5 SCC 1.
18
Justice Palok Basu, Law Relating to Protection of Human Rights under the Indian Constitution and Allied
Laws, Modern Law Publications, 2nd edn., 2011, 589.
19
2001 Cri. L. J. 1863 at pp. 1865, 1866.
20
AIR 1986 SC 515 at p. 527.

Page 7 of 22
 Scope of “Freedom of Speech and Expression”

In many cases the Supreme Court of India has reiterated the need to protect the fundamental
right of freedom of speech and expression. Since Romesh Thappar case21 there have been
many cases22 involving the right to free speech. In R. Rajagopal v. Tamil Nadu23 Justice
Jeevan Reddy reiterated the indispensability of freedom of press. In his lucid analysis he
points out the jurisprudential desideratum thus:
But what is called for today--in the present times--is a proper balancing of the
freedom of press and said laws consistent with the democratic way of life ordained by
the Constitution. Over the last few decades, press and electronic media have emerged
as major factors in our nation‟s life. They are still expanding-and in the process
becoming more inquisitive. Our system of government demands-as do the systems of
government of the United States of America and United Kingdom-constant vigilance
over exercise of governmental power by the press and the media among others. It is
essential for a good Government.

With the advent of new technologies, electronic media has become both popular and
hyperactive. Cyber world opens up to electronic journals and the digital press has become a
popular channel for „expression‟ in the electronic age. However the problem whether they
truly represent the sentiments of people or whether they are only mouthpieces of some
interest groups, remains tantalizing. „Sting operation‟ by using electronic bugs while
interviewing a person may be good in their attempts to bring out truth; but if the same is used
for blackmailing a person it is not only illegal, but also immoral. Democracy may then
denigrate into videocracy. But it is heartening to note that there are many websites devoted to
bring to light the incidents of human right violations.

In Resurgance India v. Election Commission of India,24 Supreme Court recognises the „right
to know‟ as a fundamental right under Article 19(1) (a). The Court held that the candidate
who has filed an affidavit with false information as well as the candidate who has filed an
affidavit with particulars left blank cannot treated at par. If so done it will result in breach of
fundamental right guaranteed under Article 19(1) (a) of the Constitution, viz. „right to know‟

21
Romesh Thapper v. State of Madras, AIR 1950 SC 124, 128.
22
Brij Bhushan v. State, AIR 1950 SC 129, Express Newspapers (P) Ltd v. Union of India, AIR 1958 SC 578,
Sakal
Papers (P) Ltd v. Union of India, AIR 1962 SC 305.
23
AIR 1995 SC 264
24
AIR 2014 SC 344, Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112.

Page 8 of 22
which is include in freedom of speech and expression. Further Court directed the Election
Commission to issue a notification making it compulsory to provide about their education,
assets, liabilities and criminal antecedents for the benefit of voters.

In Rakeysh Omprakash Mehra & Anr. v. Govt. of NCT of Delhi25 The Supreme Court added a
new dimension on freedom of speech and expression, and held our written Constitution
guarantees not only freedom of speech but also freedom after speech. It further added that
freedom of expression is of inestimable value in a democratic society based on the rule of
law.

In Pravasi Bhalai Sangathan v. Union of India & Ors.,26 It was opined by me while directing
election commission to take suo moto cognizance, that Hate speech is an effort to marginalise
individuals based on their membership in a group. Using expression that exposes the group to
hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing
their social standing and acceptance within society. Hate speech, therefore, rises beyond
causing distress to individual group members. It can have a societal impact. Hate speech lays
the groundwork for later, broad attacks on vulnerable that can range from discrimination, to
ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.
Hate speech also impacts a protected group‟s ability to respond to the substantive ideas under
debate, thereby placing a serious barrier to their full participation in our democracy.

In the National Anthem case,27 the Supreme Court held that no person can be compelled to
sing the National Anthem, “if he has genuine conscientious objections based on his religious
faith”. Court affirmed that fundamental right under Article 19(1) (a) which also includes the
freedom of silence.

In a historic judgment in Secretary, Minister of I&B v, Cricket Association of Bengal

(CAB),28 the Supreme Court has given new dimension to freedom of speech and expression
that Government has no monopoly on electronic media. The Supreme Court has considerably
widened the scope and extent of the right to freedom of speech and expression and held that
the Government as no monopoly on electronic media and a citizen has, under Article 19(1)
(a), a right to telecast and broadcast to the viewer/listeners through electronic media

25
2013 (197) DLT 413.
26
AIR 2014 SC 1591.
27
Bijoe Emmanuel v. State of Kerala, (1986) SCC 615.
28
(1995) SCC 161.

Page 9 of 22
Television and Radio any important event. The Government can only impose restrictions on
such a right only on grounds specified in clause (2) of Article 19.

In Tata Press Ltd v. MTNL,29 the Supreme Court held that commercial speech
(advertisement) is a part of the freedom of speech and expression granted under Article 19 (1)
(a) of the Constitution. The Court, however, made it clear that the commercial advertisements
which are deceptive, unfair, misleading and untruthful could be regulated by the Government.

There are no geographical limitation on freedom of speech and expression guaranteed by

constitution, and this freedom is exercisable not only in India but outside and if State action
sets up barriers to its citizens‟ freedom of expression in any country in the world, it would
violate Article 19(1) (a) as much as if it inhibited such expression within the country. In
Maneka Gandhi v. Union of India,30 the Union of India contended that the fundamental rights
guaranteed by the Constitution were available only not be protected by the State? The
Supreme Court rejected these contentions and held that the right to freedom of speech and
expression has no geographical limitations. Freedom of speech and expression carries with it
the right to gather information as also to speak and express oneself at home and abroad and to
exchange thoughts and ideas with others not only in India but also outside.

The fundamental right of the freedom of the press implicit in the freedom of speech and
expression is essential for political liberty and proper functioning og democracy. The
American Press Commission has said, “Freedom of the press is essential to political liberty.
When man cannot freely convey their thoughts to one another, no freedom is secured, where
freedom of expression exists the beginning of a free society and means for every retention of
liberty are already present. Free- expression is therefore, unique among liberties.31 He Indian
Press Commission has also expressed its view that “Democracy can thrive not only under the
vigilant eye of its 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.”

The liberty of the press means liberty to print and publish what one pleases, without previous
permission. The freedom of press is not confined to newspapers and periodicals. It includes
also pamphlets and circulars and every sort of publications which affords a vehicle of

29
(1995) SCC 139.
30
AIR 1978 SC 597.
31
Brij Bhusan v. State of Delhi, AIR 1950 SC 129.

Page 10 of 22
information and opinion.32 In Indian Express Newspapers v. Union of India,33 the Supreme
Court speaking about the utility of freedom of press and observed :

“The expression „freedom of the press‟ has not been used in Article 19 but it is
comprehended within Article 19(1)(a). The expression means freedom from
interference from authority which would have the effect of interference with the
content and circulation of newspapers. There cannot be any interference with that
freedom in the name of public interest. The purpose of the press is to advance the
public interest by publishing facts and opinions without which a democratic electorate
cannot made responsible judgments. Freedom of the press is the heart of social and
political intercourse. It is the primary duty of the courts to uphold the freedom of the
press and invalidate all laws or administrative actions which interfere with it contrary
to the constitutional mandate.”34

Freedom of press has always been a cherished right on all democratic countries. The
newspaper not only survey news but also ideas, opinion and ideologies, besides much else.
They are supposed to guard public interest by bringing to fore the misdeeds, failings and
lapses of the government and other bodies exercising governing power. Rightly, therefore, it
has been described as the Forth Estate.

A citizen‟s right to propagate and publish extends not merely to the matter to which he was
entitled to circulate but also to the volume of circulation. Freedom of speech could not be
restricted for the purpose of regulation commercial aspect of the activities of the newspapers.
A newspaper cannot survive and sell itself at a price which is not within the reach of a
common man unless it is allowed to take in advertisement.

The imposition of censorship on a journal previous to its publication would amount to an

infringement of Article 19(1)(a). The question of validity of censorship came up for
consideration in the case of Brij Bhushan v. State of Delhi,35 the court observed, “…the
imposition of pre-censorship of a journal is a restriction on the liberty of the press which is

32
See, Supra note 1, see also, Sakal Papers Ltd v. Union of India, AIR 1962.
33
(1985) 1 SCC 641.
34
See also In Re Harijai Singh, AIR 1997 SC 73.
35
AIR 1950 SC 129.

Page 11 of 22
an essential part of the freedom of the speech and expression declared by Article 19(1)(a).”
A law banning entry and circulation of journal in a state held to be invalid.36

In Sakal Papers Ltd. v. Union of India,37 the Daily Newspapers (Price and Control) Order,
1960, which fixed a minimum price and number of pages which a newspaper was entitled to
publish was challenged as unconstitutional by the petitioner on the ground that it infringed
the liberty of the press. The Court said, the right of freedom of speech and expression cannot
be taken away with the object of placing restrictions on the business activity of a citizen.
Freedom of speech can only be restricted on the grounds mentioned in clause (2) of Article
19. It cannot, like the freedom to carry on business, be curtailed in the interests of the general
public.

In Bennet Coleman and Co. v. Union of India,38 the validity of the Newsprint Control Order
which fixed the maximum number of pages (10 pages) which a newspaper could publish was
challenged as violative of fundamental rights guaranteed in Article 19(1) (a) and Article 14 of
the Constitution. The Court held that the newsprint policy abridges petitioner‟s right of the
freedom of speech and expression.

In Indian Express Newspaper v. Union of India,39 the petitioners, publishers, of daily

newspapers and periodicals, challenged the imposition of import duty and the levy of
auxiliary duty on the newsprint on the ground of infringement of the freedom of press as it
imposed a burden beyond capacity of the industry and also affected the circulation of the
newspapers and periodicals. The Court held that the press industry was not free from
taxation. Taxes have to be levied by reason of public services, facilities and amenities
enjoyed by the newsprint industry, the burden of maintaining which falls on the Government.
The Government cannot take power itself to pre-judge the nature of contents of newspapers
even before they are printed. Imposition of such a tax restriction virtually amounts to pre-
censorship of a newspaper which is prohibited by the Constitution.

In National Legal Services Authority v. Union of India & Others,40 The Supreme Court held
that “Expression of one‟s gender identity is facet of freedom of expression and state cannot
prohibit or restrict transgender‟s expression of such personality.” Court further said “Freedom

36
Romesh Thapper v. State of Madras, AIR 1950 SC 124.
37
AIR 1962 SC 305.
38
AIR 1973 SC 106.
39
(1985) 1 SCC 641.
40
AIR 2014 SC 1863.

Page 12 of 22
of expression guaranteed under Article 19(1)(a) includes the freedom to express one‟s chosen
gender identity through varied ways and means by way of expression, speech, mannerism,
clothing etc. Gender identity, therefore, lies at the core of one‟s personal identity, gender
expression and presentation, and therefore it will have to be protected under Article 19(1)(a)
of the Constitution. State cannot prohibit, restrict or interfere with a trans-gender‟s expression
of such personality, which reflects that inherent personality.”

In State of Karnataka & Anr. v. Associated Management of (Government Recognised

Unaided English Medium) Primary and Secondary School‟s & Others, 41 The Supreme Court
held that “child‟s right to choose the medium of education at primary stage, flows from
freedom of speech and expression guaranteed by Article 19(1)(a) and State cannot impose
restriction on such right except for purposes mentioned in Article 19(2).” Court further
elaborate “The right to freedom of speech and expression includes the freedom of child to be
educated at the primary stage of school in a language of the choice of the child and the State
cannot impose controls on such choice just because it thinks that it will be more beneficial for
the child if he is taught in the primary stage of the school in his mother tongue.”

The year 2015 witnessed a chain of development in the sphere of the freedom of speech and
expression. The Court not only interpreted the provisions of the law relating to the said right
but also to a great extent extended its scope. In S. Sudin v. The Union of India & others,42 the
Court as to the freedom of press and media held that the prohibition on press and media from
publishing any call for bandh and hartal would be violative of right of people to know and
receive information and no writ can be issued for restraining media for that purpose. The
Court further with regard to the freedom of speech and expression observed that the hartal or
strike cannot be totally banned by High Court in exercise of jurisdiction under Article 226.
As to the regulation of hartal or strike the Court held that “It is requirement of the day. It is
for the legislature to consider and enact law. High Court cannot issue direction in that
regard in exercise of jurisdiction under Article 226.”

In T. M. Thaniyarasu v. The Commissioner of Police, Egmore, Chennai-8 & others,43 there

was a denial of permission to hold public meeting on the ground that selected place not
identified as place for public meetings by the police. The Court held that right of the citizens
to conduct public meetings cannot be curtailed except on definite reasons and not on mere

41
AIR 2014 SC 2094.
42
AIR 2015 Kerala 49.
43
AIR 2015 (NOC) (Mad.).

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surmises. The Court found the order rejecting permission to the petitioner for conducting
public meeting, not proper.

In Ajay Gautam v. Union of India & others,44 a petition was filed for prohibition on
exhibition of film „PK‟. The Court held that “right to communicate and receive ideas, facts,
knowledge, information, beliefs, theories, creative and emotive impulses by speech or by
written word, drama, theatre, dance, music, film, through a newspaper, magazine or book is
an essential component of freedom of speech and expression. And this right cannot be
suppressed on ground of formation of harmful act by its audience as a result of such beliefs,
unless commission of harmful acts is a real close and imminent consequence of speech in
question.”
The Court dismissed the petition as petitioner does not satisfy court of „clear and imminent
danger‟. The Court also held that mischievous creation of law and order situation cannot be a
ground for interfering with certification of a film, if otherwise found to be in order.

In Inter Media Publishing Ltd., Calicut v. State of Kerala & others,45 there was a denial for
Government advertisement to a newspaper on the ground that dissemination of information
through said newspaper poses threat to national security, unity, integrity and public order.
The Court held that in absence of constitution of any mechanism by way of formation of
committee to assess and evaluate information and ideas provided in newspaper, the decision
taken to deny Government advertisement is unjustifiable. The Court directed the Government
to constitute committee to evaluate and assess information provided in newspaper.

In Shreya Singhal v. Union of India,46 the Supreme Court held that provisions of Section 66A
of the Information Technology Act, 2000 which prescribes punishment for sending offensive
messages online are in its entirety violative of Article 19 (1) (a) of the Constitution and are
not saved under Article 19(2) of the Constitution.

VI
Constitutional Regulation of Freedom of Expression

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

also it is necessary to place some curbs on this freedom for the maintenance of social order.
No freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2),

44
AIR 2015 Delhi 92.
45
AIR 2015 (NOC) 1099 (Ker.).
46
AIR 2015 SC 1523.

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358 and 359, the state may make a law imposing restrictions on the exercise of the right to
freedom of speech and expression „in the interest of‟ the security of state.

(i) During Normal Times: Reasonable Restrictions

During normal times freedom of expression con be restricted, under Article 19(2), only in the
interest of security of the Stare, friendly relations with foreign States, public order, decency
or morality, in relation to contempt of court defamation or incitement as an offence. These
restrictions intend to strike a proper balance between the liberty guaranteed under Article
19(1) (a) and the social interest specified under Article 19(2). The court‟s commitment to the
freedom of expression demands that it cannot be suppressed unless the situations created by
allowing the freedom are pressing and the community interest is endangered. It is settled law
that the anticipated danger should not be remote, conjectural or far-fetched. It should have a
direct nexus with expression. It should be intrinsically dangerous to the public interest. There
is a heavy burden in the State to prove that the restriction is reasonable. Of these restrictions,
the one most habitually used by the State to justify curtailing the liberty of its citizens is the
ground of decency or morality.47

Very often, artistic depictions of the human body or sexuality, showing two men kissing each
other or M. F. Hussain‟s paintings, have come under the frenzied hand of the State claiming
such art to be indecent or obscene. Similarly, the State has also justified legislating on
banning dances in bars, as in the opinion of the State they are obscene, vulgar, and indecent.
The hypocrisy of the State is exposed when they allow dances in movies that are viewed by a
huge audience, but shun same dances in bars performed in front of a restricted adult audience,
and when the State allows movie posters or fashion shows with women wearing skimpy
clothes but shuns paintings of art that depict nudity or sexuality on the grounds or religion,
morality and obscenity. The pertinent question is that how and who decides what is vulgar
indecent, lewd, obscene and not acceptable by society, thereby justifying a „reasonable
restriction‟ or a curtailment of the freedom of speech and expression that is so essential in a
democracy?48

The eight grounds of restriction which are mentioned in clause (2) of Article 19 are:

a. Security of the State.

47
Dr. D. D. Basu, Constitutional Law of India, 8th ed. 2009, LexisNexis Butterworth Wadhwa, p. 92.
48
Ibid, p.93.

Page 15 of 22
 b. Friendly Relations with Foreign State.
c. Public Order.
d. Decency or Morality.
e. Contempt of Court.
f. Defamation.
g. Incitement of an offence.
h. Sovereignty and integrity of India.

„Security of the State‟ means „the absence of serious and aggravated forms of public
disorder‟, as distinguished from ordinary breach of „public safety‟ or „public order‟ which
may not involve any danger to the State itself. Thus, security of the State is endangered by
crimes of violence intended to overthrow the Government,49

„Friendly Relations with Foreign States‟ the object of this exception to the freedom of
speech and expression is to prevent libels against foreign States in the interests of maintaining
friendly relations with them.

“Public order” this ground was added by the Constitution (1st Amendment) Act, 1951, in
order to meet the situation arising from the Supreme Court‟s decision in Romesh Thapper‟s
case.50 In this case, it was held that ordinary or local breaches of public order were no
grounds for imposing restriction on the freedom of speech and expression guaranteed by the
Constitution. The Supreme Court said that „public order‟ is an expression of wide connotation
and signifies “that state of tranquillity which prevail among the members of political society
as a result of internal regulations enforced by the Government which they have established.”

Law and order, public order and security of State are different and could not be understood
synonymous. In Kishori Mohan v. State of W. B.,51 the Supreme Court explained the
differences between three concepts and Court said, it can be explained by three functional
concentric circles, the largest representing law and order, the next public order, and the
smallest, the security of the State. Every infraction of law must necessarily affect law and
order but not necessarily public order and an act may affect public order but not necessarily
security of State and an act may fall under two concepts at the same time affection public
order and security of the State.

49
Santosh Singh v. Delhi Administration, AIR 1973 SC 1093.
50
Supra note 8.
51
AIR 1973 SC 1794.

Page 16 of 22
“Decency and Morality” the words “morality and decency” are words of wide meaning. The
word “obscenity” of English law is identical with the word “indecency” under the Indian
Constitution. The test of obscenity is “whether the tendency of matter charged as obscene is
to deprave and corrupt those whose minds are open to such immoral influences” and into
those hands a publication of this sort is likely to fall.52 Thus a publication is obscene if it
tends to produce lascivious thoughts and arouses lustful desire in the minds of substantial
numbers of that public into whose hands the book is likely to fall. This test was laid down in
an English case of R. v. Hicklin.53

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 and morality. These sections prohibit the
sale or distribution or exhibition of obscene words, etc. in public places. But Indian Penal
Code does not lay down any test to determine obscenity. In Ranjit D. Udeshi v. state of
Maharashtra,54 the Supreme Court accepted the test laid down in the English case of R. v.
Hicklin to judge he obscenity of a matter. In P. K. Somnath v. State of Kerala,55 it was held
that even a nude body, whether male of female, cannot be regarded as an object of obscenity
without something more. The „something more‟ is in the facial expression or the pose in
which it is photographed. It is to the subjective tastes of the viewer and does not base it on an
objective criteria or an artful depiction or just as an expression.

52
This test as laid down in the R. v. Hicklin [(1868) 3 QB 360] case by Cockburn C.J. has been applied in India
by the Courts in cases to decide the issues relating to obscenity. In Hicklin‟s case it was laid down that “the test
of obscenity is this, whether the tendency of the matter charged as obscene is to deprave and corrupt those
whose minds are open to such immoral influences, and into whose hands the a publication of this sort may fall.
It is quiet certain that it would suggest to minds, of the young either sex, or even to persons of more advanced
years, thoughts as a most impure and libidinous character.” But the Supreme Court in Aveek Sarkar v. State of
West Bengal, AIR 2014 SC 1495 (the judgement was penned down by Justice K. S. Radhakrishnan with Justice
A. K. Sikri) held that the test to be applied to determine obscenity is the „Community Standard Test‟ and not the
Hicklin test. Applying the „Community Tolerance Test‟ the Court held that the photograph has no tendency to
deprave and corrupt minds of people in whose hands magazine would fall. Further it went on to say that the
message which the article conveys is to eradicate the evil of racism and apartheid in the society and to promote
love and marriage between white skinned man and a black skinned woman. It also held that the said picture and
article cannot be said to objectionable as to initiate proceedings under Section 292 of the IPC and Section 4 of
the Indecent representation of Women (Prohibition) Act, 1986 and reversed the order of the Calcutta High
Court.
By the term „Community Tolerance Test‟ the Supreme Court observed that the decisions in such cases must be
taken keeping in mind the contemporary national standards and not that of a group of sensitive persons. If the
society accepts the portrayal of sexual activities on the silver screen, the Court must not strike it down for the
sake of a few sensitive persons. If it is acceptable to the society in general, the court must accept it too.
Materials may have sometimes contents which are not acceptable to the society. In such scenarios, one needs to
look into the bigger picture, the message being conveyed through the otherwise obscene material. The message
should be helpful and beneficial to the society. It is important to see the full picture instead of squinting eyes at
certain explicit scenes.
53
LR 3 QB 360.
54
AIR 1965 SC 881.
55
1990 Cr. L.J. 542.

Page 17 of 22
The word “morality” too has not been clearly defined. The conception or morality differs
from place to place and time to time. Therefore, it is imperative that the freedom of speech
and liberty should not be curtailed unless it causes harm to others only that should be
prevented by the law. The law should aim to establish minimum and not maximum standards
of behaviour, showing respect for tolerance and privacy.56

„Contempt of Court‟ in the exercise of his right of freedom of speech and expression, nobody
can be allowed to interfere with the due course of justice or to lower the lower the prestige or
authority of the court, even in the garb of criticising a judgment.

„Defamation‟ just as every person possesses the freedom of speech and expression, every
person also possesses a right to his reputation which is regarded as property. Hence, nobody
can so use his freedom of speech or expression as to injure another‟s reputation. Laws
penalising defamation do not, therefore, constitute infringement of the freedom of speech.

„Incitement to an Offence‟ this ground will permit legislation not only to punish or prevent
incitement to commit serious offences like murder which lead to breach of public order, but
also to commit and „offence‟, which according to the General Clauses Act, means „any act or
omission made punishable by any law for the time being in force‟. Hence, it is not
permissible to instigate another to do any act which is prohibited and penalised by any law.

„Sovereignty and Integrity of India‟ this ground has been added as a ground of restriction on
the freedom of expression by the 16th Amendment of the Constitution. The object was to
enable the State to combat cries for secession and the like from organisations such as the
Dravida Kazhagam in the South and the Plebiscite Front in Kashmir, and activities in
pursuance thereof which might not possibility be brought within the fold of the expression
„security of the State‟. It is to be noted that sedition is not mentioned Article 19(2) as one of
the grounds on which restriction on freedom of speech and expression may be imposed. But it
has been held in Devi Saren v. State,57 that Sections 124-A and 153-A of Indian Penal Code
impose reasonable restriction in the interest of public order and is saved by Article 19(2). In
Kedar Nath v. State of Bihar,58 the constitutional validity of Section 124-A, I.P.C. was
considered by the Supreme Court. The Court held that the gist of the offence of sedition is

56
Supra note 40, p. 95.
57
AIR 1954 Pat. 254.
58
AIR 1962 SC 955.

Page 18 of 22
that the words written or spoken have tendency or intention of creation public disorder and
held the section constitutionally valid.

(ii) During Emergency

Article 358 and 359 make provision for the suspension of fundamental right during
declaration of emergency. Marginal note of Article 358 is “suspension of provisions of
Article 19 during emergencies.” As soon as a Proclamation of Emergency has been issued
under Article 352 and so long as it lasts, Article 19 is suspended [subject to new clause (2)]
and the power of the legislatures as well as the executive is to that extent made wider. The
suspension of Art.19 during the pendency of the Proclamation of Emergency removes the
fetters created on the legislative and executive powers by Art.19 and if the legislature makes
laws or the executive acts which are inconsistent with the rights guaranteed by Art.19, their
validity is not open to challenge either during the continuance of the emergency or even
thereafter. As soon as the Proclamation ceases to operate, the legislative enactments passed
and the executive actions taken during the course of the said emergency shall be inoperative
to the extent to which they conflict with the rights guaranteed under Art. 19 because as soon
as the emergency is lifted, Art. 19 which was suspended by the emergency is automatically
revived and begins to operate. Art. 358, however, makes it clear that things doe or omitted to
be done during the emergency cannot be challenged even after the emergency is over. In
other words, the suspension of Art.19 is complete during the period in question and
legislative and executive actions which contravene Art.19 cannot be questioned even after the
emergency is over.59

Questions still open60 that-

(i) Article 358 suspends the restrictions on the powers of the State to make any law in
contravention of the provisions of Article 19 only during the pendency of the
Proclamation. It does not lay down that the validity of any law, which has been
made prior to the Proclamation, cannot be challenged on the ground of violating to
provisions of Article 19.
(ii) It does not preclude the court from annulling an executive act or subordinate
legislation as ultra vires, on the ground of being outside the scope of a statute, as

59
Supra note 40, p. 696.
60
Ibid, p. 697.

Page 19 of 22
 interpreted by the Supreme Court.61 In other words, the executive order immune
from attack under Article 358 is only such order as the State was competent to
make, but for the provisions contained in Article 19. Executive action which was
otherwise invalid is not immune from attack because of Article 358.

Test of Constitutional Regulations

Freedom of expression guaranteed by Article 19(1)(a) is not absolute and uncontrolled, but it
is liable to be curtailed by laws made or to be made by the State to the extent mentioned in
clause (2) of Article 19. The principle on which the power of the state to impose restriction is
based is that all individual rights of a person are held subject to such reasonable limitations
and regulations as may be necessary or expedient for the protection of the rights of others,
generally expressed as social interest.62

The restriction which may be imposed under Article 19(2) must be reasonable restrictions. In
the original Constitution the word „reasonable‟ was absent from clause (2). The Constitution
(1st Amendment) Act, 1951 inserted the word „reasonable‟ before the word „restriction‟ in
clause (2). Hence, a law restricting the exercise of right guaranteed by Article 19(1)(a) to by
constitutionally valid, must satisfy two conditions, namely-

I. The restriction must be reasonable, and

II. The restriction must be for the particular purpose mentioned in the clause permitting
the imposition of the restriction on that particular right.

It may be emphasised that the requirement that a restriction should be reasonable is of great
constitutional significance, for it acts as a limitation on the power of the legislature, and
consequently, widens the scope of judicial review of laws restraining the exercise of freedom
guaranteed by Article 19. The determination by the legislature of what constitutes a
reasonable restriction is not final or conclusive; it is subject to supervision of courts.63

The Constitution does not define the expression „reasonable restriction‟. Nor can an abstract
standard or general pattern of reasonableness be laid down for all cases and situations. The
test may vary under clause (1) from right to right restricted by the impugned law. 64 The
factors which should enter the judicial verdict are the underlying purpose of the restrictions

61
Channan v. State of Punjab, AIR 1965 Punj 74(77).
62
V. N. Shukla, Constitution of India, 11th ed.2008, Eastern Book Company, Lucknow, p.118.
63
Id, p. 119.
64
State of Madras v. V. G. Row, AIR 1952 SC 196.

Page 20 of 22
imposed, the extent and urgency of the evils sought to be remedied thereby, the disproportion
of the imposition, the prevailing conditions at the time, and the duration of the restrictions.65
The standard is an elastic one: it varies with time, space and condition and from case to
case.66

When the law contains „substantive‟ restrictions with regard to the exercise of the right, as
well as „procedural‟ provisions, the Court would consider the reasonableness of both. In
determining the substantive reasonableness, the court has to take into consideration various
factors. Even a decision as to the reasonableness of a restriction imposed on one of the rights
conferred by Article 19(1) cannot have much value as a precedent for adjudging the validity
of the restrictions imposed on another right, because the reasonableness must depend on the
cumulative effect of the varying facts and circumstances of each case. Similarly, what is
reasonable in a temporary statute may not be unreasonable as regards a permanent statute. A
law which is so vague and uncertain that it gives no notice to a person as to what act or
conduct would constitute a violation thereof, is unreasonable from the substantive point of
view.67

Procedural requirement of natural justice flows from Article 19. So principles of natural
justice are an element in considering the reasonableness of a restriction under Article 19. But
elaborate rules of natural justice may be excluded expressly or by necessary implication
where procedural provisions are made in the statute.68 Exclusion of natural justice is,
however, subject to the requirement of reasonableness in Article 1469. Absence of provision
for review makes the provisions unreasonable. Retrospectivity of a law may also be a
relevant factor although retrospectivity of a law does not make it automatically unreasonable.
Discretion vested in an administrative authority is also a relevant factor. If its exercise is
properly controlled and safeguarded, it is reasonable otherwise it is not.70

Conclusion

Over the decades there have been many more amendments to the Constitution, not all of
which have great historical significance. However, one thing is certain every period of

65
Krishnan Kakkamth v. Govt of Kerala, AIR 1997 SC 128.
66
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
67
Supra note 40, p. 87.
68
Hardhan Saha v. State of W. B., (1975) 3 SCC 198.
69
Article 14 of the Constitution of India reads as: “Equality before law.- The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.”
70
Municipal Corpn. v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20.

Page 21 of 22
 conflict in the history of India can almost be mapped alongside a history of moves to amend
the Constitution, the constitutional history during the Emergency being a classic case. The
first amendment, however, retains a significant space in this history, not merely because it
was the first amendment but because in many ways it also signalled the kinds of battles that
would take place between the projects of nation building and the sphere of the media. It
marked the rather premature end of the vision of a „seamless web‟, with the promotion of
national security and sovereignty being prioritised over the promotion of democratic
institutions.
As with any project of state imagination, the impact of the first amendment is also fraught
with contradictions and internal conflicts. While introducing the discourse of public order
into constitutional restrictions on freedom of speech and expression, it also introduced the
idea of „reasonable restriction‟, and, as Nehru rightly predicted, it proved to be the basis for
future conflicts over the media, the Constitution and state formative practices. The
contradictions that arose between the three strands of the seamless web of the Constitution
were seen as the disintegration of the whole, rather than as the inevitable process through
which fragments work their way into monumentalist imaginations. It is also perhaps well
worth looking at the crisis that precipitated the first amendment to understand our
contemporary situation. In 1950, you had a situation where Nehru had to contend with speech
and expression that were ideologically opposed to his liberal values, from that of the far left
to that of the far right. Nehru‟s response was a classical case of deferring of an exercise of a
democratic right, or democratic practice in favour of the larger interest or abstract norm of a
democratic state. Having assumed the greater common good, he could then determine, what
was desirable and undesirable speech, and proceed to act with a democratic conscience.
Rather than understanding the media as a perpetual site of politics and contestation over the
form of the nation over what constitutes the public sphere, the media was seen to be an
instrument/medium for the promotion of an assumed public interest. This perhaps also speaks
to some contemporary debates where progressive intellectuals, media practitioners, etc,
demand greater regulation against the „hate speech‟ of the right. We need to be a little
cautious in our responses to forms of speech that offend our liberal sentiments. Very often the
assumption of desirable forms of speech presumes a pre tailored relationship between media
and the properly constituted public sphere (much like the imagination of the seamless web),
and a plea to the state to rule out undesirable forms of speech abandons the site of politics and
converts it into a site of regulation that will merely heighten the crisis rather than resolve it.

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