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REASONABLE RESTRICTIONS UNDER ARTICLE 19

Submitted by
A.MANISH KUMAR
Reg. No. BA0150025

Under the Guidance of

Ms. NIKITA PATTAJOSHI


Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL


(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu 620 009
SEPTEMBER 2016

Ms. NIKITA PATTAJOSHI

Assistant Professor in law


Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

CERTIFICATE
This is to certify that the project work entitled REASONABLE

RESTRICTIONS UNDER ARTICLE 19 is a bonafide record of the research


work done by A.MANISH KUMAR, under my supervision and guidance. It has not
been submitted by any other University for the award of any degree, diploma,
associate ship, fellowship or for any other similar recognition.

Place: Tiruchirappalli
Date:
Signature of the Guide

A.MANISH KUMAR
Reg. No. BA0150025
II B.A, LLB. (Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

DECLARATION
I, A.MANISH KUMAR, do hereby declare that the project entitled
REASONABLE RESTRICTIONS UNDER ARTICLE 19 submitted to
Tamil Nadu National Law School in partial fulfilment of requirement for award
of degree in Under Graduate in Law to Tamil Nadu National Law School,
Tiruchirappalli, is my original research work. It and has not been formed basis
for award of any degree or diploma or fellowship or any other title to any other
candidate of any university.
Counter Signed
Project Guide

Signature of the Candidate

ACKNOWLEDGEMENT
At the outset, I take this opportunity to thank my ProfessorMs. Nikita
Pattajoshi., from the bottom of my heart who have been of immense help during
moments of anxiety and torpidity while the project was taking its crucial shape.
Secondly, I convey my deepest regards to the Vice Chancellor Arun Roy IAS
and the administrative staff of TNNLS who held the project in high esteem by
providing reliable information in the form of library infrastructure and database
connections in times of need.
Thirdly, the contribution made by my parents and friends by foregoing their
precious time is unforgettable and highly solicited. Their valuable advice and timely
supervision paved the way for the successful completion of this project.
Finally, I thank the Almighty who gave me the courage and stamina to confront
all hurdles during the making of this project. Words arent sufficient to acknowledge
the tremendous contributions of various people involved in this project, as I know
Words are Poor Comforters. I once again wholeheartedly and earnestly thank all the
people who were involved directly or indirectly during this project making which
helped me to come out with flying colours.
A.MANISH KUMAR

TABLE OF CASES

A.K. Gopalan vs The State Of Madras.Union Of ... on 19 May, 1950


Association for Democratic Reforms Case
Babulal Parate v. State of Maharashtra
Brij Bhusan Vs State of Delhi (1950)
Damyanti Narang Vs Union of India
Excel wear Vs Union of India (1979 SC 25)
Express newspaper Vs Union of India (1986)
Hamdard Dawakhana Vs Union of India
Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors
Harshaker Vs Deputy Excuse & Taxation commissioner AIR 1975 SC
1121
Himat lal Vs Police commission case
Indian express newspaper Vs Union of India AIR 1962 SC 305
Indian express newspaper Vs UOI the court held that (AIR 1986 SC 515)
Indian Express Newspapers pvt ltd Vs union of India (1985
Indirect Tax Practitioners Assn. Vs R.K. Jain
K. Krishnamurthi Vs Union of India
K.A. Abbas Vs Union of India
Kharak Singh Vs The State of U. P. & Others on 18 December, 1962
New York Time Vs Sullivan 376 US 254.
Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police.(1973)
Railway Board Vs Niranjan Singh AIR (1969) SC 966)
Rangarajan Vs P. Jagjivan Ram (1989)2 SCC 574
Romesh Thaper Vs State of Madras AIR 1950 SC
S.M. Kala Vs University of Rajasthan
Sakal papers Vs Union of India AIR 1986
Sitaramacharya v. Dy, Inspector of School
State of madras Vs V.G Row
T.M.A Pai foundation Vs State of Karnataka (AIR 2003 SC 355)
TATA Press ltd Vs MTNL(AIR 1995 SC 2438),
Unni Krishnan Vs State of A.P. (AIR 1993 SC 2178
Vishakha Vs state of Rajasthan (AIR 1997 SC 3011)
Shyam Bihari Tiwari Vs State of U.P. (1994)

CONSTITUTION OF INDIA:

A constitution is a set of fundamental principles or established precedents according to which


a state or other organization is governed.[1] These rules together make up, i.e. constitute, what
the entity is. When these principles are written down into a single document or set of legal
documents, those documents may be said to embody a written constitution; if they are written
down in a single comprehensive document, it is said to embody a codified constitution.
The Constitution of India is the longest written constitution of any sovereign country in the
world, containing 444 articles in 22 parts, 12 schedules and 118 amendments, with 146,385
words in its English-language version, while the Constitution of Monaco is the shortest
written constitution, containing 10 chapters with 97 articles, and a total of 3,814 words.
ARTICLE 19 IN THE CONSTITUTION OF INDIA 1949:
19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) To freedom of speech and expression;
(b) To assemble peaceably and without arms;
(c) To form associations or unions;
(d) To move freely throughout the territory of India;
(e) To reside and settle in any part of the territory of India; and
(f) Omitted
(g) To practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the sovereignty and integrity of India or public order, reasonable restrictions on the exercise
of the right conferred by the said sub clause

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the sovereignty and integrity of India or public order or morality, reasonable restrictions on
the exercise of the right conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses
either in the interests of the general public or for the protection of the interests of any
Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by the said
sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise
FREEDOMS NOT ABSOLUTE SUBJECT TO REASONABLE RESTRICTIONS
Reasonable restriction means intelligent care and discussion that the restriction is not beyond
what is required for public interest. It should not be arbitrary and excessive. Further, the
restriction can only be imposed by law and not by executive or departmental decision.
Test of reasonable restrictions -Spanning several cases, SC has laid down the following
guidelines :
1. It is the courts and not the legislature that will decide whether a law is reasonable or
not.

2. Reasonable means that the law is not arbitrary and the restriction is not beyond what
is required in public interest. The time and duration of the restriction cannot be
unlimited.
3. There is no fixed standard for reasonableness. Each case must be decided on its own
merits.
4. The restriction must be reasonable from substantiative as well as procedural stand
point.
5. Restrictions imposed due to implementation of Directive Principles may deemed to be
reasonable.
6. The test of reasonability must be objective in the sense that it does not matter what a
Judge or Court thinks what is reasonable but what a normal reasonable person would
think.
7. The restriction must have a relation to the object that is sought through the law and
must not be excessive.
8. It is the reasonableness of the restriction that a count has to determine and not the
reasonableness of the law itself.
9. Restriction may amount to prohibition.
FREEDOM OF SPEECH AND EXPRESSION
ARTICLES 19(1) (A) & 19(2)
Meaning and scope
Article 19(1) (a) of Indian Constitution says that all citizens have the right to freedom of
speech and expressionFreedom of speech and expression is the most basic of all freedoms
granted to the citizens of India. J Patanjali Shastri has said in the case of Romesh Thaper Vs
State of Madras1 that freedom of speech and that of the press lay at the foundation of a
democratic society, for without free political discussions, no public education is possible,
1 AIR 1950 SC 124

which is so important for the proper functioning of the govt. 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. Freedom of speech would amount to nothing if it were not possible to propagate the
ideas. Thus, the freedom of publication and press is also covered under freedom of speech.
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)
2)
3)
4)

It helps an individual to attain self-fulfillment.


It assists in the discovery of truth.
It strengthens the capacity of an individual in participating in decision-making.
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 audio-visual 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 vibrant functioning of a
democracy. Therefore, in any setup more so in a democratic setup like ours, dissemination 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 purveyors 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.
The freedom of speech and expression can be studied under two heads:
1) Freedom of press
2) Right to information
FREEDOM OF PRESS IN DEMOCRACY It is the primary duty of all the national
courts to uphold the freedom of the press and invalidate all laws and administrative actions
which interfere with such freedoms against constitutional mandate, observed the Supreme
Court in Indian express newspaper Vs Union of India 2, While highlighting the importance
of the freedom of the press in a democracy. To arrest the malpractices of interfering with the
free flow of information, the democratic constitution all over the world provided guarantee of
freedom of speech and expression underlying the circumstances under which restrictions are
imposed.
Freedom of press in India and U.S.A there is no provision in the constitution of India
providing guarantee for the freedom of the press but the Supreme Court in Sakal papers Vs
Union of India3 widely interpreted the scope of art. 19(1)(a) to include within its fold the
freedom of the press which is regarded as a species of which freedom of expression is a
genus. Thus in India the freedom of press flows from the freedom of speech and expression
and enjoy no higher privilege than the freedom of speech and expression.
But the first amendment to the constitution of the USA protected the freedom of the press and
in the USA the press functions as a watch-dog overseeing generally the functions of the
2 AIR 1962 SC 305
3 AIR 1986

executive, legislature and the judiciary and to criticize the abuse of the power by the
governmental agencies, New York Time Vs Sullivan 376 US 254.
Freedom of Circulation the Indian Constitution does not use the expression freedom of
press in art 19 but it is included in one of guarantees in art 19(1)(a) of the constitution.
Justice Venkataramiah in Indian Express Newspapers pvt ltd Vs union of India 4(1985)
observed that the freedom of press is one of the items around which the greatest and betterest
of constitutional struggles have been waged an all countries where liberal constitution
prevails.
The effect of art 29 on the freedom of press was analysed by the apex court in Express
newspaper Vs Union of India5 ( where two earlier decisions of the court in Romesh Thaper
Vs state of Madras, and Brij Bhusan Vs State of Delhi 6 where the government tried to put
a ban on the circulation of newspaper, . The court while interpreting the scope of art 19(1)(a)
of the constitution held that the freedom of speech and expression includes freedom of
propagation of ideas which freedom was ensured by the freedom of circulation and that the
liberty of press consisted in allowing to previous restraint upon the publication. It was further
observed that the fundamental freedom of speech and expression enshrined in our
constitution was based on the provision to the First Amendment of the constitution of USA.
Also there would be violation of the liberty of press not only when there is a direct ban on the
circulation of a publication, but also when some action on the part of the government
adversely affects the publication.
Right to Privacy publication of autobiography of a condemned prisoner-prior
restraint-the question concerning the freedom of press vis a vis the right of the citizen and
the scope of prior restraint by the government and the parameters of the right of the press to
criticize was considered by the Supreme Court in S. Rangarajan Vs P. Jagjivan Ram 7. the
Facts of the case were that the petitioners who were the publishers of a Tamil weekly
magazine approached the Supreme Court to restrain the government from interfering with
their right of publication of the autobiography of the condemned person Auto Sankar. The
4 AIR1985
5 AIR 1986
6 AIR 1950
7 AIR 1989 SCC 574

Supreme Court Held that the government or their officials have no right to impose prior
restraint upon the publication on the apprehension that they may be defamed. The Court
reasoned that right to privacy is implicit in the right to life and liberty guaranteed under art
21 of the constitution. It is a right to be let alone. A citizen has a right to safeguard privacy of
his own, his family, marriage, procreation, motherhood, child bearing and education amongst
other matters and none can publish anything without his consent. But once the matter
becomes part of public record including the courts record, the publication of the same would
not violate the right the right to privacy and it becomes a legitimate subject for comments by
the press and media.
However, in the interest of decency an exception must be carved out to this rule.
Right of press - interview and photograph of under-trial prisoners- conditions- the press
is entitled to exercise the freedom of speech and expression by publishing a matter which
does not invade the rights of other citizens and which does not violate the sovereignty and
integrity of India, the security of state, public order, decency and morality. The press must
obtain the willingness of person sought to be interviewed and so-called right of press which is
obtained on the basis of the permission would be subjected to prohibitions from Jail Manual.
Should the journalist reveal its source-the Press Council Act,1978 provides that it should
not force a journalist to reveal its source. But the Delhi High Court in a case against The
Pioneer said that if the court considered necessary in the interest of justice, the court could
direct the journalist to disclose its source of information.
RIGHT TO INFORMATION
Freedom of speech right of voters, antecedents of candidates:- the foundation of a
healthy democracy is to have well-informed citizens-voters. The reason to have right of
information with regard to the antecedents of the candidate is that voter can judge and decide
in whose favour he should cast his vote. It is voters discretion whether to vote in favour of
an illiterate or literate candidate. It is his choice whether to elect a candidate against whom
criminal cases, for serious or non-serious charges were filed but is acquitted or discharged.
For the first time the right to know about the candidate standing for election has been brought
within the sweep of article 19(1) (a). There is no doubt that by doing so a new a new
dimension has been given dictated by the need to improve and refine the political process of
election.

The Supreme Court in Association for Democratic Reforms Case8 has Held that article
19(1) (a) which provides for freedom of speech and expression would cover in its fold right
of the voter to know specified antecedents of a candidate , who is contesting elections.
Also in K. Krishnamurthi Vs Union of India9 the nature of Right to vote and contest
elections -was Held that it does not have the status of fundamental rights - They are in the
nature of legal rights which can be controlled through legislative means - Constitution
empowers the Election Commission to prepare electoral rolls for identifying the eligible
voters in elections for Lok Sabha and Vidhan Sabha - Right to vote is not an inherent right
and cannot be claimed in an abstract sense -1951 Act includes grounds that render persons
ineligible from contesting elections. Thus, there is no inherent right to contest elections since
there are explicit legislative controls over the same - Representation of the People Act, 1951.
Thus it is a statutory right.
COMMERCIAL ADVERTISEMENTS- INCLUDED
In Hamdard Dawakhana Vs Union of India10, it was held that commercial advertisements
were not included within the concept of freedom of speech and expression.
In Indian express newspaper Vs UOI

11

the court held that all commercial advertisements

could not denied the protection of art 19(1)(a), merely because they were issued by a
businessmen.
Thus explaining the effect of the combined reading of both the above cases the Supreme
Court in TATA Press ltd Vs MTNL12 Held that commercial speech could not be denied the
protection of art 19(1)(a), merely because they were issued by businessmen. In a democratic
society it was observed that free flow of commercial information was indispensible.
Pre- censorship of films K.A. Abbas Vs Union of India13
8 AIR 2002 SC 2112
9 AIR 2010,VOL 7, SCC 202
10 1960
11 AIR 1986 SC 515
12 AIR 1995 SC 2438
13 AIR 1971

Facts - The petitioner made a documentary film called "A Tale of Four Cities" which
attempted to portray the contrast between the life of the rich and the poor in the four principal
cities of the- country. The film included certain shots of the red light district in Bombay.
Although the petitioner applied to the Board of Film Censors for a `U' Certificate for
unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted
to adults. On an appeal made to it by the petitioner, the Central Government issued a
direction on July 3, 1969 that a `u' Certificate may be granted provided certain specified cuts
were made in the film. The petitioner thereafter field the present petition seeking a
declaration that the provisions of Part 11 of the Cinematograph Act, 1952, together with the
rules prescribed by the Central Government on February 6, 1960 in the exercise of its powers
under s. 5-B of the Act were un- constitutional and void; he further prayed that the direction
dated July 3, 1969 should be quashed. The petitioner claimed that his fundamental tight of
free speech and expression was denied by the order of the Central Government and that he
was entitled to a 'U' Certificate for the film as of right.
Held - (i) Censorship of films including prior restraint is justified under the Constitution.
It has been almost universally recognised that the treatment of motion, pictures must be
different from that of other forms of art and expression. The motion picture is able to stir up
emotions more deeply than any other product of art. Its effect particularly on children and
adolescents is very great since their immaturity makes them more willingly suspend their
disbelief than mature men and women. They also remember the action in the picture and try
to emulate or/ imitate what they have seen. Therefore, classification of films into two
categories of 'U' films and 'A' films is a reasonable classification. It is also for this reason that
motion picture must be regarded differently from other forms of speech and expression. A
person reading a book or other writing or hearing a speech or viewing a painting or sculpture
is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on
a different footing is also a valid classification.

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
ofi 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: Under Article 19(2) reasonable restrictions can be imposed on fredom
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 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. 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 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
been titled 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.' 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. Jain14, 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. Also in a recent judgement in a case
Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors. 15
Facts of case -In a Souvenir published by a literary group/Association of lawyers practicing
in Supreme Court, various messages, articles, poems etc. were contributed by members of the
Bar and the Hon'ble Judges. Respondent, a Senior Advocate also sent a message to be
published in the Souvenir, which expressed concern about the plight of junior members of the
Bar and about the falling standards of legal fraternity. The message was neither released to
the press, nor was the Souvenir made available for sale. It was circulated only to its members
and other members of the Bar. Thereafter, when respondent No. 1 filed his nomination for
contesting the post of President of Supreme Court Bar Association, a news item was
published in the Sunday, Times of India daily wherein certain excerpts of the message were
reported, which suggested that the senior advocate made frontal attack on the judiciary.
Petitioner, the practicing lawyers of Punjab and Haryana High Court filed criminal contempt
of court under Article 215 of the Constitution of India against the three respondents alleging
that one respondent entered into a conspiracy with other two respondents to bring
administration of justice into disrespect which amounted to deliberate interference in the
administration of justice.
Held -Any criticism about the judicial

system

or

the judges which

hampers the

administration of justice or brings administration of justice into ridicule must be prevented.


The contempt of court proceedings arise out of that attempt. National interest requires that all
criticisms of the judiciary must be strictly rational and sober and proceed from the highest
motives without being coloured by any partisan spirit or tactics. There is no manner of doubt
that freedom of expression as contemplated by Article 19(1)(a) of the Constitution is
available to the Press and to criticize a judgment fairly albeit fiercely is no crime but a
necessary right. A fair and reasonable criticism of a judgment which is a public document or
which is a public act of a Judge concerned with administration of justice would not constitute
14 2010 VOL 8 SCC 281
15 AIR 2010

contempt. In fact, such fair and reasonable criticism must be encouraged because after all no
one, much less Judges, can claim infallibility. The Message examined the evils prevailing in
the judicial system and was written with an object to achieve maintenance of purity in the
administration of justice.

6) Defamation: 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
anything 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.

9) Sedition: As understood by English law, sedition embraces all those practices whether by
words, or writing which are calculated to disturb the tranquillity 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 audio-visual 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.
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.

CRITICAL ANALYSIS:
Speech is the gods gift to mankind and the basic element for the substance of human race.
Speech is the form of expression by virtue of which the bare requirement of communication
is fulfilled and it is therefore, a basic human right. Every person must have a right to express
his thoughts, feelings, opinions, ideas etc. in any form without interference to seek, receive or
impart information through any medium of communication.
In modern time, it is widely accepted that the right to free speech is the essence of free
society and it is must be safeguarded at all time. The first principle of the 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 of the state.
The source of such right can be traced back to the Indian constitution, 1950 which mandates
such right as fundamental in its existence. Meaning thereby, article 19(1) (a), under part 3 of
the Indian constitution inscribes such right as a fundamental right which forms the basic
structure of the constitution. It thus, includes the expression of ones idea through any
communicable medium or visual representation such as gestures, signs, symbols and the like.

BIBLIOGRAPHY

2.
3.
4.
5.
6.

Prof. Jain M.P, Indian constitutional law, 5th edition, Wadhwa and company
Nagpur publishers, New Delhi.
Prof. Narender Kumar, Constitutional Law of India, 7th edition, Allahabad
Law agency, Haryana.
Prof. M.C. Kagzi, The Constitution of India, 6th edition, Vol-2, India Law
House, New Delhi.
The Constitution of India- Bare Act, universal law publishers, New Delhi.
Datar P Arvind, Commentry on the Constitution of India, vol-1, 2nd edition,
wadhwa and company , Nagpur law publishers.
De DJ, the Constitution of India, vol-1, 3rd edition, Asia law house,
Hyderabad.

WEBSITES REFERRED:
1. www.indiankanoon.org
2. www.supremecourtofindia.nic.in
3. www.legalhelpindia.com