RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

By PITTA ISAAC NEWTON, LL.M, B. Tech, PGD-HR, PGD-CL&IPR, PGD-FDR.

Email-Id: pittaisaacnewton@gmail.com, Mobile: +91 – 8179314765.

Abstract:
Part III of the Indian Constitution guarantees a person the fundamental rights and liberties
by which he can keep up his dignified life. Under Article 19(1)(a) of the Constitution,
freedom of speech and expression is given. Freedom of speech and expression is live wire
of the democracy; it is integral to the expansion and fulfillment of individual personality.
Democracy being collective will of the people, personality of individuals shapes the
society into a cohesive, well-knit and viable administrative unit. The rights conferred
under Article 19 of the Constitution are the rights of free man. These are natural law or
common law rights and not created by a statute. As such every citizen is entitled to
exercise such rights provided conditions to be imposed whenever so required by the State.
Keywords:
1. INTRODUCTION:
Freedom of speech and expression is live wire of the democracy; it is integral to the
expansion and fulfillment of individual personality. Democracy being collective will of
the people, personality of individuals shapes the society into a cohesive, well-knit and
viable administrative unit. Milton in his Areopagitica says that without this freedom
„there can be no health in the moral and intellectual life of either the individual or the
nation‟ freedom of speech and expression is more essential in a democratic set up of state
where people are the sovereign rulers. In “without freedom of speech” says Ivor Jennings,
“the appeal to reason which is the basis of democracy cannot be made” Public discussion
of political, economic and social problems being essential to the proper functioning of a
democratic government it is imperative that free society should keep the channels of
communication wide open to the free circulation of ideas and this is well achieved by the
guarantee of freedom of speech and expression.
Internal autonomy is very essence of freedom; there should not be any outside
intervention in the life of individual. An individual has to form his own opinions, thoughts
and ideas and must be entitled to express them as that alone will result in realization of
his character and potentiality as a human being. Among all creatures, man alone has been
endowed with reason, which can germinate thoughts. It is necessary condition for self-
fulfillment that he should have uninhibited right to express them. Personality can be
developed only by self-expression by the right to form one’s own beliefs and opinions. It
is privilege of every human being to use and interpret experience in his own way and act
of choosing between alternatives bring a man’s moral faculties into play. Free speech is
traffic in indispensable commodity namely ideas. There are many instruments that came
into existence at international level for laying down the standards of freedom of speech
and expression such as: Universal Declaration of Human Rights, International Covenant
on Civil and Political Rights, International Covenant on Economic, Social and Cultural
Rights, International Convention on the Elimination of All Forms of Racial
Discrimination, Convention on the Elimination of All Forms of Discrimination against
Women. There are some regional attempts made for giving encouragement to the freedom
of speech and expression as American Convention on Human Rights, Declaration on
Principles of Freedom of Expression, African Charter on Human and Peoples' Rights,
Declaration of Principles on Freedom of Expression in Africa, Amsterdam’s
Recommendations, Freedom of the Media and the Internet, and Organization for Security
and Co-operation in Europe. Right to express is not only limited to speaking but also
includes various forms, freedom of speech and expression found its place in United
Nations, Universal Declaration of Human Rights, there are various countries throughout
the world that have given the formal recognition in their Constitutions, though practice
approach to provide legal protection may differ nation to nation, such nations include:
Africa, Hon Kong, India, Japan, China, Philippines, Thailand, Australia, Europe,
Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Netherlands, Sweden,
United Kingdom, Norway, Russia, Switzerland, Turkey, Canada, United State, Brazil,
etc.
There was in British regime rise the demand for freedom of speech and expression on
various occasions as: Nehru Committee (1928), Indian National Congress Karachi
Session (1931) Round Table Conference for the discussion over the Constitutional
Reforms (1930- 32), the Government of India Act, (1935), and finally after the Indian
Independence Constitution of India incorporated Under Art. 19 (1)(a). One of the main
objectives of the Indian Constitution as envisages in the preamble, is to secure Liberty of
thought and expression to all the citizens. With the intention to give effects to objectives
mentioned in the Preamble Constitution maker have incorporated freedom of speech and
expression as fundamental rights which means it is guaranteed against state actions In
order to give effect to these objectives mentioned in the preamble by our Constitutional
framers, “freedom of speech and expression” has been guaranteed as fundamental rights
under Article 19(1)(a) available to all citizens, subject only to restrictions which may be
imposed by the State under clause (2) of that Article. Art. 19 (2) nothing in sub clause (a)
of clause (1) shall effect the operation of any existing law, or prevent the state from
making law, in so far as such law imposed reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interest of 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.
Freedom of speech considering the basic freedom by the Indian judiciary interpreted it
various facets and expand various horizons in various cases like freedom of speech and
expression under 19(1)(a) which includes freedom of press or media, right to know that
is right to information, Telecasting or Broadcasting Rights, Commercial Advertisements,
Right to Reply or Answer the Criticism against One’s Views, Right to Exhibition of Films,
Right to Fly National Flag Right to Remain Silent, etc.
2. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IN INDIA:
Chapter III of the Indian Constitution guarantee fundamental right to citizens of India, it
is treated as the Magna Charta of India. Fundamental rights which are inviolable and are
to be guaranteed to him, the principle underlying such guarantee of fundamental rights
and the necessity for securing, These rights to the people is present in all modern
Constitutions. Right to freedoms which are very basic and necessary for the development
of individuals, out of these freedoms, freedom of speech and expression is the one of them
as fundamental right incorporated in u/Art. 19 (1)(a) , before to see this provision
necessary to historical back ground of freedom of speech and expression.
3. HISTORICAL BACKGROUND:
What we see the fundamental rights today in the Indian Constitution, it has long struggle
in British regime, for the first declaration of fundamental rights arose in the year 1928 at
the all parties‟ conference in which Nehru Committee incorporated these rights in its
report. The committee stated that:
“Our first care should be to have our fundamental rights guaranteed in a manner which
will not permit their withdrawal under any circumstances.” Indian National Congress
Karachi Session held in the year 1931, in which Session it was declared that any
Constitution which might be proposed would be acceptable only, if it contained certain
fundamental rights as formulated by it.
British government organized three Round table conference for the discussion over the
Constitutional reforms in India during the 1930- 32.
Our Indian national leaders given the tress for Bill of Rights in the new Constitution Act,
the view was that to binding the administration with certain declaration of rights of
Indians. But unfortunately, the Simon Commission rejected this demand. Stating that:
“We are aware that such provisions have been inserted in many Constitutions, notably in
those of the European States formed after the war. Experience however has not shown
them to be of any practical value. Abstract declarations are useless unless there exist the
will and means to make them effective”.
India appointed joint parliamentary committee which was one type of adhoc
Parliamentary committee. Such committee agreed with the observations as to the value of
a bill of Rights and presented it as a dilemma.
“Either the declaration of Rights is of so abstract a nature that has no legal effect of any
kind, or its legal effect will be to impose an embarrassing restriction on the power of the
Legislature and to create a grave risk that a large number of laws may be declared invalid
by the Courts because of inconsistency with one or other of the rights so declared”.
In the Government of India Act, 1935, however certain concessions were made. Section
275 provided: “A person shall not be disqualified by sex for being appointed to any civil
service or civil post under the Crown in India, other than such a service or post as may be
specified by general or special order made by Governor-General or the secretary of State
for India as the case may be”.
Section 298(1) of the Act further said:
“No subject of His Majesty domiciled in India shall on ground only of religion, place of
birth, decent, color or any of them is ineligible for office under the Crown in India or be
prohibited on any such grounds from acquiring holding or disposing of property or
carrying on any occupation, trade, business or profession in British India”.
Section 299 (1) and (2) Stated: No person shall be deprived of his property in British
India, save by authority of law.
Neither the federal nor a provincial legislature shall have power to make any law
authorizing compulsory acquisition for public purposes of any land, or any commercial
or industrial undertaking or any interest in, or any company owning, any commercial or
industrial undertaking, unless the law provides for the payment of compensation for the
property acquired and either fixes the amount of compensation or specifies the principles
on which and the manner in which it is to be determined”. The Constitution assembly
adopted the objectives resolution moved, by Pandit Nehru, stating that the object of the
Constitution Assembly was to draw up a Constitution, when the occasion arose to draft
the Constitution for independent India. The people of India gave to themselves, the
Constitution of India, with a view make it Sovereign, Democratic, Socialist, secular and
Republic. In our democratic society, pride to place has been provided to freedom of
speech and expression, which is mother of all liberties.
One of the main objectives of the Indian Constitution as envisages in the preamble, is
secure LIBERTY OF THOUGHT AND EXPRESSION to all the citizens. Freedom of
expression is among the foremost of human rights. It is the system of administration;
various Constitutions make a mention of the freedom of expression. While freedom of
thought is a personal freedom. Freedom of expression is collective freedom; whose
character becomes more and more pronounced as the technical methods of their diffusion
multiply and improve.
The right of free speech is absolutely requisite for the prevention of a free society in which
government is based upon the consent of an informed citizenry and is dedicated to the
protection of the rights of all, even the most despised minorities. By inserting the
fundamental rights in the Constitution, India has consciously torn herself from the British
Tradition. British liberty was directly only against the executive to capture, and tyranny
while parliament was always held sacrosanct, above the scrutiny of the court of justice.
The American concept was the judicial supremacy making the congress subject to the
Supreme Court sphere of interpretation. The pattern adopted under the Constitution of
India is compromise between the parliamentary sovereignty of the U.K. and the judicial
supremacy of the U.S.A.
4. CONSTITUTIONAL SAFEGUARD: RIGHT TO FREEDOM OF SPEECH
AND EXPRESSION:
In the preamble, the people of India gave to themselves, the Constitution of India, with a
view to make it Sovereign, Democratic, Socialist, secular and Republic. In our democratic
society, pride to place has been provided to freedom of speech and expression, which is
mother of all liberties. One of the main objectives of the Indian Constitution as envisages
in the preamble, is secure LIBERTY OF THOUGHT AND EXPRESSION to all the
citizens. In order to give effect to this objectives mentioned in the preamble by our
Constitutional maker, “freedom of speech and expression” has been guaranteed as a
fundamental rights under Article 19(1)(a) available to all citizens, subject only to
restrictions which may be imposed by the State under clause (2) of that Article. The
relevant portion of Article 19 read as follows: Art.19. (1) All citizens shall have rights
a) To Freedom of speech and expression;
b) To assemble peaceable and without arms,
c) To form association or union,
d) To move freely throughout the territory of India,
e) To reside and settle in any part of the territory of India,
f) To acquire, hold and dispose of property
g) To practice any profession or to carry on any occupation, trade or business.
Art. 19 (2) nothing in sub clause (a) of clause (1) shall effect the operation of any existing
law, or prevent the State from making law, in so far as such law imposed reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interest of
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.
Art. 19 (1) guarantees certain fundamental rights, subject to the power of the State to
impose restrictions on the exercise of those rights. The Article was thus intended to protect
these rights against State action other than in the legitimate exercise of its power to
regulate private rights in the public interest.
Violation of the fundamental rights of one individual by another individual (without
support of State) is not within the purview of Art. 19 The scope of this guarantee has
however been defined by the limitations incorporated in clause (2) to (6) of the Art. 19.
Itself. These clauses permit the State to impose reasonable restrictions for the purpose of
any objectives mentioned therein. The Article thus consists of two parts:
(i) the declaration of rights in clause (1), comprising seven sub-Clauses,
(ii) The limitation contained in clauses (2) to (6).
The courts have to consider these questions, namely, whether the impugned law imposes
a restriction on any these rights, whether restriction imposed is for the purpose of
achieving any of the objects, mentioned in the relevant clause, and whether the restriction
is reasonable. There is no definite or positive test to adjudge the reasonableness of
restriction. Each case is to be judged on its own merit, and no abstract standard or general
pattern of reasonableness can be laid down as applicable to all cases. The impugned law
may contain substantive as well as procedural provisions and both must satisfy the test of
reasonableness. Patanjali Shastri C.J. formulated the following wing test for determining
the reasonableness of restriction: “The nature of the right alleged to have been infringed,
the underlying purpose of the restriction imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time should all enter into the judicial verdict.” Courts of India have wider
discretionary powers U/Art. 19 for determination of reasonableness of the restrictions
imposed by the State on freedom speech and expression.
4.1. Nature of the Right in General:
Certain rights to freedoms guarantee U/Art. 19. subject to the power of the State, to
impose restrictions on the exercise of those rights. The Article thus was intended to protect
these rights against State action other than in the legitimate exercise of its power to
regulate private rights in the public interest.
(i) It may be observed that Art. 19 are confined to what are known as civil rights
as distinguished from political rights.
(ii) Though the concept of natural rights is not relevant in India for ascertaining
whether these are any inviolable rights apart from those included in the
Constitution, the concept has nevertheless been utilized for determining the
 ambit of the fundamental rights themselves, for determining how far the
guarantee under Art. 19 will be available. The Supreme Court has observed
that Art. 19 refer to what are known as natural or common law rights as
distinguished from the right created by the statute. The Supreme Court has
observed that Art. 19 (1) Guarantees. “These great and basic rights which are
recognized and guaranteed as the natural rights, inherent in the status of a
citizen of a free country.”
(iii) Whatever a right is created by the statute, it can be exercised only subject to
the conditions imposed by the statute, and it can be restricted in any manner
or taken away by the legislature at any time. Fundamental rights guarantee
under the Constitution, it cannot be taken away by the legislature. It can only
be subjected to such restrictions as are permissible under the Constitution, for
example, the right to freedom of speech and expression in Art. 19 (1)(a) can
be subjected to reasonable restrictions only on any of the grounds specified in
Art. 19 (2)
(iv) The right guaranteed by Art. 19 are different from contractual rights. The right
to carry on any business or to hold property and to enter into contracts as
incidental to such rights is a fundamental right, but these rights granted by a
contract are not fundamental rights, they are protected by the ordinary law of
the land.
4.2. Nature of Limitations in General:
Unrestricted individual rights cannot exist in any modern political society. In fact, there
is no formal declaration of any fundamental rights in England. In the England prevails the
doctrine of the Sovereignty of parliament, which gives unlimited power on parliament to
abridge, modify or even abolish any of the rights of the people. The British concept does
not envisage a legal check on the power of parliament which theoretically is free to make
any law which pleases, even though it affects the basic civil rights and liberties of the
people.
In the United States, also even though the Constitutional guarantees of fundamental rights
and the limitations are permissible through various devices contrived and sanctioned by
the Supreme Court. As the U.S. Supreme court said:
“The liberty of the individual to do as pleases in innocent matters is not absolute. It must
frequently yield to the common good”.
The inherent conflict between the interests of the society and the interest of the individual
is a never-ending problem of political theory and at every stage in human history, some
workable reconciliation between these conflicting interests has to be evolved.
When law is validated as having imposed a restriction upon a freedom of speech and
expression, what the court has to examine is the substantive of the legislation, without
being attract by the mere appearance of legislation. The legislative power being subject
to the fundamental rights, the legislature cannot indirectly take away or abridge the
fundamental rights in which it cannot do directly.
On the other hand, effect of legislature is applicable for this purpose only in so for as they
are direct and unavoidable consequences or the effect which could be said to have been
in the contemplation of the legislature.
A restriction cannot be said to be a restriction within the meaning of Art. 19 unless it is
imposed by law and which the citizen has no option but to obey. Where the restraint is
self-imposed inasmuch as the operation of the law is attracted by reason of a contract
which the citizen is free to enter into his own or choice, he cannot complain of the
unreasonable of the law.
5. REASONABLENESS OF RESTRICTIONS IMPOSED ON RIGHTS TO
FREEDOMS U/A 19:
In examining the reasonableness of a statutory provision whether it is infringement of the
fundamental rights guaranteed under Art. 19, The directive principles of State policy.
Restrictions must not be inconsistent or of an uncontrolled nature so as to go beyond the
requirement of the interest of general public. In order to judge the reasonableness of the
restrictions, no conceptual or general pattern or a fixed principle can be laid down so as
to be universal application and the same will be very form case to case as also with regard
to changing conditions, values of human life, social philosophy of the Constitution,
prevalent conditions and all around circumstances. A just balance has to be struck between
the restrictions imposed and the social control anticipates by Art. 19(6). Current social
values as also needs which are intended to be satisfied by the restrictions. There must be
a direct and immediate nexus or reasonable connection between the restrictions imposed
and the object sought to be achieved. If there is a direct nexus between the restrictions,
and the object of the Act, then a strong presumption in favor the Constitutionality of the
Act will naturally arise.
As if the parliament want impose restrictions on the fundamental rights of freedom under
Article 19.as above discussed it must be on both way substantive as well as procedural
reasonableness. It means whatever law enacted by the parliament to impose restrictions
on fundamental freedoms of citizens of India such law must be reasonable and whatsoever
procedure adopted restrict the fundamental freedom Under Article 19 (1), such process
require that person must be given an opportunity of being heard in defense before his
freedoms deprived.
Article 19 (1) (a) freedom of speech and expression
Right to freedom of speech and expression under Article 19 (1)(a) means the right to
express one’s thought and opinion freely by word of mouth, writing, printing, picture, or
electronic media, or in any other manner (addressed to the eyes or the ears) it would thus
include not only the freedom of the press, but the expression of one’s ideas by any visible
demonstration, such as gestures and the like. Expression naturally presupposes a second
party to whom the ideas are expressed or communicated. In short, freedom of expression
includes the freedom of propagation of ideas, their publication and circulation and right
to answer the criticism leveled against such views, the right to acquire and import the
ideas and information about matter of common interest. It would not however, include
every concomitant right except where, in given case; it forms an integral part of the named
fundamental right. It is necessary for the operation of the democratic system and for self-
development and setting up a homogeneous egalitarian society.
5.1. Grounds of Restriction on Freedom of Speech and Expression:
Any restriction imposed upon the above fundamental right of freedoms is prima facie
unconstitutional, unless it can be legitimate under the limitation clause, i. e. Cl. (2) of the
Article 19 of the Indian Constitution. This clause authorized the State impose restrictions
upon the freedom of speech only on certain specified grounds so that, if any particular
case, the restrictive law cannot rationally` be shown to relate to any of these specified
grounds, the law must be held to be void. The right to freedom of speech and expression
cannot rise of above the national interest and the interest of the society which is another
name for the interest of general public. It is true that Article 19(2) does not use the word
“national interest,” “interest of society” or “public Interest” but the several grounds
mentioned in Clause (2) are ultimately referable to the interest of the nation and the
society. Cl. (2) of the Article 19 of the Indian Constitution as amended, enable the
legislature to impose restrictions upon the freedom of speech and expression, on the
following grounds.
1. Sovereignty and Integrity of India
This ground has been added as a ground of restriction on the freedom of expression by
the 16thAmendment of the Constitution with effect from October 1963. The object was
to enable the State to combat cries for secession and the like from organization such as
the Dravida Kazhgam in south and the plebiscite front in Jammu and Kashmir and
activities in pursuance thereof which might not possibly be brought within the fold of the
expression “Security of State”.
2. Security of the State
The security of the State meaning is the “absence of serious and aggravated form of public
disorder” as different from ordinary breaches of “public safety” or “public order” which
may not involve any danger to the State itself. So, security of the State is endangered by
crimes of violence intended to overthrow the government, levying of war and rebellion
against the government, external aggression or war, but not by minor breaches of public
order or tranquility, such as unlawful assembly, riot affray, rash driving, promoting
enmity between classes and the like. But incitement of violence crime like murder which
is an offence against “public order” may also undermine the security of the State.
3. Friendly Relations with Foreign States
The object of this exception to the freedom of speech and expression is to prevent libel
against foreign State in the interest of maintaining friendly relations with them.
4. Public Order
This ground was introduced by the Constitution (1st Amendment) Act, 1951. In order to
meet the situation arising from the Supreme Court decision in Romesh Thapper’s case,
the ordinary or local breaches of public order were no ground for restriction the freedom
of speech guaranteed by the Constitution. In the following this decision, it was held in
some cases that incitement to individual murder or promoting disaffection amongst
classes did not tend to undermine the security of the State and was not accordingly,
punishable under the Constitution. As it was to override the above judicial decisions that
the ground “public order” was inserted. The concept of “public order” must be
distinguished from the popular concept of “law and order” and of “security of State”.
They refer to three concentric circles. In “Law and Order” represent the largest circle
within which is the next circle representing public order and the smallest circle represents
security of the State. Hence, an activity which affects law and order may not necessary
affect public order, and activity which may be prejudicial to public order may not
necessary affect security of State. Absence of public order is an aggravated form of
disturbance of public peace, which affects the general current of public life and any act
which merely affect the security of others may not constitute a breach of public order.
5. Decency or Morality
This exception has been engrafted for the purpose of restricting speeches and publications
which tend to undermine public morals. Where decency or morality is not confined to
sexual morality alone and decency indicates that the action must be in conformity with
the current standard of behavior or propriety.
6. Contempt of Court
In the exercise of one ‘s right of freedom of speech and expression, nobody can be allowed
to interfere with due course of justice or to lower the reputation or authority of the court.
But in the contempt jurisdiction should not be used by judge to uphold their own dignity.
In the free marketplace of ideas criticism about the judicial system or the Judges should
be welcomed, so long as criticisms do not impair or hamper the “administration of
justice”.
7. Defamation
Just as every person possesses the freedom of speech and expression, every person also
possesses a right to his reputation which is regarded a property. Hence nobody can so use
his freedom of speech or expression as to injure another’s reputation. Laws penalizing
defamation do not, thereof, constitute infringement of the freedom of speech.

8. Incitement to an Offence.
This ground will permit legislation not only punish or prevent incitement to commit
serious offences like murder which lead to breach of public order, but also commit any
offence, which as according to the General Clauses Act, means any act or omission made
punishable by any law for the time being in force. Hence, as it is not permissible to
instigate another to do any act which is prohibited and penalized by any law. But mere
instigation does not to pay a tax or may not necessarily constitute incitement to an offence.
5.2. Expanding horizons of freedom of Speech and Expression:
Government has not monopoly on electronic media. The Supreme Court of India widened
the scope and extent of the right to freedom of speech and expression, and held that the
government has not 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 also radio any important event. The government can impose restrictions on
such a right only on grounds specified in clause (2) of Art. 19 and no other ground. A
citizen has fundamental right to use the best means of imparting and receiving
communication and as such have access to telecasting for the purpose.
6. CONCLUSION:
Right to freedom of speech and expression is the human rights which is guaranteed in the
almost all the written Constitutions of the democratic countries which include freedom of
press also. It is essential for the development of one’s own individuality and for the
success of parliamentary democracy. It is said that, the right to free expression is not only
the right of an individual but rather a right of the society to hear and be informed in a
democracy. The right to freedom of speech and expression is closely related to other
rights, and may be restricted when conflicting with other rights, to privacy, fair trial as
well as the honor and reputation of others. Right to freedom of speech and expression is
one of the most necessary fundamental rights. It includes circulating one’s views by words
or in writing or through audio-visual instrumentalities, advertisements or through any
other communication means. It also content of right to information, freedom of press etc.
Thus, this fundamental right has an extensive scope.