DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P, INDIA

Project Title
“Freedom of Speech (and its Restriction) in India”

Subject
Jurisprudence

Faculty
Mr. Arvindnath Tripathi

Name of the Candidate: Anjali Gurumoorthy

Roll No: 2018012

Semester: 3rd

1
sTABLE OF CONTENTS
ACKNOWLEDGEMENT................................................................................................................. 3
INTRODUCTION ............................................................................................................................. 4
IMPORTANCE OF FREEDOM OF SPEECH AND EXPRESSION .............................................. 5
THE CONSTITUENT ASSEMBLY DEBATE.......................................................................................... 7
CONSTITUTIONAL PROTECTION OF “FREEDOM OF SPEECH AND EXPRESSION” ........ 8
POSITION IN INDIA: ...................................................................................................................... 9
SCOPE OF “FREEDOM OF SPEECH AND EXPRESSION” ...................................................... 11
CONSTITUTIONAL REGULATION OF FREEDOM OF EXPRESSION ............................................ 18
(I) DURING NORMAL TIMES: REASONABLE RESTRICTIONS ..................................................... 18
(II) DURING EMERGENCY..................................................................................................... 22
QUESTIONS STILL OPEN THAT- .............................................................................................. 23
CONCLUSION ............................................................................................................................... 24

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 Acknowledgement

I want t0 express my special thanks t0 my Mr. Arvindnath Tripathi, wh0 gave me this g0lden
0pp0rtunity t0 d0 this w0nderful pr0ject 0n the t0pic ‘Freedom of Speech (and its Restriction)
in India’, which als0 helped me in d0ing a l0t 0f research and I came t0 kn0w ab0ut a l0t 0f
things.

Sec0ndly, I als0 thank DSNLU f0r pr0viding me with all the necessary materials required f0r the
c0mpleti0n 0f the pr0ject.

Anjali Gurumoorthy
3rd Semester

Regd. No.-2018012

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 Introduction
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 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.
1
Lowell v. Griffin, (1939) 303 US 444.
2
Soli. J. Sorabjee, “Freedom of Expression in India”, Law and Justice, 47 (1996), p. 3.
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.

4
 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 researcher 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
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

5
Chintamani Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
6
M. P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, 6 th edn., 2012, p. 1078.

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 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. observed:
“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.” 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.

7
Srinivas v. State of Madras, AIR 1931 Mad 70.
8
J. N. Pandey, The Constitutional Law of India, Central Law Agency, 47th edn., 2010, p. 183
9
AIR 1950 SC 124.
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

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 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 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

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

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 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 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.

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; as retrieved
on 08.10.2019.

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 (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
thehuman 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

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

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 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.

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 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 recognizes 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.

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

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 „right to know‟ 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

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

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 electronic media 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 of 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

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

13
 includes also pamphlets and circulars and every sort of publications which affords a vehicle
of 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
an essential part of the freedom of the speech and expression declared by Article
19(1)(a).”

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.

14
 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 Bennett 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

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.

15
 “Freedom 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

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

16
 citizens to conduct public meetings cannot be curtailed except on definite reasons and not
on mere 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.

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

17
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),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,

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

18
 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.

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 tranquility 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

48
Ibid, p.93.
49
Santosh Singh v. Delhi Administration, AIR 1973 SC 1093.
50
Supra note 8.

19
 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.

“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

51
AIR 1973 SC 1794.
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.

20
 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.

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

54
AIR 1965 SC 881.
55
1990 Cr. L.J. 542.
56
Supra note 40, p. 95.

21
 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 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

57
AIR 1954 Pat. 254.
58
AIR 1962 SC 955.
59
Supra note 40, p. 696.

22
 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 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.

60
Ibid, p. 697.
61
Channan v. State of Punjab, AIR 1965 Punj 74(77).

23
 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
ofconflict 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

24
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.

25