ACKNOWLEDGEMENT

Primarily, I would like to thank God almighty for being able to complete this project with
success.

I extend my heartfelt appreciation to my esteemed Assistant Professor Dr. Lavalesh Singh

for his guidance and suggestions in completing this project. The completion of this project
was possible under his guidance and support.

I would also like to acknowledge my sincere gratitude to principal Mr. Anand Shankar Singh
and convener Dr. Manoj Kumar Dubey for providing me with all the facilities that were
required to complete my assignment.

At last but not the least, I am very thankful to my parents and my friends who have boosted
me up morally with their continuous support.
 INDEX

S. No. Table of contents Page No.

1. Cases List

2. Introduction

3. Freedom of speech and expression

4. Origin of freedom of speech and expression

5. Meaning and Scope

6. Element of freedom of speech and expression

7. Territorial extents of freedom of speech and expression

8. Freedom of speech and expression: A multifaceted Right

9. Freedom of Press

10. Grounds of Restrictions

11. Conclusion

12. Bibliography
FREEDOM OF SPEECH AND EXPRESSION

INTRODUCTION

Everyone has the right to freedom of opinion and expression; the right includes the freedom
to hold opinions without interference and to seek and receive and impart information and
ideas through any media and regardless of frontiers. It can be either orally or in the form of
writing, print, art or through any other media of their choice are included in the right to
freedom of speech and expression.
“Democracy is based essentially on free debate and open discussion, for that is the only
corrective of government action in a democratic setup. If democracy means the government
of the people by the people, it is obvious that every citizen must be entitled to participate in
the democratic process and in order to enable him to intelligently exercise his rights of
making a choice, free & general discussion of public matters is absolutely essential.”1
Freedom of speech is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of 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 word of mouth, writing, printing,
pictures or any other mode.
Freedom of speech and expression is a fundamental right guaranteed by the Constitution of
India under Article 19(1)(a). It allows citizens the liberty to express their thoughts, ideas, and
opinions without fear of censorship or retaliation from the government or other authorities.
This right is essential for the functioning of a democratic society and plays a crucial role in
facilitating public discourse, promoting social change, and holding those in power
accountable.
In India, freedom of speech and expression is not only protected by the Constitution but also
by various statutes, including the Right to Information Act, 2005, and the Press Council Act,
1978. Additionally, the Supreme Court of India has played a significant role in interpreting
and expanding the scope of this fundamental right through various landmark judgments.

1
Rajagopal v. State of Tamil Nadu,1995 AIR 264.
FREEDOM OF SPEECH AND EXPRESSION (Article 19 (1) (a) and 19 (2)
)

Article 19(1)(a) of the Indian Constitution guarantees all citizens the fundamental right of
freedom of speech and expression. Some key points regarding this right are:
It includes the right to express views and opinions through various means. Citizens have the
freedom to impart and receive information through any media. The freedom of the press is an
essential part of this. It ensures the dissemination of information and opinions widely.
Freedom of speech and expression is indispensable in a democracy in Romesh Thapar v.
State of Madras2 Patanjali Sastri, rightly observed that - “Freedom of Speech and of the
Press lay at the foundation of all democratic organisations, for without free political
discussions no public education, so essential for the proper functioning of the process of
popular Government, is possible”3.
This right also implies the freedom not to speak. No one can be forced to speak or express
opinions against their will.
Freedom of speech is a fundamental right, but it is subject to reasonable restrictions under
Article 19(2). This is for the sake of sovereignty, public order, decency, etc.
The SC has held that freedom of speech includes the right to take part in sports, hoist the
national flag, and access information.Social media platforms are also covered under this
right. However, hate speech and other unlawful content is not allowed. Restrictions are
imposed on certain forms of expression. This includes obscenity, defamation, and contempt
of court.

2
AIR 1950 SC 124
3
Pandey J.N. Constitutional law - 60th edition 2023 page no.218
 ORIGIN OF FREEDOM OF SPEECH AND EXPRESSION

The concept of free speech and expression as a fundamental right has a rich historical
background.
●​ It can be traced back to significant documents, including the English Bill of Rights
(1689).
●​ It is also enshrined in the French Declaration of the Rights of Man and of the Citizen
(1789).
●​ Furthermore, the United Nations' Universal Declaration of Human Rights (1948)
recognizes it as an inalienable right.
●​ The French Declaration's Article 11 emphasises the value of the free exchange of
ideas and opinions, allowing citizens to speak, write, and publish freely.
●​ The UDHR's Article 19 acknowledges freedom of expression and opinion as a
fundamental human right.
●​ The International Covenant on Civil and Political Rights also upholds freedom of
speech.
●​ In India, the constitution's Article 19(1)(a) guarantees all citizens freedom of speech
and expression.
●​ The preamble highlights the objective of providing liberty of thought and expression.
Therefore, this freedom is subject to "reasonable restrictions" under Article 19(2) for reasons
like sovereign integrity and public order.
Free speech's essence lies in the ability to think, speak, and access information without
fearing government repercussions.
It empowers citizens to question the government, critique policies, and hold those in power
accountable.
Ultimately, this strengthens democracy by fostering open public discourse.
 MEANING AND SCOPE

Freedom of speech and expression means the right to express one's own conviction 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 communication medium or visible
representation, such as, gesture, signs and the like.4
The expression also connotes publication and thus the freedom of the Press is included in this
category. Free propagation of ideas is the necessary objective and this may be done on the
platform or through the press. The freedom of 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.5
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 the Press.
Freedom of expression serves several purposes:
●​ It helps individuals achieve self-fulfilment.
●​ It aids the pursuit of truth and knowledge.
●​ It improves people's ability to make informed decisions.
●​ It creates a balance between stability and societal change.
●​ All members of society are free to form and share their own beliefs.
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 concerning newspaper
industry than while levying taxes on other matters.6
In Prabhu Dutt v. Union of India, the Supreme Court has held that the right to know news
and information regarding administration of the government is included in the freedom of
Press. But this right is not absolute and restriction can be imposed on it in the interest of
society and individuals from which place obtained information.7

4
Lowell v. Griffin, (1938) 303 US 444
5
Pandey J.N. Constitutional law - 60th edition 2023 page no.218
6
Indian Express Newspaper v. Union of India (1985) 1 SCC 641.
7
AIR 1982 SC 6.
 ELEMENTS OF FREEDOM OF SPEECH AND EXPRESSION

These are the following essential elements of the freedom of Speech and Expression:

●​ This right is solely available to a citizen of India and not to persons belonging to
other nations i.e. foreign nationals.

●​ The freedom of speech under Article 19(1)(a) includes the right to express one’s
views and opinions about any kind of issue and it can be done through any kind of
medium, such as by words of mouth, by writing, by printing, through picturisation or
through a movie.

●​ This right is not absolute as it allows the Government of India to frame laws which
can impose reasonable restrictions in the cases which are involved with the
sovereignty and integrity of India or the security of the state, or friendly relations with
foreign nations, even public order, decency and morality and contempt of court,
defamation and incitement to an offence.

●​ Such a restriction on the freedom of speech of any citizen may be imposed as much
by an action of the State as by its inaction. Thus, if failure is found on the part of the
State to guarantee to all its citizens the fundamental right to freedom of speech and
expression would also constitute a violation of Article 19(1)(a).

TERRITORIAL EXTENTS OF FREEDOM

In the landmark judgement of Maneka Gandhi v. Union of India8 the supreme court held
that the freedom of speech and expression has no geographical limitation and it carries with it
the right of citizens to gather information and to exchange thoughts with others not only in
India but abroad also.

8
AIR 1978 SC 597
FREEDOM OF SPEECH AND EXPRESSION: A MULTIFACETED
RIGHT

Right to vote :

In Union of India v. Association for Democratic Reforms,9 the Supreme Court observed
that, “one sided information, disinformation, mis information and non information all equally
created an uninformed citizenry which makes democracy a farce. freedom of speech and
expression includes the right to impart and receive information which includes the voters'
right to know about their candidate and also freedom to hold opinions”.

In Resurgence India v. Election Commission10 of India, the Supreme Court recognises the
“right to know” as a fundamental right under Article 19(1) (a). The Court held that the
candidate who has filed an affidavit with false information as well as the candidate who has
filed an affidavit with particulars left blank cannot be treated at par. If so done it will result in
breach of fundamental right guaranteed under Article 19(1) (a) of the Constitution, i.e. ‘right
to know’ which is included 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.

Denial to interview condemned prisoners:

In M. Hasan v. Government of A.P,11 The jail authorities did not give permission to
journalists and videographers to interview the prisoners in jail who had been sentenced to
death. the reason given by the jail authority for refusal were- (a) it will give opportunity to
public to campaign for reducing their sentence (b) second it may lower the position of the
court (c) the prisoner had not express their desire for interview and for (d) it cannot be allow
for safety and security reason.
The court held - The refusal to give permission amounts to deprivation of a citizen’s
fundamental rights of freedom of speech and expression. Every citizen has right to propagate
his ideas and views on many aspects of prisoners’ life through available media without any
fear or favour as long as they stand the test of reasonable restrictions. These restrictions are
not mentioned in Article 19(2) of the constitution. A film movie, television or videography
are modes of communicating the views and ideas as such refusal to interview the willing
condemned prisoner is illegal and unconstitutional.

Interview of under trial prisoners:

9
AIR 2002 SC 2112
10
AIR 2014 SC 637
11
AIR 1998 SC 1379
In State v. Charita,12 the Supreme Court held- The press doesn't have an unfettered right to
interview and under trial prisoners in jail. where the trial of the accused was painding before
the Additional session judge he had authority to grant permission to press to interview the
under trial inside the jail. However, the permission to the press to interview and under - trial
cannot be granted mechanically without application of mind. The Court; while granting
permission, will have to weigh the competing interest between the right of the press and right
of the authorities prohibiting such interviews in the interest of administration of justice. The
permission granted by Court would be subjected to relevant rules and regulation contained in
the jail manual.

Right to Circulate

The right to freedom of speech and expression has been held to include the right to circulate
information and opinion.
In Sakal Papers v. Union of India,13 The Hon’ble Supreme Court held that no laws can be
made by the State which directly affect the circulation of a newspaper as it will result in
infringement of the freedom of speech and expression.
The right under Article 19(1) (a) protects not only the contents which the citizen is entitled to
circulate but also the quantity and volume of the circulation. This case arose when the
newspaper agency challenged the newsprint policy made by the government which restricted
the agency to print more no. pages of newspaper then what was allowed.

Right to Information

Right to know, to information is another facet of freedom of speech. The right to know, to
receive and to impart information has been recognized within the right to freedom of speech
and expression. A citizen has a fundamental right to use the best means of imparting and
receiving information and as such to have an access to telecasting for the purpose. The right
to know has, however, not yet extended to the extent of invalidating Section 5 of the Official
Secrets Act, 1923 which prohibits disclosure of certain official documents14. Even, Right to
Information Act 2005, which specifically talks about peoples’ right to ask information from
Government officials, prohibits disclosure of certain documents under u/s 8 of the Act. These
exceptions are generally the grounds of reasonable restrictions over freedom of speech and
expression under Article 19(1) of Constitution of India. One can conclude that ‘right to
information is nothing but one small limb of right of speech and expression.15
In Secretary General, Supreme Court of India v. Subhash Chandra Agarwal,16 the High
court of Delhi held- the source of right to information does not emanate from the Right to
Information Act. It is a right that emerges from constitutional guarantee under Article 19 (1)
12
AIR 1999 SC 1379
13
AIR 1962 SC 305
14
https://lawbhoomi.com/freedom-of-speech-and-expression-under-article-191a/lawbhoomi.com/freedom-of-spe
ech-and-expression-under-article-191a/
15
Pandey J.N. Constitutional law - 60th edition 2023 page no.219
16
AIR 2010 Del. 159 (FB)
(a) as held by the supreme court in a catena of decisions. The Right to Information Act is not
the repository of the right to information. It's repository is the constitutional right guaranteed
under Article 19 (1) (a).

Right to the advertisement (commercial speech)

The right to advertise a product or any service through various methods such as signboards,
banners, circulars, handbills, direct mail, loudspeakers, newspapers, radio, television, on the
Internet, etc is included under Article 19(1) (a).In the case of Tata Press Ltd. v. Mahanagar
Telephone Nigam Ltd17 The Hon’ble Supreme Court held that commercial speech is
protected under Article 19(1) (a) and cannot be denied merely because it is issued by
businessmen, the public has the right to receive commercial speech, to listen and to read it.
Article 19(1) (a) provides protection to both speakers as well as the recipient of the
commercial speech.
An advertisement of ‘commercial nature' is not protected under Article 19 (1)(a). Such
advertisements have an element of trade and commerce. In Hamdard Dawakhana v. Union
of India18, the validity of the drugs and Magic Remedies (Objectionable Advertisement) Act,
1954, which put restrictions on advertisement of drugs in certain cases and prohibited
advertisement of drugs having magic qualities for curing diseases was challenged on the
ground that the restrictions on advertisement abridged the freedom of speech. The Supreme
Court held- An advertisement is no doubt a form of speech but every advertisement is not a
matter dealing with the freedom of speech and expression of ideas. In the present case the
advertisement was held to be dealing with commerce or trade and not for propagating ideas.
Advertisement of prohibited drugs would thus not fall within the scope of Articles 19(1)(a).

Right to criticise

In S. Rangarajan v. P. Jagjivan Ram,19 Everyone has a fundamental right to form his

opinion on any issues of general concern. Open criticism of government policies and
operations is not a ground for restricting expression. Intolerance is as much dangerous to
democracy as to the person himself. In democracy, it is not necessary that everyone should
sing the same song.

Right to Broadcast

The concept of speech and expression has evolved with the progress of technology and
includes all available means of expression and communication. This would include the
electronic and the broadcast media.

17
1995 AIR 2438
18
AIR 1960 SC 554
19
1989 SCR (2) 204, 1989 SCC (2) 574
In Odyssey Communications (P) Ltd .v. Lokvidayan Sanghatana,20 The Supreme Court
held that the right of a citizen to exhibit films on the State channel Doordarshan is part of the
fundamental right guaranteed under Article 19(1)(a). In this case, the petitioners challenged
the exhibition on Doordarshan of a serial titled “Honi Anhoni” on the ground that it
encouraged superstitious and blind faith amongst viewers. The petition was dismissed as the
petitioner failed to show evidence of prejudice to the public.21

Right to expression beyond national boundaries

In Maneka Gandhi vs Union of India22, the Supreme Court considered whether Article
19(1)(a) of Indian Constitution was confined to Indian territory and held that the freedom of
speech and expression is not confined to National boundaries.

Right not to speak or Right to silence

In the case of the National Anthem or Bijoe Emmanuel v. State of Kerala23, three students
were expelled from the school for refusing to sing the national anthem. However, the children
stood up in respect when the national anthem was playing. The validity of the expulsion of
the students was challenged before the Kerala High Court and they upheld the expulsion of
the students on the ground that it was their fundamental duty to sing the national anthem.
However, on an appeal being filed against the order of the Kerala High Court before the
Supreme Court, it was held by the Supreme Court that the students did not commit any
offence under the Prevention of Insults to National Honour Act, 1971. Also, there was no law
under which their fundamental right under Article 19(1) (a) could be curtailed.

20
1988 AIR 1642,
21
https://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression.h
tml
22
Supra note page no.
23
(1986)3 SCC 615
 FREEDOM OF PRESS

“Our liberty depends on the freedom of the press, and that cannot be limited without being
lost” –Thomas Jefferson

Over the last few decades, press and electronic media have emerged as major factors in our
nation’s life24. In today’s free world freedom of press is the heart of social and political
intercourse.
The press has now assumed the role of the public educator. The purpose of the press is to
advance the public interest by publishing facts and opinions without which a democratic
electorate [Government] cannot make responsible judgments.25
The press plays an important role in the democracy machinery. The courts have a duty to
uphold the freedom of the press and invalidate all laws and administrative actions that would
take that freedom.
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 Government, is possible’.
Although freedom of the press is not mentioned in Article 19 of the Indian Constitution, yet it
has been a part of freedom of speech and expression as considered by judges of the Supreme
Court through decided cases.26

Press not immune from general law:

In Indian Express Newspapers v. Union of India,27 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 make 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.”28

24
Rajagopal v. State of Tamil Nadu,1995 AIR 264.
25
Express Newspapers (Bombay) (P) Ltd. v. Union of India, 1986 AIR 872
26
Romesh Thappar v. State of Madras,1950 SCR 594, 607; AIR 1950 SC 124.
27
(1985) 1 SCC 641
28
Pandey J.N. Constitutional law - 60th edition 2023 page no.230
Banning entry and circulation of journal:

Romesh Thapar vs. State of Madras (1950)29

This was the first case to test the limits of freedom of the press in India wherein SC held that
the state government's ban on the publication of a magazine called CrossRoads infringed the
right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
The Supreme Court (SC) observed that freedom of the press lays at the foundation of all
democratic organisations.

Publication of sexually exploitative material:

In Ajai Goswami v. Union of India,30 A petition was filed to seek protection from court to
ensure the minor not to be exposed to sexually exploitative materials, whether or not the same
was obscene and prohibited by the law. It was held- that where art and obscenities are mixed,
what must be seen is whether the artistic, literary or social merit of the work in question
outweighs its “obscene” content. The test for judging a work should be of an ordinary man of
common sense and prudence and not of hypersensitive man. The blanket ban on publication
material or articles in order to shield Juvenile innocence cannot be imposed. No news items
should be viewed in isolation. publication must be judge as whole.

Pre - Censorship invalid:

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. State31 of Delhi, 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 speech and expression declared by Article 19(1)(a).” A law
banning entry and circulation of journals in a state held to be invalid.

Fixing minimum price and the number of page of newspaper:

In Sakal Papers Ltd. v. Union of India,32 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.

29
Supra note page no.
30
AIR 2007 SC 493
31
AIR 1950 SC129
32
Supra page no.
Bennett Coleman & Co. vs. Union of India33
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. The
principle was established in which the government cannot impose prior restraints on the press
unless it is necessary to prevent a clear and present threat to national security or public order.

Uploading videos on social media:

In Vinod Dua v. Union of India,34 the accused journalist was alleged to have uploaded video
on social media by making such false allegations for which he was prosecuted for offences
punishable under section 124-A and 505(1) (b) of IPC. Since the statement were neither made
with intend to incite people nor showed tendency to create disorder or disturbance of public
peace by resort to violence, the accused was held to be within the permissible limits and
therefore, prosecution was held to be unjust violative of rights guaranteed and article 19(1)
(a) of the constitution and the FIR for aforesaid offences was liable to be quashed.

Live streaming of Court Proceedings:

In Swapnil Tripathi v. Supreme Court of India,35 regarding live streaming of court

proceeding the supreme court held - that technological solution can be a tool to facilitate
actualisation of the right of access to justice bestowed on all, and litigants in particular, to
provide them virtual entry in the court precinct and more particularly in court room. in the
process, a large segment of person, be it entrants in legal professional, journalism, civil
society activist, academicians or student of law will be able to view live proceeding in
propria Persona on real time basis . there is unanimity between all the protagonist that live
streaming of Supreme Court proceedings, at least in respect of cases of constitutional and
national importance having an impact on public at large or on a large number of people in
India may be good beginning.

Exhibition of films :

In Ajay Gautam v. Union of India & others,36 A petition was filed for prohibition
on exhibition of the 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 the grounds of formation of harmful acts by its audience
as a result of such beliefs, unless commission of harmful acts is a real close and imminent

33
AIR 1973 SC 106
34
AIR 2021 SC 3239
35
AIR 2018 SC 4806
36
AIR 2015 Del. 92
consequence of speech in question.” The Court dismissed the petition as the petitioner does
not satisfy the court of “clear and imminent danger”. The Court also held that mischievous
creation of law and order situations cannot be a ground for interfering with certification of a
film, if otherwise found to be in order.37

In National Legal Services Authority v. Union of India & Others38, The Supreme Court
held that “Expression of one’s gender identity is a facet of freedom of expression and the
state cannot prohibit or restrict transgender’s expression of such personality.” Court further
said “Freedom of 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 Shreya Singhal v. Union of India39, 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.

Kameshwar Prasad v. State of Bihar40 : In this case, the Supreme Court addressed the issue
of government-imposed restrictions on the screening of a film titled "Kissa Kursi Ka," which
was critical of the government. The court held that the government's action in banning the
film violated the right to freedom of speech and expression guaranteed under Article 19(1)(a)
and was not saved by the reasonable restrictions clause under Article 19(2). The judgement
emphasised that the mere possibility of a film being misused to cause public disorder or
defamation was not sufficient grounds for its prohibition.

Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal41 :

This case involved a challenge to the government's decision to prohibit the live telecast of
cricket matches on the grounds that it would lead to a loss of revenue for the state-owned
broadcaster. The Supreme Court held that the government's action violated the right to
freedom of speech and expression guaranteed under Article 19(1)(a) and was not saved by the
reasonable restrictions clause under Article 19(2). The court emphasised that the government
could not impose arbitrary restrictions on the freedom of the press based on financial
considerations alone.

37
https://www.researchgate.net/publication/306899769_'Freedom_of_Speech_and_Expression'_as_a_Fundament
al_Right_in_India_and_the_Test_of_Constitutional_Regulations_The_Constitutional_Perspective
38
AIR 2014 SC 1863
39
AIR 2015 SC 1523
40
1962 AIR 1166
41
1995 AIR 1236
GROUNDS ON WHICH FREEDOM OF SPEECH AND EXPRESSION
COULD BE RESTRICTED

Clause (2) of Article 19 contains the ground on which restrictions on the freedom of speech
and expression can be imposed:-
(a)​ Sovereignty and integrity of India
(b)​Security of the state
(c)​ Friendly Relations with foreign states
(d)​Public Order
(e)​ Decency or Morality
(f)​ Contempt of court
(g)​Defamation
(h)​Incitement of an offences

Sovereignty and integrity of India:

This ground has been added as a ground of restriction on the freedom of expression by the
16th Amendment of the Constitution. The object was to enable the State to combat cries
for secession and the like from organisations such as the Dravida Kazhagam in the South
and the Plebiscite Front in Kashmir, and activities in pursuance thereof which might not
possibility be brought within the fold of the expression “security of the State”. It is to be
noted that sedition is not mentioned in 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. State42 that Sections 124-A and 153-A of Indian Penal Code impose
reasonable restrictions in the interest of public order and are saved by Article 19(2). In
Kedar Nath v. State of Bihar,43 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.

Security of the state:

Reasonable limits on freedom of speech and expression can be imposed for the sake of state
security. The concepts of “state security” and “public order” must be distinguished. Security
of the state refers to severe and aggravated public unrest, such as revolt, war against the state
[entire state or portion of the state], insurgency, etc.
In Romesh Thapper v. State of Madara44, the supreme court held that - There are different
grades of offences against ‘public order’ . Every public disorder cannot be regarded as

42
AIR 1954 pat. 254
43
AIR 1962 SC 955
44
Supra note page no.
threatening the security of the state. The term ‘security of the state’ refers only to serious and
aggravated forms of public disorder, eg: rebellion, waging war against the state, insurrections
and not ordinary breach of public order and public safety, eg,. unlawful assembly, riot, affray.

Friendly Relations with foreign states:

This ground was added by the Constitution (First Amendment) Act of 1951. The State can
impose reasonable restrictions on the freedom of speech and expression, if it hampers the
friendly relations of India with other State or States.

Public Order:

This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the
situation arising from the Supreme Court's decision in Romesh Thapar's case. As per hon'ble
Supreme court, public order is different from law and order and security of state [Kishori
Mohan v. State of West Bengal]45. The expression 'public order' connotes the sense of public
peace, safety and tranquillity.

Anything that disturbs public peace disturbs public order [Om Prakash v. Emperor,46].But
mere criticism of the government does not necessarily disturb public order. A law, which
punishes the deliberate utterances hurting the religious feelings of any class has been held to
be valid and reasonable restriction aimed to maintain the public order.

Decency or 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. 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.
Hicklin47. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on
the freedom of speech and expression in the interest of decency and morality. These sections
prohibit the sale or distribution or exhibition of obscene words, etc. in public places. But
Indian Penal Code does not lay down any test to determine obscenity. In Ranjit D. Udeshi v.
State of Maharashtra48, the Supreme Court accepted the test laid down in the English case

45
AIR 1972 SC 1749
46
AIR 1948 Nag, 199
47
(1863) 3 QB 360
48
AIR 1965 SC 881
of R. v. Hicklin to judge the obscenity of a matter. In P. K. Somnath v. State of Kerala,49 it
was held that even a nude body, whether male or 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 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.50

Contempt of court:

The constitutional right to freedom of speech would not allow a person to contempt the
courts. The expression Contempt of Court has been defined in Section 2 of the Contempt of
Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt
under the Act.

Defamation:

The clause (2) of Article 19 prevents any person from making any statement that defames the
reputation of another. Defamation is a crime in India inserted into Section 499 and 500 of the
I.P.C. Right to free speech is not absolute. It does not mean freedom to hurt another's
reputation which is protected under Article 21 of the constitution. Although truth is
considered a defence against defamation, but the defence would help only if the statement
was made "for the public good.' And that is a question of fact to be assessed by the
judiciary.51

Incitement to commit an offences:

The Constitution (First Amendment) Act of 1951 also included this reason. A person is
likewise prohibited under the Constitution from making any comment that incites others to
commit a crime .

49
1990 Cr. L.J. 542
50
Pandey J.N. Constitutional law - 60th edition 2023 page no.252
51
https://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression.h
tml
 CONCLUSION

The freedom of press is also crucial to the functioning of participative democracy. In the
absence of a free press, citizens lose their ability to make informed decisions in a free and fair
electoral process.

Freedom of expression is a fundamental human right that needs to be upheld in democratic

societies. Yet there is a worrying global trend among governments that unjustifiably restricts
freedom of speech by targeting journalists, protesters and other people who are considered to
be dissenting from government views.

Thus, the concept of freedom of speech and expression, particularly concerning the freedom
of the press, holds immense significance within the framework of the Indian Constitution.
The Founding Fathers of the Constitution deemed it essential to safeguard these freedoms as
they are foundational to a robust democracy.
Under Article 19(1)(a) of the Indian Constitution, every citizen has the right to freedom of
speech and expression, which includes the freedom of the press. This right is crucial as it
enables citizens to voice their opinions, share information, criticise the government, and
participate actively in the democratic process.
The freedom of the press plays a pivotal role in holding the government accountable,
exposing corruption, and ensuring transparency in governance. It serves as a watchdog,
scrutinizing the actions of those in power and informing the public about issues of national
importance.
However, it's essential to acknowledge that this freedom is not absolute. Article 19(2)
provides for certain restrictions on freedom of speech and expression in the interest of
sovereignty and integrity of India, 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.
In practice, there have been instances where the freedom of the press has been challenged,
such as government censorship, threats to journalists' safety, and the misuse of laws to
suppress dissenting voices. These challenges underscore the need for constant vigilance to
protect and uphold the freedom of the press.
Despite the challenges, the Indian judiciary has played a vital role in safeguarding the
freedom of speech and expression, often ruling in favour of journalists and media
organisations in cases involving censorship and infringement of press freedom.
 BIBLIOGRAPHY

Primary source:

1.​ Constitutional law (60th Edition ) by J.N Pandey

2.​ Indian Polity (7th Edition) by M Laxmikant
3.​ Constitution of India Bare Act by Pandy and Narula

Secondary Sources

1.​ https://www.researchgate.net/publication/306899769_'Freedom_of_Speech_and_Expr
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ons_The_Constitutional_Perspective

2.​ https://www.lawctopus.com/academike/freedom-of-speech-and-expression/

3.​ https://lawbhoomi.com/freedom-of-speech-and-expression-under-article-191a/

4.​ https://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-
speech-and-expression.html

5.​ https://byjus.com/free-ias-prep/freedom-of-speech/#:~:text=Freedom%20of%20Speec
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6.​ https://blog.ipleaders.in/article-19-indian-constitution/

7.​ https://testbook-com.cdn.ampproject.org/v/s/testbook.com/amp/ias-preparation/freedo
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 CASES LIST

S. Cases Name Citation

No.

1. Romesh Thapper v. State of Madara AIR 1950 SC 124

2. Prabhu Dutt v. Union of India AIR 1982 SC 6

3. Maneka Gandhi v. Union of India AIR 1978 SC 597

4. Union of India v. Association for Democratic AIR 2002 SC 2112

Reforms

5. Resurgence India v. Election commission AIR 2014 SC 637

6. M. Hasan v. Government of A.P AIR 1998 SC 1379

7. State v. Charita AIR 1999 SC 1379

8. Sakal Paper v. Union of India AIR 1962 SC 305

9. Security General, Supreme Court of India v. AIR 2010 Del. 159 (FB)
Subhash Chandra Agarwal

10. Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd 1995 AIR 2438

11. Hamdard Dawakhana v. Union of India AIR 1960 SC 554

12. S. Rangarajan v. P. Jagjivan Ram 1989 SCC (2) 574

13. Odyssey communication (P) Ltd. v. Lokvidayan 1988 AIR 1642

Sanghatana

14. Bijoe Emmanuel v. State of Kerala (1963) 3 SCC 615

15. Indian Express Newspaper v. Union of India (1985) 1 SCC 641

16. Ajai Goswami v. Union of India AIR 2007 SC 493

17. Brij Bhusan v. State AIR 1950 SC 129

18. Bennett Coleman and Co. v. Union of India AIR 1973 SC 106

19. Vinod Dua v. Union of India AIR 2021 SC 3239

 CASES LIST

S.No Cases Name Citation

20. Swapnil Tripathi v. Supreme Court of India AIR 2018 SC 4806

21. Ajay Gautam v. Union of India AIR 2015 Del. 92

22. National legal Service Authority v. Union of India AIR 2014 SC 1863
And others

23. Shreya Singal v. Union of India AIR 2015 SC 1523

24. Kameshwar Prasad v. State of Bihar 1962 AIR 1166

25. Secretary, Ministry of Information and 1995 AIR 1236

Broadcasting v. Cricket Association of Bengal

26. Devi Saren v. State AIR 1954 pat. 254

27. Kedarnath v. State of Bihar AIR 1962 SC

28. Kishori Mohan v. State of West Bengal AIR 1972 SC 1749

29. Om Prakash v. Emperor AIR 1948 Nag , 199

30. R. v. Hicklin (1863) 3 QB 360

31. Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881

32. P.K. Somnath v. State of Kerala 1990 Cr. L.J. 542