Updated: Jun 2, 2021
The Indian Constitution under Part III provides the citizens certain fundamental rights, among which the Right to Freedom of Speech and Expression has been given a great amount of importance as indirectly it allows, not only reasonably expressing them, but also engaging in dissent against oppressors, a sentiment derived directly from our freedom struggle.
In the case, LIC v Manu Bhai D.Shah, the Apex court held that “That a speech is Gods- gifted to mankind. Through speech a human being conveys thoughts, sentiments, and feeling o others, freedom of speech and expression is thus a natural right which a human being acquires on birth."
Article 19(2) imposes certain reasonable restrictions on these freedoms.
As a general rule of law, all constitutions of the world have given certain freedoms to their individuals. The preamble of our constitution also gives the object of the freedom of speech and expression.
The two aspects of Article 19(1) (a) are following-
(i) right of speech
(ii) right of expression
It means one has the freedom to speak. But this freedom is not absolute or complete; no one can speak in such a manner which is injurious to others and on such a matter which is prohibited by the law itself.
It means to express or propagate a thing. The expression may be done through written or through other legal means. The communication of speech and expression is a must. So the freedom of communication of speech and expression is also guaranteed under Article 19(1) (a).
The freedom is comprehensive and includes not only words spoken, but also the freedom of the Press, which is the basic essential of political liberty for the proper functioning of democracy.
The basic principle behind this freedom is the right of the people to know the truth. Some of the important cases related to this Article are discussed below-
Romesh Thapar v State of Madras, 1950:
Madras Government’s, ban order of entry and circulation of 'Cross Roads' a Bombay Weekly was held to be ultra vires.
Brij Bhushan V. Delhi:
Pre-censorship of 'Organiser' was held Ultra Vires the Constitution. Held, the 'Security of the State, in Article 19(2) did not empower the State to impose restrictions to control 'Public Order'.
This led to the First Amendment which introduced three grounds: 'public Order' 'Friendly relationship with Foreign Countries' and 'incitement to an offense.'
In Shailabala Devi's Case, the Supreme Court allowed publication of 'Sangram' as it contained only meaningless words, though high sounding and bombastic.
Bennett Colemen V. Union of India:
The G.O. prescribing the number of pages, at 10 to all newspapers under Newsprint Control Order was held ultra vires as it affected the circulation of newspapers.
In Sakal Papers V. Union of India, the restriction on prices of newspapers concerning pages and sizes was held wrong, by the Supreme Court as it affected the publication of supplements, etc.
K.A. Abbas V. Union of India:
Film censorship was upheld in this case as motion picture stirs up emotions than any other media. For the film, 'The Tale of four cities' 'U' Certificate was not granted.
The Court upheld the action of the Govt. The classification of films into "A" (for adults only) and 'U' (for all) was held valid.
In Namboodripad's Case, the Supreme Court upheld his conviction and held that his attack on the judiciary, calculated to lower the prestige of the judges, amounted to contempt of the Court.
National Anthem Case 1986:
It was held that the right to speak also includes the right not to speak. In this case, three students of Jehyoah’s school were expelled by the governing body of this school on the ground of not speaking the national anthem with other students. The students then challenged it in court.
The SC held that the freedom of speech and expression also includes not speaking and not expressing. One cannot be compelled to speak or express.
Article 19(1) (a) of the Indian Constitution, guarantees the right to freedom of speech, and expression to its citizens, not only within the Indian territory but also outside it.
If the state action sets up barriers to its citizen’s freedom of speech and expression in any country of the world such action is violative of Article 19(1) (a) as such expression is within the country.
(As per Justice Bhagwati in Maneka Gandhi v. Union of India l978)
#Territorial Extent of the right- The right of freedom & expression is available even out of India.
Maneka Gandhi v. Union of India 1978
The govt. argued that this right can be restricted on the ground of out of the territory of India because this right is available only within India. It cannot be enforced in foreign countries.
But in this case, SC held that this right could not be restricted on the ground of territorial extent. It includes the freedom of speech and expression even out of India.
Grounds of Restrictions under Article 19(2)
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order because no freedom can be absolute or completely unrestricted.
Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds: Clause (2) of Article 19 of the Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed:-
1. Security of State:
Security of state is of vital importance and the government must have the power to restrict the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of the security of the State.
However, the term “security” is a very crucial one. The term “security of the state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection, and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray.
Thus speeches or expressions on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of the State.
2) Friendly relations with foreign states:
In the present global world, a country has to maintain a good and friendly relationship with other countries. Something which has the potential to affect such a relationship should be checked by the government.
Keeping this thing in mind, this ground was added by the Constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign-friendly state, which may jeopardize the maintenance of good relations between India and that state.
3) No similar provision is present in any other Constitution of the world:
In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. The interest in friendly relations with foreign States, would not justify the suppression of fair criticism of the foreign policy of the Government.
However, it is interesting to note that membership of the commonwealth including Pakistan is not a “foreign state” for this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.
4) Public Order: Next restriction prescribed by the constitution is to maintain public order:
This ground was added by the Constitution (First Amendment) Act, 1951. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”
Here it is pertinent to look into the meaning of the word “Public order. Public order is something more than ordinary maintenance of law and order. "Public order" is synonymous with public peace, safety, and tranquility.
Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offenses against public order.
Public order thus implies an absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety.
Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order.
5) Decency or morality:
The way to express something or to say something should be a decent one. It should not affect the morality of society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words ‘morality or decency’ are words of wide meaning.
Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places.
No fixed standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.
6) Contempt of Court:
In a democratic country, Judiciary plays a very important role. In such a situation, it becomes essential to respect such an institution and its order.
Thus, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court.
According to Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’ But now, the Indian contempt law was amended in 2006 to make “truth” a defense.
However, even after such an amendment, a person can be punished for the statement unless they were made in the public interest. Again in Indirect Tax Practitioners Assn. v R.K. Jain, it was held by the court that, “Truth based on the facts should be allowed as a valid defense if courts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or article”.
The qualification is that such defense should not cover up to escape from the consequences of a deliberate effort to scandalize the court.
A person’s freedom, be it of any type, must not affect the reputation or status of another person. A person is known by his reputation more than his wealth or anything else.
The Constitution considers it as a ground to put restrictions on freedom of speech. A statement, which injures a man’s reputation, amounts to defamation. Defamation consists of exposing a man to hatred, ridicule, or contempt.
The civil law relating to defamation is still un-codified in India and subject to certain exceptions.
8) Incitement to an offense:
This ground was also added by the Constitution (First Amendment) Act, 1951. Freedom of speech and expression cannot confer a right to incite people to commit an offense.
The word ‘offense’ is defined as any act or omission made punishable by law for the time being in force.
9) Sovereignty and integrity of India:
To maintain the sovereignty and integrity of a state is the prime duty of government. Taking it into account, freedom of speech and expression can be restricted so as not to permit anyone to challenge sovereignty or to permit anyone to preach something which will result in a threat to the integrity of the country.
From the above analysis, it is evident that Grounds contained in Article 19(2) show that they are all concerned with the national interest or in the interest of the society.
The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, and public order are all grounds referable to the national interest, whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are all concerned with the interest of the society.
Thus, we can conclude, that even though the Fundamental rights are non-violable and are protected, but these Fundamental rights, such as the Freedom of Speech and Expression, are not absolute and are subject to the ‘Reasonable Restriction’ laid down under Article 19 (2).
To know more about other freedoms under Article 19 and restrictions upon those freedoms read HERE -
(Includes Article 19 (1) (a) through to (g) with its restrictions i.e. Article 19 (2) through to (6)).