“RIGHT TO FREE SPEECH IN A CENSORED

DEMOCRACY”

Assignment Submitted To

Himachal Pradesh National Law University

Subject: Constitutional Rights and Theory Submitted by,

Submitted To: Prof. Dr. S.S. Jaswal NEHA SINGH

5020202142

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

16 MILE, SHIMLA-MANDI NATIONAL HIGHWAY, GHANDAL DISTRICT SHIMLA,
HIMACHAL PRADESH-171014
Ph. 0177-2779802, 0177-2779803, Fax: 0177-2779802
Website:http://hpnlu.ac.in
‘I disapprove of what you say, but I will defend to the death your right to say it.’ – Voltaire

FREE SPEECH is one of the constitutional guarantees of a liberal democracy a right

recognized by all international human rights documents. It is an amalgamation of the right to
freedom of conscience. Censorship, on the other hand, is the process of imposing checks,
direct or indirect, governmental or otherwise, on the exercise one's right to free speech.
Apparently, this phenomenon can be perceived unnecessary curb on one's basic right to
liberty, but on a closer examination, it can looked at in the form of a necessary evil - a
limitation on one's human rights in order uphold the community's human rights. The broad
social purposes of censorship can laid down as to ensure that ordinary members of the
community are not affronted the display of material to which a majority of reasonable adults
would object, to maintain a level of public decency, and to avoid the undesirable social
effects which may flow from the "normalisation", by its use in entertainment or other
dissemination, undesirable material.1

Article 19, Universal Declaration of Human Rights, the Magna Carta of International Human
Rights Law, states that: Everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.2

The Declaration of Principles on Freedom of Expression further goes on to state3:

Freedom of expression in all its forms and manifestations is a fundamental and inalienable
right of all individuals. Additionally, it is an indispensable requirement for the very existence
of a democratic society. Every person has the right to seek, receive and impart information
and opinions freely under terms set forth in Article 13 of the American Convention on
Human Rights. All people should be afforded equal opportunities to receive, seek and impart
information by any means of communication without any discrimination for reasons of race,
colour, sex, language, religion, political or other opinions, national or social origin, economic
status, birth or any other social condition. Prior censorship, direct or indirect interference in
or pressure exerted upon any expression, opinion or information transmitted through any
means of oral, written, artistic, visual or electronic communication must be prohibited by law.
Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of
information and the imposition of obstacles to the free flow of information violate the right to
freedom of expression. Prior conditioning of expressions, such as truthfulness, timeliness or
impartiality, is incompatible with the right to freedom of expression recognized in
international instruments.
1
Hutchins v. The State of Western Australia [2006] WASCA
2
UN GAOR 217 (III) dated 10 Dec. 1948, available at http://daccess-dds-ny.un.org/doc/
RESOLUnON/GEN/NRÓ/ 043/ 88/IMG/NR004388.pdf POpenElement (last visited on April 20, 2021).
3
Adopted by the IACHR at its 108th Regular Period of Sessions, held on Oct 2 - 20, 2000. Available at:
https://www.cidh.oas.org/Basicos/English/Basic21.Principles%20 Freedom% 20of%20Expression.htm (last
visited on April 8, 2021).
CENSORSHIP is derived from the Latin word 'censere,' which means “to form an opinion
about something, estimate, rate, or appraise”4. It is worth mentioning, however, that the
intrinsic value concept is somewhat misleading. Prior to any assessment, there is a
presentation of the canons of rights and wrongs, as well as dos and don'ts, which are mostly
democratic and dominant creations. The two well recognised forms of censorship are (1) the
more well-documented where it is carried out at the person level, and (2) the alternative that
occurs at the societal level. Sometimes, a wide variety of censorship will prompt one to
define the process in terms of operations occurring behind it.

Harord Laswell's definition of censorship also flows from the same notions, but is more
broad-based:

"The policy of restricting the public expression of ideas, opinions, conceptions and impulses
which have or are believed to have the capacity to undermine the governing authority or the
social and moral order which that authority considers itself bound to protect"5

This definition encompasses the two broad areas of operation of censorship - political
censorship and moral censorship.6 Whereas political censorship is primarily concerned with
"discussions of the nature of governmental policies and personnel",7 moral censorship would
deal with creation of social and moral taboos, manifested through creation and interpretations
of acceptable norms of social conduct and the notion of obscenity. If one looks at the
structural patterns operating behind the act of censorship, one would find that this traditional
model is descriptive of just the tip of the iceberg. This model presupposes the existence of the
'free' mind and censorship coming in as an external repression on this free mind in the form
of silencing it, when this mind decides to turn deviant.8The roots of censorship have however
been traced to much deeper beneath the surface.9

If one looks at the different types of censorships prevalent today, one finds that there are a
number of different ways by which censorship mechanisms work, often parallel to each other.
Paul O' Higgins distinguishes censorship into the following types:10

1. Autonomous - Self-censorship brought about by conscious or unconscious motives,

which makes an individual wither to refrain from expressing his or her views or alter
the same.

4
David Tribe, Questions of Censorship 36 (George Allen & Unwin, Califirnia, 1973)
5
Harold D. Laswell, "Censorship" in III Encyclopedia of the Sodai Sciences 290 (MacMillan, New York, 1930).
6
Robert Justin Goldstein, Political Censorship vii-viii (Fitzroy Dearbrown Publishers, London, 2001).
7
Ibid.
8
Helen Freshwater, "Towards a Redefinition of Censorship" in Beate Muller (ed.), Censorship and Cultural
Regulation in the Modern Age 225-245 (Rodopi, New York, 2004).
9
Richard Burt (ed.), The Administration of Aesthetics : Censorship, Political Critiàsm Sphere (University of
Minnesota Press, Minneapolis, 1994); Judith Buder, Excitable Speech: A Politics of the Performative (Roudedge,
New York, 1997); Annette Kuhn, Cinema , Censorship Sexuality, 1909-1925 (Roudedge, New York, 1988);
Michael Holquist, "Corrupt Originals: Paradox of Censorship" 109.1 PMLA 14-25 (1994)
10
Paul O'Higgins, Censorship in Britain 12-13 (Nelson, London 1972).
 2. Social - Discouragement of the expression of certain ideas, either through
socialization or sanctions, which lead to the emergence of taboos.
3. Legal - Enforcement of restraint by legal institutions such as the government, police
and the courts. This can involve both prior censorship, where the material has to meet
certain approved prior standards, or penal censorship, where no such approval is
needed but punishment is at hand for violation of legal limits.
4. Extra-legal - Telephone Tapping, d-notices, limited release of information about
defendant at trial
5. Voluntary - When an individual or a company, with no legal power, imposes upon
others limitations on what they might say or do without sanctions. This may be
exercised by an institution like the Press Council, or by an employer, and is usually
based on a shared code of beliefs.
6. Subterranean - When an individual or institution uses powers set aside for another
purpose to impose censorship without direct government involvement - political
censorship.

If one looks at the classifications carefully, one can find the existence of two types of
censorship - legal and extra-legal, that requires references to questions of law. Whereas legal
censorship would include formal impositions of prior restraints and post-dissemination
sanctions, extra-legal censorship would largely be practiced through means not strictly
authorized by law, such as "bluff and bluster" 11

Censorship is for too many thinkers a safe and fashionable condemnation tool for the
populace. Rather than meticulously introspecting the structures poerating behind the process
of censorship and thereby sifting the repressive from necessary, one takes the safe refuge of
branding everything censorious as anti-liberty and anti-human rights, and hence, necessarily
evil. Censorship is one of those convenient words which are widely used today because they
allow people to seem, with a minimum of effort, decent and right-thinking, the same as
everyone else these days. The Left, the Right and the Centre all agree that one should be anti-
censorship, anti-war, anti- racism, pro-human rights or freedom of expression12.

In this melee, therefore, people lose sight of the different modes and methods through which
censorship is practised, and discussions largely revolve round the commonsensical, the
subjective 'good' and the 'bad'. One loses sight of the scrupulousness with which the official
censoring bodies of the present states, be it Western or Indian, avoid the use of the label
'Censor' and seek to redefine its role as that of licensing or classificatory authorities. This
careful avoidance is pointed out by Sue Curry Jansen as the 'Good Lie'13, where this process
of disassociation and disavowal of the overtly coercive methods of social control and
coercion in favour of the more constitutive forms, acts a deliberate ploy to camouflage
censorship mechanisms in the garb of regulations, by the state and the society alike.

11
Sue Curry Jansen, Censorship: The Knot That Binds Power and Knowledge 221 (OUP, New York, 1991).
12
Pauvert, Nouveaux (Et Moins Nouveaux) Visages de la Censure at 7 (Translation in Nicholas Harrison, Circles
of Censorship: Censorship and its Metaphors in French History, Literature and Theory 1 (OUP London, 1995)).
13
Jansen, supra note11.
Tracing Freedom of Speech and Expression

Two statements in the Rig Veda contain vital clues to any enquiry into the nature of truth and
justice to be pursued by anyone: “Truth is one. Wise men interpret it differently” and “Let
noble thoughts come from everywhere.” These two opinions actually represent the oldest
philosophical acknowledgement of the plurality of ways in which the universal truth can be
interpreted and understood. Further the second statement in addition attempts to create a pool
of wisdom to which everybody should contribute and which is expected to be beneficial to all
at the end. Therefore we can logically deuce that the Vedas gave very much importance to
freedom of speech and expression. The democratic institutions Sabha, Samiti and the notion
of Ganarajya were predominantly based upon free and fearless discussion. Ancient
Ganasanghas/Janapadas like Vajjis is a vibrant and classical example of prevalence of
democracy in India.

Free speech shapes the human personality as well as human civilization. Hence it has become
core value of humanity. Recognition of human dignity and fundamental rights is considered
as the ultimate goal of democracy. Freedom of speech and expression is been considered as
an essential fundamental human right under the democratic system. Article 19 (1) (a) of the
Indian Constitution recognizes this right as fundamental. The fundamental right of freedom
of speech and expression is nothing but negative duty imposed upon the State under Article
19 (1) (a) of the Constitution of India.

The words of Article 19 reads: “Protection of certain rights regarding freedom of speech,
while Article 19 (1) reads: “All citizens shall have the right to freedom of speech and
expression”. “Speech” and “expression” are numerically only two words. But on giving
wider interpretation they encompass a bulk of rights relating to expression under it.

The Constitution of India rejects the doctrine of absolute rights by conferring the powers
upon the State to make laws imposing reasonable restrictions. Under Article 19 (2) the State
may make a law imposing reasonable restrictions on the exercise of the right to freedom of
speech and expression thus Freedom of speech and expression under Article 19(1) (a) may be
regulated rather curtailed in “the interest of” or “in relation to” the following:

i. Sovereignty and integrity of India,

ii. Security of the State,

iii. Friendly relations with the foreign states,

iv. Public order,

v. Decency or morality,

vi. Contempt of court,

 vii. Defamation,

viii. Incitement to an offence

i. Sovereignty and Integrity of India

If any statement or expression challenges the sovereignty and integrity of India and that is
likely to cause violence then law may be imposed to restrict such modes of speeches and
expressions.

ii. Security of the State

The reasonable restrictions are justified if the law enacted by legislature aims to regulate the
restrictions upon such expressions which could endanger the security of the State and is
intended to overthrow the government or waging war or rebellion against the government.
Certain speeches and expressions may have potential to trigger and encourage violent crimes
are related to the security of the State. The Official Secrets Act of 1923 intended to curtail the
freedom of expression. Now the Right to Information Act, 2005 has reduced the intensity of
the restrictions imposed by the State in the interest of protecting official secrets to certain
limits.

iii. Friendly Relations with the Foreign States

If the statement or any expression that aims to spoil the friendly relations with the foreign
states may be regulated through enacting the laws.

iv. Public Order

Public order may be construed as public peace, safety and tranquility of the people at large.
Absence of public order is an aggravated form of disturbance of public peace. It is not mere
ordinary law and order problem. It has potential to affect the general life of the public. Any
speech, expression which intends to disturb public order can be restricted by enacting the law
by legislature.

v. Decency or Morality

Every civilized society has its own standards to adjudge what amounts to be decent or moral.
Indecent or immoral expressions may adversely affect these standards. Therefore the State
can impose restrictions on such forms of expressions if they are being considered as indecent
or immoral.

vi. Contempt of Court

Under Constitutional democracy the judiciary assumes pivotal position in administration of

justice. It is been considered as highly respected institution. It is also an interpreter of law. It
acts as protector and guarantor of fundamental rights. Their decisions have binding force.
Any act, which derogates this institution, may adversely affect the faith of common people.
The Constitution, therefore, does not tolerate such statements that disrepute the institution.
The person cannot exercise his freedom of speech and expression if that interferes with due
course of administration of justice, lowers authority of the court. If anybody does so the court
can restrict the freedom of speech and expression by invoking the Contempt of Courts Act,
1971.

Test of Reasonableness: A Critical Review

In democracy the freedom of speech and expression can never be absolute. The Constitution
defines reasonable restrictions and the criteria to determine its validity. The courts are under
obligation to adjudge whether freedom of speech and expression is validly curtailed.
The test of reasonableness does not have uniform criterion. It is judged on the basis of merits
of each case in the context of provisions of substantive as well as procedural laws. Learned
author on Constitutional Law of India M. P. Jain has tried to define fundamentals of
reasonableness. He opines that reasonable restrictions should necessarily have rational
relationship between the grounds for which the legislature is empowered to impose the
restrictions. If, there exists a remote relationship between constitutionally authorized grounds
for restrictions and the restrictions imposed by the legislature shall make the law invalid. The
State is under constitutional obligation to justify the reasonableness. This is an attempt by the
framers of the Constitution of India to limit the arbitrary police power of the State. In the
context of the conflicting interest that prevails in the society between an individual and
collective group rights, the reasonableness provides harmonizing effect.

Restrictions were never problem for free speech jurisprudence but it has main concern
regarding defining the reasonability of such restrictions. The Indian judiciary has played the
lead role in this regard. The Indian judiciary, through interpretation, in various cases has
literally widened the meaning of freedom of speech and expression and its ristrictions
dynamically.

In State of U.P. v. Lalai Singh Yadav14 , Krishna Iyer. J opined that the “Rights and
responsibilities are a complex system and the framers of our Indian Constitution, aware of the
grammar of anarchy, wrote down reasonable restrictions on libertarian exercise of freedoms.”
This conveys that the right to freedom of speech and expression is not made absolute. It is
reasonably reared that absolutism may invite anarchy, which could surely put existence as
well as future democracy in danger.

Articles 19(2) control the freedoms available to a citizen. Article 19(2) empowers the State to
impose reasonable restrictions on exercise of the right to freedom of speech and expression in
the interest of the factors stated in the said clause. The legislature cannot exceed its limits
while imposing the restrictions upon the freedom of speech and expression. Therefore the act
of legislature should necessarily be reasonable in order to justify the restrictions. In Babulal

14
(1976) 4 SCC 213.
Parate v. State of Maharashtra15 the court held that “reasonable restriction contemplated
under the Indian Constitution brings the matter in the domain of the court as the question of
reasonableness is a question primarily for the Court to decide.”

The Supreme Court in S. Rangarajan v. P. Jagjivan Ram16 observed in paragraph 53 as under

: Freedom of expression which is legitimate and constitutionally protected cannot be held to
ransom by an intolerant tyrant group of people. The fundamental freedom under Article 19
(1) (a) can be reasonably restricted only for the purpose mentioned in Article 19

(2) and the restriction must be justified on the anvil of necessity and not the quicksand of
convenience or expediency. Open criticism of Government policies and operations i.e.
expression of political dissent is not at all a ground for restricting expression.

Thus we can conclude that the court has recognized the role of intolerant tyrant social group
that puts the society at ransom and thereby denies freedom of speech and expression. This act
reduces space of democracy. Further expression of political dissent by criticizing
governmental policies would never be considered as a valid and reasonable ground to restrict
the exercise of freedom of speech and expression in the name of reasonable restrictions.

 Pre-censorship

In K.A. Abbas v. Union of India17 the Supreme Court ruled that the fundamental right to
freedom of speech and expression applied also to cinematograph films. The Constitution
Bench of the Supreme Court, in this case, considered important questions relating to pre-
censorship of cinematograph films in relation to the fundamental right of freedom of speech
and expression. While dealing with the case, in Para 8, Honourable Hidayatullah, C.J.,
observed power of pre-censorship that depiction of sex need not be always obscene or even
indecent or immoral. While setting the standards for censors it is must to make a substantial
allowance in favour of freedom thereby leaving a vast area for creative art to interpret life and
society. The art and literature encompasses within themselves a comprehensive view of social
life. In order to adjudge morality of an average man, it is necessary to draw the line exactly
where an average moral man begins to feel embarrassed or disgusted at a naked portrayal of
life. That should be done without the giving up touch of art or genius or social value. While
doing so one must not look upon such human relationships as banned in toto.

 Sedition: Threat to Criminalize Dissent

The Constitutional bench in Kedar Nath Singh v. State of Bihar18 discussed the applicability
of Section 124 A in the context of Article 19 (1) (a) and 19 (2). It opined that, “a citizen has a
right to say or write whatever he likes about the Government, or its measures, by way of
criticism or comment, so long as he does not incite people to violence against the
15
(1961) 3 SCR 423.
16
(1989) 2 SCC 574.
17
AIR 1960 SC 554
18
AIR 1962 SC 955.
Government established by law or with the intention of creating public disorder.”19 This
means that Section 124A does not curtail freedom of speech and expression though one uses
strong words to express disapprobation of the measures of Government with a view to their
improvement or alteration by lawful means. It further declared that freedom of speech and
expression that advocates use of lawful means to seek transformation in functioning of the
state machinery in the public interest is protected by Article 19 (1) (a). Provided it does not
generate or excite the feeling of enmity, disloyalty towards constitutionally established
governmental machinery and such excitement does not lead to public disorder or the use of
violence. Under such circumstances use of strong speech or very vigorous words in a writing
directed to a very strong criticism of measures of Government or acts of public officials do
not come within the ambit of the penal section.

In the famous Kanhaiya Kumar Case20 , the Delhi HC observed that while exercising the
right to freedom of speech and expression under Article 19 (1) (a) of the Constitution, one
has to remember that Part IV, Article 51A of the Constitution provides Fundamental Duties
of every citizen, which form the other side of the same coin. The aforesaid judicial
pronouncements have been discussed to get an idea as to what amounts to seditious acts. In
the light thereof, it could be stated that unless the words used or the actions in question do not
threaten the security of the State or of the public, lead to any sort of public disorder which is
grave in nature, the act would not fall within the ambit of sec. 124A of IPC.

 Pubic Order

. In Re- Ramlila Maidan Incident v. Home Secretary and Ors21 the court held that the
expression “in the interest of” “under Article 19 (2) has been given a wide amplitude to the
permissible law which can be enacted to impose reasonable restrictions.” It also observed
that, “it is necessary to maintain and preserve the freedom of speech and expression in a
democracy …. it is also necessary to place reins on this freedom for the maintenance of
social order.” As the expression in the interest of has wide amplitude. The term social order
also has a very wide ambit. “It includes law and order, public order as well as the security of
the State. The security of the State is the core subject and public order as well as law and
order follow the same.”22

In Romesh Thapar v. State of Madras23 the Court observed that, the expression “Public
order” has wider dimension. It signifies that the state of public tranquility that prevails due to
internal regulations enforced by the Government established by the members of political
society in the political society. Therefore it considered that the term public safety is wider
part of the concept of public order.

19
Id., Para 25.
20
Kanhaiya Kumar v. State (NCT of Delhi), (2016) 227 DLT 612.
21
Suo Motu W.P. (CRL.) NO. 122 of 2011, decided on 23 February, 2012, Para 31. Can be accessed at
https://indiankanoon.org/doc/17021567/.
22
Id., Para 30.
23
AIR 1950 SC 124 at p. 127.
  Decency and Morality: Debating Reasonableness of Obscenity

It is well recognized fact that the notion of morality keeps on changing. Sometimes the law
has to go ahead and define morality on modern lines. Any sort of gap between the existing
mores and the law relating to morality results in violation of freedom of speech and
expression. That led to confrontation of expression with the law imposing standards of
morality and decency in the name of obscenity. Obscenity in the artistic expressions like
literature, paintings and cinema has become ground for restricting the freedom of speech and
expression.

In K.A. Abbas v. Union of India and Another24 the court tried to define the term obscenity.
According to it the expressions through words/images/actions that offend the prevalent
sexuality is an obscene thing in the context of law.

The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave
and corrupt those whose minds are open to such immoral influences and into whose hands a
publication of this sort may fall. Hicklin test, thus, propounded that a publication, which is
alleged to have been obscene, has to be judged on isolated passages of a work considered out
of context and judged by their apparent influence on most susceptible readers, such as
children or weak-minded adults.

Honourable Supreme Court of India applied test in the Ranjit D. Udeshi v. State of
Maharashtra25 Honourable Supreme Court of India tried to define obscenity: “obscenity
which falls directly within the words public decency and morality of the second clause of the
article. The word, as the dictionaries tell us, denotes the quality of being obscene which
means offensive to modesty or decency; lewd, filthy and repulsive.”

 Contempt of Court

Under Constitutional democracy the judiciary assumes pivotal position in administration of

justice. It is been considered as highly respected institution. It is also an interpreter of law. It
acts as protector and guarantor of fundamental rights. Their decisions have binding force.
Any act, which derogates this institution, may adversely affect the faith of common people.
In Re Arundhati Roy v. Unknown26 the court opined that the principle of Rule of Law is an
essential for governance of any civilized democratic polity. The Constitution has assigned
special duty upon the Indian Judiciary to establish the Rule of Law. In order to perform its
duties and functions effectively the dignity as well as authority of the courts needs to be

24
AIR 1971 SC 481, Para 76.
25
AIR 1965 SC 881, Para 36. Before the Constitution Bench a contention was raised with regard to the
constitutional validity of Section 292 IPC on the ground it imposes impermissible restriction on the freedom of
speech and expression guaranteed by Article 19(1)(a) of the Constitution and being not saved by clause 2 of
the said Article.
26
AIR 2002 SC 1375, Para 1.
protected at any cost. The court also opined that “no person can flout the mandate of law of
respecting the courts for establishment of rule of law under the cloak of freedoms of speech
and expression guaranteed by the Constitution.” The Constitution, therefore, does not tolerate
such statements that disrepute the institution. The person cannot exercise his freedom of
speech and expression if that interferes with due course of administration of justice, lowers
authority of the court.

In P.N. Duda v. P. Shiv Shankar27 the Supreme Court of India held that administration of
justice and judges are open to public criticism and public scrutiny. Judges are accountable
towards the society. Their accountability must be judged by the conscience and oath to their
office, i.e., to defend and uphold the Constitution and the laws without fear and favour. The
judges are bound to deliver their duties within this framework. If the criticism about judicial
system or the judges adversely hampers the administration of justice or leads to erosion of the
faith in the objective approach of the judges and brings administration of justice to ridicule
then such speech must be prevented. The contempt of court proceedings arise out of that
attempt. Judgments are open for to be criticized, but the motives of the judges need not be. If
that are allowed, it would bring the administration of justice into disrepute. The court further
opined that the:
"faith in the administration of justice is one of the pillars on which democratic institution
functions and sustains. In the free market place of ideas criticism about the judicial system or
judges should be welcome so long as such criticism …. does not impair or hamper the
administration of justice. This is how the courts should exercise the powers vested in them."
It further held that in a democracy judges and courts alike. Therefore even the judges are
subject to criticism provided that the criticism employs reasonable argument in respectful
language. If the criticism satisfies these conditions then any judicial act as contrary to law or
public good may be allowed for criticism and the court should not treat such criticism as a
contempt of court.

 Defamation

An intentional false statement which is published or spoken publically that injures another
person‟s reputation amounts to defamation. In straight words defamation is an injury to
reputation of the person. Therefore such statements made, words spoken publically or
published may attract the provisions of law that could curtail the said freedom. Defamation
may be civil as well as criminal. Sections 499 and 500 of the IPC are valid grounds for
curtailment of free speech. At the same time it is to be noted that in R. Rajgopal v. State of
Tamil Nadu28, popularly known as Auto Shankar’s Case the court held that the prisoner do
not lose his right to freedom of speech and expression. Therefore the Government does not
have any authority to impose a prior restraint on publication of autobiography of the prisoner

27
AIR 1988 SC 1208. In the instant case the issue before the court was whether the speech of the Law Minister
delivered in a Seminar organized by the Bar Council amounts to contempt of court. The court held that the
offending portions therein were not contemptuous and punishable under the Act.
28
(1994) 6 SCC 632
on the ground that is going to be defamatory. This ground has assumed dynamic dimension in
the digital age wherein use of social media has tremendously grown.

 Hate Speech

In Pravasi Bhalai Sangathan v. Union of India & Ors29 the Honourable Supreme Court of
India referred Black’s Law Dictionary (9th Edn) to discuss the concept of hate speech.
According to it the speech expresses hatred towards some such as a particular race. Under
special circumstances such expressions are likely to provoke and trigger the violence. The
Supreme Court of India, while determining the hate speech observed that, “the effect of the
words must be judged from the standards of reasonable, strong- minded, firm and courageous
men, and not those of weak and vacillating minds.” Even they should not be judged form the
point of feeble minded persons, “who scent danger in every hostile point of view.”30

In 267th Report of the Law Commission of India on Hate Speech, the Commission has
referred Canadian case31 Sasketchwan v. Whatcott ([2013] 1 SCR 467) to explain the effect
of such speech. In the said case the Canadian Supreme confined its interpretation of the term
“hatred.” According to it extreme detestation and vilification results in to “hatred”. The Court
also identified and categorized hate speech into two categories:

1. Individual members of a targeted group are marginalized that affect inclusiveness and
their dignity
2. Due to such impairment, they lose their ability to respond to substantive ideas under
the debate. This further deprives their full participation in the democracy.

Hate speech is not beneficial to any society rather detrimental to democracy as it inflicts pain
to the society32. Pravasi Bhalai Sangathan case33 also explains the repercussions that result
out of hate speech. Hate speech nourishes breeding ground that facilitates, attacks on
vulnerable. The form of attack may be discrimination, to ostracism, segregation, deportation,
violence and, in the most extreme cases, to genocide. Pravasi Bhalai Sangathan case was a
writ petition filed to seek directions and guidelines to regulate Hate Speech. The court
refused to issue any such guidelines as it though the existing penal laws are sufficient and
competent to tackle the menace of such hate speeches. It opined that in the salus reipublicae
suprema lex (i.e. safety of the state is the supreme law) the enforcement of law is necessary.

29
AIR 2014 SC 1591, Para 8.
30
Ramesh v. Union of India, AIR 1988 SC 775, See. Pravasi Bhalai Sangathan, Para 9.
31
Law Commission of India, Two Hundred Sixty Seventh Report: Hate Speech (Government of India, March
2017) at Para 6.18, note 134-135, p. 44.
32
Floyd Abrams, Hate Speech: The Present Implications of a Historical Dilemma, 37 Vill. L. Rev. 743
(1992).Available at: http://digitalcommons.law. villanova.edu/vlr/vol37/iss4/2.
33
Supra note 28.
Conclusion

Freedom of Speech and freedom of Expression are indispensable conditions for the full
development of the person. They constitute the foundation stone for every free and
democratic society. The freedom of speech and expression is the first and foremost human
right, the first condition of liberty, mother of all liberties, as it makes the life meaningful.
However freedom of speech often poses difficult questions, like the extent to which State can
regulate individual conduct. Since, individual‘s autonomy is the foundation of this freedom;
any restriction on it is subject to great scrutiny.Having discussed the importance of freedom
of speech and expression, one cannot deny the fact that right to freedom of speech and
expression in isolation is not enough. It has to be understood that to speak or to express a
thought it is necessary to be aware of all the aspects and fundamentals of the issue in
discussion.
In Indian Express Newspaper (Bombay)(P) Ltd. v. Union of India34, the following four
purposes of free speech and expression were set out;
(a) It helps an individual to attain self-fulfillment,
(b) It assists in the discovery of truth,
(c) It strengths the capacity of an individual in participating in decision making and
(d) Provides mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
The other important aspect to be kept in mind is reasonable restriction on the speech and
expression which enables the State to impose certain restrictions on the right to free speech is
the “harm principle” which means the until and unless a speech does not result into some sort
of harm, the same cannot be suppressed. However the yardstick on which this harm is to
measured has to be high. The harm is to be of such intensity that it threatens the very
existence of the society; it disturbs the public order and results into the chaos in the society35.
Thus, whenever there is a need to interfere, the Courts have laid down certain rules as
touchstones. In case of S. Rangarajan v. P. Jagjivan Ram, it was held that unless there is a
danger to the society and public order, the right to freedom of speech and expression cannot
be restricted. The anticipated danger should be remote, conjectural or far-fetched. It should
have proximate and direct nexus with the expression. In other words, the expression should
be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a
powder keg’.

After going through these interpretations of the court, we can deduce essential elements of
reasonable restrictions as follows:
 Restrictions could be imposed only by or under the authority of law. Without legal
authority the executive cannot impose the restrictions.
 The restriction must necessarily be „reasonable‟.
 Restriction must be in accordance with the purpose specifically mentioned in the
given clauses.

34
Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India, AIR 1986 SC 515.
35
Romesh v. Union of India, AIR 1988 SC 775;
  The judiciary has been empowered to test the Constitutional validity of these
restrictions. The reasonableness defined by the legislature is certainly not final and
hence subject to the judicial review of the same.

The legislature can restrict the freedom of speech and expression in accordance with the
reasonable grounds provided under Article 19 (2). Otherwise it cannot.