FREEDOM OF SPEECH AND

EXPRESSION
Freedom of speech and expression, being, the most
important and fascinating facet of liberty, is an
inalienable human right.
The United Nation’s Charter has recognized this
basic fundamental human right.
 Indian Constitution has also recognized this basic
and fundamental right by incorporating such right in
Part III of the Constitution with a guarantee to
protect this inalienable fundamental right subject to
reasonable restriction.
 HISTORICAL BACKGROUND

The Subcommittee on fundamental Rights

first considered , on March 25,1947 , the
rights to freedom of expression, association,
assembly and other rights as contained in
the drafts of Dr Munshi and Dr Ambedkar.
Dr Munhsi draft proposed that every citizen
shoul have several personal rights
safeguarded to him.
Dr. Ambedkar’s draft proposed that “no Law
shall be made abridging the freedom of
speech, of the press, of association and of
assembly ,except for considerations of public
order and morality.
The Sub- Committee on fundamental Rights, in
its draft report, formulated five specific rights
of the citizen, viz.
 (i) the right to freedom of speech and
expression,
(ii) the right to assemble peaceably and without
arms,
(iii) the right to form associations or unions,
(iv) the right to the secrecy of correspondence ;
and
(v) the right to freedom of movement
throughout the Union, to reside and settle in
any part of the union ,to acquire property
,and to follow any occupation , trade
,business or profession.
The freedom of press which had been
proposed as a separate right has not
ultimately found a place in the Constitution
as a separate right.
After a detailed discussion on the Constituent
assembly, the Indian Constitution came with effect
from 26th January 1950.
Article 19(1)(a) and Article 19 (2) of this Constitution
deal with the freedom of speech and expression and
the restriction laid on that freedom respectively.
 INTRODUCTION

In the Indian Constitution, Article 19 (1)

guarantees to citizens six freedoms in all.
One of these, the first is the right to freedom
of speech and expression in Article 19(1).
This right is subject to the restrictions set
out in 19(2).
Freedom of speech and expression is a set of
fundamental rights guaranteed by Indian
Constitution.
• Basically it is designed to provide protection
against state action other than in the
legitimate exercise of its power to regulate
private rights in the public interest.
Freedom of speech and expression is a set of
fundamental rights guaranteed by Indian
Constitution.
Article 19(1) (a) of Indian Constitution
assures the Freedom of Speech and
expression as ‘All citizens shall have the
right of freedom of speech and expression.
The right is at par with Article 19 of
Universal Declaration of Human
Rights which says:
‘Everyone has the right to freedom of
information 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.
Again the freedom for speech and
expression by Article 19(2) of the
International Covenant on Civil and
Political Rights” which says: “Everyone
shall have the right to freedom of
expression; this right shall include freedom
to seek, receive and impart information and
ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, or in the
form of art, or through any other of his
choice.
Article 19 deals with the right of freedom in different
facets guaranteed in Indian Constitution. Article 19
(1) (a) provides that “All citizens shall have the right
to freedom of speech and expression”.
Article 19 (2) however provides for imposition of
reasonable restrictions in the enjoyment of
fundamental rights guaranteed for freedom of
speech and expression in Article 19 (1) (a).
 Article 19 (2) provides that “Nothing in sub clause
(a) of clause (1) shall affect the operation of any
existing law, or prevent the state from making any
law in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by
the said sub clause in the interest of the sovereignty
and integrity of India, the security of the state,
friendly relation with the foreign state, public order,
decency or morality or in relation to contempt of
court, defamation or incitement to an offence.
The Constitution of India has not laid down any
specific provisions for fundamental rights to be
enjoyed by the media as such. The media persons
enjoy the freedom of speech and expression subject
to reasonable restrictions like any other Indian
citizen.
Freedom of media being an integral part of the
freedom of expression is essential pre-requisite of a
democratic set up.
 FREEDOM OF PRESS

In India freedom of expression is guaranteed by

Art.19(1)(a) of the Constitution and it has been held
that freedom of the press is included in that.
Since freedom of expression includes the freedom to
propagate one’s own views as well as others and
communicate to others.
 COMPONENT OF FREEDOM OF THE PRESS

To print and publish news and views.

Such views or opinions may be those of the editor or
author but also those of other people printed under
his direction.
The freedom extends to the discussion and
publication of views relating to all issues about which
information is needed to enable the members of the
society to cope with the period.
 COMPONENT OF FREEDOM OF THE PRESS

It includes the right to comment on public affairs

and to criticize public men and measures and to
criticize the Government including its defense policy
and the conduct of the armed forces without
prejudice to the national security.
A corresponding right to collect information relating
to public affairs or the right of access to the sources
of such information.
 COMPONENT OF FREEDOM OF THE PRESS

The right of the press to collect information from

diverse sources , free from any monopolistic control
from the Government.
Maneka Gandhi v.Union of India

the Supreme Court held that the freedom of

speech and expression has no geographical
limitation and it carries with it the right of a
citizen to gather information and to
exchange thought with others not only in
India but abroad also.
 ROMESH THAPPAR V STATE OF MADRAS

The petitioner was a printer, publisher and

editor of a weekly journal in English called
"Cross Road“ printed and published in
Bombay. The Government of Madras, in
exercise of their powers under Section 9(1-
A) of the Maintenance of Public Order
Act,1949,isssued an order prohibition the
entry into or the circulation of journal in
that State .
The court said that freedom of speech and
expression includes freedom of propagation
of ideas, and that freedom is ensured by the
freedom of circulation and freedom of
circulation is essential for the freedom of
publication.
In Romesh Thapar v. State of Madras,

 Patanjali Shastri, CJ observed: “ Freedom of

speech and of the press lay at the foundation
of all democratic organisations, for without
free political discussion no public education,
so essential for the proper functioning of the
process of popular government, is possible.”
 INDIAN EXPRESS V. UNION OF INDIA

In it has been held that the press plays a very

significant role in the democratic machinery.
The courts have duty to uphold the freedom of
press and invalidate all laws and administrative
actions that abridge that freedom.
 Freedom of press has three essential elements.
They are:1. freedom of access to all sources of
information, 2. freedom of publication, and
3. freedom of circulation.
SAKAL PAPERS LTD. V. UNION OF INDIA

 The Daily Newspapers (Price and Page)

Order, 1960, which fixed the number of
pages and size which a newspaper could
publish at a price was held to be violative of
freedom of press and not a reasonable
restriction under the Article 19(2).
Bennett Coleman and Co. v. Union of India

 The validity of the Newsprint Control

Order, which fixed the maximum number of
pages, was struck down by the Supreme
Court of India holding it to be violative of
provision of Article 19(1)(a) and not to be
reasonable restriction under Article 19(2).
The Court struck down the rebuttal of the
Government that it would help small
newspapers to grow.
Prabha Dutt v. Union of India

 The Supreme Court directed the

Superintendent of Tihar Jail to allow
representatives of a few newspapers to
interview Ranga and Billa, the death
sentence convicts, as they wanted to be
interviewed.
Brij Bhushan v. State of Delhi (AIR 1950 SC 129)

 The validity of censorship previous to the

publication of an English Weekly of Delhi, the
Organiser was questioned.
The court struck down the Section 7 of the East
Punjab Safety Act, 1949, which directed the editor
and publisher of a newspaper “to submit for
scrutiny, in duplicate, before the publication, till the
further orders , all communal matters all the matters
and news and views about Pakistan, including
photographs, and cartoons”, on the ground that it
was a restriction on the liberty of the press.
 In Bijoe Emmanuel V State of Kerala

The Supreme Court has held that no person can

compelled to sing the National Anthem, “if he has
genuine conscientious objections based on his
religious faith."
In this case, the three children belonging to
Jehovah's witnesses were expelled from the for
refusing to sing the National Anthem.
The circular issued by the Director of Public
Instructions Kerala had made it obligatory for
students to sing the National Anthem.
 Accordingly it was held that the children's
expulsion from the school was a violation of
their fundamental right under Article 19(1)
(a) which also includes the freedom of
silence.
Secretary, Ministry of I & B V. Cricket Association of Bengal (CAB)

 held that the government has no monopoly on

electronic media and a citizen , under Art. 19(1)(a) ,
a right to telecast and broadcast to the
viewers/listeners through electronic media
television and Radio amyl important event.
Tata Press Limited V. Mahanagar Telephone Nigam Limited

 the Mahanagar Telephone Nigam was a

Government company and it used to publish and
distribute Telephone Directories containing white
pages, however from 1987 the Nigam started to
entrust the work of publication of its telephone
directory to outside contractors were allowed to
raise Revenue by themselves and such
advertisement which was raised by sponsorship
were published as yellow pages in the Telephone
directories.
Later on Tata Press Limited were similarly
engaged in the publication of Tata Press yellow
pages .Later Nigam filed a suit before the court
saying that they alone have a right to print, publish
and circulate the list of Telephone subscribers
whereas Tata Press Limited has no such right and
they should be restrained from publishing the
yellow pages.
The Supreme Court held that there is no violation
of fundamental right ender Article 19(1)(a)
 In Hamdard Dawakhana V. Union of India

In this case the validity of drug and magic remedies

(Objectionable Advertisement Act) was challenged.
It prohibited the advertisement of drugs in certain
cases and prohibited advertisement of drugs having
magic qualities for curing diseases.
The Supreme Court held that an advertisement is
also a form of freedom of speech and expression but
not all advertisements deal with freedom of speech
and expression of ideas.
 In K.A. Abbas V. Union of India

In this case the petitioner had challenged the validity

of censorship as violative of his fundamental right no
freedom of speech and expression as according to him
it imposed unreasonable restriction.
The court held that the pre censorship of films was
justified under Article 19(2) on the grounds that the
films have to be so treated separately from other forms
af art and expression because a motion picture was
able to stir up emotions more deeply than any other
product of .Hence classification of films between two
categories was held to valid.
 In Bobby Art International V. Om Gopal Singh Hoon (Banidt
Queens case)

In this case the Respondent filed a Writ Petition in

the court for quashing the certificate of exhibition of
the Bandit Queen and restraining the exhibition in
India.
The Supreme Court held that the certificate issued to
the film Bandit Queen upon conditions imposd by
the Appellate Tribunal is valid and is therefore
restored .
 RESTRICTIONS

Under Indian law, the freedom of speech and of the

press do not confer an absolute right to express one’s
thoughts freely.
Clause (2) of Article 19 of the Indian constitution
enables the legislature to impose certain restrictions
on free speech under following heads:
I. security of the State,
II. friendly relations with foreign States,
III. public order,
 IV. decency and morality,
 V. contempt of court,
 VI. defamation,
VII. incitement to an offence, and
 VIII. sovereignty and integrity of India.
 SECURITY OF THE STATE

 Reasonable restrictions can be imposed on

the freedom of speech and expression, in the
interest of the security of the State. All the
utterances intended to endanger the security
of the State by crimes of violence intended to
overthrow the government, waging of war
and rebellion against the government,
external aggression or war, etc., may be
restrained in the interest of the security of
the State
 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 tends
to jeopardise the friendly relations of India
with other State.
 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
(AIR 1950 SC 124). The expression 'public
order' connotes the sense of public peace,
safety and tranquility.
 wherein the Supreme Court struck down a law
barring the entry of journal in the state of Madras in
the Interest of Public Order. It was held that
restrictions could only be imposed on the grounds
mentioned in Article 19(2).
 Kishori Mohan v. State of West Bengal

The Supreme Court explained the differences between

three concepts: law and order, public order, security
of State.
Anything that disturbs public peace or public
tranquility disturbs public order. But mere criticism of
the government does not necessarily disturb public
order. A law punishing the utterances deliberately
tending to hurt the religious feelings of any class has
been held to be valid as it is a reasonable restriction
aimed to maintaining the public order.
It is also necessary that there must be a reasonable
nexus between the restriction imposed and the
achievement of public order
Superintendent, Central Prison v. Ram Manohar Lohiya

The Court held the Section 3 of U.P. Special

Powers Act, 1932, which punished a person if he
incited a single person not to pay or defer the
payment of Government dues, as there was no
reasonable nexus between the speech and public
order.
Similarly, the court upheld the validity of the
provision empowering a Magistrate to issue
directions to protect the public order or
tranquillity.
 Decency and morality

The word 'obscenity' is identical with the word

'indecency' of the Indian Constitution.
 R. v. Hicklin

The test was laid down according to which it

is seen 'whether the tendency of the matter
charged as obscene tend to deprave and
corrupt the minds which are open to such
immoral influences’.
 Contempt of court

The expression Contempt of Court has been

defined Section 2 of the Contempt of Courts
Act, 1971.
The term contempt of court refers to civil
contempt or criminal contempt under the Act.
 judges do not have any general immunity from
criticism of their judicial conduct, provided that
it is made in good faith and is genuine criticism,
and not any attempt to impair the
administration of justice.
Section 2: Definitions
(a) 'Contempt of Court' means civil contempt or
criminal contempt.
(b) 'Civil contempt' means willful disobedience to
any judgment, decree, direction, order, writ or other
process of a Court or willful breach of an undertaking
given to a Court.
(c) 'Criminal contempt' means the publication (whether
by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing
of any other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends
to lower the authority of, any Court, or
(ii) Prejudices, or interferes or tends to interfere with the
due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration of justice in any
other manner.
 Distinction Between Civil and Criminal Contempt

Criminal contempt offends the public and

consists of conduct that offends the majesty
of law and undermines the dignity of the
Court.
Civil contempt consists in failure to obey the
order, decree, direction, judgment, writ or
process issued by courts for the benefit of
the opposing party.
Vijay Pratap Singh v. Ajit Prasad

held that a distinction between a civil contempt

and criminal contempt seems to be that in a civil
contempt the purpose is to force the contemner to
do something for the benefits of the other party,
while in criminal contempt the proceeding is by
way of punishment for a wrong not so much to a
party or individual but to the public at large by
interfering with the normal process of law
diminishing the majesty of the court.
 Defamation

The clause (2) of Article 19 prevents any person from

making any statement that injures the reputation of
another.
 Defamation has been criminalized in India by
inserting it into Section 499 of the I.P.C
 Section 499 :The Indian Penal Code

499. Defamation.—Whoever, by words either spoken

or intended to be read, or by signs or by visible
representations, makes or publishes any imputation
concerning any person intending to harm, or
knowing or having reason to believe that such
imputation will harm, the reputation of such person,
is said, except in the cases hereinafter expected, to
defame that person
 Incitement to an offence

This ground was also added by the

Constitution (First Amendment) Act, 1951.
The Constitution also prohibits a person
from making any statement that incites
people to commit offence.
 Sovereignty and integrity of India

This ground was added subsequently by the

Constitution (Sixteenth Amendment) Act,
1963. This is aimed to prohibit anyone from
making the statements that challenge the
integrity and sovereignty of India.
 Sovereignty and integrity of India

By virtue of the provisions in the Preamble India is a

Sovereign Socialist Secular Democratic Republic. India
can make or unmake decisions with respect to the
country without the authority or interference of any
other country .

Salmond said that sovereignty is an essential element

for state. ‘Sovereignty or supreme power is that which
is absolute within its own sphere. ‘It is in and through
the State that law exists.
the very existence of the sovereignty depends
upon the popular opinion and the experience of
the society especially in democratic countries
like India. Thus the balance of the freedom of
speech and supreme power of the sovereign is to
be maintained by law.