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The note/s given below is/ are a compilation of information taken from various
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regarding the authenticity of the information provided in the note/s.
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notes that are discussed in the class.
Introduction
“Give me the liberty to know, to utter,
and to argue freely according to conscience, above all liberties”.
-John Milton
The essence of free speech is the ability to think and
speak freely and to obtain information from others through publications and
public discourse without fear of retribution, restriction, or repression by the
government. It is through free speech, people could come together to achieve
political influence, to strengthen their morality, and to help others to become
moral and enlightened citizens. The freedom of speech is regarded as the first
condition of liberty. It occupies a preferred and important position in the
hierarchy of the liberty, it is truly said about the freedom of speech that it
is the mother of all other liberties. Article 19(1)(a) of the
Constitution of India guarantees to all its citizens the right to freedom of
speech and expression. The law states that, “all citizens shall have the right
to freedom of speech and expression”. Under Article 19(2) “reasonable
restrictions can be imposed on the exercise of this right for certain purposes.
Any limitation on the exercise of the right under Article 19(1)(a) not
falling within the four corners of Article 19(2) cannot be
valid.
The freedom of speech under Article 19(1)(a) includes
the right to express one’s views and opinions at any issue through any medium,
e.g. by words of mouth, writing, printing, picture, film, movie
etc. It thus includes the freedom of communication and the right
to propagate or publish opinion. But this right is subject to reasonable
restrictions being imposed under Article 19(2). Free expression
cannot be equated or confused with a license to make unfounded and
irresponsible allegations against the judiciary.
It is important to note that a restriction on the
freedom of speech of any citizen may be placed as much by an action of the
State as by its inaction. Thus, failure on the part of the State to guarantee
to all its citizens irrespective of their circumstances and the class to which
they belong, the fundamental right to freedom of speech and expression would
constitute a violation of Article 19(1)(a). The fundamental
right to freedom of speech and expression is regarded as one of the
most basic elements of a healthy democracy for it allows its citizens to
participate fully and effectively in the social and political process of the
country. In fact, the freedom of speech and expression gives greater
scope and meaning to the citizenship of a person extending the concept from the
level of basic existence to giving the person a political and social life.
Why to protect freedom of speech?
Freedom of speech offers human being to express his
feelings to other, but this is not the only reason; purpose to protect the
freedom of speech. There could be more reasons to protect these essential
liberties. There are four important justifications for freedom of speech –
1) For the discovery of truth by open
discussion - According to it, if restrictions on speech are tolerated,
society prevents the ascertainment and publication of accurate facts and
valuable opinion. That is to say, it assists in the discovery of truth.
2) Free speech as an aspect of self-
fulfillment and development – freedom of speech is an integral aspect
of each individual’s right to self-development and self-fulfillment.
Restriction on what we are allowed to say and write or to hear and read will
hamper our personality and its growth. It helps an individual to attain
self-fulfillment.
3) For expressing belief and political
attitudes - freedom of speech provides opportunity to express one’s
belief and show political attitudes. It ultimately results in the welfare of
the society and state. Thus, freedom of speech provides a mechanism by which it
would be possible to establish a reasonable balance between stability and
social change.
4) For active participation in democracy –
democracy is most important feature of today’s world. Freedom of speech is
there to protect the right of all citizens to understand political issues so
that they can participate in smooth working of democracy. That is to say,
freedom of speech strengthens the capacity of an individual in participating in
decision-making.
Thus we find that protection of freedom of speech is
very much essential. Protection of freedom of speech is important for the
discovery of truth by open discussion, for self- fulfillment and development,
for expressing belief and political attitudes, and for active participation in
democracy.
Elements of Right to Freedom of Speech and
Expression
* The right is available only to a citizen of India
and not to a foreign national.
* The freedom of speech under Article 19 (1) (a)
includes the right to express one’s view and opinions at any issue through any
medium i.e., word of mouth, writing, printing picture, film etc.
* This right is however, not absolute and it allows
the government to frame laws to impose reasonable restrictions in the interest
of sovereignty and integrity of India, security of the state, defamation and
incitement to an offense etc.
* These restrictions on the freedom of speech of
any citizen maybe imposed as much as an action of state as by its inaction.
Thus, failure on part of the state to guarantee this right would constitute a
violation of Article 19 (1) (a).
Examples that explained Freedom
of speech and expression:
1. Romesh Thapar vs. State of Madras
The petitioner Mr. Thapar was a well-known communist
of his time and was very sceptical of the policies of the then Prime Minister
Pt. Jawaharlal Nehru, especially his foreign policy. He published a few
articles in his weekly English magazine called Crossroads that
expressed his scepticism in this regard. he was writing these articles, a
communist movement was gathering steam in parts of Madras and the authorities
felt that the petitioner’s articles will not be helpful with regard to stopping
the enthusiasm among the members of the said communist movement. In the month
of March 1950, the Government of Madras by virtue of an order imposed a ban on
the entry and circulation of the magazine in these areas. The order was issued
pursuant to Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949
which empowered the government to prohibit the circulation, sale or
distribution of the journal in certain parts of the province of Madras for the
purpose of ensuring ‘public safety’ or preserving ‘public order.’ Aggrieved by
this government order Mr. Thapar approached the Supreme Court with the
contention that the impugned order infringed upon his fundamental right to
free speech and expression.
Patanjali Shastri rightly observed that Freedom of
Speech and of Press lay at the foundation of all democratic organizations for
without free political discussion, no public education, so essential for the
proper functioning of the process of government is possible
2. Indian Express vs. Union of India
This case talked about art 19(1)(a) which is the
freedom of expression and the reasonable restrictions covered under art 19(2)
of the Constitution of India. The Supreme Court asked the Central Government to
review its taxation policy to decide if it’s overburdening the newspapers. It
was argued by the petitioners that because of the import duty, the price of the
newspaper was bound to get increased and a fall in the circulation of the same.
The Supreme Court was of the opinion that the government can impose taxes on
the publication but within the reasonable restrictions mentioned in art 19(2)
so, it does not violate their freedom of expression. The Court also said that
as the petitioner and the respondent both failed in proving the excessive
nature of tax then it now becomes the duty of the government to review the
taxation policy.
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.
3. Maneka Gandhi vs. Union of India
The petitioner Maneka Gandhi's passport was issued on
1st June 1976 as per the Passport Act of 1967. On 2nd July 1977, the
Regional Passport Office (New Delhi) ordered her to surrender her passport. The
petitioner was also not given any reason for this arbitrary and unilateral
decision of the External Affairs Ministry, citing public interest. The
petitioner approached the Supreme Court by invoking its writ jurisdiction and
contending that the State's act of impounding her passport was a direct assault
on her Right of Personal Liberty as guaranteed by Article 21. It is pertinent
to mention that the Supreme Court in Satwant Singh Sawhney v.
Ramarathnam[2] held that right to travel abroad is well within the ambit of
Article 21, although the extent to which the Passport Act diluted this
particular right was unclear. The authorities, however, answered that the
reasons are not to be specified in the "interest of the general
public". In response, the petitioner filed a writ petition under Art 32
for violation of fundamental rights guaranteed under Articles 14, 19 and 21 of
the Constitution alleging that Section 10(3)(c) of the Act was ultra vires the
constitution.
The Supreme Court considered whether Article 19 (1)
(a) of the Indian Constitution was confined to Indian territory and held that
the freedom of speech and expression is not confined to National boundaries.
4. S. Rangarajan vs. Jagjivan Ram
The case becomes important in the context of state
governments demanding ban on the release of the film Padmaavat citing law and
order problem despite Film getting clearance from CBFC. The Court criticized
the State and emphasized that freedom of expression cannot be suppressed on
account of threat of demonstration and processions or threats of violence. It
is the duty of the State to protect the freedom of expression since it is a
liberty guaranteed against the State. Therefore the State cannot plead its
inability to handle the hostile audience problem. As censorship is permitted
only on the grounds under Article 19(2).In deciding the grounds SC gave tests
for standard and deletion of only those content which affects morality of the
society and not the ban of entire film, moreover only those content are
relevant which affects the conscious of society and not the public order.
Opens criticisms of government policies and operations
is not a ground for restricting expression. Intolerance is as much dangerous to
democracy as to the person himself.
4. Bennet Coleman and Co. v. Union of
India
In this case, the validity of the Newsprint Control
Order was challenged. The Order fixed the maximum number of pages which a
newspaper could publish, and this was said to be violative of Article 19(1) (a)
of the Indian Constitution. The government raised the contention that fixing
the newsprint would help in the growth of small newspapers as well as prevent
monopoly in the trade. It also justified its order of reduction of page level
on the ground that big dailies devote a very high percentage of space to
advertisements, and therefore, the cut in pages will not affect them. The Court
held the newsprint policy to be an unreasonable restriction, and observed that
the policy abridged the petitioner’s right of freedom of speech and expression.
The Court also held that the fixation of page limit will have a twofold effect-
first, it will deprive the petitioners of their economic viability, and second,
it will restrict the freedom of expression as compulsorily reducing the page
limit will lead to reduction of circulation and area of coverage for news and
views.
5. Hamdard Dawakhana v. Union of India
The validity of the Drug and Magic Remedies
(Objectionable Advertisement) Act, which put restrictions on advertisement of
drugs in certain cases and prohibited advertisements of drugs having magic
qualities for curing diseases was challenged on the ground that the restriction
on advertisement abridged the freedom. The Supreme Court held that an
advertisement is no doubt a form of speech but every advertisement was held to
be dealing with commerce or trade and not for propagating ideas.
6. A. Abbas v. Union of India
The case is one of the firsts in which the issue of
prior censorship of films under Article 19(2) came into consideration of the
Supreme Court of India. Under the Cinematograph Act, 1952, films are divided
into two categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that
can be shown to adults only. The petitioner’s film was refused the ‘U’
certificate, and he challenged the validity of censorship as violative of his
fundamental right of freedom of speech and expression. He contended that no
other form of speech and expression was subject to such prior restraint, and
therefore, he demanded equality of treatment with such forms. The Court,
however, held that motion pictures are able to stir emotions more deeply than
any other form of art.
Grounds of Restrictions
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 Indian constitution contains the grounds on which restrictions
on the freedom of speech and expression can be imposed:
1) Security of State: The term
"security of 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 expression 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 State.
2) Friendly relations with foreign
states: In the present global world, a country has to maintain good and
friendly relationship with other countries. Something which has potential to
affect such relation ship should be checked by 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) Public Order: Next restriction
prescribed by constitution is to maintain public order. This ground was added
by the Constitution (First Amendment) Act. '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 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 offences
against public order. Public order thus implies 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.
4) Decency or morality: The way
to express something or to say something should be decent one. It should not
affect the morality of the 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 fix
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.
5) Contempt of Court: In a
democratic country Judiciary plays very important role. In such situation it
becomes essential to respect such 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 the
Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.'
But now, Indian contempt law was amended in 2006 to make “truth” a defence.
However, even after such amendment a person can be punished for the statement
unless they were made in public interest. Again in Indirect Tax Practitioners
Assn. vs R.K.Jain, it was held by court that, “Truth based on the facts should
be allowed as a valid defence 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 defence should not
cover-up to escape from the consequences of a deliberate effort to scandalize
the court.
6) Defamation: Ones’ freedom, be it
of any type, must not affect the reputation or status another person. A person
is known by his reputation more than his wealth or any thing else. Constitution
considers it as ground to put restriction on freedom of speech. Basically, a
statement, which injures a man's reputation, amounts to defamation. Defamation
consists in exposing a man to hatred, ridicule, or contempt. The civil law in
relating to defamation is still uncodified in India and subject to certain
exceptions.
7) Incitement to an offence: This ground
was also added by the constitution (First Amendment) Act, 1951. Obviously,
freedom of speech and expression cannot confer a right to incite people to
commit offence. The word 'offence' is defined as any act or omission made
punishable by law for the time being in force.
8) Sovereignty and integrity of India: To
maintain sovereignty and integrity of a state is prime duty of government.
Taking into it into account, freedom of speech and expression can be restricted
so as not to permit any one to challenge sovereignty or to permit any one to
preach something which will result in threat to integrity of the country.
Censorship or Restrictions on Freedom of
Speech And Expression
In a modern State, absolute and unrestricted
individual rights do not exist, because they cannot exist. Freedom is more
purposeful if it is coupled with responsibility. Like any other freedom, the
freedom of speech and expression has to be balanced with other social values.
The liberty of the individual to do as he pleases even in innocent matters is
not absolute. It must frequently yield to common good.Freedom of the press has
to be reconciled with the collective interest of the society, which is known as
“public interest”.
The reconciliation of the contest between power and
liberty, between the claims of political society and the interests of
individual is a perennial problem of political society which curiously persists
irrespective of any difference in the form of Government. So, there are certain
permitted prior restraints and restrictions on the freedom of the press, in the
collective interest of society. Prior restraint means any kind of interference
or control exercised by the State over the freedom of the press at any stage
prior to publication of the alleged offending material.
Conclusion
Expression through speech is one of the basic
guarantees provided by civil society. However in modern world Right to freedom
of speech and expression is not limited to express ones’ view through words but
it also includes circulating one's views in writing or through audiovisual
instrumentalities, through advertisements and through any other communication
channel. It also comprises of right to information, freedom of press etc. It is
a right to express and self realization. Two big democracies of world i.e.
America and India have remarkably protected this right. As far as India is
concerned, this important right is mentioned in Article 19(1) (a), which falls
in fundamental right category. Indian courts have always placed a broad
interpretation on the value and content of Article 19(1) (a), making it
subjective only to the restrictions permissible under Article 19(2).
The United States has a complex First Amendment
jurisprudence that varies the protection offered free speech according to form.
Similarly, India developed its own free speech jurisprudence that applies a
"reasonable restrictions" test based on eight mentioned restrictions.
The real difference in freedom of speech enjoyed in the United States and India
is a question of degree. This difference in degree is attributable to the
reasonable restrictions provision and the moral standard of the communities.
References
https://blog.ipleaders.in/freedom-speech-expression-constitution-india/?amp=1
https://www.lawctopus.com/academike/freedom-of-speech-and-expression/
https://byjus.com/free-ias-prep/romesh-thapar-case-1950-sc-judgements/
https://www.legalserviceindia.com/legal/article-7094-case-analysis-on-maneka-gandhi-v-s-union-of-india-1978-the-golden-triangle.html
https://www.legalserviceindia.com/legal/article-5960-censorship-case-s-rangarajan-vs-p-jagjivan-ram.html
https://amp-dw-com.cdn.ampproject.org/v/s/amp.dw.com/en/three-for-free-cartoonists-in-support-of-freedom-of-speech/g-39278866?amp_gsa=1&_js_v=a6&usqp=mq331AQKKAFQArABIIACAw%3D%3D#amp_tf=From%20%251%24s&aoh=16412297383883&referrer=https%3A%2F%2Fwww.google.com&share=https%3A%2F%2Fwww.dw.com%2Fen%2Fthree-for-free-cartoonists-in-support-of-freedom-of-speech%2Fg-39278866
Compiled
and Edited by
Anjita
Sharma
Batch of
2023
B.A
(Hons.) Journalism
Lady
Shri Ram College for Women, New Delhi
