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Freedom of Speech and Expression in India

The Indian Constitution guarantees various fundamental rights to an Indian citizen. One such right is the Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. Freedom of speech and expression enables a person to express his opinions freely with certain reasonable restrictions. Lets delve into the details here.
Written by:
Prachi Darji
Published on
13-Aug-19

The Indian Constitution guarantees various fundamental rights to an Indian citizen. One such right is the Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. Freedom of speech and expression enables a person to express his opinions freely with certain reasonable restrictions. It is an indispensable right in a democracy[1] and is guaranteed to the citizens of India under Article 19(1)(a) of the Constitution of India. It enshrines the principle of ‘liberty of thought and expression’ given in the Preamble.

Freedom of Speech and Expression gives the citizens of India the right to express one’s opinions and beliefs without any fear, by modes of words, written or spoken, pictures, or any other communicable or visual representation like gestures or signs[2]. It includes the liberty to propagate one’s own views as well as the right to publish the views of other people[3]. However, the right to speech and expression is not an absolute right and reasonable restrictions may be imposed by the State under Article 19(2) of the Constitution.

Table of Content:

  1. Why is Freedom of Speech important?
  2. Decided Cases Which Explain Freedom of Speech And Expression
    • Freedom of Press
    • Freedom of Commercial speech
    • Right to Broadcast
    • Right to Information
    • Right to criticize
    • Right to expression beyond national boundaries
    • Right not to speak or Right to silence
  3. The Grounds of Restriction:
  4. Freedom of Speech and Sedition
  5. What does Freedom of Speech and Expression not include?
  6. Frequently Askes Questions

Why is Freedom of Speech important?

The Purpose is Freedom of Speech and Expression is four-fold.

  • It allows for the self-fulfillment of an individual and protects his individuality in a democracy.

  • It allows for the free flow of ideas, beliefs, and thoughts and strengthens the community.

  • It galvanizes the process of dialogue and ensures voices are not suppressed leading to the discovery of truth at large.

  • It provides for a reasonable balance between society at large and laissez-faire.

The Freedom of Speech and Expression is guaranteed under Article 19(1)(a) of the Indian Constitution and Article 19(2) empowers the State to impose reasonable restrictions on the freedom of speech and expression.

 

Decided Cases Which Explain Freedom of Speech And Expression

  • Freedom of Press

Freedom of Press is implicit in the freedom of expression forming the backbone of political liberty[4] and proper functioning of the democracy. Dr. Ambedkar had quoted that “The editor of a press or the manager is merely exercising the right of expression and therefore freedom of the press does not require a special mention.[5]

In the case of Indian Express Newspapers v. Union of India[6], the Court had upheld that freedom of press derives its roots from Article 19(1) (a) and its maintenance is the primary duty of the Court.

In the case of Romesh Thappar vs. the State of Madras[7], the ban of entry and circulation of a journal, and that in the case of Benet Coleman and Co. vs. Union of India[8], the limitation of the maximum number of pages in the newspaper were both held to be against the basic tenet of freedom to circulate under Article 19(1)(a).

Further, in the case of Prabhu Dutt vs. Union of India[9], and Sheela Barse vs. the State of Maharashtra[10], it was held that the right to know news and information regarding the administration of the government is included in the freedom of the press.

  • Freedom of Commercial speech

Commercial speech or commercial advertisements can be segregated into two, first, those dealing with the commerce or trade and second, those propagating ideas. As upheld in the case of Hamdard Dawakhana vs. Union of India[11], protection of freedom of speech and imposition of restrictions thereof only extends to the second category.

In the case of Tata Press Ltd. v. Mahanagar Telephone Nagar Ltd.[12], it was held that commercial speech is a facet of freedom of speech and expression. The economic system in a democracy would be disabled if there is no freedom of commercial speech. This case limited the application of the ruling of Hamdard Dawakhana Case i.e. commercial speech or advertisements cannot be denied protection under Article 19(1)(a) on the grounds that it is issued by businessmen.

  • Right to Broadcast

With the advent of technology, the new dimension of freedom to speech and expression that has been recognized by Courts is the right to broadcast and advertising. In the case of Odyssey Communications Pvt. Ltd. vs. Lokvidayan Sanghatana[13], the issue came before the Supreme Court when a registered social organization, Lokvidayan Sanghatana, filed a PIL to restrain broadcasting of a show “Hony Anhoni” on grounds that it spreads superstition. The court held that the right to broadcast within the ambit of terms and conditions already imposed is a part of freedom of speech.

  • Right to Information

After the enactment of the Right to Information Act, 2005, in a series of judgments, the right to information has been held to emerge from the Constitutional guarantee under Article 19(1)(a).

It was held in the case of Secretary-General, Supreme Court of India vs. Subhash Chandra Agarwal[14]; wherein the Delhi High Court re-affirmed that the right to information is not the legislation but the Constitutional freedom of speech and expression. Further, it was held in Union of India vs. Association for Democratic Reforms[15], that to ensure that the citizens are informed and one-sided information or misinformation does not make democracy a farce, it is essential to include the right to impart and receive information under Article 19(1)(a).

The right to know the functioning of Life Insurance Corporation (LIC) was upheld to be within the freedom of speech and expression in the case Life Insurance Corporation of India v. Manubhai D. Shah[16]. It was opined by the Supreme Court in Dinesh Trivedi, M.P. and Ors. v. Union of India case that “in modern democracies governed by a Constitution, it is self-evident that citizens have a right to know about the affairs of the government which is elected by them.”

  • Right to criticize

The right to form an opinion and to express it in a manner that does not cause defamation to the other person to whom such criticism is directed is protected under the freedom of speech and expression. Democracy allows for open discussion and criticism of policies. This view was upheld in the case of S. Rangarajan vs. P. Jagjivan Ram.

  • Right to expression beyond national boundaries

Freedom of speech and expression is not limited or restricted by geographical limitations or boundaries. In the case of Maneka Gandhi vs. Union of India[17], the Supreme Court held that Article 19(1)(a) includes both right to speak and express in India and abroad.

  • Right not to speak or Right to silence

The Supreme Court upheld in Bijoe Emmanuel vs. State of Kerala[18] and the National Anthem Case that no person can be put under any compulsion to sing the National Anthem “if he has genuine conscientious objections based on his religious faith.” In the same instance, three students who belonged to Jehovah’s Witnesses were expelled from school on grounds of refusal to sing the National Anthem which was in clear violation of the circular issued by Director of Public Instructions Kerala. The circular made it obligatory to sing the National Anthem in school. Their contentions were based on religious faith, which did not permit them to join in any rituals except in the prayer of Jehovah, their God.

Supreme Court reversed the decision of the Kerala High Court which had upheld the expulsion of students and upheld that no offense was committed under the Prevention of Insults to National Honour Act, 1971 as they stood up respectfully for the National Anthem. The right to silence was recognized as a part of the right to freedom of speech and expression.sd

The Grounds of Restriction:

The Constitution allows imposition of reasonable restrictions by the State in the interest of the public at large on the following grounds:

  • Security of the State: Every grade of the public disorder cannot amount to threatening the security of the State. The term was interpreted in the case of Romesh Thapper v. State of Madras[19] to refer to “serious and aggravated forms of public disorder”. Ordinary breaches like unlawful assembly and riot do not fall under the purview. It may include rebellion, waging war against the State, insurrection, etc.
  • Friendly relations with the Foreign States: Inserted by the Constitution (1st Amendment) Act, 1951, this provision prohibits propagation of malicious and unrestrained propaganda against a foreign-friendly State to maintain good foreign relations at Inter-Country level.
  • Public Order: Inserted by the Constitution (1st  Amendment) Act, 1951, to give effect to the decision of Supreme Court in Romesh Thapper’s case[20]. Public Order refers to public peace, safety and tranquility i.e. anything that has the potential to disturb public tranquility or public peace disturbs public order. Public order is not the normal maintenance of law and order in society.
  • Decency and Morality: The standards of morality vary from one society to another. The standard can be said to be at par with the standard of obscenity as laid down in R. v. Hicklin[21] case as to whether it intends to deprave or corrupt the minds of those who may be susceptible to such immoral influence.
  • Contempt of Court: Defined under section 2 of the Contempt of Courts Act, 1971, it refers to the disobedience of any judgment, order, direction or process of the Court or Judiciary. The State is empowered to impose restrictions to protect and preserve the sanctity of the Judiciary.
  • Defamation: Any statement that may harm the reputation or goodwill of a person is said to be defamatory in nature. Exercise of freedom by one person should not result in negatively affecting the rights of another. Therefore, a check can be placed on this ground by the State.
  • Incitement to an Offence: Freedom of speech and expression cannot act as a permit or license to incite an offence i.e. any act or omission that is made punishable by law.
  • Sovereignty and Integrity of India: Added by the Constitution (16th Amendment) Act, 1963, it allows the State to impose a restriction on any person who attempts to challenge or intends to disturb the sovereignty and integrity of the nation.

Freedom of Speech and Sedition

Section 124-A of the Indian Penal Code defines sedition as any act, words, spoken or written, visual representation or employment of any other mode to incite dissatisfaction towards the Government or the National Laws. Though not expressly stated as a reasonable restriction under Article 19(2), the State is empowered to impose a reasonable restriction under public order on this ground as held in the case of Devi Saren vs. State[22]. In the case of Niharendu Dutt Majumdar vs. Emperor[23], the High Court held that mere criticism does not amount to sedition. To constitute sedition there must be an attempt to undermine the respect for the Government and its laws.

What does Freedom of Speech and Expression not include?

Freedom of speech and expression despite being a fundamental right is not absolute in nature. It is subjected to reasonable restrictions by the State. Therefore, any act of expression or speech which falls under the ambit of grounds aforementioned under Article 19(2) is not protected by Article 19(1)(a). For example, an exercise of the right to speech to entice people against the government cannot be protected under the blanket of the fundamental right. Sedition though not explicitly mentioned under article 19(2) is protected under the heading of Public Order. 

Frequently Asked Question:

Does India really have freedom of speech and expression?

Yes, India has freedom of speech and expression guaranteed as a Constitutional fundamental under Article 19(1) (a). However, it is not absolute and is subjected to reasonable restrictions that may be imposed by the State under the grounds mentioned in Article 19(2) including public order, decency, morality, sovereignty and integrity of the nation amongst others. The Indian Judiciary has played a vital role in constantly expanding the ambit of the aforementioned right to suit the changing times and situations.

What is the meaning of freedom of speech and expression?

Freedom of Speech and Expression indicates the right to express one’s opinions and beliefs without any fear, by modes of words, written or spoken, pictures, or any other communicable or visual representation like gestures or signs. It includes the liberty to propagate one’s own views as well as the right to publish the views of other people. It includes the freedom of the press, broadcasting, advertisements, etc. amongst others.

What does Article 19 of the Indian Constitution say?

Article 19(1) of the Constitution guarantees six fundamental freedoms to the Citizens of India and Article 19(2) to Article 19(6) provide for reasonable restrictions that may be imposed by the State on these fundamental freedoms. All citizens shall have the right,

  •  to freedom of speech and expression;
  • to assemble peaceably and without arms;
  • to form associations or unions;
  •  to move freely throughout the territory of India;
  • to reside and settle in any part of the territory of India; and
  • omitted
  • to practice any profession, or to carry on any occupation, trade or business

What is the right to freedom of expression?

The right to freedom of expression implies the right to present or portray one’s point of view, opinion, belief or outlook by any mode of communication, words: written or spoken, visual representation, paintings, printings, etc. amongst various others. It is the presentation of one’s opinion in a free manner without any interference. However, the right is not absolute in nature and is subjected to reasonable restrictions under Article 19(2).

Is protesting legal?

Yes, protest is a legal way of expression. It is protected under article 19(1)(a) as long as it is not violent and does not fall under the grounds for reasonable restrictions enlisted under Article 19(2). Protests can be a means to express dissent, grief, disapproval, etc. However, under special circumstances the government may impose a curfew, thereby not allowing assembly of people. In such situations, a protest through legal may have repercussions.

Does freedom of expression have limits?

Yes, similar to other fundamental freedoms guaranteed under Article 19, freedom of expression has limits. It is not an absolute fundamental right. The Restrictions should be reasonable and can only be imposed by the State. The Restrictions include:

  • Security of the State,
  • Friendly relations with the Foreign States
  • Public Order,
  • Decency and Morality,
  • Contempt of Court,
  • Defamation,
  • Incitement to an offence, and
  • Sovereignty and Integrity of India.

Is freedom of expression a constitutional right?

Freedom of expression is a Fundamental Right guaranteed by the Constitution of India under Article 19(1)(a). It is not an absolute right and is subject to reasonable restrictions which may be imposed by the State under sub-heads mentioned in Article 19(2).

What are some examples of freedom of speech?

Few examples of freedom of speech are:

  • Publishing articles in newspapers;
  • Visual representation in forms of banners, hoarders, commercials;
  • Advertisements;
  • Use of Social Media to broadcast and spread information which is not false or misleading;
  • Reporting of news through various means;
  • Movies/autobiographies/Books based on real-life incidents and people;
  • Discussion and Debates on government policies.

 

[1] Romesh Thapper vs. State of Madras AIR 1950 SC 124

[2] Lowell vs. Griffin (1939) 303 US 444

[3] Srinivas v. State of Madras, AIR 1931 Mad 70

[4] Brij Bhushan vs. State of Delhi, AIR 1950 SC 129

[5] Dr. Ambedkar’s Speech in Constituent Assembly Debates, Volume VII, 980

[6] (1985) 1 SCC 641

[7] AIR 1950 SC 124

[8] AIR 1973 SC 106

[9] AIR 1982 SC 6

[10] (1997) 4 SCC 373

[11] AIR 1960 SC 554

[12] (1995) 5 SCC 139

[13] (1988) 3 SCC 410

[14] AIR 2010 Del 159 (FB)

[15] (2002) 5 SCC 294

[16] (1992) 3 SCC 637

[17] AIR 1978 SC 597

[18] (1986) 3 SCC 615

[19] AIR 1950 SC 124

[20] Romesh Thapper v. State of Madras AIR 1950 SC 124

[21] LR 3 QB 360

[22] AIR 1954 Pat 254

[23] AIR 1942 FC 22