This article is written by Amanat Raza, from Faculty of law, Aligarh Muslim University and Riya Sancheti, from D.E.S’s Shri Navalmal Firodia law College, Pune. The article discusses the concept of freedom of speech and expression, its elements and grounds for restriction.
Table of Contents
Introduction
We have certain basic rights as citizens of India. Fundamental rights are enshrined in the Indian constitution under Part III. These basic rights are fundamental rights that we get right from birth. No single person or state may take away the same from us.
In particular, there are six fundamental rights: the right to equality (Articles 14-18), the right to freedom (Articles 19-22), the right against exploitation (Articles 23 and 24), the right to freedom of religion (Articles 25-28), educational and cultural rights (Articles 29 and 30) and the right to constitutional remedies (Article 32).
We will just take a closer look at Article 19, which deals with six fundamental freedoms. Article 19 is the most significant and important article embodying the ‘basic freedoms’ Article 19(1) of the Constitution, subject to the power of the State to enforce restrictions on the exercise of certain rights, grants those constitutional rights. Thus, the object of the Article was to protect these rights from State interference other than in the lawful exercise of its power to regulate private rights in the public interest.
Origin of freedom of speech and expression
The idea of freedom of speech had originated a long time ago. It was first introduced by the Greeks. They used the term “Parrhesia” which means free speech or to speak frankly. This term first appeared in the fifth-century B.C. Countries such as England and France have taken a lot of time to adopt this freedom as a right. The English Bill of Rights, 1689 adopted freedom of speech as a constitutional right and it is still in effect. Similarly, at the time of the French revolution in 1789, the French had adopted the Declaration of the Rights of Man and of Citizens.
The UN General Assembly adopted the Universal Declaration of Human Rights on 10 December 1948 under Article 19 which recognised the freedom of speech and expression as one of the human rights.
Freedom of speech and expression in India
John Milton says that “give me the liberty to know, to argue freely, and to utter according to conscience, above all liberties”.
The above sentence by John Milton clearly displays the essence of freedom of speech. He argued that without human freedom there would be no progress in science, law or in any other field. According to him, human freedom means free discussion of opinion and liberty of thought and expression.
Justice Louis Brandies had made a classic statement on the freedom of speech in the context of the U.S Constitution in the case of Whitney v. California [1]
“Those who won our independence believed that courage is the secret of liberty and liberty is the secret of happiness. These people believed that freedom to think, freedom to speak and freedom to assemble wilfully for discussion is futile and of no use. But the public discussion is a political duty and it should be the fundamental principle of the government of America.
The importance of this right is that it helps us in attaining self-fulfilment and in discovering the truth.”
Meaning of freedom of speech and expression
The right to express one’s own ideas, thoughts and opinions freely through writing, printing, picture, gestures, spoken words or any other mode is the essence of freedom of speech and expression. It includes the expression of one’s ideas through visible representations such as gestures, signs and other means of the communicable medium. It also includes the right to propagate one’s views through print media or through any other communication channel.
This implies that freedom of the press is also included in this category. Free propagation of ideas is the necessary objective and this may be done through the press or any other platform. These two freedoms i.e., freedom of speech and freedom of expression have their own respective qualifications.
According to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the freedom to seek, receive, and convey information and all kinds of ideas irrespective of boundaries, either orally or in the form of writing, print, art or through any other media of their choice are included in the right to freedom of speech and expression.
Article 19 (1)(a) of the Indian constitution
In India, the freedom of speech and expression is granted by Article19(1)(a) of the Indian Constitution, which is available only to the citizens of India and not to foreign nationals. Freedom of speech under Article 19(1)(a) includes the right to express one’s views through any medium, which can be by way of writing, speaking, gesture or in any other form. It also includes the rights of communication and the right to propagate or publish one’s opinion.
The right that is mentioned above, guaranteed by our constitution, is regarded as one of the most basic elements of a healthy democracy because it allows citizens to participate in the social and political process of a country very actively.
Importance of freedom of speech and expression
It was well said by Cicero, a Roman politician as well as a lawyer that “The people’s good is the highest law”. The manner in which this can be achieved can be inferred from our constitutional provisions, which demonstrate that if a person raises his/her voice against any evil then everybody will listen to the voice and stand against that evil to scrap it out from its root.
Let us have an example of this: compare the past when women were not allowed to vote with the present day. Now women are allowed to vote. How does this happen? It happens because of the right of free speech and expression. The right to free speech and expression have that power through which it can break any type of giant brick that comes in its way.
Other rights that allow or help Indian society develop and progress are supported by freedom of speech and expression which is also a fundamental human right. Free speech and expression have always been important throughout history as it facilitates many changes, one of which is the French revolution.
Free speech and expression not only includes the right to express what one thinks but it also includes listening to others. When a person expresses his/her opinion, it only carries the intrinsic value of that opinion and being silent on that opinion is an injustice to the basic human rights.
Union of India v Naveen Jindal and Anr.,[2]
Facts: The respondent Naveen Jindal was not allowed to hoist the national flag at the office premise of his factory by government officials on the ground that it was not permissible under the Flag Code of India.
Judgment: In this case, the high court held that the restrictions that the Flag Code imposed on citizens on hoisting the National Flag were not permissible under clause (2) of Article 19 of the Indian Constitution. The court has also stated that displaying a flag is an expression of pride as well as an expression of genuine enthusiasm and it can only be restricted in accordance with what has been prescribed in the Constitution, otherwise, the restriction would discourage the citizens or Indian nationals from identifying with the flag of the country.
Virendra v. The State of Punjab and Anr.[3]
Facts: Serious communal tension had arisen in the state of Punjab between the Hindus and the Akali Sikhs because of the question of partition of the state on a linguistic and communal basis. There were two petitioners and both were from different newspapers. Their newspapers’ policy was to support the ‘Save Hindi agitation’. A notification was passed by the home ministry office under the impugned Act prohibiting the publication and printing of any material relating to the ‘Save Hindi agitation’. Both the petitioners filed a complaint alleging that the Punjab Special Powers (Press) Act, 1956 passed by the state legislature was unconstitutional.
Judgment: The court held that Section 2 of the impugned Act did not merely impose restrictions but imposed a total prohibition against the exercise of the right of freedom of speech and expression, making the same a violation of the right guaranteed by the Constitutional provision.
Sakal Papers v. Union of India[4]
Facts: The petitioner was the owner of a private limited company, ‘Sakal’, which published daily and weekly newspapers in Marathi. This newspaper used to play a leading part in the dissemination of news and in moulding public opinion. They claimed that their net circulation of copies in Maharashtra and Karnataka on weekdays was 52,000 and on Sunday it was 56,000. However, the Central Government passed the Newspaper (Price and Page) Act, 1956, later, the Daily Newspapers (Price and Page) Order, 1960. Because of that order, the government fixed the maximum number of pages that could be published by the newspapers. So the petitioner filed a case challenging the constitutionality of that Act.
Judgment: The court held that Section 3(1) of the Act was unconstitutional and also an order made under the same would be unconstitutional.
Elements for the right to freedom of speech and expression
The main elements for the right to freedom of speech and expression are as follows:
- This right is available only to a citizen of India and not to the person of other nationalities i.e., foreign nationals.
- The freedom of speech under Article 19(1)(a) of the Indian constitution includes the right to express oneself through any medium, such as in words of writing, printing, gesture, etc.
- This right is not absolute, which means that the government has the right to make laws and to impose reasonable restrictions in the interest of sovereignty and integrity of India, friendly relations with foreign states, the security of the state, public order, decency, morality, defamation and contempt of court and incitement to an offence.
- Such a right ought to be implemented as much by the action of the State as by its inaction. Thus, failure on the part of the State to guarantee the freedom of right and expression to all its citizens would also constitute a violation of Article 19(1)(a) of the Indian constitution.
Freedom of press
“Our liberty depends on the freedom of the press, and that cannot be limited without being lost” is stated by Thomas Jefferson to define the importance of freedom of the press.
To preserve the democratic way of life it is necessary that people should have the freedom to express their feelings and to make their views known to people at large. Freedom of speech includes propagation of one’s views through print media or any other communication channels like radio and television, subject to reasonable restrictions imposed under Article 19(2) of the Indian constitution.
Although freedom of the press is not mentioned in Article 19 of the Indian Constitution, yet it has been a part of freedom of speech and expression as considered by judges of the Supreme Court through decided cases.
In the leading case of Romesh Thapar v. The State of Madras,[5] it has been decided by the supreme court that freedom of the press is an intrinsic part of freedom of speech and expression.
Why freedom of the press is important in the Indian context?
An American lawyer and free press advocate Trevor Timm have stated that “An independent press is one of the important pillars of democracy”. Freedom of the press has always been a barricade against the secret government, against tyranny and against authoritarianism. The press has a very important role in showing the real face of political parties and also any type of incident that has been disguised and cannot be seen by the common people.
It is the press who revealed the income of a kachori wala (in U.P., Aligarh) recently and also showed the face of some dhongi type babas such as Ram Raheem and many others. It is the media who have the power to provoke people against a political party by showing or revealing their truth. It is used to measure the checks and balances in a democracy.
In the case of Indian Express Newspaper v. Union of India,[6] it was held that the press plays an important role in the democracy machinery. The courts have a duty to uphold the freedom of the press and invalidate all laws and administrative actions that would take that freedom.
An important aspect to be noted is that the freedom of the press has been specifically mentioned in the United States Constitution,[7] while it is a mere inference made by courts in the Indian context, which explains the possible variation in the adjudication of disputes relating to this right in both jurisdictions.
What are the elements of freedom of the press?
There are three elements of freedom of the press and these are as follows:
- Freedom of access to all types of source of information
- Publication freedom, and
- Circulation freedom
What is the reason behind the degradation of freedom of the press
In the initial phase of freedom of the press, the views of Jawaharlal Nehru regarding press was that he wanted the press free from all evils and also free from all forms of danger involved in the wrongful use of that freedom. But Indira Gandhi had opposite or conflicting views in respect of Jawaharlal Nehru. She didn’t have much faith in the press and her misgivings were first expressed when she was addressing the International Press Institute Assembly in New Delhi on November 15, 1996, when she blamed the press for giving wide publicity to the student unrest in the country.
The press has slowly been losing its importance in the country. Many politicians take advantage of the press to win an election by giving rise to conflict amongst the people. Many a time, freedom of the press has been suppressed by the legislature. There is a case in respect of that condition, Sakal Paper v.Union of India.,[8] in which, the Daily Newspapers (Price and Page) Order, 1960, fixed the number of pages and the size of the pages which a newspaper could publish. It was held that it violated the freedom of the press and was not a reasonable restriction under Article 19(2).
Freedom of Commercial Speech
The current judicial position of commercial speech in India is that it can be seen as a part of freedom of speech and expression with reasonable restrictions given or guaranteed under Article 19(2) of the Indian Constitution.
Are we having the freedom to advertise?
The freedom of speech and expression under Article 19(1)(a) of the Constitution of India has been given to every citizen. Various judicial pronouncements have increased the ambit of freedom of speech and expression. Now it includes:
- Right to acquire and disseminate information.
- The right to communicate through any media, in the form of an advertisement, movie, speech, etc.
- Right to free debate and open discussion.
- Freedom of press.
- Freedom to be informed.
- Right to remain silent.
Thus, it can be seen that we have the right to advertise. In the case of Tata Press Limited v. Mahanagar Telephone Nagar Limited,[9] the Supreme Court held that commercial speech or commercial advertisement was also a part of freedom of speech, which could be restricted only within the limits of Article 19(2) of the Indian Constitution.
Right to Broadcast
The concept of freedom of speech and expression has evolved to include in its ambit all available means of expression and communication because of the advancements in technology. This includes broadcast media, electronic media and many other types of media.
In the case of Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana,[10] the supreme court held that the right of the citizens to display films on state channels such as Doordarshan came under the purview of fundamental rights guaranteed under Article 19 of the Indian Constitution.
Right to Information
The right to know or to get information is one of the aspects of freedom of speech and expression. Freedom to receive information is also included in the freedom of speech and expression through various supreme court judgments. Right to Information Act, 2005, which especially talks about the right of the people to ask for information from the government officials.
Rights of voters to know about their candidates
In the case of Union of India v. Association for Democratic Reforms,[11] it has been held that the amended Electoral Reform Law passed by the Parliament was unconstitutional as it violated the right of the citizens to know under Article 19(1)(a) of the Indian constitution.
Right to Criticize
In a monarchy, we know that the king is supreme and people are his subjects. This system of relationship gets reversed in a democratic form of government. The people are supreme and the state authority is a servant of the people. In Kedar Nath Singh v. The State of Bihar,[12] the supreme court held that mere criticism of the government is not sedition unless this criticism leads to incitement of violence or breach of public order. Similarly, there is a case of Manipur, where a journalist named Kishorechand Wangkhem was charged for criticizing the chief minister and charged with the offence of sedition under the National Security Act. However, he was released as the court found that the people of India had the right to criticize under Article 19(1)(a) of the Indian Constitution.
In another case of S. Rangarajan v. P. Jagjivan Ram,[13] it was held that everyone has got the right through the Indian constitution to form his/her opinion on any issue of general concern.
Right to Expression Beyond Boundaries
The advancement in technology or the revolution in communication and electronic media has narrowed the gap of transnational barriers or we can say that it has diminished this barrier. It has made the transmission of information possible, even to other parts of the world within a fraction of second. In Maneka Gandhi v. Union of India,[14] the Supreme Court analysed whether Article 19(1)(a) of the Indian Constitution was confined to the Indian territory and finally held that the freedom of speech and expression was not confined to the national boundaries.
Right not to Speak
This right has also been included in freedom of speech and expression. This right came to the notice of people after the judgment in the leading case of Bijoe Emmanuel v. The State of Kerala.[15] This case is also known as the National Anthem case. In this case, three students were expelled by the school authority on refusal to sing the National Anthem.
However, these children stood from their seats in respect, when the national anthem was playing. The validity of the expulsion of children was challenged before the Kerala High Court. The court held that the expulsion of students on the ground that it was their fundamental duty to sing the national anthem was upheld.
However, on a further appeal by the students before the Supreme Court, it held that the students had not committed any offence under the Prevention of Insult to National Honor Act, 1971. Also, there was no law through which their fundamental rights under Article 19(1)(a) of the Indian Constitution could be curtailed. And also it was held that expulsion of children from school violated the right of freedom not to speak under Article 19(1)(a).
Some of the important cases relating to the freedom of speech and expression are as follows:
This case challenged the validity of Section 5(2) of the Indian Telegraph Act, 1885, which stated that if there occurred any public emergency, or in the interest of public safety, the Central Government or the State Government or any other officials were authorized to take temporary possession of any telegraph, on behalf of the government. Two conditions were observed while dealing with this case:
- The occurrence of public emergency
- In the interest of public safety
For the application of the provisions of Section 5(2), these two conditions were the sine qua non. If any of these two conditions were not present, the government had no right to exercise its powers under the said Section.
This case challenged the validity of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1956, on the ground of restriction that it took away or abridged this freedom. The Supreme Court held that an advertisement is a form of speech only if every advertisement was held to be dealing with commerce and trade and not for propagating any idea.
It is the first case in which the issue of the prior censorship of films came into consideration by the supreme court of India. The petitioner’s film was not given ‘U’ certificate so he challenged the validity of censorship under the criteria as it violated his fundamental rights of freedom of speech and expression. The court, however, held that the motion picture stirs emotions more deeply than any other form of art. Hence pre-censorship was valid and was justified under Article 19(2).
Grounds of restriction
It is necessary to preserve freedom of speech and expression in a democratic country. And it is also necessary to restrict this freedom to maintain social order otherwise some people might misuse this freedom. There are some restrictions imposed through Clause (2) of Article 19 on freedom of speech and expression on certain grounds.
Article 19(2) states that “nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of the existing law, neither can it prevent the State from making any law, in so far as such type of law imposes reasonable restrictions on the exercise of the right bestowed by the said sub-clause in the interests of the sovereignty and integrity of India, public order, friendly relations with foreign states, the security of the State, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.[19]
The ground for restriction is as follows:
Security of the state
Article 19(2) imposes reasonable restrictions on the freedom of speech and expression in the interest of the state. The term ‘security of the state’ should be distinguished from ‘public order’ as security of the state includes an aggravated form of public order. For e.g., waging war against the state, rebellion, insurrection, etc. The term ‘security of the state’ in Article 19(2) does not only mean danger to the security of the entire country but it also implies danger to the security of a part of states or threat to a part of states.
Friendly relations with a foreign state
This ground of restriction was added through the Constitutional First Amendment, 1951. The main objective behind adding this provision was to forbid unrestrained vitriolic propaganda against a foreign-friendly state, which could jeopardize the maintenance of good relations between India and that state. If the freedom of speech and expression disturbs or hampers the friendly relations of India with foreign states, the government has the right to impose a reasonable restriction.
Public order
This ground of restriction was also added through the Constitutional First Amendment,1951. A situation had arisen in the case of Romesh Thapar by the Supreme Court and to meet that situation, this ground had been added in the constitution. The word ‘public order’ depicts the sense of public safety, public peace, and peace of the community. In Om Prakash v. Emperor,[20] it has been said by the judge that anything that disturbs public peace can be said to disturb public order automatically. There is also a test that determines whether an act affects law and order or public order.
Decency and Morality
The word to express or say something should be a decent one that it should win the heart of the opposite person and it should not affect the morals of the society. So our Constitution has considered this view and added this ground in our Constitution. On the ground of decency and morality, Sections 292 to 294 of the Indian Penal Code, 1860 provides an example of a restriction on the freedom of speech and expression. These are the terms of variable content having no fixed meaning or we can also say that these words are of wide meaning. It varies from society to society and time to time depending upon the morals prevailing in contemporary society. The word morality and decency is not confined to sexual morality only; it has a broader scope.
Contempt of court
In a democratic country, we know that the judiciary plays an important role in governing a country in a peaceful manner so in such types of situation it is important to respect the institution and its order. What hampers the administrative law? How does anything interfere with justice? We know that there is a limitation in a judicial proceeding and anything that curtails its freedom leads to hampering of the administrative law and also anything can interfere with the decision of justice.
Contempt of court can be defined in two categories i.e., civil contempt and criminal contempt. Contempt of court has been defined in section 2(a) of the contempt of court act, 1971. Initially ‘truth’ was not a defence under contempt of court but in 2006 an amendment was made to add ‘truth’ as a defence. In the Indirect Tax Practitioner Assn. v. R.K. Jain [21] case, the court has held that truth which is based on the facts should be allowed as a valid defence.
Elements or essential needed to established a contempt:
- Making of a valid court order.
- The respondent should have knowledge of that order.
- The respondent should have the ability to render compliance.
- Intentionally or willfully disobey the order.
Defamation
Article 19(2) prevents any person from making any statement that defames the reputation of another person. One who gets the freedom of any type should not misuse that freedom to hurt or affect the reputation or status of another person. Generally, a statement that injures the reputation of a man results in defamation. The right to free speech is not qualified. So it does not mean to hurt any person’s reputation which is protected under Article 21 of the Indian Constitution.
Incitement to an offence
This ground was also added by the Constitutional First Amendment act, 1951. It is obvious that freedom of speech and expression does not include the right to incite people to commit an offence. The word ‘offence’ has been described under section 40 of the Indian Penal Code, 1860.
Any type of offence takes place in two ways:
- By the commission of an act
- By the omission of an act
Sovereignty and Integrity of India
To maintain the sovereignty and integrity of a state is the main duty of a government. This ground has been added by the Constitution (Sixteenth Amendment) Act, 1963.
From the above analysis, it can be stated that grounds contained in Article 19(2) show that they are all concerned with national interest or in the interest of the society.
Conclusion
Civil society provides one of the most basic guarantees to citizens i.e., freedom of expression in the context of speech. After concluding we can say that the right to freedom of speech and expression is an important fundamental right, whose scope has been widened to include freedom of the press, right to information which also includes commercial information, right to not speak and right to criticize.
In the modern world, the right to freedom of speech does not include only freedom to express one’s view through words but it has also included several means of communication to express one’s views. The right that we talked about is subject to reasonable restriction under Article 19(2) of the Indian Constitution.
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References
- Whitney v. California, 274 U.S. 357 (1927)
- Union Of India vs Naveen Jindal & Anr on 23 January 2004, 2920 of 1996
- Virendra v. The State of Punjab, 1957 AIR 896
- Sakal Papers v. Union of India, 1962 AIR 305
- Romesh Thapar v. State of Madras, 1950 AIR 124
- Indian Express Newspaper v. Union of India, 1986 AIR 515
- https://www.law.cornell.edu/constitution/first_amendment
- Sakal Papers v. Union of India, 1962 AIR 305
- Tata Press Limited v. Mahanagar Telephone Nagar Limited, 1995 SCC (5) 139
- Odyssey Communications (P) Ltd .v. Lokvidayan Sanghatana, 1988 AIR 1642
- Union of India v. Association for Democratic Reforms, AIR 2001 Delhi 126
- Kedar Nath Singh v. State of Bihar, 1962 AIR 955
- S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204
- Maneka Gandhi v. Union of India, 1978 AIR 597
- Bijoe Emmanuel v. State of Kerala, 1987 AIR 748
- People’s Union for Civil Liberties v. Union of India, 490 of 2002
- Hamdard Dawakhana v. Union of India,1960 AIR 554
- A. Abbas v. Union of India, 1971 AIR 481
- Article 19(2), Constitution of India, 1950.
- AIR 1948 Nag, 199
- Indirect Tax Practitioner Assn. v. R.K. Jain, NO.15 OF 1997
- The constitution of India, P.M. Bakshi, 8th Edn. ( New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2007)
- Indian Penal Code, Ratanlal and Dhirajlal, Thirty-third Edition, 2006
