This article is written by Sidra Khan, a student of Amity University, Noida. The article discusses the concept of Right to Freedom of Speech and Expression granted under the Constitution of India.
The Constitution of India gives every citizen a right to freedom of speech and expression which is defined under Article 19(1)(a). It means everyone has a right to express their views or thoughts freely through their speech, writing, printing. The ability to speak freely is viewed as the primary state of freedom. It possesses a liked and significant situation in the hierarchy of liberty. It is genuinely said that the right to speak freely is the mother of every single other freedom. However, this right of freedom of speech and expression is subjected to the imposition of reasonable restrictions for a certain purpose under Article 19 (2).
Freedom of speech and expression under Article 19
Article 19(1)(a) of Indian Constitution states that all citizens have a right to freedom of speech and expression. It guarantees the right to freedom of speech and expression to every citizen of the country. It includes the right to share one’s thoughts or views at any topic through any medium be it words (orally or written), painting, film etc. It includes communication of one’s thoughts or opinions and right to publish an opinion. Certain restrictions can be imposed by a State on this right to freedom of speech and expression under Article 19 (2).
The basic right to the right to freedom of speech and expression is viewed as one of the most fundamental components of a healthy democracy for it permits its residents to participate completely in the social and political procedure of the nation. In fact, the right to freedom of speech and expression gives more prominent degree of importance to the citizenship of an individual broadening the idea from the degree of essential presence to giving the individual a political and social life.
Essential ingredients of Right to Freedom of Speech and Expression
- Right to freedom of speech and expression is given only to a citizen of the country and not to a foreign national;
- The rights guaranteed in Article 19(1)(a) also includes an individual sharing his/her opinions and thoughts through any medium, spoken words, painting, movie etc.;
- This right is not an absolute right, the Government can impose certain restrictions on it;
- Restriction can be imposed on any citizen by an action of a state as by its inaction. Thus, if the State fails to guarantee the right to freedom of speech and expression to its citizens it is a violation of Article 19(1)(a).
Article 19(1)(a) uses the phrase ‘speech and expression’, that has a broader implication. It also includes the right to communicate, the right to print, and the right to advertise the information. The right to freedom of press is also covered under Article 19 (1) (a).
In the case, Odyssey Communications Pvt. Ltd. v. Lokvidyan Sangathan, the Court held that the right to exhibit film on a State Channel is a part of a fundamental right which is guaranteed under Article 19(1)(a). The petitioner challenged the exhibition of a tv show ‘Honi Anhoni’ stating that it encourages the superstitious and blind faith of viewers of this tv show. The court rejected the petition on the ground that the petitioner had failed to show evidence.
In the case, Tata Press Pvt. Ltd. v. Mahanagar Telephone Nigam Ltd, the Court held that the freedom of speech and expression also includes commercial speech and commercial advertisement which could only be restricted under Article 19 (2). It was held that advertising, which is close to a commercial transaction, is in any case dissemination of information with respect to the product-advertised. Information given through advertisements is beneficial for the public at large.
Restriction of freedom of expression
There are certain grounds on which the Constitution of India introduces restrictions. Article 19 (2) of Indian Constitution empowers the State to instill reasonable restrictions on the following grounds:
- Security of the State;
- Friendly Relation with Foreign States;
- Public Order;
- Decency and morality;
- Contempt of court;
- Incitement to offence;
- Integrity and Sovereignty of India.
1. Security of the State
Under Article 19 (2) some reasonable restrictions can be imposed on freedom of speech and expression in the interest of Security of the state. As it is of great importance and the government has the power to put restrictions on the activities which affect the security of the state. Consequently, freedom of speech and expression with regard to an individual, if he is impelling or promoting the commission of a crime, for example, are matters which would undermine State security. Restrictions can be put on that individual.
In the case of P.U.C.L v. Union of India, the PIL was filed under Article 32 of the Indian Constitution by PUCL regarding phone tapping. The validity of Section 5 (2) of the Telegraph Act was challenged in this case. Section 5 (2) states the essential elements which need to be fulfilled for the application of the Section is in the interest of public safety and any occurrence of public safety. The government has no right to exercise their power in the said Section if any of these two conditions are not fulfilled. Telephone tapping is violating Article 19 (1) of the Indian Constitution, until and unless it comes under the grounds of restrictions under Article 19 (2).
2. Sovereignty and Integrity of India
This ground was added to Article 19 (2) by the Constitution (16th Amendment) Act, 1963, as it is the foremost duty to maintain the sovereignty and integrity of India. This imposes a restriction on freedom of speech and expression and does not permit anyone to challenge the sovereignty of India. It restricts everyone from saying something causing threat to the integrity of India.
3. Friendly relations with Foreign States
A state can impose a restriction on freedom of speech and expression if it affects the friendly relations with other States. It was added to the constitution of India by the (1st amendment) Act, in 1951. It is to be noted that no other constitution in the world has a similar provision in it.
4. Public Order
The Constitution (1st Amendment), Act, 1951 also added this ground to the constitution, so as to meet the circumstances emerging from the Supreme Court’s decision. In the case of Romesh Thapar v. State of Madras, the Supreme Court held that the public order is different from the security of the state and from the law and order. Also, seen in the case of local breaches of public order there are no grounds for imposing restrictions on public order. The Supreme Court said that public order is an expression of the public peace, public safety and tranquillity. In this case, there was a ban on a Journal by the law in the State of Madras in the interest of public order. The court held that the restrictions imposed by the government were only on the grounds mentioned in Article 19(2). So, in this case, the decision was taken by the Supreme court and the expression “public order” was added to Article 19 (2) to impose certain restrictions on the freedom of speech and expression.
5. Decency and Morality
The words decency and morality are defined in Section 292 to Section 294 of IPC. It empowers the government to put certain restrictions on freedom of speech and expression under this. These sections of IPC restrict the distribution or sale of obscene books etc. in public.
6. Contempt of Court
The right to freedom of speech and expressions don’t allow anyone to contempt of court. Reasonable restriction can be imposed on freedom of speech and expression. Contempt of court is defined in Section 2 of Contempt of Courts Act, 1971. It covers both civil contempt and criminal contempt as well. But, now Indian Contempt Law was amended in the year 2006 and it added to make truth as a defence.
Article 19(2) imposes a restriction on a person to prevent him from making a defamatory statement which defames the reputation of another person. A person is known by his/her reputation in the society, so the constitution puts restrictions on freedom of speech. Defamation is a crime under Section 499 and Section 500 of IPC. Right to freedom of speech and expression doesn’t give any person an absolute right. It doesn’t give a right to a person to hurt any other person’s reputation.
8. Incitement to an Offence
The Constitution (1st Amendment Act), 1951 added the incitement to an offence ground. The right to freedom of speech and expression prohibits people from committing an offence. The word Offence is defined in the General Clause Act which states that offence is an act or omission done by a person and is punishable by any law for the time being in force.
It is very evident from the above analysis that these grounds contained in Article 19 (2) are concerned about the national security of India and the interest of society. The grounds such as the sovereignty of India, the security of the states, public order and friendly relation with foreign states are concerned with national security. Whereas grounds related to it in the interest of society are decency and morality, contempt of court, defamation and incitement to an offence.
Freedom of press
The freedom of press is implicit in the right to freedom of speech and expression. It gives rights to share and propagate their views through television, radio or through print media. With objects and perspectives, the Preamble of the Indian Constitution guarantees to all citizens, freedom of thought, love, expression and belief. The established importance of the ability to speak freely comprises in the Preamble of Constitution and is changed as a basic and human right in Article 19(1)(a) as “the right to speak freely and to express”.
- Union of India v. Association of Democratic Reforms
In this case, the Supreme Court held that the uneven data, disinformation, deception and non-information, all similarly make an uninformed citizenry which makes democracy a joke. The right to speak freely and to express incorporates the right to give and receive information which includes freedom to hold opinions.
- Romesh Thapar v. State of Madras
In this case, the Hon’ble Court held that the freedom of press is a part of freedom of speech and expression. It was observed that the 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. In this case, the state puts a restriction on entry and circulation of the English Journal named as ‘Crossroad’. Journal is printed and published in Bombay, which is banned by the State of Madras. The court held that to be a violation of freedom of speech and expression without circulation of a journal, mere publication of it is of little value.
- Indian Express Newspapers v. Union of India
In this case, the Court held that the press plays a very important role in the democratic machinery. In the present free world, the opportunity of press is the core of social and political intercourse. The press has now expected to do the job of the teacher making formal and non-formal instruction conceivable in an enormous scope especially in the developing world, where TV and different sorts of communication are not as yet accessible for all areas of the society. The motivation behind the press is to advance the public interest by distributing realities and assessments without which a popularity based electorate [Government] can’t make responsible decisions. Papers being purveyors of news and perspectives having an orientation on open organization all the time conveys material which would not be satisfactory to Governments and different authorities.
- Brij Bhushan v. State of Delhi
In this case, the Supreme Court struck down the validity of order for forcing pre-censorship on an English Weekly of Delhi which coordinated the editorial manager and publisher of a paper to submit for scrutiny, in copy, before the production, every single common issue, all the issues and news and perspectives about Pakistan, including photos, and kid’s shows, on the ground that it was a limitation on the freedom of the press.
Social media contains basically web and cell phone-based instruments for sharing and talking information. It mixes innovation, broadcast communications, and social association and gives a stage to convey through words, pictures, movies, and music. Online networking incorporates electronic and mobile technologies used to transform communication into interactive dialogue.
The Internet and Social Media has become an essential specialized instrument through which people can practice their privilege of freedom of expression and exchange their thoughts and information. In the previous years, a growing moment of individuals around the globe individuals upholding for change, equity, correspondence, the responsibility of the incredible and regard for human rights. In such developments, the Internet and Social Media have frequently assumed a key job by empowering individuals to connect and exchange information in a split second and by introducing a feeling of solidarity. It is seen that the right to freedom of speech and expression is perceived as a principle directly in whatever medium it is practiced under the Constitution of India. Furthermore, in the light of the developing utilization of web and online life as a mode of practising this right, access to this medium has likewise been perceived as a fundamental human right.
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. Article 19 (1) of the Constitution of India likewise gives to the residents of India the right to freedom of speech and expression. This freedom implies the option to communicate one’s feelings and conclusions freely by speech, composing, printing, pictures or some other mode. It also includes the right to propagate or publish the views of other people. Article 19(2) provides certain grounds for imposing reasonable restrictions on this right. Only content that falls within these parameters as authorized by law could legitimately be considered “objectionable”. Rather than defining a new category of“objectionable speech”, what therefore would be useful is to assess all of India’s laws and policies as they relate to freedom of expression against these standards set by the Constitution. This would ensure that the distinction between content that is socially objectionable and that is legally objectionable remains firmly in place, as it should be.
In the case of Anuradha Bhasin v. Union of India, the petitioner challenged the internet shutdown in the state of Jammu and Kashmir. The Court held that the “freedom to access the internet” is a fundamental right and it is protected under Article 19 (1) (a); the freedom of speech and expression of the Indian Constitution. The requests of suspending the internet were put on hold under the Internet Suspension Rules were dependent upon judicial review, the court, however, avoided considering the shutdown in the Union Territory as illegal.
Should freedom of expression have limits?
Right to freedom is a very comprehensive domain whereby citizens are entitled to be free with regard to their movement, occupation, assemblies etc. But as it is said that a right of one should not hinder the right of another. Moreover, everyone has a duty towards the state, one should use Freedom of expression in a way that it should not provoke any person or incite violence. Similarly, with every right so conferred has a consequence if its domain is not circumscribed. Hence, this right is not absolute but comes with certain restrictions. The restrictions that are in coherence with the national interest can be illustrated as-
Security of State, Friendly relations with foreign states, Public Order, Decency and Morality, Contempt of Court, Defamation, Incitement to an offence, Sedition.
While having an overview of these restrictions it is evident that the intention of the legislature by giving a right to freedom is to look after others interest as well, including state and individuals. Had these restrictions been not imposed it would be highly chaotic for the courts to balance the rights amongst different entities of the State. The rights and duties go hand in hand and never be looked through different visions. For example, my right to freedom of speech cannot take away the dignity of some other individual, hence defamation as a restriction comes to the rescue. In a healthy democracy, it is very essential to keep a bay with people’s rights. Courts in India have several times come into being for interpretations and reasonable application wherever there is a conflict. Without restrictions being imposed these rights will lose their value and every individual or state entity will lose the boundary they live in and encroach upon others’ rightful enjoyment.
Every citizen of India enjoys the rights of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution of India. Expressing one’s opinions or views through speech is the right of every individual. It is not limited to only expressing one’s views through words but an individual has a right to circulate those views or opinions in writing, through advertisements or through audiovisuals. Right to freedom of speech and expression also comprises the right to information, right to press, right to broadcast, right to commercial speech. Reasonable restrictions can be imposed on the right to freedom of speech and expression under Article 19 (2) of the Indian Constitution. The rights granted under Article 19 is not an absolute right. They can be restricted in case of national security and in the interest of society.
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