FREEDOM OF SPEECH AND EXPRESSION 2017

PROJECT REPORT : FREEDOM OF SPEECH AND EXPRESSION UNDER ARTICLE 19(1)(A)

Contents

CHAPTER-1 .......................................................................................................................... 1
INTRODUCTION .................................................................................................................. 1
International perspective of freedom of expression ........................................................... 2
CHAPTER-2 ........................................................................ Error! Bookmark not defined.
CONSTITUTIONAL ASPECT ............................................................................................. 2
Facets of Speech and Expression under Article 19(1)(a) ................................................... 3
CHAPTER-3 .......................................................................................................................... 4
MEDIA AND FREEDOM OF SPEECH AND EXPRESSION ............................................ 4
Meaning and Scope of Freedom of the Press ..................................................................... 4
CHAPTER-4 .......................................................................................................................... 6
FREEDOMS ARE NOT ABSOLUTE- SUBJECT TO REASONABLE RESTRICTIONS 6
Tests of Restrictions .......................................................................................................... 6
(1) Tests for Reasonable Restrictions............................................................................ 7
(2) Grounds of Restrictions as per Art.19(2) ...................................................................... 7
CHAPTER-5 ........................................................................................................................ 11
SEDITION IN JNU AND ARTICLE 19 ............................................................................. 11
What is sedition? .............................................................................................................. 11
Origin of Sedition Law ..................................................................................................... 11
Recent cases of use of sedition law .................................................................................. 11
Article 124-A of IPC v/s Article 19(1) of Constitution debate ........................................ 11
BIBLIOGRAPHY ................................................................................................................ 12

CHAPTER-1
INTRODUCTION

Iver Jennings said ”Without freedom of speech, the appeal to reason which is the basis of democracy cannot
be made‟.1

Milton in his Aeropagitica says that without this freedom there can be no health in the moral and intellectual
life of either the individual or the nation.2
1
Jennings, W.I., Cabinet Government, 13. [Cited in Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary
on Law for Media 18 (Asia Law House, Hyderabad, 18, (2007)].
2
Johan Milton, Aeropagitica and Other Tracts, 27 (1644).

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According to Kant “The fundamental postulate of liberty, is that, no man can be used as a means as man is
an end to him as well as to the others‟.3
According to

Hocking, “The destiny of private thought is to gain power and effect through shaping public behaviour or
public enactment. Nothing could more describe a human failure than a man physically prolific whose ideas
should count for nothing to his group or his time. A suppression of speech, in its more painful consequence,
would be the mental sterilisation of the community.4

The social interest in free expression is based on the idea that without expression, there is no society at all,
because communication is the very essence of social life.5

George Bernard Shaw has said that our whole theory of freedom of speech and opinion for all citizens rests
not on the assumption that everybody was right. But on the certainty that everybody was wrong on some
point on which somebody else was right, so that there was a public danger in allowing anybody to go
unheard.6

The freedom of speech and expression is required to fulfill the following objectives :

1. To discover truth
2. Non self-fulfillment
3. Democratic value
4. To ensure pluralism

International perspective of freedom of expression

Freedom of Expression under Constitutions of Different Countries

Freedom of Speech and expression is guaranteed by several Constitutions in the World. They are:
(i) The First and Fourteenth Amendments to the Constitution of United States,
(ii) the common Law of England,
(iii) Section 40 (6)(1) of the Constitution of Eire, 1937.
(iv) Section 18 (1) (e)(f)(g) of the Constitution of Sri Lanka, 1972.
(v) Articles 50 and 51 of the Constitution of the USSR 1977, and
(vi) Section 298 of the Government of India Act, 1935.

Right to expression under Constitution of different countries has close similarity with different International
Conventions :
(i) Articles 13, 20, 23, 29 of the Universal Declaration of Human Rights, 1948.
(ii) Article 22 of the International Covenant of Civil and political Rights, 1966.
(iii) Article 11 of the European Convention on Human Rights, 1950.
(iv) Articles 6,12 of the International Covenant on Economic, Social and Cultural Rights, 1966.

CHAPTER-2
CONSTITUTIONAL ASPECT

In order to give effect to this objective, “freedom of speech and expression” has been guaranteed as a
fundamental right under Article 19(1)(a) available to all citizens, subject only to restrictions which may be
imposed by the State under clause (2) of that Article. The relevant portion of Article 19 reads as follows:
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Article 19 (1) All citizens shall have the right to

(a) Freedom of speech and expression.

Article 19(2) Nothing in sub clause (a) of clause (1) shall effect the operation of any existing law, or prevent
the State from making any law, in so far as such law imposed reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of Sovereignty and Integrity of India, the Security of
the State, Friendly relations with foreign States. Public order, Decency or Morality, or in relation to
Contempt of court, Defamation or Incitement to an offence.

Facets of Speech and Expression under Article 19(1)(a)

The freedom of speech and expression under Article 19(1)(a) is a concept with diverse facets, both with
regard to the content of the speech and expression and in the means through which communication takes
place. It is also a dynamic concept that has evolved with time and advances in technology. 3
The different facets constituting the scope and content of the freedom of speech and expression are
discussed below:--
(a) Right to know and to Obtain information
The right of information is indisputably a fundamental right, a facet of “speech and expression”. The right to
know, 'receive and impart information has been recognized within the right to freedom of speech and
expression. A citizen has a fundamental right to use the best means of imparting and receiving information
and as such to have an access to telecasting for the purpose. The right to know has, however, not yet
extended to the extent of invalidating Section 5 of the Official Secrets Act, 1923 which prohibits disclosure
of certain official documents. One can conclude that 'right to information is nothing but one small limb of
right of speech and expression.

(b) Right of the Examinee to have Access to Evaluated Scripts

In H.P.P.S.C. v. Mukesh Thakur4, the Apex Court ruled that in the absence of any provision for re-
evaluation of answer-books in the relevant Rules, no candidate in the examination could have got any right
whatsoever to claim or ask re-evaluation of his marks. It bring a task of Statutory Authorities, could not be
performed by the Courts.

(c) Right of the Citizens/Voters to Know the Antecedents of the Candidates at Election
Article 19(1)(a) which guarantees the right to speak and express oneself has been held to include the voter’s
speech or expression, in case of elections, in a democracy. It has been said that the voter speaks out or
expresses by casting vote.
The Supreme Court observed in Union of India v. Assn. for Democratic Reforms 5 “One sided
information, disinformation, misinformation and non-information, all equally create an uninformed citizenry
which makes democracy a farce. Freedom of speech and expression includes right to impart and receive
information which includes freedom to hold opinions”.

(d) Right to Reply or Answer the Criticism Against One’s Views

3
Madhavi Goradia Divan, Facets of Media Law 5 (Eastern Book Company, Lucknow, 2010)
4
2010 (3) PLJR (SC) 127 (paragraph 14)
5
JT 2002(4) 501.
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In Life Insurance Corporation of India v. Prof. Manubhai D. Shah6, the Supreme Court held that the
right to reply, i.e., the right to get published one’s reply in the same news media in which something was
published against or in relation to a citizen, was a part of the freedom of speech and expression guaranteed
under Article 19(1)(a).

(e) Freedom Of Press

The fundamental right of the freedom of press implicit in the right the freedom of speech and expression, is
essential for the political liberty and proper functioning of democracy. The Indian Press Commission says
that "Democracy can thrive not only under the vigilant eye of legislature, but also under the care and
guidance of public opinion and the press is par excellence, the vehicle through which opinion can become
articulate." Unlike the American Constitution, Art. 19(1)(a) of the Indian Constitution does not expressly
mention the liberty of the press but it has been held that liberty of the press is included in the freedom of
speech and expression. The editor of a press for the manager is merely exercising the right of the expression,
and therefore, no special mention is necessary of the freedom of the press. Freedom of press is the heart of
social and political intercourse. It is the primary duty of the courts to uphold the freedom of press and
invalidate all laws or administrative actions, which interfere with it contrary to the constitutional mandate.

CHAPTER-3
MEDIA AND FREEDOM OF SPEECH AND EXPRESSION

Meaning and Scope of Freedom of the Press

The various aspects of “freedom of the press” are discussed below—
(A) No pre-censorship on Press
The freedom of the press, thus, means the right to print and publish what one pleases, without any previous
permission. Imposition of pre-censorship on publication is, therefore, violative of the freedom of the press,
unless justified under Clause (2) of Article 19.
In the case of Brij Bhushan v. State of Delhi7, 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. Similarly, prohibiting newspaper from publishing its own views or views of
correspondents about a topic has been held to be a serious encroachment on the freedom of speech and
expression.

(B) No Pre-Stoppage of Publication in Newspapers of Articles or Matter of Public Importance

In R. Rajagopal v. State of Tamil Nadu8, the Supreme Court held that neither the Government nor the
officials had any authority to impose a prior restraint upon publication of a material on the ground that such
material was likely to be defamatory of them

(C) Right of Access To the Source of Information

6
1993 AIR 171
7
AIR 1950 SC 129
8
Writ Petition (C) No. 422 of 1994
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In Prabha Dutt v. Union of India9, 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.

(D) Freedom of Circulation

Freedom of speech and expression include the freedom of propagation of one’s idea or views and this
freedom is ensured by the “freedom of Circulation”.
In RomeshThapar v. State of Madras entry and circulation of the English journal “Cross Road”, printed
and published in Bombay, was banned by the Government of Madras. The same was held to be violative of
the freedom of speech and expression, as “without liberty of circulation, publication would be of little value.

(E) Freedom in the Volume of News or Views

In India, the press has not been able to exercise its freedom to express the popular views. In 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).
In 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 Court 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 plea of
the Government that it would help small newspapers to grow.

(F) No Excessive Taxes on Press

In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India10 court observed the
importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the
heart of social and political intercourse. The press has now assumed the role of the public educator making
formal and non-formal education possible in a large scale particularly in the developing world, where
television and other kinds of modern communication are not still available for all sections of society. The
purpose of the press is to advance the public interest by publishing facts and opinions without which a
democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of
news and views having a bearing on public administration very often carry material which would not be
palatable to Governments and other authorities.”

(G) No Indirect Attack on Press

In Bennett Coleman and Co. v. Union of India11, the validity of the Newsprint Control Order, which fixed
the maximum number of pages, was struck down by the Court 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 plea of
the Government that it would help small newspapers to grow.

(H) Commercial Advertisements:

The court held that commercial speech (advertisement) is a part of the freedom of speech and expression.
The court however made it clear that the government could regulate the commercial advertisements, which
are deceptive, unfair, misleading and untruthful. Examined from another angle the Court said that the public
at large has a right to receive the "Commercial Speech". Art. 19(1)(a) of the constitution not only guaranteed

9
1982 SCR (1)1184
10
1986 AIR 515
11
1973 AIR 106
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freedom of speech and expression, it also protects the right of an individual to listen, read, and receive the
said speech.
In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.12 the Supreme Court held that a commercial
advertisement or commercial speech was also a part of the freedom of speech and expression, which would
be restricted only within the limitation of Article 19(2). Till this judgement13, advertisements were excluded
from the realm of free speech. In an earlier ruling, Hamdard Dawakhana v. Union of India, 14the Supreme
Court held that advertisements being a commercial gain, could not avail of the rights under Article 19(1)(a).
The case concerned a challenge to the provisions of the Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 which was intended at preventing self-medication.
CHAPTER-4
FREEDOMS ARE NOT ABSOLUTE- SUBJECT TO REASONABLE RESTRICTIONS

Article 19(1)(a) of the Indian Constitution guarantees to all its citizens “the right to freedom of speech and
expression”. Clause (2) of Article 19, at the same time provides: “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:-
 Sovereignty and Integrity of India.
 The Security of the State.
 Friendly relations with foreign states.
 Public order.
 Decency or Morality.
 Contempt of Court.
 Defamation.
 Incitement to an offence.

The meaning of the term reasonable restriction has been a matter of judicial discussion. There has been a
doubt whether the term “reasonable restriction “also includes “total prohibition”. In A.K. Gopalan v. State
of Madras15 Patanjali Sastri J., Kania C.J., and Das J. tried to explain the term “restriction”. Das J. was of
the view that the word restriction implies that the fundamental right is not destroyed in entirety but passport
of it remained. Patanjali Sastri J. was of the view that the term did not mean total prohibition. Kania
C.J. interpreted it as partial control and distinguish it from deprivation.

Later the Supreme Court in another decision99 interpreted the term to mean total prohibition where the
restriction was reasonable. It is submitted that what is restrained in not the fundamental right which
continues unaffected, but the exercise of it. The restriction when it is unreasonable does not affect the right
and when it is reasonable it only restrains the exercise of that right. Such a restraint on the exercise of right,
when reasonable, may be partial or total.16

Tests of Restrictions
There are two conditions imposed by the Constitution to validate the restriction on the freedoms guaranteed

12
(1995) 5 SCC 139.
13
Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139.
14
AIR 1960 SC 554.
15
1950 IND LAW SC 42.
16
The Constitution of India, Article 358 & 359, which deals with proclamation of emergency.
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by Article 19(1). Any law restricting these freedoms must satisfy these two conditions :
1. the restrictions must be for a particular purpose mentioned in the clause permitting the imposition of
the restriction on that particular right
2. and the restriction must be a reasonable one.

(1) Tests for Reasonable Restrictions

The Constitution does not define the expression “Reasonable Restrictions”.
The following are some of the principles which the Supreme Court of India has affirmed in Narottamdas v.
State of M.P.17for ascertaining the reasonableness of restrictions on the exercise of the rights secured under
Article 19 of the Constitution, which are as follows:
1. The phrase “reasonable restriction” connotes that the limitation imposed upon a person in the
enjoyment of a right should not be arbitrary or of an excessive nature.
2. In determining the reasonableness of statute, the court should see both to the nature of the restriction
and procedure prescribed by the statue for enforcing the restrictions on the individual freedom. Not only
substantive but also procedural provisions of a statute also enter in to the verdict of its reasonableness.
3. The reasonableness of a restriction has to be determined in an objective manner and from the
standpoint of the interests of the general public and not from the point of view of persons upon whom
the restrictions are imposed or upon abstract considerations.
4. The court is called upon to ascertain the reasonableness of the restrictions and not of the law which
permits the restriction. A law may be reasonable but the restriction imposed by it on the exercise of
freedom may not be reasonable.
5. The word “restriction” also includes cases of prohibition and the State can establish that a law, though
purporting to deprive a person of his fundamental right, under circumstances amounts to a reasonable
restriction only.
6. The Indian Constitution provides reasonably precise general guidance in the matter of reasonableness.
The test of the reasonableness of the restriction has to be considered in each case in the light or the
nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief
required to be suppressed and the prevailing social and other conditions at the time.
7. A restriction that is imposed for securing the objects laid down in the Directive Principles of State
Policy may be regarded as reasonable restriction.
8. If a restriction is not imposed by legislation but is the result of a contract freely entered into by the
citizen, he cannot complain of the reasonableness of the law.
9. The conferment of wide powers exercisable on the subjective satisfaction of the Government cannot
be regarded as reasonable restriction because the Government is the best authority to judge and take
anticipatory action for preventing a threat to the breach of the peace.
10. The retrospective operation of legislation is a relevant factor in deciding its reasonableness, but it is
not always a decisive test. It is not correct to say that because the retrospective operation covers a long
period, the restriction imposed by it must be unreasonable.
(2) Grounds of Restrictions as per Art.19(2)
(a) Sovereignty and integrity of India
17
AIR 1964 SC 1667
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“Sovereignty and integrity of India‟ as a ground under Article19(2) for restricting the freedom under
Article 19(1) (a) was added by amendment.18 This was as a reaction of the tense situation prevailing in
different parts of the country. Chinese incursions have started in the north-east in 1960. Also around this
time, there were strong demands led by Master Tara Singh for a separate Sikh homeland. The Dravida
Munnertra Kazhagam (DMK) had called for an entity separate from India called Dravida Nadu comprising
Madras, Mysore, Kerala and Andhra. The amendment enabled the enactment of laws such as the Criminal
Law Amendment Act, 1961 and the Unlawful Activities (Prevention) Act, 1967 which made punishable the
act or words of any individual or association intending or supporting ,the cession of any part of the territory
of India or the secession‟ of the same.19

(b) Security of the State and Public Order

“Public order‟, “law and order” and “Security of the State” are not synonymous expression. These concepts
are in the nature of three concentric circles, “law and order” representing the largest circle, within which lies
the next circle representing, ”public order” and within which is the smallest circle representing “security of
State”. Thus, an act which affects “law and order “may not necessarily affect “public order” and an activity
which may be prejudicial to “public order” may not necessarily affect “security of the State”.20 In Madhu
Limaye v. Sub-Divisional Magistrate,21 the Supreme Court held that “public order” includes the absence
of all acts which are a danger to the security of the State and also the acts described by the French as Ordre
Publique, that is, the absence of insurrection, riot, turbulence, or crimes of violence. But it does not include
acts which disturb only the serenity of others. Law and Order Public Order Security of the State The term
“Public order” means public peace, safety and tranquility. The insertion of “public order” as a ground under
Article19(2) by the Constitution (First Amendment) Act, 1951 was an attempt to get over the effect of the
decisions of the Supreme Court in Romesh Thappar v. State of Madras22. The case was a challenge to
Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 under which the Government of
Madras has issued an order imposing a ban on the entry and circulation of the journal Cross Roads in the
State.
Diagram-circle
Mere Criticism of Government action would not fall within the mischief of „Public order‟ and would be
protected under Article 19(1)(a). In Kedar Nath Singh v. State of Bihar, while interpreting the scope of
Sections 124-A and 505 of the Indian Penal Code, 1860, the Supreme Court held that the activity would be
rendered penal only when it is intended to create disorder. The Criticism of public measures on Government
action, however strongly worded, would be within reasonable limits and would be consistent with the
fundamental right of free speech and expression. It is only when the words, written or spoken, have the
pernicious tendency or intention of creating public disorder or disturbance of law and other that the law
steps in to prevent such activities in the interest of law and order.126

(c) Friendly relations with foreign states

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 jeopardise the

18
Inserted by the Constitution (Sixteenth Amendment) Act, 1963, Section 2.
19
In People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, the supreme Court dismissed a challenge to the
Prevention of terrorism Act, 2002 on the ground, inter alia, that Parliament was competent to legislate on the subject of terrorism
which was a threat to the security and sovereignty of the nation. This Act was subsequently repealed with effect from 21st
September, 2004.
20
Ram Manohar v. State of Bihar, AIR 1966 SC 740, para 52, pp.758-59; V.K. Javali v. State of Mysore, AIR 1966 SC 1387;
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Dalbir Singh v. State of Punjab, AIR 1962 SC 1106.
21
(1970) 3 SCC 746: AIR 1971 SC 2486.
22
AIR 1950 SC 124.
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maintenance of good relations between India, and that state. No similar provision is present in any other
Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel
by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not
justify the suppression of fair criticism of foreign policy of the Government.
It is to be noted that member of the commonwealth including Pakistan is not a "foreign state" for the
purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the
ground that the matter is adverse to Pakistan.

(d) Decency or morality

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. In Chandrakant Kalyandas
Kakodkar v. State of Maharashtra23 the Supreme Court observed that such notions vary from country to
country depending on the standards of morals of contemporary society. But even within the same country,
particularly one as socially disparate and culturally diverse as India, there are widely varying standards of
moral acceptability. This makes it extremely difficult to define or straitjacket these concepts.
Test of obscenity

Indian Courts have chosen to adopt the old and long outdate English test, known as Hicklin's
test.24Cockburn, C.J. laid down the test thus: I think the test of obscenity is this, whether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall… it is quite certain that it would suggest
to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most
impure and libidinous character.25

Women in electronic media, either by way of commercial advertisements or themes of serials or in reality
shows or repeated show of films, can straight away influence the young mind. Item songs like „Munni
Badnam Hui‟ and „Sheela Ki Jawani‟ etc are having tremendous impact because of its repetition on TV, the
most powerful and effective vehicle of thoughts at present. The internet as an information infrastructure is a
communicative device, is viewed as a tool for democratizing speech on a global basis. According to Oxford
Dictionary, obscene means “offensive to modesty or decency expressing or suggesting unchaste and lustful
ideas; impure, indecent.” In Ranjit D. Udeshi v. State of Maharastra26, “Obscenity” has been defined by
the Supreme Court as “the quality being obscene which means offensive to modesty or decency; lewd; filthy
and repulsive”.
(e) Contempt of Court:
Contempt by “scandalising‟ the court owes its origin to the medieval ages in Britain, when the courts were
considered representatives of the monarch and were called king’s courts or Queen’s courts. Thus any
imputation against the courts was considered an imputation against the sovereign and therefore punishable.
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. In Indirect Tax Practitioners Assn. v. R.K.Jain27, it was held by court
23
(1969) 2 SCC 687
24
R. v. Hicklin, (1868) LR 3 QB 360.
25
Supra n. 151, p. 371.
26
AIR 1965 SC 881.
27
AIT-2010-340-SC
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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.Therefore, The law of contempt of court is for keeping the administration of justice pure and
undefiled while the dignity of the court is to be maintained at all costs, the contempt jurisdiction which is of
special nature should be sparingly used28.
(f)Defamation
The law of defamation is a culmination of a conflict between society and the individual. On one hand lies
the fundamental right to freedom of speech and expression enshrined under Article 19 (1) (a) of the Indian
Constitution, on the other is the right of the individual to have his reputation intact. The law of defamation
seeks to attain a balance between these competing freedoms and is a reasonable restriction under Article 19
(2) on the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a). The wrong
of defamation consists in the publication of a false and defamatory statement about another person without
lawful justification or excuse. A statement is said to be defamatory when it injures the reputation of the
person to whom it refers and exposes him to hatred, ridicule and contempt or which causes him to be
shunned or avoided or which has a tendency to injure him in his office, profession or calling.29

Defamation under civil and criminal law

Defamation is an injury to a person‟s reputation which is regarded as a part of his property. It
constitutes an actionable wrong and give rise to the civil remedy of damages. It also constitutes a criminal
offence under section 499 of Indian Penal Code, 1860. For civil remedy courts apply corresponding rules of
English common law, which are based on principles of justice, equity and good conscience. 30 Under English
common law, the essence of the crime of private libel is its tendency to cause a breach of peace. Hence, even
where the defamatory matter is not published to a third party, it will support an indictment if it is likely to
cause breach of peace.31In India, on the other hand, publication is an essential condition for a criminal
offence under Section 499 of IPC, as in an action for damages.

In a civil action, the intention of the defendant is immaterial and it is no defence to plead that the defendant
did not intend to defame the plaintiff. On the other hand, under Section 499 of IPC, the plaintiff must prove
that the publication was “intending to harm, or knowing or having reason to believe that such imputation
will harm”. Good faith on the part of the defendant is thus a good defence in a criminal prosecution but nor
in a civil action.

(g) 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 not defined
in the Constitution. According to the general Clauses Act, 1897 it means “any act or omission
punishable by any law for the time being in force.” 32 In order to qualify as a reasonable restriction under
Article 19(2), the law imposing a restriction relating to „incitement to an offence‟ must relate to pre-existing
offence i.e. the incitement must be of an act which is, at the time, a punishable offence under an existing
law.33Further, the legislation must be in respect of a definite offence. Mere approval of or admiration for an
act of murder or violence does not automatically come within the scope of this restriction unless the
publication itself has a present tendency to incite or encourage the commission of the offence. The court
28
Shukuntala Sahadevram Tewari v. Hemchand M. Singhania, (1990) 3 Bom CR 82 (Bom).
29
Nevill v. Fine Arts and General Ins., (1897) AC 68.
30
Gulabchand v. State of Gujarat, AIR 1970 Guj 171.
31
R. v. Adams (1882) 22 QBD 66.
32
General Clauses Act, 1897, Section 3(38)
33
Central Prison v. Ram Mahohar Lohia, AIR 1960 SC 633.
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must look to the circumstances in each case in judging such a tendency, the purpose of the work, the time at
which it was published, the class of the people who would read it, the effect it would have on their minds,
the context of the words and the interval between the incidents narrated and the publication of the work.34

CHAPTER-5 SEDITION IN JNU AND ARTICLE 19

“Sedition” is in the air. And a lot of hot air has been generated after the JNU incident.

What is sedition?
The Constitution of India does not define the word sedition. Section 124-A of the Indian Penal Code defines
the offence of ‘Sedition’ and provides as follows: “Whoever, by words, either spoken or written, or by signs,
or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards the Government established by law in India….” It is further provided
that the word ‘disaffection’ in this section includes disloyalty and feelings of enmity.
Therefore as per IPC the accussed Kanhaiya Kumar is liable under sec-124-A.

Origin of Sedition Law

The origin of sedition law in India is linked to the Wahabi Movement of 19th century. This movement,
centred around Patna was an Islamic revivalist movement, whose stress was to condemn any change into the
original Islam and return to its true spirit. The movement was led by Syed Ahmed Barelvi. The movement
was active since 1830s but in the wake of 1857 revolt, it turned into armed resistance, a Jihad against the
British. Subsequently, the British termed Wahabis as traitors and rebels and carried out extensive military
operations against the Wahabis. The movement was fully suppressed after 1870. British also introduced the
term “sedition” in the Indian Penal Code 1870 to outlaw speech that attempted to “excite disaffection
towards the government established by law in India”.

Recent cases of use of sedition law

 In 2016 JNU sedition controversy
 In 2012, cartoonist Aseem Trivedi was arrested with sedition charges because his banners and
cartoons mocked constitution, parliament and India’s national flag.
 In 2010, Noor Mohammad Bhat, a lecturer from Gandhi Memorial College was arrested for setting
an anti-India question paper.
 In 2010, writer Arundhati Roy and SAR Gilani were arrested for making anti-Indian speech in New
Delhi
 In 2009, V Gopalaswamy (Vaiko) was slapped with sedition charges for his statements against
India’s sovereignty in speech on Sri Lanka’s war with LTTE
 In 2007, Binayak sen was arrested for sedition charges due to his help to carry messages to Maoists
in Chhattisgarh.
Article 124-A of IPC v/s Article 19(1) of Constitution debate
In the Ram Nandan vs. State 35, the Allahabad High Court held section 124-A to be unconstitutional citing
that the section restricts freedom of speech (Article 19) in disregard of whether the interest of public order or
the security of the state is involved and is capable of striking at the very root of the Constitution which is
free speech.

34
State of Bihar v. Shaialabala Devi, AIR 1952 SC 329.
35
AIR 1959 All 101
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The decision of the Allahabad High Court was overruled by Supreme Court in the Kedar Nath Singh v
State of Bihar36. However, the Supreme Court said that this section should be construed as to limit their
application to acts involving intention or tendency to create disorder or disturbance of law and order, or
incitement to violence. If used arbitrarily, the sedition law would violate freedom of speech and expression
guaranteed by the Constitution under Article 19″.
As a consequence, “sedition” in India is not unconstitutional, it remains an offence only if the words, spoken
or written, are accompanied by disorder and violence and/ or incitement to disorder and violence. Mere
hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal
code and under other laws, are not punishable under Section 124A of the penal code. Likewise, mere
expressions of hate, and even contempt for one’s government, are not sedition.
Citizens in India are free to criticise their governments at the Centre or in the states — which they do quite
frequently, and boldly and fearlessly as well; as they must, because that is what a participatory democracy is
all about. It behoves the men and women of the law who advise government to impress upon their client that
freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the
Constitution — and to remind all governments (present and future) that “sedition” had been deliberately and
designedly excluded by the framers of the Constitution from Article 19(2), the exception clause to free
speech, only because, as the founding fathers had said, “Sedition is not made a constitutional offence in
order to minister to the wounded vanity of governments!”

36
1962 AIR 955
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