Freedom Of Speech And Expression

On September 2, 2014 By admin

By Tanu Priya

Editor’s Note: Freedom of speech, considered the basic freedom by most philosophical thinkers, consists of several
facets, including the right to express one’s opinion unhindered, unfettered by the fear of retribution. It is one of the most
basic elements for a healthy, open-minded democracy. It allows people to freely participate in the social and political
happenings of their country.

In India, this right is granted by Article 19(1)(a). However, this right of freedom to speech and expression is not
completely unchecked. Article 19 (2) allows for reasonable restrictions to be imposed on all fundamental rights,
including that of freedom to speech and expression.

In Romesh Thappar v Union of India, Justice Patanjali has rightfully held that 19(1)(g) is the very basis and essence
of the constitution and our democracy. Reasonable restrictions, however, he noted, should be such that others’ rights
should not be hindered or affected by the acts of one man, in the case of Menaka Gandhi v. Union of India.

The judiciary has upheld the restrictions that can be imposed and the author describes them under several subheadings,
but the courts have also held that the government’s interference in this right has to also be kept in check.

Introduction: Freedom of Speech and Expression

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”.

-John Milton

The essence of free speech is the ability to think and speak freely and to obtain information from others through
publications and public discourse without fear of retribution, restriction, or repression by the government. It is through
free speech, people could come together to achieve political influence, to strengthen their morality, and to help others
to become moral and enlightened citizens.

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the
hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all other liberties.

Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of
mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of
speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an
untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially
without fear of punishment plays significant role in the development of that particular society and ultimately for that
state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various
international conventions like Universal Declaration of Human Rights , European convention on Human Rights
and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly
talk about protection of freedom of speech and expression.

Freedom of Speech and Expression- Meaning & Scope

Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression.
The law states that, “all citizens shall have the right to freedom of speech and expression”. Under Article
19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the
exercise of the right under Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue
through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc. It thus includes the
freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable
restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a license to make
unfounded and irresponsible allegations against the judiciary.[i]

It is important to note that a restriction on the freedom of speech of any citizen may be placed as much by an action of
the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens irrespective of their
circumstances and the class to which they belong, the fundamental right to freedom of speech and expression would
constitute a violation of Article 19(1)(a).

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy
democracy for it allows its citizens to participate fully and effectively in the social and political process of the
country. In fact, the freedom of speech and expression gives greater scope and meaning to the citizenship of a person
extending the concept from the level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it
allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India,
security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court,
defamation and incitement to an offence.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizen
liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right
to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart
information. The Indian State is under an obligation to create conditions in which all the citizens can effectively and
efficiently enjoy the aforesaid rights.

In Romesh Thappar v State of Madras (AIR 1950 SC 124), the Supreme Court of India held that the freedom of speech
and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as
publication is of little value without circulation. Patanjali Sastri, J., rightly observed that-

‘Freedom of Speech and of Press lat 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’

However Article 19(2) of the Constitution provides that this right is not absolute and ‘reasonable restrictions’ may be
imposed on the exercise of this right for certain purposes. The right to freedom of expression includes the right to
express ones views and opinions on any issue and through any medium whether it be in writing or by word of mouth.

The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation. This right includes the right
to communicate, print and advertise the information. In India, freedom of the press is implied from the freedom
of speech and expression guaranteed by Article 19(1)(a). The freedom of the press is regarded as a “species of which
freedom of expression is a genus”[ii]. On the issue of whether ‘advertising’ would fall under the scope of the Article,
the Supreme Court pointed out that the right of a citizen to exhibit films is a part of the fundamental right of speech
and expression guaranteed by Article 19(1)(a) of the Constitution.[iii]

Indian law does not expressly refer to commercial and artistic speech. However, Indian Law is developing and the
Supreme Court has ruled that ‘commercial speech’ cannot be denied the protection of Article 19(1)(a) of the
Constitution. The Court has held that ‘commercial speech’ is a part of the ‘right of freedom of speech and expression’
as guaranteed by our Constitution.
The citizens of India have the right to receive ‘commercial speech’ and they also have the right to read and listen to the
same. This protection is available to the speaker as well as the recipient.[iv] Freedom of Speech and Expression also
includes artistic speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article
19(1)(a) because the common basic characteristic of all these activities is freedom of speech and expression.[v]

Under the provisions of the Constitution of India, an individual as well as a corporation can invoke freedom of speech
arguments and other fundamental rights against the State by way of a Writ Petition under Articles 32 and 226 of the
Constitution of India subject to the State imposing some permissible restrictions in the interests of social control.

Under the provisions of Indian law, the right to invoke the freedom of speech argumentsis not limited to individuals
alone. Corporations are also entitled to invoke sucharguments. The cases of Bennet and Coleman & Co. v. Union of
India (1973) 2 SCR 757 and Indian Express Newspapers (Bombay) P. Ltd v. Union of India (‘86) A.SC. 515, are of
great significance. In these cases, the corporations filed a writ petition challenging the constitutional validity of
notifications issued by the Government. After much deliberation, the Courts held that the right to freedom of speech
cannot be taken away with the object of placing restrictions on the business activities of citizens. However, the
limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of 19(2) is not valid.

Importance of Freedom of Speech

Freedom of Speech is the bulwark of democratic government. This freedom is essential for the proper functioning of
the democratic process. Freedom of speech and liberty is regarded as the first condition of liberty. It occupies a preferred
position in the hierarchy liberties giving succor and protection to all other liberties. It is the mother of all liberties.[vi]

In a democracy, freedom of speech & expression opens up channels of free discussion of issues. Freedom of speech
plays a crucial role in the formation of public opinion on social, economic & political matters. It embraces within its
scope the freedom of propagation and interchange of ideas, dissemination of information which would help the
formation of one’s opinion & viewpoint & debates on matters of public concern. So long as the expression is confined
to nationalism, patriotism & love for the motherland, the use of National flag by the way of expression of those
sentiments would be a Fundamental Right.

In Maneka Gandhi v. Union of India,[vii] BHAGWATI J., has emphasized on the significance of the freedom of
speech & expression in these words:

“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government
action in a democratic set up. If democracy means government of the people by the people, it is obvious that every
citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his
rights of making a choice, free & general discussion of public matters is absolutely essential.”

This aspect of the right to freedom of speech and expression extending the concept of citizenship to include socio-
political participation of a person is critical in the process of determining the scope of right to life of a citizen
under Article 21 of the Constitution. It is important to note that the scope of the “freedom of speech and
expression” in Article 19(1)(a) of the Constitution has been expanded to include the right to receive and
disseminate information. It includes the right to communicate and circulate information through any medium
including print media, audio, television broadcast or electronic media.

The judiciary has time and again opined that the right to receive information is another facet of the right to freedom of
speech and expression and the right to communicate and receive information without interference is a crucial aspect of
this right. This is because, a person cannot form an informed opinion or make an informed choice and effectively
participate socially, politically or culturally without receipt of adequate information. The Supreme Court in State of
Uttar Pradesh v. Raj Narain31 has held that Article 19(1)(a) of the Constitution guarantees the freedom of speech and
expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information
regarding matters of public concern.
This position was reiterated by the Court in Secretary, Ministry of Information and Broadcasting, Govt. of India v.
Cricket Association of Bengal32 wherein it was held that Article 19(1)(a) includes the right to acquire and disseminate
information. The Supreme Court, while opining on the right to freedom of information, further noted in Dinesh
Trivedi, M.P. and Ors v. Union of India33 that “in modern constitutional democracies, it is axiomatic that citizens
have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound
policies of governance aimed at their welfare.”

The print medium is a powerful tool for dissemination and receipt of information for any citizen. Thus, access to printed
material is crucial for satisfaction of a person’s right to freedom of speech and expression guaranteed to him under the
Constitution. Persons with print impairment have no access to printed material in their normal format. Failure on part
of the State to make legislative provision for enabling access to persons with print impairment of material in alternative
accessible formats would constitute a deprivation of their right to freedom of speech and expression and such inaction
on the part of the State falls foul of the Constitution. In view of the same, it is an obligation on part of the State to
ensure that adequate provisions are made in the law enabling persons with print impairment to access printed material
in accessible formats.

Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the press and the same is
included in the freedom of expression, which is conferred on all citizens (Virender Vs. State of Punjab, A. 1958, SC.
986 and Sakal Papers Vs. Union of India A.1962 S.C. 305). It has also been by this judgment that freedom of the
press under the Indian Constitution is not higher than the freedom of an ordinary citizen.

Need to Protect Freedom of Speech and Expression

Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect
the freedom of speech. There could be more reasons to protect these essential liberties. There are four important
justifications for freedom of speech –

 For the discovery of truth by open discussion – According to it, if restrictions on speech are tolerated, society
prevents the ascertainment and publication of accurate facts and valuable opinion. That is to say, it assists in
the discovery of truth.
 Free speech as an aspect of self- fulfillment and development – freedom of speech is an integral aspect of each
individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write
or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment.
 For expressing belief and political attitudes – freedom of speech provides opportunity to express one’s belief
and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech
provides a mechanism by which it would be possible to establish a reasonable balance between stability and
social change.
 For active participation in democracy – democracy is most important feature of today’s world. Freedom of
speech is there to protect the right of all citizens to understand political issues so that they can participate in
smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in
participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important
for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political
attitudes, and for active participation in democracy.

Indian Perspective
In India under Article 19(1)(a) of the Constitution of India, “all citizens shall have the right to freedom of speech and
expression”. In the Preamble to the Constitution of India the people of India declared their solemn resolve to secure to
all its citizens liberty of thought and expression. The Supreme Court of India held that the freedom of speech and
expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as
publication is of little value without circulation.
Article 19(2) of the Constitution of India provides that this right is not absolute and ‘reasonable restrictions’ may be
imposed on the exercise of this right for certain purposes. The right to freedom of speech would include both artistic
and commercial speech which is required to be protected. Freedom of speech and expression would include artistic
speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) of
the Constitution because the common basic characteristic of all these activities is freedom of speech and expression.

Under the Constitution of India an individual as well as corporation can invoke freedom of speech and their fundamental
rights. Freedom of Speech is not only protected from unwarranted governmental interference but also when a private
party calls upon a Court to enforce rules of law whose effect would be to restrict or penalize expression. Much would
depend on the issue as to whether the reference to the trademark involved has been used in the trademark sense, for
example, as envisaged in Section 2(2) (a), (b) and (c) of the Trade Marks Act, 1999. There is dearth of case law of
how free speech interests are involved in trademark litigation. In a given case a party could challenge an act or omission
on the part of the Registrar of Trade Marks on the ground that it infringes the fundamental right of a citizen.

For example: Freedom of speech and expression; or Registrar has acted in a manner which is against all norms of
natural justice. A party could also in a given case challenge the vires of a provision in the Trade Marks Act, 1999 or
the Rules framed thereunder – if it would violate the right to freedom of speech and expression.

Under the Trade Marks Act, 1999 there is no specific reference in crystal clear terms to criticism of another’s mark.
However reference is invited to Section 29 (8) & (9) of the Trade Marks Act, 1999 as follows:–

“Section 29(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising

 takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

 is detrimental to its distinctive character; or

 is against the reputation of the trade mark.”

Infringement by oral use is provided for in subsection 9 of Section 29:

“(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be
infringed by the spoken use of those words as well as by their visual representation and reference in this section to the
use of a mark shall be construed accordingly.”

The position of law is that a tradesman is entitled to declare that his goods are the best in the world even if the statement
is untrue, but he may not in any circumstances say that his competitor’s goods are bad or criticize his competitors
goods. If he makes such a statement, it would amount to slander.

There is no ‘fair use’ clause or an ‘open end’ clause in Indian Trade Mark law. In India, there is dearth of cases on
trademark infringement where the defendant has invoked freedom of speech as a defense. Joke articles in India are
treated like any other and the author has not entitled to any additional immunity for the reason that the article is a
humorous one.

Freedom of speech enjoys special position as far India is concerned. The importance of freedom of expression
and speech can be easily understand by the fact that preamble of constitution itself ensures to all citizens inter
alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of
speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article
19(1)(a) as “freedom of speech and expression”.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech
and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in
writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s
own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes
the expression of one’s idea through any communicable medium or visible representation.

Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri, J. in A.K.
Gopalan case, observed, “man as a rational being desires to do many things, but in a civil society his desires will have
to be controlled with the exercise of similar desires by other individuals”.

It therefore includes the right to propagate one’s views through the print media or through any other communication
channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views
through the printing and or the electronic media subject of course to permissible restrictions imposed under Article
19(2) of the Constitution. In sum, the fundamental principle involved here is the people’s right to know. Freedom of
speech and expression should, therefore, receive generous support from all those who believe in the participation of
people in the administration.

We can see the guarantee of freedom of speech under the following heads:
Freedom of Press

Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press
implicit in the right the freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd.
v. Union of India 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.”

The above statement of the Supreme Court illustrates that the freedom of the press is essential for the proper functioning
of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious
that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently
exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains
the constitutional viewpoint of the freedom of press in India.

Obscenity

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the text of India’s
Constitution clearly sets out restrictions on free speech. The freedom of speech guaranteed under Article 19(1)(a) can
be subject to reasonable state restriction in the interest of decency or morality. Obscenity in India is defined as
“offensive to modesty or decency; lewd, filthy and repulsive.” It stated that the test of obscenity is whether the
publication, read as a whole, has a tendency to deprave and corrupt those whose minds are open to such immoral
influences, and therefore each work must be examined by itself .

With respect to art and obscenity, the Court held that “the art must be so preponderating as to throw obscenity into a
shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked .” The Court
concluded that the test to adopt in India, emphasizing community mores, is that obscenity without a preponderating
social purpose or profit cannot have the constitutional protection of free speech.

Right to Information

Right to know, to information is other facet of freedom of speech. The right to know, to receive and to 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. Even, Right to Information Act 2005, which
specially talks about peoples’ right to ask information from Government official, prohibits discloser of certain
documents under u/s 8 of the Act. These exceptions are generally the grounds of reasonable restrictions over freedom
of speech and expression under Article 19(1) of Constitution of India. One can conclude that ‘right to information is
nothing but one small limb of right of speech and expression.

Voters Have Right to Know About their Candidates

In a landmark judgment in Union of India v. Association for Democratic Reforms4, a three-judge bench held that the
amended Electoral Reforms Law passed by Parliament is unconstitutional as being volatile of citizen’s right to know
under Art. 19(1)(g).

The’ Freedom of Speech and Expression’ Is Indeed A Very High One

In recent judgment of the Supreme Court in Khushboo v. Kannaiammal6 upholds the right to freedom of speech and
expression. Khushboo’s right to freedom of speech was violated by the institution of multiple criminal cases against
her in various courts across the country and consequent harassment that she suffered.

Grounds of Restrictions
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to
place some restrictions on this freedom for the maintenance of social order because no freedom can be absolute or
completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law
imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of”
the public on the following grounds: Clause (2) of Article 19 of the Indian constitution contains the grounds on which
restrictions on the freedom of speech and expression can be imposed:-

1) Security of State: Security of state is of vital importance and a government must have the power to impose a
restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech
and expression in the interest of the security of State. However, the term “security” is a very crucial one. The term
“security of the state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the
State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray.
Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes,
such as, murder are matters, which would undermine the security of State.

2) Friendly relations with foreign states: In the present global world, a country has to maintain a good and friendly
relationship with other countries. Something which has the potential to affect such relationship should be checked by
the government. Keeping this thing in mind, this ground was added by the constitution (First Amendment) Act, 1951.
The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which
may jeopardize the maintenance of good relations between India and that state.

3) 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. However,
it is interesting to note 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.

4) Public Order: Next restriction prescribed by constitution is to maintain public order: This ground was
added by the Constitution (First Amendment) Act. ‘Public order’ is an expression of wide connotation and signifies
“that state of tranquility which prevails among the members of political society as a result of internal regulations
enforced by the Government which they have established.”
Here it is pertinent to look into meaning of the word “Public order. Public order is something more than ordinary
maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. Anything that
disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted
with the sole object of accusing unrest among workmen are offences against public order. Public order thus implies
absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of
life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and
public safety. But mere criticism of government does not necessarily disturb public order.

The words ‘in the interest of public order’ includes not only such utterances as are directly intended to lead to disorder
but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate
intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of
free speech in the interest of public order since such speech or writing has the tendency to create public disorder even
if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper
nexus or relationship between the restrictions and the achievements of public order.

5) Decency or morality: The way to express something or to say something should be a decent one. It should not
affect the morality of society adversely. Our constitution has taken care of this view and inserted decency and morality
as a ground. The words ‘morality or decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal
Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality.
These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is
laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place
to place.

6) Contempt of Court: In a democratic country Judiciary plays a very important role. In such situation, it becomes
essential to respect such an institution and its order. Thus, restriction on the freedom of speech and expression can be
imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to Section 2 ‘Contempt
of court’ may be either ‘civil contempt’ or ‘criminal contempt.’ But now, Indian contempt law was amended in 2006
to make “truth” a defense.

However, even after such amendment, a person can be punished for the statement unless they were made in public
interest. Again in Indirect Tax Practitioners Assn. vs R.K.Jain, it was held by court that, “Truth based on the facts
should be allowed as a valid defense 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 defense should not cover-up to escape from
the consequences of a deliberate effort to scandalize the court.

7) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status of another person. A person
is known by his reputation more than his wealth or anything else. Constitution considers it as ground to put restriction
on freedom of speech. Basically, a statement, which injures a man’s reputation, amounts to defamation. Defamation
consists in exposing a man to hatred, ridicule, or contempt. The civil law relating to defamation is still uncodified in
India and subject to certain exceptions.

8) Incitement to an offense: 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 offense. The word
‘offense’ is defined as any act or omission made punishable by law for the time being in force.

9) Sovereignty and integrity of India: To maintain the sovereignty and integrity of a state is the prime duty of
government. Taking into it into account, freedom of speech and expression can be restricted so as not to permit anyone
to challenge sovereignty or to permit anyone to preach something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all concerned with the
national interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States and public order are all grounds referable to national interest,
whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence
are all concerned with the interest of the society.

Conclusion
Expression through speech is one of the basic guarantees provided by civil society. However in modern world Right to
freedom of speech and expression is not limited to express ones’ view through words but it also includes circulating
one’s views in writing or through audiovisual instrumentalities, through advertisements and through any other
communication channel. It also comprises of right to information, freedom of press etc. It is a right to express and self
realization.

Two big democracies of world i.e. America and India have remarkably protected this right. As far as India is
concerned, this important right is mentioned in Article 19(1) (a), which falls in fundamental right category. Indian
courts have always placed a broad interpretation on the value and content of Article 19(1) (a), making it subjective
only to the restrictions permissible under Article 19(2).

The words ‘in the interest of public order’, as used in the Article 19 include not only utterances as are directly intended
to lead to disorder but also those that have the tendency to lead to disorder. There should be reasonable and proper
nexus or relationship between the restriction and achievement of public order.

Freedom of speech and expression is the bulwark of democratic government. This freedom is essential for the proper
functioning of democratic process and is regarded as the first condition of liberty. It occupies a preferred position in
the hierarchy of liberties giving protection to all other liberties. It has been truly said that it is the mother of all other
liberties. That liberty include the right to acquire information and disseminate the same. It includes the right to
communicate it through available media without interference to as large a population of the country, as well as abroad,
as is possible to reach. Right to know is the basis right of the citizens of a free country and Art. 19(1)(a) protects that
right. Right to receive information springs from Art 19(1)(a).

Freedom of expression and its real foe

There are too many painful examples of journalists, activists, writers, artists and outspoken people being muzzled,
sued, harassed or killed outright.

Published: 17th November 2019 05:00 AM | Last Updated: 16th November 2019 09:45 AM | A+A A-

For representational purposes

By Anuja Chandramouli

Freedom of expression is sacrosanct and I have always taken issue with those who would seek to curb it.

It is the inviolate right of the people to give voice to their thoughts and speak their minds (never mind that we would
all be better off if we kept out traps shut more often and refrained from spewing stuff and nonsense) without the fear
of being clapped in chains, thrown in jail, slapped with a lawsuit or assorted repercussions.
Yet, there are too many painful examples of journalists, activists, writers, artists and outspoken people in general being
muzzled, sued, harassed or killed outright.

Ever since we won freedom in India, FOE seems to be the first casualty every time the ruling party wishes to pull the
wool over our eyes when it comes to their more dubious dealings and unscrupulous activities, given their commitment
to only disseminating information designed to make it look like the sun shines out of their nether ends.

Which is why it is bloody awful when a British born Indian columnist who wrote an incendiary piece about the
“Divider-in-Chief” for a foreign publication, has his status as an Overseas Citizen of India revoked.

Not only is it unsurprising but a stark reminder that India may not quite qualify as the largest democracy in the world
unless we are referring solely to its burgeoning population.

While this is the sort of thing that prompts one to make like Greta Thunberg and call for revolution, bristling with
righteous wrath, I can’t help but concede, that we have only ourselves to blame for the gradual erosion of the basic
rights we have taken for granted.

Knowing as we do, that every single one of the freedoms we enjoy today has been won after long, excruciating and
often bloody struggle we nevertheless feel free to squander it all away on inanity, frippery and selfish self-indulgence
without ever pausing to consider the sacrifice made by those who gave their lives for this land.

Even something as sacred as FOE is forever being misused. It is not just the trolls who are practically expected to abuse
and provoke by sending vulgar messages pertaining to lewd and lascivious acts or vicious threats outlined with
unforgivably bad grammar and worse spelling, but the militant progressives as well with their fanatical commitment to
wokeness and an unwillingness to listen to dissenting points of view.

Together, these extreme factions have drowned civil discourse almost entirely. Everybody seems to feel entitled to be
as obnoxious as they please not bothering to even hesitate before pulling out all stops to annihilate the lives and careers
of those who dare to contradict whatever ideology is currently in fashion.
We have forgotten that human beings are complicated creatures who are definitely more than the sum of their worst
tweets.

That purveying fake news on WhatsApp because it validates our biases is doing a disservice to fellow citizens.

Of course, the government needs to clean up its act, but it is still wise to look within and ask ourselves if we are worthy
of the rights we are losing.

Now more than ever it is important to reinforce our commitment to honest, integrity, decency and kindness before the
chickens come home to roost and crap all over us.
Freedom of speech is not absolute, says
apex court
"Freedom of speech and expression has to be given a broad canvas, but it has to have inherent
limitations, said SC.
Supreme Court of India

The Supreme Court held on Thursday that freedom of speech had “constitutional limitation attached to
it” and this right cannot be exercised to attribute obscene expletives to “historically respected
personality” such as Mahatma Gandhi.
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A bench of Justices Dipak Misra and P C Pant said the fundamental right to speech and expression, as
envisaged under Article 19 (1) (a) of the Constitution cannot be given absolute.
“We accept the proposition that there should not be narrow or condensed interpretation of freedom of
speech and expression, but that does not mean that there cannot be any limit. Constriction is permissible
under Article 19(2) of the Constitution… this right cannot be put in the compartment of absoluteness.
There is constitutional limitation attached to it,” said the bench.
[related-post]
The SC underlined the “contemporary community standards test” as the yardstick for a court to judge
obscenity under the provisions of the Indian Penal Code. “Contemporary community standards test is
the main criterion and it has to be appreciated on the foundation of modern perception, regard being had
to the criterion that develops the literature. There can neither be stagnation of ideas nor there can be
staticity of ideals,” it added.
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Poetic license and artistic freedom, the apex court said would not immune a person from prosecution if
the boundary is transgressed, making the piece of writing as obscene. The bench made the observation
as it decided an appeal by one Devidas Ramachandra Tuljapurkar, editor and publisher of a bulletin
magazine of All India Bank Employees Association.
Tuljapurkar had challenged his prosecution for publishing in 1994 a poem by Marathi poet Vasant
Dattatray Gujjar. The poem “Gandhi Mala Bhetla Hota (I met Gandhi)” had allegedly attributed obscene
and vulgar expletives to the leader. The Bombay High Court dismissed Tuljapurkar’s plea to drop
prosecution under Section 292 (sale, publication of obscene books) of the IPC. The bench found no fault
with the HC order but opted to let him off the hook in view of the unconditional apology tendered by
him. It, however, said that the author of the poem would be left to defend himself in accordance with the
law and this verdict.

The Limits Of Freedom

Sedition law has been misused by over-zealous agencies. That’s no reason to scrap it

The law of sedition in India has an interesting history. Part III of the Constitution guarantees certain
fundamental rights to citizens and non-citizens. No fundamental right is absolute. Freedom of speech
and expression guaranteed by Article 19(1)(a) can be reasonably restricted on the grounds specified in
Article 19(2). In the Draft Constitution, one of the heads of the restrictions proposed on freedom of
speech and expression was “sedition”.
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K M Munshi opposed the inclusion of “sedition” in the Draft Constitution as a restriction on freedom of
speech and expression. During the debates in the Constituent Assembly, in view of the bitter experience
of the arbitrary application of the sedition law by the colonial regime against nationalist
leaders, Jawaharlal Nehru amongst others, agreed with Munshi and deliberately omitted “sedition” as
one of the permissible grounds of restriction under Article 19(2). However, sedition remained a criminal
offence in the IPC Section 124-A and provides inter alia for the sentence of life imprisonment and fine
upon conviction.
Sedition was construed by the Privy Council to include any statement that caused “disaffection”,
namely, exciting in others certain bad feelings towards the government. On the other hand, the Federal
Court of India presided over by the distinguished chief justice, Maurice Gwyer, ruled that sedition law is
not to be invoked “. to minister to the wounded vanity of government. The acts or words complained of
must either incite to disorder or must be such as to satisfy reasonable men that is their intention or
tendency.”
Our Supreme Court had occasion to deal with the constitutionality of Section 124-A. In its landmark
decision in 1962 in Kedernath vs. State of Bihar, the SC disapproved of the view of the Privy Council
and adopted the view of the Federal Court. The Court ruled that mere criticism of the government or
comments on the administration — however vigorous, pungent or ill-informed — was not sedition and
that incitement to violence is the essential ingredient of that offence.
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In 1995, certain persons were sought to be prosecuted for sedition for shouting slogans like Khalistan
Zindabad and raj karega khalsa. The SC held that the casual raising of such slogans a couple of times by
the individuals did not tantamount to sedition and therefore Section 124-A could not be invoked.
The issue of sedition arose again in 2003 in Nazir Khan vs. State of Delhi wherein the SC made the
following significant observations: “It is the fundamental right of every citizen to have his own political
theories and ideas and to propagate them and work for their establishment so long as he does not seek to
do so by force and violence or contravene any provision of law. Thus, where the pledge of a Society
amounted only to an undertaking to propagate the political faith that capitalism and private ownership
are dangerous to the advancement of society and work to bring about the end of capitalism and private
ownership and the establishment of a socialist State . that the mere use of the words ‘fight’ and ‘war’ in
their pledge did not necessarily mean that the Society planned to achieve its object by force and
violence”.
The legal position which emerges is that merely shouting slogans like Pakistan or Khalistan zindabad,
however deplorable, per se would not attract Section 124-A which deals with sedition. Criticism of the
SC judgment upholding the conviction of Afzal Guru also would not attract Section 124-A. However if
a person has said “Hindustan murdabad”, or that the Indian state is tyrannical and it is necessary to
overthrow it, that could possibly amount to sedition.
It is true that Section 124-A has often been misused by ill-informed and over enthusiastic prosecuting
agencies who are allergic to any criticism of the government. It is reported that Union minister Arun
Jaitley was sought to be charged with sedition, a classic case of comedy of errors. In such cases, the
illegal and arbitrary action in question deserves to be struck down. The remedy does not lie in repealing
Section 124-A. Remember, that there is no statutory provision which cannot be misused thanks to
human ingenuity or cunning with the aid of resourceful lawyers. Misuse of Section 124-A in some cases,
however regrettable, is no ground for its deletion.
The provision properly interpreted and correctly applied protects and preserves the integrity of the
Indian state and is also a deterrent for persons who are minded to commit acts of incitement to violence
and acts which cause disturbance of public order.

Freedom of expression was once wide-ranging in India.

Then Jawaharlal Nehru asked for changesShyama Prasad
Mookerjee’s incendiary speeches asking for war with Pakistan led to a law imposing restrictions.

Shyama Prasad Mukherjee (left) and Jawaharlal Nehru (right) | Wikimedia Commons
Sep 05, 2017 · 08:30 am
Abhinav Chandrachud
In June 1951, within seventeen months of the Constitution coming into force, the Constituent Assembly
(now functioning as a unicameral, provisional Parliament for India) amended Article 19(2) to include
three new enumerated restrictions to the right to free speech. These were “public order”, “friendly
relations with foreign states”, and “incitement to an offence”.

Broadly speaking, there were three reasons why the Constitution (First Amendment) Act, 1951
(hereinafter, the “First Amendment”) came to be passed. Firstly, judgments of the Supreme Court and
the Punjab, Patna and Madras High Courts had made it difficult for the government to restrict hate
speech or speech which promoted enmity between different groups, and which the government believed
was responsible for large-scale communal violence among Hindus and Muslims.

Secondly, these courts had made it difficult for the government to curb speeches which called for war
between India and Pakistan and for the annulment of Partition (especially because of the manner in
which Hindus were being treated in East Pakistan) — speeches which were being made by Syama
Prasad Mookerjee against the backdrop of the Nehru-Liaquat Pact.

Thirdly, members of Parliament were deeply disturbed by a chilling observation made by Justice Sarjoo
Prasad of the Patna High Court in his judgment in a case, where he said that the right to free speech in
India included the right to preach and incite murder and violent crimes unhindered.

Judgments Which Precipitated the Amendment

The Constitution came into force, for historical reasons, on 26 January 1950. Within a few months
thereafter, state governments started imposing restrictions on some newspapers and printing presses
which, it was believed, were disturbing the public order, promoting enmity or hatred between different
groups, inciting murders or other violent crimes, or which were otherwise seditious in nature. In
imposing these restrictions, state governments relied on many laws which had been enacted during the
colonial period, most notably the Indian Press (Emergency Powers) Act, 1931, which had been enacted
to combat Gandhi’s civil disobedience movement in the 1930s.

State governments resorted to banning the circulation of newspapers in their states, forfeiting books
which were published in their states, requiring newspapers to submit their materials for prior scrutiny, or
forfeiting the security deposited by printing presses with the government for publishing objectionable
material. Aggrieved by this, newspapers and printing presses filed proceedings in the Supreme Court of
India and in the Punjab, Patna and Madras High Courts. What followed was that in a series of decisions
issued by these courts, statutes which imposed the aforesaid restrictions on free speech were struck
down as being unconstitutional for falling outside the ambit of Article 19(2) of the Constitution.

Indira Gandhi and the Indian Emergency, The Hindu

(published in June 2000 on the 25th Anniversary of the
Emergency)
‘I had always believed that Mrs Gandhi had no faith in democracy, that she was by inclination and conviction a
dictator. This belief has tragically turned out to be true’.
Jayaprakash Narayan, prison diary, entry of 22 July 1975

‘I have no more powers than I had before’.

Indira Gandhi, in an interview with NBC, 24 August 1975

‘Today’s papers also publish a Mrs Gandhi-Karanjia interview. Most of it is the usual stuff: self-righteousness,
smugness, and the pose of being the country’s saviour’.
Jayaprakash Narayan, prison diary, entry of 22 August 1975

‘I am a very humble person’.

Indira Gandhi, in an interview with the Mauritius Broadcasting Corporation, 4 October 1975

‘Today the only thing the people are allowed to do is to sing the praises of Mrs Gandhi’.
Jayaprakash Narayan, prison diary, entry of 7 September 1975

‘I do not think there is anyone who is less authoritarian than I am’.

Indira Gandhi, in an interview with American journalist Mary Carras, July 1978

Between June 1975 and January 1977 Indian democracy took an extended leave of absence. Under directions from
the Prime Minister, Mrs Indira Gandhi, political opponents were jailed, human rights extinguished, news censored,
and a personality cult of the Leader promoted. The ‘Emergency’, as it is known, was once regarded as a defining
moment in the history of independent India. After it was lifted, and Mrs Gandhi dethroned, the Emergency
experience was viewed as a ‘near miss’ so to say, whereby this country had narrowly failed to permanently join the
well subscribed ranks of the world’s dictatorships. Political commentators alerted the citizenry to its lessons—not to
allow bureaucrats and judges to ally with political parties, never to justify curbs on freedom of expression, above all,
to always put faith in process rather than personality.

This June marks the twenty-fifth anniversary of the declaration of Emergency. One might have expected solemn and
cautionary remembrance. Instead, recent events suggest that the Indian political class may be revising its views of the
Emergency. The ruling coalition in Delhi is dominated by men who were once jailed by Mrs Indira Gandhi. Yet, this
past January, the Government of India awarded the Padma Vibhushan—the country’s second highest honour—to one
man who was Cabinet Secretary during the Emergency, and to another who, as High Commissioner to the United
Kingdom between 1975 and 1977, enthusiastically spread false information about the situation at home. Then, in
March, the person who had been Indira Gandhi’s Ambassador in the United States died. His obituarists respectfully
marked the important milestones in his career without so much as mentioning his time justifying the Emergency in
Washington. Service to the state, it seems, shall be rewarded regardless of the kind of service or, indeed, the kind of
state.

Perhaps the most daring re-interpretation of the Emergency comes in a just published book by Mrs Indira Gandhi’s
longserving Principal Secretary, P. N. Dhar. The Emergency, we may recall, was promulgated after a High Court
Judge in Allahabad found the Prime Minister guilty of ‘electoral malpractices’. An appeal to the Supreme Court
could be made, although the Prime Minister would, in the interim, have to vacate her post in favour of some other
Member of Parliament from the Congress party. The thought was abhorrent to Mrs Gandhi’s family and advisers—
and to herself too. Hence the declaration of Emergency.

In P. N. Dhar’s account, the Emergency was not really a consequence of Mrs Gandhi’s fear of losing her personal
position. It was, rather, the outcome of the year-long agitation against corruption and maladministration led by the
veteran Gandhian Jayaprakash Narayan. This agitation, in his interpretation, had undermined law and order, caused
anarchy, and spread violence. Were one to reduce his argument to numbers, then it would appear that the
responsibility for the declaration of Emergency was 90% Narayan’s, 10% Mrs Gandhi’s. Dhar does not deny the
violations of human rights and the state violence during Emergency rule, but he determinedly draws the reader’s
attention to the simultaneous decline in prices. If Narayan was principally responsible for the Emergency, then,
suggests Dhar, the Prime Minister’s second son, Sanjay Gandhi, was principally responsible for what went wrong
during the Emergency. The harassment of slum dwellers and the forced sterilizations were the work of the son—who
held no official position—but the rise in foodgrain production and the checks on inflation were, one supposes,
exclusively the work of the mother.

For a dictator, Indira Gandhi had a remarkably long training in the school of democracy. On her thirteenth birthday,
her father, then in prison, began writing her a series of letters, later published as Glimpses of World History. Starting
with the Greeks, this wide-ranging tour took in the old Indian village republics, ancient Chinese kingdoms, the rise of
monotheism and its associated political formations, Buddhism, the Mughals, and the Industrial Revolution (and much
else besides). Jawaharlal Nehru was both an Indian patriot and a Western-trained socialist-democrat, for whom
history unfolded as the oft-interrupted progress of the human animal towards greater sociability and freedom. The
latter chapters explored how ‘democracy, which was for a century and more the ideal and inspiration of countless
people, and which can count its martyrs by the thousands,’ was now ‘losing ground everywhere’. The last letter, sent
to Indira on 9th August, 1933—three years after the first—ended with this excerpt from Rabindranath Tagore’s great
poem, Gitanjali:

Where the mind is without fear and the head is held high;
Where knowledge is free;
Where the world has not been broken up into fragments by narrow domestic walls;
Where words come out from the depth of truth;
Where tireless striving stretches its arms towards perfection;
Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit;
Where the mind is led forward by thee into ever-widening thought and action—
Into that heaven of freedom, my Father, let my country awake.

Glimpses of World History sold briskly, and in time the author was persuaded by his publisher to bring out an
expanded edition. A freshly writen postscript, dated 14th November 1938, outlined the major political developments
of the nineteen thirties. ‘The growth of fascism during the last five years and its attack on every democratic principle
and conception of freedom and civilization’ wrote Jawaharlal to Indira, ‘have made the defence of democracy the
vital question today’. Unfortunately, ‘democracy and freedom are in grave peril today, and the peril is all the greater
because their so-called friends stab them in the back’.

Later, as she came to adulthood, Mrs Gandhi voted, with hundreds of millions of others, in five General Elections in
free India. All were won by the Congress party—three times under Jawaharlal Nehru’s leadership, twice under hers.
The evidence suggests that, even while he was alive, she did not completely share her father’s faith in the democratic
process. In December 1949, she protested his non-interference at the take-over by lesser Congressmen of the National
Herald, a newspaper started by Jawaharlal and regarded by some as Nehru family property. ‘You tolerate a lot of
things’, she told her father, sarcastically: ‘It makes one’s heart bleed to hear everyone say that it is no use bringing
anything to your notice since you don’t do anything about righting things’. In 1956 she protested his allowing
autonomy in dealing with their states to regionally powerful and respected Congressmen: ‘You are tending more and
more to accept without question, the opinions of certain people with regard to certain parts of the country’. Most
famously, as Congress President in 1959 she prevailed upon Nehru to use a previously unused provision of the Indian
Constitution to dismiss the democratically elected Communist government of Kerala.

Also in 1959, while on a visit to Kenya, Mrs Gandhi had spoken approvingly in public of one-party regimes. The
Chinese invasion of October 1962 and the criticisms it spawned of Nehru and his policies appeared to have
consolidated these feelings. In January 1963 she wrote to a friend, complainingly, of ‘the price we pay for democracy
[which] not only throws up the mediocre person but gives strength to the most vocal howsoever they may lack
knowledge and understanding’.

These reservations were to find full expression in the Emergency of 1975-7. One might damage the revisionist views
now current by a careful social history of those years, by a documentation of democracy’s destruction and the spread
of terror, intimidation and violence. By contrast, this essay seeks to set the record straight in the words of Mrs Gandhi
herself. My aim is to demonstrate that the Indian Prime Minister was an actively willing dictator, not a reluctant one
pushed by malevolent opponents and an unruly son into extinguishing democracy. My main sources are her own
words, as articulated in print as well as in some private correspondence that has never before been made public.

II

Mrs Gandhi’s singular contribution to Indian political discourse was the idea of the ‘foreign hand’. The nationality of
this hand is hard to establish, although one presumes it was coloured white. A week after the declaration of
Emergency, the Prime Minister gave an interview to M. Shamim of the Times of India. ‘The aim of the opposition
parties was obvious’, she remarked, it was ‘to paralyse the Government and indeed all national activity and thus walk
to power over the “body” of the nation. The situation had come to such a pass that a few more steps would have led to
disintegration, which would have exposed us to foreign danger’. She returned to the theme in a speech of 11
November, broadcast over what was now routinely referred to, if in private, as All Indira Radio. Here, the Prime
Minister told the nation that ‘there are many people outside the country who are not our well-wishers and who do not
like to see India being strong and united and carrying forward its economic programmes. This was their desire and
their efforts and our countrymen also got entrapped in the process’.

Then, and afterwards, it was difficult to reliably identify these foreign ill-wishers. In 1975 India’s otherwise most
dangerous neighbour, Pakistan, had recently been defeated on the battle-field, and was still to come to terms with the
loss of its eastern wing. With Mao on his death-bed, China was not in an adventurist mood either. As for the
Russians, there was in place an Indo-Soviet Friendship Treaty. No European country had much of a stake, political or
economic, in India. Was it the United States of America that Mrs Gandhi had in mind? She would never clearly say,
although her advisers and followers would occasionally speak of the dark doings of the Central Intelligence Agency.

This paranoid talk of interfering foreigners is best understood, perhaps, in the light of internal politics, in view of the
rapid fall in Mrs Gandhi’s own popularity. The decline had been dramatic. The year 1971, let’s remember, had begun
with the sweeping victory of her Congress party in the General Elections, and had ended with the decisive triumph
over Pakistan in the Bangladesh war, a win in which more credit was seen to accrue to the Prime Minister than to her
Generals. She was now the elected Empress of India. Opposition politicians began comparing her to the all-powerful
Hindu goddess, Durga, a comparison made permanent in a series of murals painted by a famous Muslim artist. No
one dared predict how long her lawful reign might last. But then two bad monsoons supervened, and OPEC raised the
price of crude oil. The scarcity of water and fuel was made more deadly by nepotism and graft. The Prime Minister’s
son Sanjay, a half-trained mechanic with no proper qualifications for the task, started building a car factory with land
and loans alloted at preferential rates by public institutions. Two crucial Congress-ruled states, Gujarat and Bihar,
saw the unprecedented spread of official corruption.

The response to all this was the movement led by Jayaprakash Narayan, which quickly spread from his native Bihar
to other parts of the country. Suddenly, the Empress began to look vulnerable. Mrs Gandhi’s predicament, circa 1974-
5, is comparable to the current situation of the Zimbabwean President, Robert Mugabe. Mugabe too started on high,
and at first climbed higher. The early years in power of the former freedom fighter were marked by racial
reconciliation and all-round economic growth. Here too, drought and graft and nepotism combined to raise the hopes
of the opposition. Mugabe’s initial response to criticism was to concentrate power in his hands, by marginalizing and
persecuting erstwhile comrades such as Joshua Nkomo (this was, if inadvertently, taking a leaf out of Mrs Gandhi’s
book, for she had swiftly cut to size Congressmen who enjoyed an independent source of moral or political
authority). When the criticisms of his increasingly dictatorial rule intensified, Mugabe answered with talk of
conspiracies aided by homosexual-friendly Western powers. Like the Zimbabwean, Mrs Gandhi found it hard to
understand, for herself, how a previously adoring citizenry had begun to make noises of protest. It was altogether
more convenient to blame foreigners than to look for signs of flawed governance within.

During the Emergency, the Congress President, D. K. Barooah, coined the slogan ‘Indira is India, India is Indira’.
The equation of herself with the nation—or at any rate with the nation’s best interests—was often made by Mrs
Gandhi too. The Emergency was declared, she claimed in that broadcast of 11 November 1975, because
we felt that the country has developed a disease and, if is to be cured soon, it has to be given a dose of medicine, even
if it is a bitter dose. However dear a child may be, if the doctor has prescribed bitter pills for him, they have to be
adminstered for his cure. The child may sometimes cry and we may have to say, “Take the medicine, otherwise you
will not get cured”. So, we gave this bitter medicine to the nation.

‘Now when a child suffers’, continued the doctor-matriarch,

the mother suffers too. Thus, we were not very pleased to take this step. We were also sad. We were also concerned.
But we saw that it worked just as the dose of the doctor works.

The Indian dictator’s mentality is also revealed in some previously unpublished correspondence with her English
friends. The art historian and ex Indian Civil Service officer, W. G. Archer, had written to Mrs Gandhi in December
1975 to congratulate her on her ‘bold action’. She ‘must have been bitterly aggrieved’, wrote Archer, ‘that many
supposed “friends of India” in this country had patently failed to understand or approve your action in declaring the
Emergency’. Now the Prime Minister was indeed cognisant of the general (and well-merited) opposition of the
British intelligentsia to what she had done. While some English politicians—such as Michael Foot—had offered
unconditional support, the press was not so obliging. The Times carried a series of hostile reports, prompting the then
Indian High Commissioner—and this year’s Padma Vibhushan awardee—to write a letter to the newspaper
describing conditions in Indian jails: ‘The care and concern showered by the state authorities upon the welfare of the
detenus who are well housed, well fed and well treated, is almost maternal’. But the criticisms persisted. The
December 1975 issue of the respected Encounter magazine printed a long essay sympathetic to Jayaprakash Narayan
under the tell-all title ‘Indira Gandhi’s Prisoner’.

Jawaharlal Nehru’s daughter could live more easily with American or Soviet disapproval. So she wrote back to W. G.
Archer saying she was ‘touched’ by ‘the understanding you show of the complex situation in our country’. She
continued: ‘India is not an easy country to know. Perhaps that is the reason why we irritate the Western world so
much. The struggle here is not merely one of economic growth or even of social justice but of retaining our
individuality and developing in our own way. Unfortunately most educated Indians are taken in by the glitter of the
affluent countries and by their propaganda that theirs is the best of all possible worlds’.

One is struck by the resemblance here to sentiments expressed by the likes of Mobutu Sese Seko, Fidel Castro and
Lee Kuan Yew, that is, by authoritarians of military or communist or any other provenance. These would reject
human rights as a Western imposition, and home-grown defenders of those rights as Western agents. To that
presumed universalism is offered the Singaporean or Cuban or Indian alternative of ‘retaining our individuality and
developing in our own way’, a way that does not admit of such irritants as freedom of speech and freedom of
association.

In March 1976 W. G. Archer visited India and met Mrs Gandhi. His notes of the interview reveal a ruler whose
resolve was mixed with a dangerous dose of paranoia. ‘I have to keep India together’, she said to him: ‘That is an
absolute must’. ‘Total freedom’ (of the press and public opinion) ‘will be fatal to India’. Likewise, ‘total devolution
[will] be fatal to India’. And, notably, ‘The Emergency had made the State Ministers shake in their shoes. This was
long over-due…’.

So far as this historian can judge, either before or during the Emergency there was no serious threat to the unity and
integrity of India. Would freedom of the press and public opinion be fatal to India, or to Indira? The question was
raised, in October 1976, by the British columnist Bernard Levin. Levin wrote a two-part essay in The Times, which
focused principally on press censorship and interference with the judiciary in India. ‘After studying a substantial
amount of material on the subject’ Levin concluded that ‘Mrs Gandhi’s shabby little regime’ definitely qualified for
that definitive epithet, ‘totalitarian’. He ended his essay by quoting the farewell editorial of the Bombay journal
Opinion : ‘The current Indira regime, founded on 25 June 1975, was born through lies, nurtured by lies, and
flourishes by lies. The essential ingredient of its being is the lie’.
The Emergency lasted for twenty months. In January 1977, to everyone’s surprise, elections were called. There are
competing explanations as to why this decision was taken. Within India at the time, as I myself recall, it was widely
believed that Mrs Gandhi’s own trusted spies from the Government’s Research and Analysis Wing had predicted a
comfortable victory for her. In his book, P. N. Dhar speculates that she wanted once more to hear the accolade of the
people, to seek through the campaign trail the admiration and reverence that had so readily come her way in 1971. A
third possibility is that Mrs Gandhi was shamed by the example of Pakistan, then enjoying one of its all-too-rare
periods of democratic rule.

When General Elections were due in early 1976 Mrs Gandhi amended the Constitution to extend, by a year, the life
of the Lower House, the Lok Sabha. Later, the Lok Sabha’s life was extended by a further twelvemonth, until early
1978. Her advisers, and especially her son Sanjay, thought this process could continue forever. One still does not
know, for certain, why in 1977 she decided to hold elections after all. Anyway, her party was comprehensively
defeated, and the Prime Minister and Sanjay lost in their respective constituencies. Others saw her defeat as a
commentary on authoritarianism and abuse of power. But for Mrs Gandhi it was time to unwrap, once more, the
theory of the foreign hand. Thus the unseated dictator wrote to a relative that ‘people have always thought that I was
imagining things or overreacting but there has been a deep conspiracy and it was bound to overtake us’. Or, as she
helpfully explained to a foreign interviewer, ‘they had a lot of money to spend… Some sections in the Janata party
had the support of the Western press, Amnesty International and other Western organizations. Another section was
supported by the Soviets’.

Mrs Gandhi was now out of power, but the condemnation of the Emergency persisted. In The Guardian of 16
November 1978, a British radical of the left, E. P. Thompson, recalled a visit to New Delhi in the winter of 1976-7.
The Prime Minister personally received the gift Thompson was carrying—copies of letters written by her father to
his—but meetings elsewhere and with other people convinced him that Mrs Gandhi and her son Sanjay had unfairly
confiscated and abused the good name of Jawaharlal Nehru. In his essay, Thompson wrote with feeling of how,
despite spending years in British jails, Nehru could still befriend Englishmen: ‘One would have to go rather far back
in British history to find an article of that quality: to find persons willing to undergo years of imprisonment, and to
emerge with unflagging intellectual vitality and with so little bitterness’. This was a civilized human being and, as his
years in office showed, a democrat besides. During the Emergency Mrs Gandhi and her son were teaching the Indian
people to turn their backs on ‘the best traditions of Congress and of Nehru’.

III

Mrs Gandhi had certainly read Bernard Levin, in October 1976, and it is likely that, two years later, she read E. P.
Thompson too. Like other Indians of her class and generation, she respected both The Times and The Guardian, the
one the voice of the British Establishment, the other the vehicle of progressive, anti-imperial, and generally pro-
Indian sentiment. But their barbs were nothing to one that came her way in October 1981. The Emergency was now a
distant memory, and the person who brought it about was now back in office, after being two-and-a-half years out of
power. Mrs Gandhi saw, or was perhaps alerted to, an item in the British Press which claimed that Lord Louis
Mountbatten, the Viceroy who had so gracefully brought down the Union Jack back in August 1947, refused to visit
India between 1975 and 1977 as it was then a ‘police state’. Mountbatten was dead, so the Indian Prime Minister
instead addressed her complaint to his son-in-law, Lord Brabourne. ‘During the emergency’, wrote Mrs Gandhi to the
English family whose approval she most sought, ‘some people were arrested, some were politicians but the larger
number were what we call anti-social elements—smugglers, dacoits, hoarders, black-marketeers, etc., whose
activities had been pushing up our prices, creating shortages and were generally harmful to the people as a whole. Not
once during [the] emergency was there any show of police strength. We ourselves released all political prisoners
some time before the 1977 elections. When the Janata Party came to power, it released the criminals, with dire
consequences from which we have not yet recovered’.

This is an illustration of what George Orwell called ‘Newspeak’, that is, of the language of euphemistic lying
characteristic of dictators and dictatorial regimes. It was a language that came naturally to Mrs Gandhi. In a broadcast
of 27th June 1975 that first justified the Emergency to the nation, she said that ‘the purpose of censorship is to restore
a climate of trust’. In August of that year, with all her political opponents locked up in jail, fundamental rights
extinguished and the media censored, she informed the American journalist Norman Cousins on a visit to his country
that ‘what has been done is not an abrogation of democracy but an effort to safeguard it’. In a televised discussion on
this trip to the U. S. A., she magisterially announced that ‘people are already being released almost every day’. A
little later, she told a Bombay weekly that ‘there is no use of force and… there is no show of force anywhere in the
country. The truth is that the police have had less work since the Emergency than ever before’. In the last week of
1975, alerting a conference of lawyers to some impending amendments to the Constitution, Mrs Gandhi remarked
that ‘if any change is required, it will be not to lessen democracy but to give more meaning to democracy, to keep
democracy, to make it a more living democracy’. Such gems, carefully culled from their boss’s speeches by a craven
High Commissioner and his staff, were printed on art paper by an expensive London studio and presented to the
world in a pamphlet with the wonderful title: Democracy Preserved: Facts about the Emergency in India.

More notable than Mrs Gandhi’s attitudes, while the Emergency was on, is her retrospective defense of it. This, as the
comments to Lord Brabourne suggest, was total. Consider also Volume III of Indira Gandhi’s ‘Selected Speeches and
Writings’, issued by the Publications Division of the Government of India in October 1984, the very month she fell to
assassins’ bullets. At the heart of the book is the reproduction of a series of speeches delivered and interviews
undertaken during and in defence of the Emergency. Their re-publication in 1984, we may be assured, was approved
by Mrs Gandhi herself.

Consider, finally, an excerpt from an interview given in July 1978 to the American writer Mary Carras. During the
Emergency, said Mrs Gandhi, ‘We built our foreign-exchange reserves, and we were beginning to make a go of the
public sector. Production had gone up and corruption had come down, and everything was going much more
smoothly… During the first year of the emergency, everyone (except the smugglers) asked why we hadn’t done it
earlier.’

An awful lot of smugglers must have been granted the vote in the elections of March 1977. That is one explanation
for her defeat. Or perhaps we should set against the dictator’s defence the pithy remark of an Indian jurist that the
Emergency was a ‘fraud on the President, a fraud on the Council of Ministers and a fraud on the people’. In my view,
the fairest comment on Indira Gandhi’s Emergency was reported by the distinguished American journalist A. M.
Rosenthal. Rosenthal, like E. P. Thompson, would underline the contrast between the democratic Nehru and his
dictatorial daughter. Visiting New Delhi in late 1975, he was told of a grim joke doing the rounds, which assumed
that the father still lived while the daughter reigned. Thus ‘Indira is in the Prime Minister’s house, and Jawaharlal is
back to writing letters to her from jail again’.

THE DICTATOR’S DEFENCE: INDIRA GANDHI AND THE INDIAN EMERGENCY

(originally published in The Hindu, June 2000, on the 25th anniversary of the promulgation
of the Emergency)

Is freedom of expression under threat in the digital

age?
18 Jan 2013
BY SARA YASIN

This week Index held a high level panel debate in partnership with the Editors Guild of India and the India International
Centre to discuss the question “Is freedom of expression under threat in the digital age?” Mahima Kaul reports
Index on Censorship, in partnership with The Editors Guild of India, hosted a debate in New Delhi on Tuesday (15 January) asking,
“Is freedom of expression under threat in the digital age?” Discussing the topic were Ajit Balakrishnan (founder and Chief Executive
of rediff.com), Index on Censorship CEO Kirsty Hughes, Sunil Abraham (Executive Director of the centre for Internet and Society),
and Professor Timothy Garton Ash, Director of the Free Speech Debate project.
Sunil Abraham questioned the idea of technology specific “internet freedom” that has been advocated by many not least the
US Secretary of State Hillary Clinton. He said there was for instance much greater freedom and diversity on Indian TV than in the
US. He also argued that that this freedom does not seem to extend to a right of access to knowledge, as demonstrated by the charges
brought against open access activist and developer Aaron Swartz, who committed suicide earlier this month. Swartz was facing
charges for allegedly downloading 4.8 million academic articles from subscription-only digital library JSTOR.
Abraham said one unintentional effect of censorship by governments is that it teaches citizens how to protect themselves online.
Finally, he questioned the Indian government’s draconian laws and arbitrary actions in the digital realm, wondering whether this is the
authorities’ way of warning future netizens about “acceptable online behaviour”, to condition the public not to criticise the
government and to create a chilling effect.

Freedom of expression is always under threat and in need of defending, argued Timothy Garton Ash. However, he didn’t think the
threat was particularly high today in the digital realm — rather the threats to privacy were what were particularly concerning online.
With 76.8 per cent of India’s 1.2 billion population connected by mobile phone, there is an extraordinary opportunity for the
prevalence of freedom of expression brought about by new technologies. But he said there are also a lot of challenges to free
expression in India — and that “swing states” such as Brazil and India will be very important in determining where the global
conversation goes on freedom of expression
Ajit Balakrishnan, founder of web portal Rediff.com, explained that many of the problems that have occurred in the digital realm in
India have to do with poor drafting of legislation. He was particularly concerned about intermediary liability and explained why and
how intermediaries roles needed protecting. He also explained that government officials have genuine problems with phrasing, and
that when it comes to the application of these laws, understanding them and when they should be applied will take another 25 years.
He added that the country is challenged by a legal system ill-equipped for coping with new technologies.
Kirsty Hughes said that freedom of expression is a universal right, meant to be applied across borders not just within countries. She
said that while the digital domain allowed a big expansion in freedom of expression there were risks we are heading towards a more
controlled net, a partially censored net, and a fragmented net (for instance with Iran attempting to build its own internet disconnected
from the rest of the world). She said that some of the negative reactions by government to social media in India were seen to in the UK
where there had been a trend towards criminalising supposedly offensive comment — although the new interim guidelines on social
media prosecutions were a step in the right direction. Hughes emphasised three main concerns — state censorship, privatisation of
censorship and the role of big companies, and mass surveillance. She pointed out that the British government had pushed for extensive
surveillance with the Communications Data Bill, but this has now been shelved after a critical report from MPs.
Ramanjit Singh Chima, policy adviser for Google, said that the question is not about absolute freedom, but about what is appropriate
and lawful. He emphasised that in the US, judges had strongly defended free expression online as they saw the digital world as a
powerful space for free exprssion. He pointed out how effective social media tools, including Google’s own products, have become in
helping during emergency situations like natural disasters and terrorist attacks. He also pointed out that the internet is not only about
free expression but business as well. The internet contributes to 1.6 per cent of India’s GDP. Singh Chima said positive judgements by
US and EU courts protect the users, adding that regulation for the net should be appropriate for its engineering.
Mahima Kaul is a New Delhi based journalist. She tweets from @misskaul.

Freedom of speech & expression sacrosanct, right of a filmmaker can’t be curtailed: Supreme Court

“Freedom of speech and expression is sacrosanct and the right should not be ordinarily
interfered with,” a three-judge bench led by CJI Dipak Misra said.
By

Samanwaya Rautray

NEW DELHI: The Supreme Court has spoken up for celluloid artistic freedom and licence and refused to ban a documentary on Delhi CM
Arvind Kejriwal a day ahead of its scheduled release. The verdict is significant as it came amid the row over the movie Padmavati made by
Sanjay Leela Bhansali and calls for ban.

“Freedom of speech and expression is sacrosanct and the right should not be ordinarily interfered with,” a three-judge bench led by Chief
Justice of India Dipak Misra said. “The rig ..

“The right of a filmmaker can’t be curtailed. Courts are to be extremely slow to pass any kind of restraint order in such a situation and should
allow the respect that a creative man enjoys in writing a drama, a play, a book on philosophy, or any kind of thought that is expressed on the
celluloid or theatre etc,” the bench said.

In a very poetic order uploaded on the court website, the bench said: “Human history records that there are many authors who express their
thoughts according to the choice of their words, phrases and expressions and also create characters who may look absolutely different than
an ordinary man would conceive of.”

“A thought-provoking film should never mean that it has to be didactic or in any way puritanical. It can be expressive...provoking the conscious
or the sub-conscious thoughts of the viewer. If there has to be any limitation that has to be as per the prescription in law… freedom of speech
and expression is sacrosanct and… should not be ordinarily interfered with,” the bench said.

“A film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not
prohibited by law and such prohibitions are not read by implication to crucify the rights of expressive mind.”

The CJI the dismissed a petition filed by a person facing trial for throwing ink on Kejriwal in 2013. He argued that the documentary, An
Insignificant Man, would prejudice his case and wanted the court to intercede to remove any references to him in the movie. The CJI,
however, would not hear of it. “Wisely many people who have movies based on them don’t come to court,” he observed.

Do Indians Have Freedom of

Speech?
By:
Mira Kamdar
Education, Society & Culture
The right to freedom of speech and expression in India is not absolute. Article 19 of India’s constitution guarantees the right "to freedom of
speech and expression." However, the constitution also allows the government to limit freedom of expression "in the interests of the
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."

There are also several sections of the penal code that criminalize certain speech. Section 153A, for example, criminalizes "promoting enmity
between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of
harmony by words, either spoken or written, or by signs or by visible representations or otherwise." Section 292 criminalizes obscenity.
Section 295A criminalizes "deliberate and malicious acts intended to outrage religious feelings of any class" of citizens. Section 298
criminalizes "uttering any word or making any sound" with "the deliberate intention of wounding the religious feelings of any person."

The Indian government has used these laws to ban books, such as Salman Rushdie’s novel The Satanic Verses, and movies, such as India’s
Daughter, a 2015 documentary film made by Leslee Udwin for the BBC on the 2012 gang rape of a Delhi college student. In 2014, RSS
member and self- appointed cultural vigilante Dina Nath Batra forced Penguin India to withdraw University of Chicago scholar Wendy
Doniger’s book The Hindus: An Alternative History, and to agree to pulp all copies in its possession, by bringing a series of civil and criminal
actions against the book on the basis that it violated Section 295a.

Charges of sedition have recently multiplied in India as a way to curb free speech and to intimidate government critics.

Then there is sedition. In an effort to quash rebellion, the British made sedition a crime in India in 1860. And so it remains. Section 124 of the
Indian Penal Code states: "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 shall
be punished with imprisonment for life." India’s Supreme Court has limited sedition to speech that is "incitement to imminent lawless
action." Few have been convicted of sedition, but it suffices to bring the charge against someone to unleash a legal process that can take
years before the individual is, as is usually the case, acquitted.

Charges of sedition have recently multiplied in India as a way to curb free speech and to intimidate government critics. India’s Crime Records
Bureau recorded 47 cases of alleged sedition in nine Indian states in 2014. A folk singer, students cheering at a cricket game, and the author
Arundhati Roy are just some who have been charged with sedition. In February 2016, Kanhaiya Kumar, the leader of the student union of
Jawaharlal Nehru University, was charged with sedition under politicized circumstances we will discuss in the next section. The case kicked up
a media storm and attracted worldwide attention. India’s Supreme Court ordered Kumar released on baiCensorship also comes in the form of
physical intimidation. In January 2015, celebrated Tamil author Perumal Murugan posted on his Facebook page: "Perumal Murugan, the
writer, is dead." Murugan declared literary suicide after being hounded by local chapters of right-wing Hindu groups affiliated with the BJP and
the RSS that found passages in his novel One Part Woman offensive. After copies of his book were burnt by an angry mob and he’d received
threatening phone calls, Murugan met with local authorities and agreed to apologize and withdraw copies of his book from sale.

Powerful Indian corporations, which do not hesitate to sue authors, journalists, or activists for defamation, backed up with claims for damages
no author, publishing house, newspaper, or nonprofit group can afford to pay.

In July 2016, the Madras High Court delivered a decision in defense of the author and of free speech in general. Chief Justice Sanjay Kaul
wrote in the court’s decision: "One of the most cherished rights under our Constitution is to speak one’s mind and write what one thinks." He
told the book’s detractors: "If you do not like the book, throw it away." It was a stinging rebuke to self-appointed censors of the Hindu right.

The charge of defamation is also used to silence free speech. Sections 499 and 500 of the Indian Penal Code criminalize defamation in terms
so broad anyone can claim to be aggrieved by something said or written about them. This includes powerful Indian corporations, which do not
hesitate to sue authors, journalists, or activists for defamation, backed up with claims for damages no author, publishing house, newspaper, or
nonprofit group can afford to pay. In addition to the threat of colossal punitive damages, filing a defamation suit against someone is a sure way
to tie the person up with legal fees and court proceedings, potentially for years.

According to the Index on Censorship, in 2014, seven legal notices of defamation were served in India: five to media companies, including
publishing houses; one to a marketing federation; and one to journalists Subir Ghosh,

Paranjoy Guha Thakurta, and Jyotirmoy Chaudhuri for a book on Reliance Industries Ltd., India’s biggest corporation, run by Mukesh Ambani.
Reliance sought 1 billion Indian rupees, or about $16,400,000, in damages. Environmental journalist Keya Acharya was slapped with a
defamation suit by industrialist Sai Rama Krishna Karaturi, of Karaturi Global Ltd., also demanding a billion rupees in damages. The same
year the Sahara Media Group dropped a defamation case asking for 2 billion rupees in damages against journalist Tamal Bandophadhyay for
his book Sahara: The Untold Story after the author agreed to include a disclaimer by the company in his book .

What about freedom of the press in India?

India’s media has become increasingly concentrated in the hands of powerful, family-owned corporations.
High-profile journalists whose views do not toe the new line have been pushed out or quit their jobs. Self-
censorship by journalists is a growing problem. Those who do speak out regularly face harassment and
threats. Reporters Without Borders ranked India in 133rd place out of 180 countries in its 2016 World
Press Freedom Index.
India has become a dangerous place to be a journalist. The Committee to Protect Journalists (CPJ)
sounded the alarm in February 2016 after two journalists, one working for the BBC, were forced to flee the
Indian state of Chhattisgarh after threats to their lives, and lawyers for imprisoned journalists were evicted
from their offices. Chhattisgarh is in the grip of a violent confrontation between security forces, mafia
gangs, and Maoist insurgents, and journalists trying to report on what is going on find themselves targeted
on all fronts. CPJ said it had documented a pattern of police in Chhattisgarh harassing, abusing, and
threatening journalists to silence their reporting, while Maoists had attacked journalists they accused of
being police informants.

Reporters Without Borders documented nine journalists killed in India in 2015, five
while doing their job.
And then there are the journalists who are killed for doing their job. Reporters Without Borders
documented nine journalists killed in India in 2015, five while doing their job. "Their deaths confirm India’s
position as Asia’s deadliest country for media personnel, ahead of both Pakistan and Afghanistan." In May
2017, two journalists were shot dead in eastern India in a single 24-hour period. Shock waves rippled
through India’s press in August 2017 when senior journalist Gauri Lankesh was shot dead in front of her
home in Bengaluru by a gunman who sped away on a motorcycle. Defiant in her critical reporting on the
Hindu right, her death eerily recalled the murder in 2014, previously mentioned, of rationalist Malleshappa
Kalburgi.

Muzzling freedom of expression

Kapil Sibal
JUNE 19, 2017 00:00 IST

Unless a trade is prohibited by law or taken over by the state, restrictions of the
kind imposed by the rules regarding sale of cattle are constitutionally suspect
At the heart of the fundamental right of freedom of expression is free speech. But the human
right to freely express oneself is not limited to free speech.

Little reason to restrict the freedom of speech

C. N. Ramachandran
SEPTEMBER 26, 2013 01:34 IST

Governments have ritually abused the latitude granted by the Indian Penal Code
and the Constitution to harass, intimidate and arrest scores of writers,
journalists and artists
It is common knowledge that Article 19 (1) (a) of the Indian Constitution lays down that “all
citizens shall have the right to freedom of speech and expression”; it is also common knowledge
that this fundamental right is not absolute, as the immediately following Article 19 (2) says
“nothing prevents the State from making any law in the interests of the sovereignty and integrity
of India, the security of the State […] public order, decency or morality, or in relation to […]
defamation or incitement to an offence.” What is not common knowledge is that this
fundamental right has almost been eroded completely.
The extensive Constitutional amendments carried out in 1972 replaced section 153 of the Indian
Penal Code with sections 153 A and 153 B. These newly added sections are so extensive that
today, as the increasing court cases establish, “the right to freedom of speech and expression”
has almost been nullified.
The relevant sections are 153A and 153 B of the IPC which penalise “promoting enmity
between different groups on ground of religion, race, place of birth, residence, language, etc.,”
and committing acts “prejudicial to maintenance of harmony”; and sections 295, 295A and 298
which deal exclusively with “religious harmony”.
It is obvious these sections mirror the anxiety of the then Indian government to maintain peace
and harmony in a multi-religious, multi-cultural and multi-lingual nation. One can understand
this anxiety considering the socio-political conditions existing in 1972: the Bangladesh war had
just ended, and the nation was yet to recover from the huge refugee influx. It was also during
that period that regional parties such as Shiv Sena and Asom Gana Parishad were becoming
more strident, and religious-cultural organisations like the RSS and Jamat-e-Islami had become
aggressive in their tone and acts. Still, there is no doubt that the Indian government over-reacted
in enacting the draconian IPC sections referred to above and, later, in imposing the Emergency.

Identifying ‘intentions’
It is true that to be accused under these sections, the “intention” and “result” of the acts of the
accused are crucial. But the problem is that it is almost impossible to concretely identify either
“intention” or “public order” and “morality” as, at best, they can only be speculative. But what
is not speculative is that scores of writers, speakers and thinkers of all castes, creed, and social
positions have suffered, and are suffering, due to these “reasonable restrictions”. On most
occasions, writers and speakers have been charged and arrested, causing them mental anguish
and physical/ financial suffering. Apart from the well-known cases of Salman Rushdie’s Satanic
Verses, banned in India, and M.F. Hussain being forced to flee the country, there are many
others not so well-known. They include writers, journalists, artists and public speakers. Here’s a
list of a few of such cases, in which the provisions of IPC 153 A and B, along with those of IPC
295-296 have been invoked, leading to immediate arrests and long-drawn court-proceedings.
August, 2013: Yogesh Master (his Kannada novel Dhundhi depicts Ganesha, a non-Aryan hero
as appropriated and deified by the Aryans; accused of hurting religious sentiments of the Hindu
community; charged and arrested);
May, 2013: K. Senthil Mallan (his historical research work in Tamil, Meendezum Pandiyar
Varalaru, attempts to trace the roots of Mallars, Dalit community; charged with ‘sedition’ and
‘prone to disturb communal harmony’; book banned);
November, 2012: Shaheen Dhada and Renu Sreenivasan (their comments in Facebook regarding
Bal Thackeray’s funeral procession; charged under 295 A and IT Act 66 A, with ‘hurting the
religious sentiments of Hindus’ and arrested);
February, 2009: Ravindra Kumar and Anil Sinha (editor and publisher of The Statesman; they
reprinted the article “Why Should I Respect Oppressive religions?” by Johann Hari, published
in The Independent; charged under 295 A for ‘hurting the sentiments of the Muslims’);
July, 2008: Ashish Nandi (charged with potential for ‘communal violence’ for his article
“Critically Analysing the Outcome of the 2007 polls’; got anticipatory bail from Supreme
Court);
December, 2008: Lenin Roy (charged and arrested in Odisha for writing “pro-Naxalite”
articles);
January, 2007: R.V. Bhasin (his book Islam: A Concept of Political World Invasion by
Muslims, published in 2003, was translated into Hindi in 2007; Charged with ‘hurting Muslim
sentiments’ and banned);
March, 2007: B.V. Seetharam (editor of Karavali Ale and periodicals in Kannada; charged with
‘defaming Jainism and hurting Jain sentiments’; arrested);
May, 2007: Chandramohan Srimantula (a student of fine arts in Gujarat and a Lalit Kala
Akademi Award winner; charged with ‘making obscene religious images and hurting Hindu
sentiments’ and arrested);
April, 1993: Nancy Adajania (a 22-year-old student of Bombay university; her article “Myth
and Supermyth,” published in The Illustrated Weekly of India, on April 10-16, 1993, argued
that ‘new nations, in their attempts to establish an identity, create icons out of the past heroes’;
she took the examples of Shivaji, Lakshmibai the queen of Jhansi and Gangadhara Rao the king,
to prove her thesis. The publication led to a chain of protests throughout Maharashtra; she was
charged with defaming Shivaji and hurting the sentiments of Maharashtrians, and was
immediately arrested; the editor of the weekly tendered a public apology).
The list is unending. In Karnataka alone, it includes Masti Venkatesha Iyengar (accused of
hurting Veerashaiva sentiments in both of his novels), Shivarama Karanth (accused of hurting
the sentiments of the Vishwakarma community), K.S. Bhagawan (accused of defaming Hindu
Acharya and hurting Hindu sentiments and arrested); H.S. Shivaprakash, P.V. Narayana ,
Banjagere Jayaprakash (all three were accused of defaming Veerashaiva saints); H.S. Nagaveni
 (accused of hurting sentiments of the Vishwakarma community); Bhagawan and Govinda Rao
(for a public lecture), among others.
One wonders if ancient and established religions like Hinduism, Jainism, Veerashaivism, Islam
and Christianity are so vulnerable as to be hurt by a book or an article!

Turning the clock backwards

In this context, the remarks of Justice M. Saldanha, in his Bombay High Court judgment on the
bail-application of Nancy Adajania, are worth recalling. He began, stating that the entire episode
was “[d]istressing, misguided and misdirected,” and went on to comment that while charging a
person under Section 153 A, especially a writer or a journalist, the concerned officers “should
carefully evaluate the matter,” and then concluded: “This is very necessary if constitutional
guarantees are to be safeguarded and concepts that hold good in the dark ages are not to be
allowed to turn the clock backwards” (delivered on April 23, 1993). Indian authorities do not
seem to have learnt any lesson from this judgment, delivered two decades ago; if anything,
things have gone from bad to worse.
The task before all the writers, journalists, and artists today is clear and cut out; it is to exert
pressure, through legal means, on the Indian Parliament either to repeal or amend the existing
IPC sections 153 A and B, and 295-298; or, at least to define ‘the frame of applicability’ of the
phrases “public order” and “decency and morality” in Article 19 (2) of the Indian Constitution.
(C.N. Ramachandran is a retired professor of English and a well-known literary and cultural
critic from Karnataka)

The litmus test for free speech

Markandey Katju
SEPTEMBER 16, 2019 00:15 IST

The court should uphold constitutional rights by reaffirming the Brandenburg

test
Freedom of speech and individual liberty are enshrined in Articles 19(1)(a) and 21 of the
Constitution. However, these rights, like all others, are not absolute but subject to reasonable
restrictions. What would be a reasonable restriction is an extremely important matter to
consider, as on that would depend the validity of several detention orders and prosecutions in
India.
Reasonable restrictions
In America, the earlier decisions of the U.S. Supreme Court had laid down the ‘bad tendency’
test to determine whether the restriction was reasonable or not. This test was that free speech or
acts could be prohibited if they were likely to adversely affect the welfare of the public.
However, Justice Oliver Wendell Holmes, a celebrated judge of the U.S. Supreme Court, felt
that the ‘bad tendency’ test was vague. In Schenck v. United States (1919), he laid down the ‘clear
and present danger’ test to determine the reasonability of the restriction. This test means that a
restriction would be reasonable only if the speech or action constitutes a clear and present (and
not remote) danger to state security or public order.
The ‘clear and present danger’ test was not consistently followed by the U.S. Supreme Court,
though. In Dennis v. United States (1951), for instance, a ‘balancing’ test was adopted.
In Brandenburg v. Ohio (1969), the ‘clear and present danger’ test was expanded, and the
‘imminent lawless action’ test was laid down by the U.S. Supreme Court, which the court has
followed since. This test states, “The constitutional guarantees of free speech and free press do
not permit the state to forbid or proscribe advocacy of the use of force or of law violation,
except where such advocacy is directed to inciting or producing imminent lawless action”.
The word ‘imminent’ used in the judgment is very important. Imminent means ‘likely to happen
very soon,’ ‘at hand,’ or ‘fast approaching.’
Two decisions of the Indian Supreme Court — Sri Indra Das v. State of Assam (2011) and Arup
Bhuyan v. State of Assam (2011) — followed the decision in Brandenburg v. Ohio, and so
Brandenburg has become the law of the land in India too.

Incorrect decisions
By applying the Brandenburg test, it becomes evident that the prosecution against the Bhima
Koregaon accused; Professor G.N. Saibaba; activist Shehla Rashid; and Pawan Jaiswal, the
journalist who published a report that children in a primary school in Mirzapur, Uttar Pradesh,
were getting only roti and salt in their mid-day meals; among others deserve to be quashed as
these acts or speeches did not create any danger of an imminent lawless act. The recent
detention of many persons in Kashmir (except those accused of militant activities) would also
be illegal from that standpoint.
Recently, the Bombay High Court rejected the plea of Gautam Navlakha, an accused in the
Bhima Koregaon case, for quashing the criminal proceedings against him, observing that there
was some material to indicate that the accused was in contact with Naxalites. But being in
contact with a militant organisation cannot by itself be a crime, a`s it does not result in any
imminent lawless act. One could be a writer who contacts Naxalites for doing research about
 them, or a social activist, or even a sympathiser. That would be legal, being within the ambit of
the Brandenburg test.
It is submitted with respect that the Bombay High Court’s decision is incorrect, and should be
set aside by the Supreme Court, which should reaffirm the Brandenburg test. That would pave
the way for quashing several detentions and prosecutions (many of them based on manufactured
evidence) which are a slur on democracy and liberty.
In these critical days in India, when onslaught on liberty and freedom of speech is
commonplace, it is the higher judiciary which must do its duty as guardians of the citizens’
constitutional rights. The court must not succumb as it did during the Emergency.
Markandey Katju is a former Judge of the Indian Supreme Court

Rafale deal: No force on earth can

make me reveal the source, says N
Ram
Special Correspondent Chennai | Updated on March 07, 2019 Published on March 06, 2019

N Ram, Chairman of The Hindu publishing group, responded strongly to Attorney-General KK Venugopal’s argument in the Supreme Court

that the documents on the Rafale deal were “stolen” and those publishing them were guilty under the Official Secrets Act.

“We did not steal the documents from the Ministry of Defence, we got them from confidential sources and no force on earth can make me or

us reveal the source of the documents, because we have given our word,” said Ram. “Secondly, we have published this information obtained

through investigative journalism in the public interest, information which was withheld or suppressed despite repeated demands in Parliament

and outside.”
He asserted that “we are fully protected by the Article 19(1) A of the Indian Constitution, the fundamental right of freedom of speech and

expression and also by the Right to Information Act, specifically 8(1)(i) and 8(2), which overrides the Official Secrecy Act” and that “there is no

question of any national security being compromised by it”.

Ram also called for democratic India to do away with the Official Secrets Act, 1923, saying: “The OSA is an obnoxious piece of colonial

legislation which is anti-democratic and has rarely been used against publications in independent India. If there was espionage or something

like that, it’s a different matter. Here, it is material that should have gone into the public realm and should have been freely available to

readers.”

Asked if the Attorney General’s argument would have a chilling effect on investigative journalism, Ram said if it represented government

policy, it would clearly have a chilling effect on journalism, and investigative journalism in particular. He added, however, that any such attempt

was unlikely to succeed.

“Today it’s not just The Hindu, but also some other independent news publications which have put out material on Rafale. There has been an

overarching fear in the media ecosystem under this government but the Indian press is now willing to do more. And the very fact that issue has

been covered in a big way shows that the blanket of silence that some would like to be imposed on this matter has been breached,” he said.

Ram also explained that The Hindu had exercised due diligence in its investigation and it was not as though everything that came to hand was

unloaded in the public realm in the name of investigative journalism. “For example, during the course of our independent Rafale investigation,

we had access to information on the 13 India-specific enhancements but in the newspaper's judgment there was no need to publish this,

because it was not strictly relevant to the investigative articles being published and also because the government was saying this technical

information was highly sensitive, it may help the interests of adversaries and may cause harm. I don’t accept that argument fully but still we felt

that there was no need to publish this technical information,” he said.

The Hindu had exercised due diligence in its investigation, and not everything that came to hand was unloaded in the public realm, said Ram

Published on March 06, 2019

The best books on Free Speech
recommended by Timothy Garton Ash

Free speech is the bedrock of a healthy society, but how do we deal with the torrents of horrible
comments—and worse—we see on the internet every day? Timothy Garton Ash, author of Free
Speech: Ten Principles for A Connected World, outlines a plan for navigating the complexities and
recommends the best books to help us think about free speech.
Interview by Sophie Roell

I n your book, you’ve narrowed it down to ten principles, but free speech is incredibly
complicated, isn’t it?

Yes. It’s even more complicated now, because it used to be about the state you were in. There
used to be the old rule of thumb, “When in Rome, do as the Romans do.” But in the world of
mass migration and the internet, there are people from everywhere in Rome, and what someone
says in Rome can be heard anywhere. So the forces involved are very complicated.

There are multiple states, there are international organisations, there are what I call the ‘private
superpowers’—Google, Facebook, Twitter, which, as we’re all discovering, are effectively
regulating our freedom of speech, often globally—and then there are other players.

On the other hand, you can still have quite simple principles—liberal principles for free speech in
a world where everybody’s becoming neighbours with everybody else. Earlier this year, I
presented my ten principles to IFEX, which is the biggest global network of free speech
organizations. There was a tremendous amount of enthusiasm because I think a lot of people feel
that’s what we need in this incredibly complicated, connected world: a few relatively simple rules
of the road.

I tend to think of free speech as one of various freedoms that we enjoy in a democracy,
but you make the point that it’s of more central importance than that: free speech is the
freedom on which all the other freedoms are based.

It is the oxygen of all other freedoms. The classic example of this is Amartya Sen’s famous study,
which shows that there’s never been a major famine in a country which had a free press—
because the news gets out and there’s outrage. So there’s this elemental connection even with the
right to life, to have enough to eat.
Readers can have a look at all ten of your principles here, but, briefly, what is free
speech?

If you look at the ten, you’ll see that beyond the basic principle that we need freedom of speech,
the next most important thing I formulate as, “We neither make threats of violence nor accept
violent intimidation.” We all know this because of the murder of the Charlie Hebdo cartoonist, the
fatwas and the death threats. All over the world one of the most important threats to free speech
are threats of violence. It’s as important to face down what I call ‘the assassin’s veto’—as in the
case of Charlie Hebdo—as it is not yourself to make threats of violence. They’re two sides of the
same coin.

Fundamentally, if we could agree on those two—the basic principle that we need effective
freedom of speech and the principle of no violence—then we could argue about what are the
legitimate limits in relation to privacy or religion or national security, or how we talk about
diversity, hate speech, and so on. All the others are areas where we can have an argument, but at
least we’ve defined the big areas for debate.

I hadn’t appreciated is to the extent there are big differences between countries, even in
the West. On paper, America has by far the freest speech, more so than various
European countries, but they also have quite a bit of variation between them.

People in China, or in India, if you talk to them, imagine there is ‘the West’ but actually there are
big differences inside the West. In the US, there is the First Amendment tradition, which is
undoubtedly the greatest constitutionally anchored tradition of free speech in the world. But the
United States has no hate speech laws. Most European countries and Canada have hate speech
laws. That’s one big transatlantic difference.

“Through Facebook and Google and Twitter,

American norms are being spread worldwide”
The other point is that the internet was made in America. It’s more American than motherhood
and apple pie—because a few other countries do have those. Therefore what you’re getting
through Facebook and Google and Twitter is American norms being spread worldwide. So, for
example, Facebook says, ‘No nudity’—but it’s more relaxed about hate speech. The French are
much more relaxed about nudity, but more restrictive of hate speech. So that’s one of the really
interesting arguments—are we going to take over these American cultural norms?
 Read

Let’s talk a bit more about some of these themes in the context of the books you’ve chosen. The first
on your list is John Stuart Mill’s On Liberty (1859). Was he the first to argue for free speech?

Absolutely not. You can find notions of free speech not just in Ancient Greece—where a massive amount of what we
think of as free speech and democracy comes from—but, interestingly, in ancient Chinese texts, in ancient Indian texts, in
the edicts of the Emperor Ashoka. It’s really important to say that the idea has been around forever, and not just in
western culture.

But in the modern western world, you start in the 17th century with the English Revolution, with John Milton, then with
the Enlightenment—English, French, Scottish, and American. Then you go, on the one hand, to the First Amendment in
the U.S., which is obviously a classic statement of free speech, and in England, to John Stuart Mill.

In my view, Mill is one of those mildly irritating authors like Tocqueville, who say so much so well that it’s difficult to say
it better. Actually, when I say On Liberty, I mean above all chapter two of On Liberty, “Of the Liberty of Thought and
Discussion” which says so much, so brilliantly, so eloquently…

The free speech that we enjoy today, how does it compare to Mill’s ideas? I mean, is he advocating for
freer speech than we actually have now, or are we pretty much in line with what he envisaged?

We where? We in the West, we in Britain? Which country are we talking about?

Most of our readers are in the US or the UK.

That’s a rather good question. The answer is interestingly complicated, because, of course, a question of free speech is
also a question about power relations, who is in a position to speak freely? The ideal of free speech is an ideal of equality,
where everyone is free to speak freely. Now of course, the world of Victorian Britain didn’t have that. Did the servants
have freedom of speech? Did women have freedom of speech? Did colonised people in the British Empire have effective
freedom of speech? Certainly not. So in that sense, we have more, because more people have more right to speak freely—
and more ability, because so many of us have a smartphone or a computer.

“The mark of a free society is that we restrain ourselves”

On the other hand, I think Mill would be extremely worried by some of the taboos we see today, the sense that we have
to tiptoe around all sorts of really difficult subjects. I don’t think he would have been keen at all on hate speech laws,
because one of the key things he said—and where I am very much a Millian—is that the mark of a free society is that we
restrain ourselves. The state is not the father telling you, like a child, what you can do and what you can’t do, and putting
you in the corner. Mature, adult citizens make their own choices, and we choose what I call ‘robust civility.’ That’s exactly
what he thinks, but he insists very strongly that it shouldn’t be imposed by law.

In terms of his argument, he says we should be free to say anything, “however immoral it might be
considered.”

Yes, and that the criteria should not be mere offence—he’s very good on that. But his central statement is about seeking
the truth. What he says is very original, which is that many false statements may contain a grain of truth, and even an
utterly false statement challenges us to restate our position. It’s therefore a way to keep the good sword of truth sharp, if
you’re constantly confronting it with other arguments. He talks about the ‘deep slumber’ of a decided opinion, of received
wisdom. That’s at the heart of what he’s trying to argue—the argument from seeking the truth.
He also has this wonderful passage where he says that we’re so much shaped by the world we’re in that the same causes
which make someone a churchman in London would have made him a Buddhist or Confucian in Peking. That’s so
profoundly true. We’re so shaped by the environment, that you need that contrary, idiosyncratic opinion to shake it up.

And yet he doesn’t think you should be allowed to harm others with your speech. How is that
enforced, then?

This is Mill’s ‘harm principle’—that I should be free to say or do anything, so long as it does not do harm to others.
That’s core to modern liberalism, the basic framework. Then the argument becomes, ‘What harms other people?’

So take the torrent of horrible stuff—rubbish, abuse, hate speech—which is flowing through the internet. As I say in the
book, the internet is the largest sewer in human history, and the sewerage is all waiting to spill out of your smart phone.
The question is, what’s genuinely harmful in that?

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Now, that’s very difficult to work out because, as with so much else with free speech, context is all. If I started ranting to
you about Tutsis in Rwanda here, sitting at a table in north Oxford, it would be stupid, but it wouldn’t have harmful
effects. In the context of Rwanda in 1994, people got killed as a result.

Nonetheless, it’s immensely clarifying to start with the question about harm, and it’s harm, not mere offence. One of the
diseases of our time is that people are saying, ‘You shouldn’t say that!’—just because it’s merely offensive to somebody.
It’s what I call the offensiveness veto. You almost get to the point where just one person has to stand up and say, ‘I’m
offended’ for a speaker to be disinvited from a university.

But how do you stop harm happening? So really horrible stuff is being said about the Tutsis on Radio
Télévision Libre des Mille Collines in Rwanda. What do you then do? Does the state get involved?

Yes. This is a simple distinction, but I think it’s a really, really important one to bring into the debate. At the moment, we
have this cauldron we call ‘hate speech.’ Within that is really, really dangerous stuff, which ends up with people being
killed or silenced, as well as just very offensive stuff, or rubbish, or stupidity. What you have to do is take apart the
ingredients of this stew and say which parts we need the state to go after. The state should go after what I call ‘dangerous
speech’—something that is intended and likely to lead to physical violence or serious psychological harm.

Hate speech as such—hateful speech—I say we have to counter in civil society, by calling people out on it in everyday
life. People say something stupid about Muslims, you call them out on it. People make a stupid racist joke, you call them
out on it, either online or in real life.

“What we’re all trying to do is to teach our children to

navigate the high seas of the internet”
But no. 1, in principle it shouldn’t be the state having to organise all that, because then we’re children back in nursery
school. No. 2, because there is so much more speech as a result of the internet—just oceans of it—the state is totally
incapable of policing all of that. So the state should focus on the really dangerous stuff.

For dangerous speech, people endlessly quote Oliver Wendell Holmes: “The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theatre and causing a panic.” That’s a pretty silly thing to do, but
Mill’s example is much better. He says that it was fine to criticise corn dealers—who were the, I don’t know, investment
bankers of his day—but if someone is inciting an angry mob to violence outside the corn merchant’s house, that’s a
different matter. It’s a very simple image, but it gets you started on what we mean by dangerous speech as opposed to
hate speech.
One sentence jumped out at me from your book: “The devil is in the details.” Before I started reading
it, I just didn’t grasp the amount of detail and thought you have to go into, at so many levels, to figure
out what a good framework is.

Absolutely. But, at the same time, that’s why you’ve got ten simple principles. The metaphor that runs through my book
is a metaphor of navigation. Michel Foucault quotes an ancient Greek philosopher, saying that we should teach free
speech like navigation. It’s a wonderful image. What we’re all trying to do is to teach our children to navigate the high seas
of the internet. These are very high and often quite rough seas. You’ve got to start with a few basic principles of
navigation—so you have your Pole star in the north—and then go into the detail.

I had a really bad experience setting up a Facebook page to help some Syrian refugees. Some of the
comments were so awful, I couldn’t bear it. I wasn’t brave, calling people out on it—I just never
opened it again.

But that’s okay, because one of the things we all do is to ignore it. I think that part of the necessary resilience is just
ignoring this stuff. The example I give in the book is YouTube, which has promoted a channel called ‘No Hate Speech’
and actually, the comments on this channel are an anthology of hate speech. It starts with, “Hitler had the right idea,” and
goes on down. If you find the page, it’s absolutely wonderful stuff.
 Read

So next on the list, you’ve got a book by the Israeli novelist Amos Oz, How to Cure a
Fanatic (2004). Why have you chosen this?

I absolutely love this book, firstly because it’s a beautifully written and very funny short book, and secondly because I
think humour is unbelievably important as a way we use free speech to live with diversity. The Today programme, on
BBC Radio 4, is full of mild ethnic joshing between the English, the Welsh, and the Scots. That’s the sign of a really
healthy society, when you’ve got to the point that you can joke about it.

In my book I quote something terribly interesting, which is that in Senegal, which is a very diverse society, there are
actually rituals of inter-ethnic joking. Everybody does jokes, and then, when they’re asked, ‘Why is it that people get on
quite well with their neighbours?’ a large proportion of them say, ‘Because of these joking rituals.’ What Amoz Oz says is,
‘I have never met a fanatic who has a sense of humour, or someone with a sense of humour who is a fanatic.’ And
therefore, he says, he wants to manufacture humour pills and have them distributed free around the Middle East. I think
that’s just such a great insight.

He writes: “Fanaticism is unfortunately an ever-pressing component of human nature, an evil gene if

you like.” I thought that was quite interesting, this idea that we all have a tendency toward fanaticism
that has to be reined in.

Yes, but what’s so wonderful about the book, is it’s showing how dialogue, debate, free interaction, is one of the best
ways of dealing with that. I quote in my book this wonderful song by Nina Simone, “I Wish I Knew How it Would Feel
to be Free” with the key line, ‘I wish you could know what it means to be me,’ and that’s it. There are two sides: you know
what it means to be me, so it’s both the speaker and the listener. The way we live with difference is first of all by
understanding where the other person is coming from.

There’s a Quaker saying which is perhaps a little bit idealistic but nonetheless rather beautiful, which is, ‘An enemy is a
friend whose story you haven’t heard.’ Now, obviously that’s not true everywhere in all circumstances. If you’re facing the
SS, you have to reach for your gun. Nonetheless, there’s a deep truth in there.

“There’s a Quaker saying: An enemy is a friend whose story

you haven’t heard.”
The idea that you can manage a multicultural society, a society with people from everywhere speaking all languages, all
faiths, all belief systems, by telling everybody to shut up seems to me profoundly superficial and illusory. The way you do
it is by getting people to speak about their differences, even very difficult subjects, but in a context of robust civility. And
humour is a great lubricant.

Oz has this wonderful passage where he quotes A Life of Brian, where the crowd chants, “We are all individuals, we are all
individuals,” in unison, and then one person says, “I’m not, I’m not,” and they all try and shut him up. But he is one of
those people, because he is this solitary voice. He’s one of those people holding out against an incredibly powerful
consensus.

What’s he arguing for?

He’s absolutely for a two-state solution, peace now, although I suspect now he thinks it’s probably a hopeless cause.

Are fanatics generally a problem for free speech? Say in the context of Brexit. Some of the Brexiteers
are so noisy that it gives this illusion that there’s huge demand for a hard Brexit. Doesn’t free speech
favour the people who are talking the loudest?

I think there’s a more subtle point there. Free speech is not just about the laws you have, good or bad. It’s about the
whole structure of communication. We’ve got into a situation now in the UK where it privileges the voices that shout.
Partly that’s because we have the tabloids we have—the Eurosceptic press have been selling this really deceptive and
mendacious narrative but selling it very powerfully. It’s also because of the echo chamber effect from the internet. Then
you have the fact that the internet has simply cut the feet from under the business model of most newspapers. Therefore
all newspapers are fighting for their life. They’re drowning. What do you do when you’re drowning? You wave and
shout.So they’re all waving and shouting, ‘Come over here, give us your clicks!’ (and the advertising revenue that comes
with those).

So we have a media landscape which—apart from the BBC, which becomes even more important—privileges the
shouting voice. If it bleeds, it leads, if it roars, it scores. Funnily enough, I have had this experience with my
own Guardian column. I’ve been writing a Guardian column for 15 years or so. The clicks you get sometimes are just
amazing. Guardian online has a monthly audience of 40 million, so a recent one I did had a quarter of a million views. It’s
fantastic.

“We’ve got into a situation now where it privileges the voices

that shout”
But over that time I’ve noticed—and the comment page editor was acknowledging this the other day—that because you
have to get the clicks, the editor is always looking for the piece which is shouting, and the sub is always looking for the
sensational headline. So I think it’s more a point about the media landscape and the unintended consequence of the
internet than the ability of the fanatical voice to win out over the reasonable one.
 Read

Let’s go on to book three on your list, Defending My Enemy (1979) by Aryeh Neier.

This is a most incredible story. Aryeh Neier is himself a Holocaust survivor. His family, who were Jewish, got out of
Germany pretty much at the last minute. In the late 1970s he was running the ACLU— the American Civil Liberties
Union—and decided to defend the right of a bunch of neo-Nazis to march through a town called Skokie, where a very
large number of Holocaust survivors lived. You can imagine this was massively controversial. He got hate mail, many
people resigned from the ACLU.

This book tells the story of that. What I find particularly moving is the first chapter, when he explains why he does it, and
he says—I paraphrase—‘It’s not in spite of being Jewish, it’s precisely because I’m a Jewish Holocaust survivor that I know
that free speech and the law is the defence of the weak against the strong. And if I ask that for myself, I have to ask it also
for others, and so that’s why I’m defending my enemy.’

“How would I have behaved if I’d been an East German?

Would I have been a dissident or a collaborator?”
So it’s not just a very coherent and powerful argument, it’s a very moving argument coming from the guy who’s writing
it—and he went on, by the way, to be a terrific international human rights activist. He headed George Soros’s Open
Society Foundation for many, many years. He has practised what he preached. But this is such a defining moment, and I
remember my friend Christopher Hitchens saying to me that the Skokie case was one of the things that made him want to
move to the United States. Those were the days when the United States really stood as a beacon for free speech and civil
liberties.

Would you have done the same as Aryeh Neier?

You have to take the question in two parts. Part number one is the kind of question I asked myself when I was writing
about my Stasi file which is how would I have behaved if I’d been an East German? Would I have been a dissident or a
collaborator? I don’t know the answer to that question, how I would have behaved. Part two is, in principle, do I think he
was right? Absolutely I think he was right.

What do you make of people who then cancelled their ACLU membership on the back of this? Do you
think that’s reasonable?

A perfectly legitimate choice. You disagree with this profoundly, that’s fine. This is Milton, it’s Mill, it’s Aryeh Neier. In
the famous formula, we must defend the thought we hate, not just the thoughts we like. I mean, in contemporary terms, I
remember Theresa May, when she was Home Secretary, once saying, ‘The internet platforms must ban this Islamist stuff,
because these people have disgusting views.’ Well, free speech is not about banning disgusting views. It’s about going after
them when they’re really dangerous. It’s about arguing with them. But the idea that just because they seem ‘disgusting’ to
Theresa May is sufficient reason for them to be taken down by the internet platforms suggests she really hasn’t got the
basic idea of free speech.

She needs to read your book.

And I hope she will soon have the leisure to do so.

I’ve noticed that quite a few tweets from people I follow don’t show anymore, but say: ‘This media
may contain sensitive material.’ Why is that? Has something changed?

It very much has. One characteristic of this connected world is that we now have a global public sphere provided by a few
private companies. There’s the notion of ‘POPS’—Privately Owned Public Spaces. Increasingly we’re getting our news
from Facebook, not just exchanging family photos. So they have to face up to the fact that they have some public
responsibilities. Then the question is, so how should they do that? What should be the rules of the game? One has to
acknowledge that women and people from minorities do get massively harassed and bullied on Facebook and on Twitter
and that’s a serious problem. They do have to provide us with the tools to defend ourselves.

“Free speech is not about banning disgusting views. It’s

about going after them when they’re really dangerous”
That’s how I would put it, that I should be able to decide the level of privacy I want. You see, free speech is the right of
both the speaker and the listener. I should be free to say what I want or not. The listener should be free to hear what he
or she wants or not. So I should be able to block people on Twitter.

Now the problem arises—when I was talking to a human rights activist just a couple of days ago in Montreal, she was
saying she got 16,000 tweets in a couple of days attacking her on one issue. Well, she can’t spend the day blocking 10,000
accounts. So there are problems of scale, but the principle is very simple. I should be able to decide.

How do you set about increasing civility on the internet? Maybe it’s again something that needs to be
taught in school. Just as you’re taught to be polite and say, ‘how do you do,’ when you meet someone,
maybe you should be taught that when you disagree on the internet, you shouldn’t launch into
personal invective.
Education is incredibly important here. Going back to the navigation metaphor, we really are like people who are steering
paddle boats around the lake and suddenly we’re on the high seas. That involves knowing about how you protect your
privacy online, how you report really bad stuff, how to keep it away, how to find the good stuff, how to distinguish fake
news from true news, but also how you engage with people. I quote in the book a technique, which I love, called
‘constructive controversy.’

I saw this in action in an academy school in east Oxford. Let’s take a controversial subject, the burka say. What’s your
position on this? Ahmed argues for this position, and Joe argues for that position. That’s fine. Then you say, ‘Okay, now
you have to swap and you have to make the opposite case.’ When that happens, you almost see a sort of light bulb going
on in their eyes as they see, ‘Yes, I can imagine what it would be like to see it from their point of view.’

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The question of effective counter-speech on the internet is something I’m working on now. How do you do it? How do
you actually make it work? Anonymity is a big problem. I call it Janus Anonymous. On the one hand the death threats and
the hate speech is coming from anonymous. On the other hand, if you’re a dissident in Iran, or in an oppressive religious
community, anonymity is a lifeline for you.
 Read

Your next book is: Giving Offense: Essays on Censorship (1997) by the South African Nobel Prize
winner J M Coetzee. Quite an interesting collection of essays, isn’t it? He seems not to have made up
his mind.

The reason I chose this is that so much of the literature on free speech is either law or philosophy or politics. Here is a
writer, a very fine writer, going at it through literature, and what is literature about if not free speech? How we use
language, how we interact. What’s so interesting about it is that he looks at the mental state of being offended, and he
looks at it with examples from Dostoevsky and Dickens and elsewhere. He says the state of being offended is always the
mark of someone who’s unsure of their own position, it’s a mark of weakness. It’s the mark of the bully and the buffoon,
and I think that’s a very powerful insight. In saying, ‘I am offended,’ you’re revealing something about yourself.

“The state of being offended is the mark of someone who’s

unsure of their own position”
If I extend that story and think about South Africa, I don’t think Nelson Mandela ever took offence—although heaven
knows he had reason to be offended by the treatment he was receiving. He maintained his dignity. His position was,
‘You’re the people who are being diminished by this, you’re the people who are losing your dignity, not me.’ This goes
against the grain of much contemporary western society, as one sees it in universities and elsewhere, which is almost
incitement to take offence. People are being encouraged to take offence at anything they find slightly offensive. Even, for
example, Germaine Greer being invited to lecture at a university: ‘I take offence because of her views on trans people.’
So you really feel that in terms of the challenges to free speech, that kind of readiness for everybody to
take offence is a problem.

Free speech is also about what kind of people do we want to be? What kind of people do we want our children to be? Do
we want them to follow the example of Mandela, or Václav Havel or Aung San Suu Kyi as role models and say, ‘While
you’re trying to humiliate and degrade me, you’re humiliating and degrading yourself.’ Or is your role model the person
who’s going to say, ‘I’m offended, I’m offended, I’m offended.’ But also, language, literature. Again, Amos Oz and
Coetzee are about the same thing. How do we use this defining human gift, which is language—no one else in the animal
kingdom has it—to negotiate our differences without coming to blows? That’s essentially what it’s about.
 Read

Let’s move to your final pick, The Master Switch (2010) by Tim Wu. Why should we read this book?

In this completely transformed world of the internet, you have so many different subjects. It’s not just law and
philosophy and literature, it’s also computers and it’s also very much about business. Tim Wu is an American
‘cyberlawyer’—a new category of human being—and a rather brilliant one. He’s the guy who coined the term ‘net
neutrality,’ which we all use now.

The focus is on information businesses. He says that these are a new kind of business, he says, and that one thing we
simply didn’t know 20 years ago is that the network effects on the internet are so powerful that within a very short period
of time we have private superpowers—these absolutely massive information empires which have fantastic concentrations
of power. If Facebook were a country, it would be the largest country on Earth, with 1.9 billion going on to 2 billion
regular monthly users.

“If Facebook were a country, it would be the largest country

on Earth”
The American constitutional tradition, including the First Amendment, is brilliant at controlling public power. It’s very
good at taking on President Donald Trump. It’s amazing how well it’s responded to Trump. But it’s very bad at
controlling private power, and the challenge now is as much about private power—Facebook, Google, and Twitter—as it
is about public power. I love the way he explores at the intersection of law, politics, engineering and business, how these
information empires have developed, and then the question is how should you try to create checks and balances?
And how should you?

It’s a very difficult question and there’s no simple answer to it. We’ve now got to the stage where they’re so big and so
rich and have such cash powers that when some very clever Brits develop something called DeepMind, so they buy
DeepMind. Or someone clever develops something called WhatsApp, so they buy WhatsApp. They can buy up the
competition. I think there has to be a series of answers of which part is definitely anti-trust. These are near-monopolies. I
know because I spend a lot of time talking to people high up in these companies—because I spend three months a year in
Stanford and therefore Silicon Valley—that’s what they’re really frightened of, because of their dominant position,
particularly in Europe.

But also, if you take Facebook’s news feed, they could swing an election. If they really slanted everything that came across
on news feeds to favour the Republicans or the Democrats, they could probably swing that election. So actually you have
to think of them, as a kind of media power with some sort of media responsibility. On the other hand, I don’t want to see
that being done to Google Search, because Google Search is exactly what it says on the tin, and should be what it says on
the tin, a place where I can find everything that’s out there according to some criteria of relevance.

But isn’t that their criteria?

Understand that being a news feed, i.e. a news platform, a media platform, is one thing, being a search engine is another.
We have to take these things apart, and then say to ourselves, ‘What is it we really want to ask them?’ And be careful what
you wish for, because what’s happened with this famous European court ruling on the right to be forgotten is that now,
in effect, Google is exercising a kind of arbitrary censorship, taking down hundreds of thousands, even millions, of links
in ways which are not transparent, not accountable, not appealable.

In the book, he’s looking at the history as well. He’s saying that when the telephone started—or the
telegraph—when all these things started, everybody thought it was all going to be great, but then they
end up in the hands of corporates. It’s a sort of cautionary tale. Don’t think because the internet has
started all happy and good that it’s going to end up not going down the same route.

It’s interesting. This book is from 2010. That was seen as rather an original thing to say then. In 2017, people think, ‘my
god, what do you mean, they’re so wonderful?’ The perception has changed, but if you go back to the 1990s, it really was,
‘The internet will set you free.’ It was this cyber-libertarian poppycock that you find with every new technology, including
printing. It’s hailed as a thing that will set people free, and, at the same time, you always have the catastrophists who say
it’ll be the end of human civilisation as we know it. Of course the truth is that it’s neither heaven nor hell.

“I think one of the really important things that we need to do

at the moment is to try and get our act together as liberals”
But he’s very interesting in his analysis about complex things. There are serious reasons to be worried about some of the
stuff they’re doing, but I don’t think the answer to it is to bring in a law against everything, which, particularly in
Germany, is what is being proposed at the moment. I spend a lot of time in Germany, and the debate is ‘big, bad
American private superpowers’ versus ‘good, virtuous German and European public powers.’ I don’t think that’s the
answer actually. We’ll end up over-regulating them and destroying some of the good things that they do.

But anti-trust involves a regulator.

Anti-trust is a really important place for regulation. But with a lot of this stuff—like what do we want them to do on news
feeds, or what do we want them to do about hate speech, and so on—you’ll get much farther, in my experience, with a
kind of constructive engagement with these companies, because they’re desperately trying to work out what to do. If you
look at the world from the Googleplex, or Facebook headquarters, these amazing—I don’t know if you’ve ever been to
them, but they make Washington look slightly dowdy—you’re looking round the world and you’re getting competing
demands from every side. Everyone is asking something of you, but every demand is different. Even NGOs—free speech
NGOs want you to take down less content, women’s rights and minority rights want you to take down more content, so
what the hell are you going to do?

I think one of the really important things that we need to do at the moment is to try and get our act together as liberals, in
the broader sense within civil society, and say what are the four or five most important things we want Facebook to do, or
Google to do, or Twitter to do?

You mentioned IFEX, this network of free speech organisations. Do you feel there’s enough people
working on this and thinking about it?

I don’t think there are enough people, because we now suddenly are in this world where you have giant public
superpowers, China, America, Europe, and giant private superpowers, but all these relatively small non-governmental
organisations that are slightly fragmented and diverse. That makes for creativity and originality and so on, but it doesn’t
make for scale. If you’re trying to get attention from Facebook or Google, or indeed from China or the United States, you
need a certain scale. That’s a real problem, actually.

Also, I think one has to distinguish between these various platforms. I love Twitter because it’s an explicitly public
platform. It is explicitly for public debate. It’s a brilliant way of having public debate. If someone says something really
outrageous, stupid, deeply offensive, they get called out on it straight away. I posted some fake news myself.

You did?

Someone did a montage of two photos from parliament, the House of Commons. One showed a completely empty
chamber, when apparently they were debating social care or something terribly important for millions of people. The
other showed a packed chamber, when they were allegedly debating MPs’ pay. I tweeted this. Within five minutes, I had
three people come back at me back saying this was fake news, and that the picture of the full chamber was actually them
debating student fees, not MPs’ pay. That’s a great example of where social media can actually be used to refute fake
news.

Yes, because the problem with Facebook is you’re supposed to be friends. So you might have a friend
who believes that vaccinations caused her son’s life-threatening allergies and puts up a lot of anti-
vaccination stuff on her feed. You completely disagree, but you don’t feel you can say, “This is
nonsense.”

You’ve got it in one. In my book I quote some really good studies which show that there’s much more hate speech on
Facebook than on Twitter for that very simple reason, that you’re supposed to be friends. So people don’t call each other
out, even if they should. Whereas on Twitter—I think the study was in Kenya, where people were saying really nasty
things about other tribes or ethnic groups—they were being called out. So you should go on Twitter. You must be on
Twitter?

We are, we are. @Five_Books.

‘Freedom of Speech and Expression’ as a Fundamental
Right in India and the Test of Constitutional Regulations:
The Constitutional Perspective
Constitutional Regulations: The Constitutional Perspective
Aqa Raza*
Introduction
“No law shall be passed restraining the free expression of opinion, or restricting
the rightistoGod‟s
Speech speak,gift
write or print freely
to mankind. on any
Through subject
speech andwhatever.”
expression a human being conveys his
thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural
right, which a human being acquires on birth. It is, therefore, a basic right. The freedom of
speech and expression is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of the liberty, it is truly said about the freedom of speech that
it
toisexpress
the mother
one‟sofown
all other liberties.
convictions andFreedom
opinionsoffreely
speechbyand expression
words means
of mouth, the printing,
writing, right
pictures or any other mode. It thus includes the expression of one‟s ideas through any
communicable medium or visible representation, such as, gesture, sighs and the like.1 In
modern time it is widely accepted that the right to freedom of speech is the essence of free
society and it must be safeguarded at all time. The first principle of a free society is an
untrammelled flow of freedom
Throughout India‟s words in struggle
an open forum.
there was a persistent demand for a written Bill of
Rights for the people of India which included guarantee of free speech. Understandably, the
Founding Fathers of the Indian Constitution attached great importance to freedom of speech
and expression. Their experience of waves of repressive measures during British rule
convinced them of the immense value of this right in the sovereign democratic republic
which India was to under its Constitution. They believed that freedom of expression is
indispensable to the operation of a democratic system. They knew that when avenues of
expression are closed, government by consent of the governed will soon be foreclosed.2 In their
hearts and minds was imprinted the message of Mahatma Gandhi, that evolution of democracy
is not possible if one is not prepared to hear the other side. They endorsed the thinking of
Jawaharlal Nehru who said, “I would rather have a completely free speech and
*LL. M. in Commercial Laws, The Faculty of Law, Aligarh Muslim University, Aligarh (Uttar
Pradesh,
India), e-mail: aqaraza@outlook.com; Contact: +91 7417037864. This paper has been
published in the
Indian Bar Review, ISBN No.: 978-81-931981-0-0, Volume XLIII (2) 2016, pp. 87-110.
1 Lowell v. Griffin, (1939) 303 US 444.
2 Soli. J. Sorabjee, “Freedom of Expression in India”, Law and Justice, 47 (1996), p. 3.

Page 2 of 22
expression with all dangers involved in the wrong use of that freedom than a suppressed of
regulated speech and expression.”3
Part III4 of the Indian Constitution guarantees a wide spectrum of judicially enforceable
fundamental rights which broadly corresponds to the civil and political rights guaranteed by the
International Covenant on Political Rights, 1966 (ICCPR). Freedom of speech and
expression is guaranteed as a fundamental right by Article 19(1) (a) of the Constitution.
Freedom of expression, like other fundamental rights guaranteed by the Indian Constitution, is
not absolute. It can be restricted provided three distinct and independent prerequisites are
satisfied.
(i) The restriction must have authority of law to support it. Freedom of expression cannot
be curtailed by executive orders or administrative actions which lack the sanction of law.
(ii) The law must fall squarely within one or more heads of restrictions specified in Article
19(2). Restriction on freedom of expression cannot be imposed on such omnibus grounds
as “in the interest of the general public” which is permissible in the case of fundamental rights
like freedom of trade and business.
(iii) The restriction must be reasonable. It must not be excessive or disproportionate. The
procedure and the manner of imposition of the restriction also must be just, fair and reasonable.5
The researchers in this paper seeks to analyze the concept of the freedom of speech and
expression as a fundamental right guaranteed by the Constitution of India with an emphasis on
the test of the constitutional regulation. This paper has been divided into various parts dealing
with the various aspects of the freedom of speech and expression.
Importance of Freedom of Speech and Expression

Freedom of speech and expression is the bulwark of democratic government. This freedom is
essential for the proper functioning of the democratic process. The freedom of speech and
expression is regarded as the first condition of liberty. It occupies a preferred position in the
Nehru‟s speech on 20 June 1916 in the protest against the Press Act, 1910.
4 Part III of the Constitution of India deals with the Fundamental Rights.
5 Chintamani Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
Page 3 of 22
hierarchy of liberties giving succour and protection to all other liberties. It has been truly said that
it is the mother of all other liberties.6
In a democracy, freedom of speech and expression open up channels of free discussion of
issues. Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matters. Freedom of speech and expression, just as equality clause and the
guarantee of life and liberty have been very broadly construed by the Supreme Court right from
the 1950s. It has been variously described as a “basic human right”, “a natural right” and the
like. The freedom of speech and expression includes liberty to propagate not one‟s views
only. It also includes the right o propagate or publish the views of other people,7 otherwise
this freedom would not include the freedom of the press.
Freedom of expression has four broad special purposes to serve:
(i) It helps an individual, to attain self-fulfilment;
(ii) It assists in the discovery of truth;
(iii)It strengthens the capacity of and individual in participating in decision making; and
(iv) It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change. All members of society should be able to form their
own belief and communicate them freely to others.8
Freedom of speech and expression has been held to be basic and indivisible for a democratic
polity. It s said to be the cornerstone of functioning of the democracy. It is the foundation of a
democratic society. It is essential to the rule of law and liberty of citizens. In Romesh Thaper v.
State of Madras,9 Patanjali Sastri, C. J. obersved:
organisations, for without free political discussion no public education, so essential for the
proper functioning of the process of popular government, is possible. A freedom of such
amplitude might involve risks of abuse. But the framers of the constitution may well have
reflected with Madison, who was the leading spirit in the preparation of the First Amendment of
the Federal Constitution, what it is better to leave a few of its noxious branches to their luxuriant
growth than by pruning them away, to injure the vigour of those yielding the proper fruits.”
6 M. P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, 6th edn., 2012, p.
1078.
7 Srinivas v. State of Madras, AIR 1931 Mad 70.
8 J. N. Pandey, The Constitutional Law of India, Central Law Agency, 47th edn., 2010, p. 183.
9 AIR 1950 SC 124.
Page 4 of 22
In Mahesh Bhatt v. Union of India & Anr.,10 the Supreme Court held that the freedom of
speech and expression is one of the pillars of the Constitution of India and indeed sustains its
democratic structure. The freedom of speech and expression is a prominent constituent of
democracy. A healthy democracy is sustained by informing and making aware the citizens of
conflicting and differing points of view and any inroads into the freedom of speech and
expression, and any rules made in the form of imposing curbs thereon would violate Article
19(1)(a) of the Constitution. Such curbs are not saved by Article 19(2)11 of the Constitution.

Freedom of speech is an intrinsic feature of the any genuine Democracy. The right of
freedom of expression is crucial in a democracy, information ideas help to inform political debate
and are essential to public accountability and transparency in government, for a
democratic system to function, people have to be able to form their own ideas. One must be able
to receive and impart many different ideas and information, reflecting many different
perspectives, before being able to see the truth. That is why freedom of expression is so
fundamental. It is essential to the functioning of our pluralist society. Freedom of expression
constitutes one of the essential foundations of a democratic society and one of the basic
conditions for its progress and each individual‟s self-fulfilment.

The Constituent Assembly Debate

The Constituent Assembly Debate on Article 13 (corresponding to Article 19 of the present
Constitution) was held on Wednesday, 1st December, 1948 which provides several freedoms
including freedom of speech and expression to citizens. The opinions of different members of
constituent assembly are relevant here to mention. Shri Damodar Swarup Seth argued that:
“Article 13, as at present worded, appears to have been clumsily drafted. It makes one
significant omission and that is about the freedom of the press. I think, Sir, it will be argued that
the freedom is implicit in clause (a) that is, in the freedom of speech and expression. But, Sir, I
submit that the present is the age of the Press and the Press is getting more and more powerful
today. It seems desirable and proper, therefore, that the freedom of the Press should be
mentioned separately and explicitly.
Prof. K. T. Shah said that "in sub-clause (a) of clause (1) of article 13, after the word
`expression'; the words `of thought and worship; of press and publication;' be added." He
10 2008 (147) DLT 561.
11 The reasonable limits or restrictions on the freedom of speech and expression can be imposed
on the exercise of the right to freedom of speech under Article 19(2) in the interest or on the
grounds of: (i) Security of the
State, (ii) Friendly relations with foreign countries, (iii) Public Order, (iv) Decency or Morality, (v)
Contempt of Court, (vi) Defamation, (vii) Incitement to offence, and (viii) Sovereignty and
integrity of India.
Page 5 of 22

Freedom of Speech and Expression

India v America - A study

"Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties". John Milton

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and
public discourse without fear of retribution, restriction, or repression by the government. It is through free speech, people could
come together to achieve political influence, to strengthen their morality, and to help others to become moral and enlightened
citizens writes Dheerajendra Patanjali.

Introduction

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberty,
it is truly said about the freedom of speech that it is the mother of all other liberties. Freedom of Speech and expression means the right to
express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely
accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free
society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear
of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important
fundamental liberties guaranteed against state suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like
Universal Declaration of Human Rights , European convention on Human Rights and fundamental freedoms, International Covenant on Civil
and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.

Why to protect freedom of speech?

Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of
speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech –

1) For the discovery of truth by open discussion - According to it, if restrictions on speech are tolerated, society prevents the ascertainment
and publication of accurate facts and valuable opinion. That is to say, it assists in the discovery of truth.

2) Free speech as an aspect of self- fulfillment and development – freedom of speech is an integral aspect of each individual’s right to self-
development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its
growth. It helps an individual to attain self-fulfillment.

3) For expressing belief and political attitudes - freedom of speech provides opportunity to express one’s belief and show political attitudes. It
ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change.

4) For active participation in democracy – democracy is most important feature of today’s world. Freedom of speech is there to protect the
right of all citizens to understand political issues so that they can participate in smooth working of democracy. That is to say, freedom of speech
strengthens the capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of
truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in
democracy. The present study is intended to present the provisions of the American and Indian Constitution which recognize the freedom of
speech and expression, the basic fundamental rights of human being. It is also to be examined that what is judicial trend in interpreting the
freedom of speech and expression provisions. The study also covers the comparison between the approaches of both countries as far as
freedom of speech is concerned.

Freedom of Speech in America

America is leader country as far as protection of freedom of speech and expression is concerned. It provides very wide interpretation of freedom
of speech to its citizen. Freedom of speech, of the press, of association, of assembly and petition -- this set of guarantees, protected by the
First Amendment, comprises what we refer to as freedom of expression. However, initially there was no provision for protecting freedom of
speech in American Constitution, but very soon realizing the importance of freedom of speech it amended its constitution and pave way for
protection of speech and expression. The first amendment of the American constitution specially provides that -

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.

The above Amendment to the American Constitution is the part of the United States Bill of Rights. As per the Bill of Rights United States
Congress has been prohibited from making laws, infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably
assemble, etc. The sum total of the components of the law of the First Amendment provides a great deal of protection to freedom of speech
.Although, as per the provision, the First Amendment only explicitly applies to the Congress, the Supreme Court of America has interpreted it
as applying to the executive and judicial branches. The Supreme Court has interpreted the First Amendment's guarantee of freedom of speech
very expansively, and the constitutional protection afforded to freedom of speech is perhaps the strongest protection afforded to any individual
right under the Constitution.

We see then that in the United States freedom of speech receives a very high degree of constitutional protection. It is not untrue to say that
the constitutional protection afforded to freedom of speech is perhaps the strongest protection afforded to any individual right under the
American Constitution, and the value of freedom of speech generally prevails over other democratic values such as equality, human dignity,
and privacy. American judiciary, too, has played very important role in broadening the scope of freedom of speech.

Schenck v. United States was the one of the first important case where Supreme Court was first requested to strike down a law violating
the Free Speech Clause. It was a case related to Sedition Act of 1918 which criminalized "disloyal," "scurrilous" or "abusive" language against
the government. Supreme court held in this case “ the question in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to
prevent." Thus in this case court evolved a new doctrine of “clear and present danger”.

The "clear and present danger" test of Schenck case was extended in Debs v. United States again by Justice Oliver Wendell Holmes. The
case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a "clear and present danger"
to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction.
Justice Holmes suggested that the speech had a "natural tendency" to occlude the draft. The test of clear and present danger was further
upheld by the court in Dennis v. United States. It was observed by the court that “clear and present danger" test did not require the
government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited", thereby broadly defining the
words "clear and present danger."

Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Example
such restriction is providing authority to state to punish words that "by their very nature, involve danger to the public peace and to the security
of the state ." Moreover, Lawmakers were given the freedom to decide which speech would constitute a danger.

• Press and freedom of speech

With regard to press freedom, America has again adopted very liberal attitude towards it. 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. It has provided broad freedom to press (every sort of publication which affords a vehicle of
information and opinion ) to provide information to public. However, Freedom of the press, like freedom of speech, is subject to restrictions on
bases such as defamation law.

Again, American judiciary has approved content-based regulation. Content-based regulation of television and radio has been sustained by the
Supreme Court in various cases. For example In Miami Herald Publishing Co. v. Tornillo the Court unanimously struck down a state law
requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure press
responsibility. Finding that only freedom, and not press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the
government may not force newspapers to publish that which they do not desire to publish.

• Obscenity

Since the freedom of speech is mainly governed by the first amendment of the constitution and first amendment did not talk about obscenity
and freedom of speech, The Supreme Court has usually refused to give obscenity any protection. The governments, both federal and state,
have been permitted to make suitable legislation. However the court from time to time developed various tests to examine obscenity. In Roth
v. United States, Court applied a new test for obscenity, which was "whether to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." this is known as Ruth test of obscenity.

The Roth test was further expanded when the Court decided Miller v. California case. It is commonly known as Miller test. Under the Miller
test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards
depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. It thus includes the expression
of one’s ideas through any communicable medium or visible representation, such as gesture, signs and the like .It very important to note that
under Miller test, the “community" standards are followed, which might be different from the national standard. Thus, material may be deemed
obscene in one locality but not in another. National standards, however, are applied whether the material is of value.

• Defamation and freedom of speech

American law also recognizes the liability for defamatory speech or publication i.e. slander and libel. The nature of American defamation law
was vitally changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan, The New York Times had published an
advertisement indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the
Civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that the advertisement
damaged his reputation. The Sullivan case provides the principal doctrinal justification for the development, although the results had long since
been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of ''a national
awareness of the central meaning of the First Amendment, '' which is that the ''right of free public discussion of the stewardship of public
officials . . [is] a fundamental principle of the American form of government.

This ''central meaning'' proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government.
''Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The
historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials,
was inconsistent with the First Amendment.'' Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice William
J. Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "malice.” The actual
malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private
individuals normally need only to prove negligence on the part of the defendant.

Hustler Magazine v. Falwell, extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected
a parody. In the ruling, "actual malice" was described as "knowledge that the statement was false or with reckless disregard whether or not it
was true.” It is clear from the above discussion that in American people enjoyed real freedom of speech but at the same time, American
judiciary has evolved very fair ground to put restriction on freedom of speech. These restriction can be summarized as- Seditious Speech and
Seditious Libel, Fighting Words and Other Threats to the Peace, Defamation, Group Libel, Hate Speech. Thus Despite the constitutional
guarantee of free speech in the United States, legal systems have not treated freedom of speech as absolute and have put some obvious
restrictions on the freedom to speech and expression.

Freedom of Speech in India

Freedom of speech enjoys special position as far India is concerned. The importance of freedom of expression and speech can be easily
understand by the fact that preamble of constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith and
worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental
and human right in Article 19(1) (a) as “freedom of speech and expression”. Explaining the scope of freedom of speech and expression Supreme
Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views
by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one's
own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's
idea through any communicable medium or visible representation, such as gesture, signs, and the like.

Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri,J. in A.K. Gopalan case,
observed,“man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of
similar desires by other individuals”. It therefore includes the right to propagate one's views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through
the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. In sum,
the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive generous
support from all those who believe in the participation of people in the administration. We can see the guarantee of freedom of speech under
following heads.

• Freedom of Press

Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press implicit in the right the
freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India 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.”

The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic
process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to
participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion
of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.

• Obscenity

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the text of India's Constitution clearly sets out
restrictions on free speech. The freedom of speech guarantee under Article 19(1) (a) can be subject to reasonable state restriction in the
interest of decency or morality. Obscenity in India is defined as "offensive to modesty or decency; lewd, filthy and repulsive." It stated that the
test of obscenity is whether the publication, read as a whole, has a tendency to deprave and corrupt those whose minds are open to such
immoral influences, and therefore each work must be examined by itself .

With respect to art and obscenity, the Court held that "the art must be so preponderating as to throw obscenity into a shadow or the obscenity
so trivial and insignificant that it can have no effect and may be overlooked ." The Court concluded that the test to adopt in India, emphasizing
community mores, is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech.

• Right to Information

Right to know, to information is other facet of freedom of speech. The right to know, to receive and to 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. Even, Right to Information Act-
2005, which specially talks about peoples’ right to ask information from Government official, prohibits discloser of certain documents under u/s
8 of the Act. These exceptions are generally the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1)
of Constitution of India. One can conclude that 'right to information is nothing but one small limb of right of speech and expression.

• Grounds of Restrictions

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions
on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article
19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of
speech and expression “in the interest of” the public on the following grounds: Clause (2) of Article 19 of Indian constitution contains the
grounds on which restrictions on the freedom of speech and expression can be imposed:-
1) Security of State: Security of state is of vital importance and a government must have power to impose restriction on the activity affecting
it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. However
the term “security” is very crucial one. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion,
waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray.
Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are
matters, which would undermine the security of State.

2) Friendly relations with foreign states: In the present global world, a country has to maintain good and friendly relationship with other
countries. Something which has potential to affect such relation ship should be checked by government. Keeping this thing in mind, this ground
was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda
against a foreign friendly state, which may jeopardize the maintenance of good relations between India, and that state.

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. However it is interesting to note 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.

3) Public Order: Next restriction prescribed by constitution is to maintain public order. This ground was added by the Constitution (First
Amendment) Act. 'Public order' is an expression of wide connotation and signifies "that state of tranquility which prevails among the members
of political society as a result of internal regulations enforced by the Government which they have established."

Here it is pertinent to look into meaning of the word “Public order. Public order is something more than ordinary maintenance of law and order.
'Public order' is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public
order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public
order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation
of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere
criticism of government does not necessarily disturb public order.

The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder but also those that have
the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class
of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has
the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be
reasonable and proper nexus or relationship between the restrictions and the achievements of public order.

4) Decency or morality: The way to express something or to say something should be decent one. It should not affect the morality of the
society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words 'morality or decency'
are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and
expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public
places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place
to place.

5) Contempt of Court: In a democratic country Judiciary plays very important role. In such situation it becomes essential to respect such
institution and its order. Thus, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit
and amounts to contempt of court. According to the Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' But
now, Indian contempt law was amended in 2006 to make “truth” a defence. However, even after such amendment a person can be punished
for the statement unless they were made in public interest. Again in Indirect Tax Practitioners Assn. vs R.K.Jain, it was held by court
that, “Truth based on the facts should be allowed as a valid defence if courts are asked to decide contempt proceedings relating to contempt
proceeding relating to a speech or an editorial or article”. The qualification is that such defence should not cover-up to escape from the
consequences of a deliberate effort to scandalize the court.

6) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status another person. A person is known by his reputation
more than his wealth or any thing else. Constitution considers it as ground to put restriction on freedom of speech. Basically, a statement,
which injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law
in relating to defamation is still uncodified in India and subject to certain exceptions.

7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and
expression cannot confer a right to incite people to commit offence. The word 'offence' is defined as any act or omission made punishable by
law for the time being in force.

8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is prime duty of government. Taking into it into account,
freedom of speech and expression can be restricted so as not to permit any one to challenge sovereignty or to permit any one to preach
something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all concerned with the national interest or in the
interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States and public order are all grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality, contempt of
court, defamation and incitement to an offence are all concerned with the interest of the society.

India and America- A Swot Analysis

Two great democracies of world America and India very aptly recognizes the right of freedom of speech and expression. The United States and
India almost have similar free speech provisions in their Constitutions. Article 19(1) (a) of Indian constitution corresponds to the First
Amendment of the United States Constitution which says, “congress shall make no law… abridging the freedom of speech or of the press”4.
However, the provisions in the US Constitution have two notable features i.e.:

 freedom of press is specifically mentioned therein,

 No restrictions are mentioned on the freedom of speech.

As far as India is concerned, Supreme Court of India has held that there is no specific provision ensuring freedom of the press separately. The
freedom of the press is regarded as a “species of which freedom of expression is a genus”. Therefore, press cannot be subjected to any special
restrictions which could not be imposed on any private citizen,5 and cannot claim any privilege (unless conferred specifically by law), as such,
as distinct from those of any other citizen.

In the famous case, Express Newspapers (Private) Ltd. v. Union of India, Justice Bhagwati stated, "[that] the fundamental right to the
freedom of speech and expression enshrined in our constitution is based on (the provisions in) Amendment I of the Constitution of the United
States and it would be therefore legitimate and proper to refer to those decisions of the Supreme Court of the United States of America in order
to appreciate the true nature, scope and extent of this right in spite of the warning administered by this court against use of American and
other cases.” Despite similarities in their constitutional provisions, the United States and India have their own unique jurisprudence on freedom
of speech. Consequently, they differ as to what is and what is not acceptable free speech. As mentioned, the real difference in freedom of
speech enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions
provision and the moral standard of the communities. India has progressed from an authoritarian system of control and is now attempting a
legislative model of control, quite similar to that of the United States.

Free speech is meaningless unless it has space to breathe. It is important to note that false statements made honestly are equally a part of
freedom of speech. The supreme court of India applied the famous doctrine of New York Times v Sullivan standard of American constitutional
law against public officials. Accordingly, statements made against persons in the public eye cannot be considered defamatory unless they were
made with “actual malice”. The reason for this is very simple, democratic governance mandates the strict scrutiny of public official duties.

The consequence of this very high degree of constitutional protection to freedom of speech in the United States is that ideas most Americans
consider very repugnant, and that may be hurtful to some people, such as racial hatred, can be expressed freely. At the same time, the
expansive protection to freedom of speech under the First Amendment ensures robust debate on all public issues and the widest dissemination
of all ideas. As stated above, under the First Amendment, there is no such thing as a "bad idea," and the remedy for bad speech is said to be
"more speech, and not enforced silence. It is part of our culture that people are "free to speak their mind" and need not fear that they will be
sanctioned for saying something that is offensive or unpopular. The government is not required to and, more importantly, is not permitted to
make decisions about what ideas may be expressed and what ideas may not be expressed. The constitutional guarantee of freedom of
expression under the First Amendment then means freedom of expression in the fullest sense. For better or worse, this is the American way.

However in the case of India constitutional provisions have been widely influenced by the moral standard of the society. Constitution has tried
to adapt and embody those freedom and restrictions enjoyed by the Indian people from long time. The provision of freedom of speech and
restrictions are the result of that way of thinking, and this is the Indian way.

Conclusion

Expression through speech is one of the basic guarantees provided by civil society. However in modern world Right to freedom of speech and
expression is not limited to express ones’ view through words but it also includes circulating one's views in writing or through audiovisual
instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of
press etc. It is a right to express and self realization. Two big democracies of world i.e. America and India have remarkably protected this right.
As far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls in fundamental right category. Indian courts have
always placed a broad interpretation on the value and content of Article 19(1) (a), making it subjective only to the restrictions permissible
under Article 19(2).

The words 'in the interest of public order', as used in the Article 19 include not only utterances as are directly intended to lead to disorder but
also those that have the tendency to lead to disorder. There should be reasonable and proper nexus or relationship between the restriction and
achievement of public order. Initially, the American constitution was not having any provisions directed to protection of freedom of speech and
expression. It was inserted in the constitution vide first amendment of the constitution. The First Amendment has been drafted in broad and
sweeping terms, and for this reason, the text of the First Amendment does not contain any standard for determining permissible restrictions
on freedom of speech. The restrictions that are permissible now are those that have been developed by the Supreme Court in its interpretation
of the First Amendment.

The United States has a complex First Amendment jurisprudence that varies the protection offered free speech according to form. Similarly,
India developed its own free speech jurisprudence that applies a "reasonable restrictions" test based on eight mentioned restrictions. The real
difference in freedom of speech enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the
reasonable restrictions provision and the moral standard of the communities.

DHEERENDRA PATANJALI is a 5th year student pursuing B.A. LL. B (Hons) from Chanakya National Law University, Patna.