Article 19

19(1)(a) freedom of speech and expression

Ramesh thappar v union of india

Facts:

 The petitioner Romesh Thappar was the printer, publisher, and editor of a new English weekly journal known as
‘Crossroads’ in Bombay.
 He had published a few articles that were suggestive of him being sceptical of Prime Minister Jawaharlal Nehru’s
policies especially the ones about foreign policy.
 The Government of Madras feared that the content propounded by the magazine would add to the disquiet in that
region. In order to avoid such a situation, the government of Madras on 1 st March 1950, issued an order imposing a
ban on the entry and circulation of the weekly journal in that area. The order was issued pursuant to Section 9(1-A) of
the Madras Maintenance of Public Order Act, 1949 (hereafter referred to as ‘Act’), which empowered the
government to prohibit the circulation, sale or distribution of the journal in the province of Madras for the purpose of
ensuring ‘public safety’ or preserving ‘public order.’
 the petitioner filed a petition before the Supreme Court arguing that the order passed by the government infringes
upon his fundamental right to free speech and expression.

Issue:

1. Whether Section 9(1-A) of the Act is violative of petitioner’s right to freedom of speech and expression as conferred
on him by Article 19(1)(a) of the Constitution or will it fall within the reservation of Article 19(2)?

Court:

Freedom under article 19 can be curtailed with the effect of 19(2) on 8 grounds:

 Security of state.
 Friendly relations of state.
 Public order.
 Decency and Morality.
 Contempt of court.
 Defamation
 Incitment to an offence.
 Sovereignty and integrity of india.

By a majority of 5-1 (with Justice Fazl Ali dissenting), the court struck down the provision.
J. patanjali shastri:
  There can be no doubt that the freedom of speech and expression includes freedom of propagation of ideas
and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom
as the liberty of publication.
 Security of state is reasonable restriction under 19(2). However the words used in impunged section are
public order and public safety.
 The court consider that two terms have to be read together. The purpose for which restrictions were allowed
under the act for the wider purposes of the public order. It drew parallel with the IPC and other text to show
that public order has a very wide interpretation- including act like rash driving.
 On the other hand security of state referred to the extremeactsof violence that woud thrat to overthrown the
state. Thereofore, the restriction under the act was wider then what was constitutionally permissible as a
restriction on freedom.
 The impugned section therefore is null and void and constitutionally not valid because it gave state the wider
powers to restrict freedom of speech and expression.

J. Fazl:
Maintenance of peace and tranquility wasa part of maintaining security of state. Therefore he disagrred with majority
opinion.

The same is the issue and decision in brijbushan v state of delhi case.

State Trading Corporation Of India Ltd V The Commercial Tax Officer Visakapatnam
And Tata Engineering Co. V State Of Bihar
Expressed the view that corporation was not a citizen withing the meaning of article 19 and therefore could not invoke that
article. The majority held that nationality and citizenship were distinct and separate concepts. The result was that and
incorporated company could not be a citizen so as to invoke fundamental rights.

Demonstration being visible representation of ideas would be protected as a form of speech provided they are not violent and
disorderly but a strike is not included within the ambit of freedom of speech and expression.

Communist Party Of India V Bharat Kumar (1998) This Case Is Also Followed In All India Anna
Dravida Munnetra Kazhagam V Govt Of T.N (2009)
Court drawn a distinction between bundh and hartal. Bundh is a hindi word which means closed or locked. Thus
expression conveys idea that everything is blocked or closed. Thus when a group of organizers call for a bundh they
clearly express their intention that they expect their activities to come to standstill on the day of bundh. A call for bundh is
different from a call for hartal. A call for a bundh involves coercion of others into towing the lines of those who called for
the bundh and that the act was unconstitutional, since it violated the rights and liberty of other citizens guaranteed under
the Constitution". So there is no fundamental right of bandh but rather citizen has a rright to be protect from bandh.

.
 K.A ABBAS V Union Of India - Dramatic performance is a form of speech and expression.
FACTS:

 Abbas questioned the validity of Cinematographic act, 1952 along with the rules made under it as he was not able to
get certificate for his film “tale off four cities.” This movie is about contrast between rich and poor life but it has also
showed some shots of red light district in bombay
 the petitioner applied to the Board of Film Censors for a `U’ Certificatefor unrestricted exhibition of the film, he
was granted a certificate only for exhibition restricted to adults.
 On an appeal made to it by the petitioner, the Central Government issued a direction on July 3, 1969 that a `u'
Certificate may be granted provided certain specified cuts were made in the film.

CONTENTIONS OF PETITIONER:

It was contended inter alia on behalf of the petitioner:

(a) that pre-censorship itself violated the right to freedom of speech and expression
(b) that even if it was a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no
room for arbitrary action.
SUPREME COURT:
Hidayatullah, C.J.
 Censorship of films including prior restraint is justified under the Constitution. Pre censorship is constitutionally vlid
in india and it is as reasonable restriction under or within the ambit of article 19(2).. however censorship is not to
cause “unreasonable restriction on thefreedom of expression.
 Its effect particularly on children and adolescents is very great. it had been almost universally recognized that
motion pictures must be treated differently from other forms of art and expression, because a motion picture's instant
appeal both to the sight and to hearing. Therefore, classification of films into two categories of 'U' films and 'A' films
is a reasonable classification.
The court went to the extent of laying some guidelines for the censors, for example, that sex and obscenity are not always
synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral.

RANJIT D. UDESHI'S CASE

Court laid down certain Principles on which the obscenity of a book was to be considered with a view to deciding whether
the book should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis (making necessary alterations
while not affecting the main point at issue.) to films and also other areas besides obscenity. The Khosla Committee also
adopted them and recommended them for the guidance of the film censors.

Following principles which must be carefully studied and applied by our censors when they have to deal with a film said to
be objectionable on the ground of indecency or immorality :-

(1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
(2) Comparison of one book with another to find the extent of permissible action is not necessary.
(3) The delicate task of deciding what is artistic and what is obscene has to be performed by courts and in the last resort.
(4) separatey find out whether the obscene matter is likely to corrupt those minds are open to influence of this sort and in
whose hands books is likely to fall.
(5) Treating with sex in a manner offensive to public decency or morality
And many more principles are laid down.
 S, RANGARAJAN V P JAGJIVAN RAM:
FACTS:
The appellant, S. Rangarajan is a film producer. He produced a Tamil film "Ore Oru Gramathile" and applied for
certificate for exhibition of the film. The examination committee upon seeing the film refused to grant the Certifi-cate. but
on second revision they agreed to give certificate subject to deletion of certain scenes.
COURT:
Madrass HC revoked the U certificate issued to the a film on the groundthat the exhibition of the film is likely to cause the
public disorder and violence.
But later SC reversed the decision and held the importance of freedom of speech and expression and the role of media for its
exercise as Movie motivates thought and action and assures a high degree of attention and retention. It was held that if movie
is not validly restricted under 19(2) then you can not restrict the freedom of speech and expression on the account of threat
of violence. It is duty of state to protect the freedom of expression and state can not plead it inability to handle the hostile
audience problem.

MANEKA GANDHI V UNION OF INDIA.

Whether right to go abroad also comes under 19(1)(a)?

Supreme court held that right to go abroad does not come under article 19(1)(a). Bhagwati, Fazal ali jj observed that It is
possible that a right not expressely mentioned in any clause of article 19(1) it could be still a fundamental right covered by
any of articles if :

 It is an integral part of the fundamental right.

 It partakes the same basic nature and character of that fundamental right.
 for example the freedom of press not mention in 19(1)(a) but still covered by this article.

But right to go abroad does not satisfy anay of the above point in context of 19(1)(a).

Right to education included in Article 19(1)(a) ?

Anand vardhan chandel v university of delhi:

Yes, included.

Unni Krishnan v state of AP:

Right to impart and not to receive education has been read in article 19(1)(g).

Pramarti educational cultural trsut v union of india:

Right to know , receive and impart information has been recognized within the right to freedom of speech and expression. A
citizen has fundam ental right to use the best means of imparting and receiving information and as such to have an access to
telecasting purpose.
Some points to note:

 right to reply also comes under 19(1)(a).

 right to remain silent also comes under article 19(1)(a).
 right to listen and decline to listen also comes under 19(1)(a).

BIJOE EMMANUEL V STATE OF KERALA:

 Three children belong to a sect called Jehovah’s Witnesses who worship only Jehovah-the Creator and none other. 
 They refused to sing the National Anthem: ‘Jana Gana Mana‘ because, according to them, it is  against the tenets of 
their  religious  faith-not the  words  or the thoughts of the National Anthem-but the singing of it. So they just stand
up and refused to sing national anthem. Because of this they were expelled from school.
 Court: The petitioners argued that they do not sing the Anthem though they stand up on such occasions to show their
respect to theNational Anthem. They desisted from actual singing only because of their honest belief. And expelling
them will be violative of article 19(1)(a) as right to remain silent also comes under article 19(1)(a) freedom of speech
and expression.

SECRETARY MINISTRY OF I EB V STATE OF W.B V CRICKET ASSOCIATION

FACTS:

The landmark 1995 judgment of the Supreme Court of India on the airwaves relate to a dispute between the Ministry of
Information and Broadcasting and the Cricket Association of Bengal (CAB) over whether or not the cricket organisation had
the right to grant exclusive telecast rights to a private agency rather than to Doordarshan?

ARGUMENTS:

MIB’s argument:

A broadcaster does not have a right as such to access the airwaves without a license. Grant of license is not a special right.
The refusal of license on reasonable is not the denial of right to free speech and expression.

The rights of an organiser to use airwaves as a medium to telecast and thereby propagate his views, are distinct from his right
to commercially exploit the event. The primary object of the telecast by CAB is to raise funds and hence the activities are
essentially of trade. The state monopoly created as a device to use the resource is not per se violative of the right of free
speech as long as the paramount interests of viewers are served and access to the media is governed by the fairness doctrine.

CAB’S argument:

The BCCI and CAB had a right under Article 19 [1] (a) to produce, transmit, telecast and broadcast their event directly or
through its agent. The right to circulate information is a part of the right guaranteed under Article 19 [1] (a).

COURT:

The Supreme Court held that the airwaves or frequencies were a public property. Their use had to be controlled and regulated
by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media
involved the use of the airwaves, this factor creates an inbuilt restriction on its use, as in the case of any other public
property.

The right to have access to telecasting has limitations on account of the use of public property -- viz., the airwaves --
involved in the exercise of the right and can be controlled and regulated by a public authority. This limitation imposed by the
nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right
to freedom of speech and expression under Article 19 [2] of the Constitution.

Very important- it must be remembered that in this case the court was not adding the new exception those given in article
19(2) but rather it was laying down a proposition in view of technical nature and limitation if the air waves as public
property which like any public property could be subject to public interest.

SHREYA SINGHAL V UNION OF INDIA

Section 66A of the Information Technology Act of 2000 is in question that it is violative of freedom of speech and
expression as it provides Punishment for sending offensive messages through communication service etc.
Petitioner:
 It does not give rise to new form of offences such types of offenc are already punishable under IPC.
 It is not saved by 19(2) as there is not ground mention in section 19(2) such as haterd, ill will, injury etc. therefore
violative of freedom of speech and expression.
 All the words used in section 66 are very vague so it will only grind innocent and this section will be used by
authorities arbitrarily.

COURT:

1- Free Speech:
Romesh Thappar v. State of Madras:
There can be no doubt that the freedom of speech and expression includes freedom of propagation of ideas and that
freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of
publication. no political debates, public opinion will be possible without it.

Sakal Papers v Union of India and Bennett Coleman v Union of India:

both these cases recognized freedom of press as an important aspect of freedom of speech and expression.

2- United states and India: (persuasive value only):

Whitney v. California,
Justice Brandeis declared that the Liberties should be viewed as a means as well as a goal and a fair excuse should be
offered for concern that if such freedom of speech is exercised, significant evil will follow.

 US first amendment expresses freedom of speech and of the press without any reference to expression whereas
Article 19(1)(a) speaks of freedom of speech and expression without any reference to the press.
 Under U.S. law, speech may be abbreviated if obscene, libelous, lewd, and profane, while under Indian law it is
subject to eight elements referred to in Article 19(2).

The only distinction between the U.S. and Indian freedom of speech and expression is that if there is a legitimate need in the
U.S. to accomplish a major government agenda or objective, a rule pass the test, but in India if it is not covered by eight
subjects it will not pass the muster test.

3- Three steps:
a. Discussion

b. Advocacy

c. Incitement

The first is discussion, the second is advocacy and the third is incitement. Clear debate or even advocacy of any particular
cause is at the core of Article 19(1)(a), no matter how despised, controversial or hated. Article 19(2) is only initiated when
any such discussion or advocacy steps into the level of incitement. It is at this stage/level that legislation may be drawn up to
curb speech or expression that inexorably leads or tends to cause public disorder or is likely to cause or appear to affect
India's independence and dignity, national security, friendly relations with other countries, etc.

1- Public order:
Ram Manohar Lohia’s case
Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public
order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the
even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public
order is to be distinguished, from acts directed against individuals which do not disturb the society to the extent of causing a
general disturbance of public tranquility.
Example: a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving. Take
another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a
very different sort. Its implications are deeper and it affects cause public order disturbed because the repercussions of the act
embrace large Sections of the community and incite them to make further breaches of the law and order and to subvert the
public order. In its quality it may not differ from another but in its potentiality it may be very different.
>Section 66A, the offence is complete by sending a message for the purpose of causing annoyance, either 'persistently’ or
otherwise without in any manner impacting public order.

2- Clear and present danger - tendency to affect:

S. Rangarajan v. P. Jagjivan & Ors State of Bihar v. Shailabala Devi
Court held that an article, in order to be banned must have a tendency to excite persons to acts of violence). The test laid
down in the was that the article should be considered as a whole in a fair free liberal spirit and then it must be decided what
effect it would have on the mind of a reasonable reader. Example when a person shout fire.. fire how a reasonable person will
act.
Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an
essential ingredient of the offence which it creates.
3- Defamation
Section 66A does not concern itself with injury to reputation. Defamation which harms someones reputation.

4- ON DECENCY OR MORALITY
Director General, Directorate General of Doordarshan v. Anand Patwardhan:
a material may be regarded as obscene if the average person applying contemporary community standards would find that
the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary
artistic, political, educational or scientific value.
Ranjit Udeshi v. State of Maharashtra
The Court followed the test laid down in the old English judgment in Hicklin’s case which was whether the tendency of the
matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose
hands a publication of this sort may fall.

5- ON INCITEMENT TO AN OFFENCE:
For incitmentt offence there are provision of IPC and 66A is not creating something new.

Section 66A was completely in violation of Article 19(1)(a) and is not protected in compliance with Article 19(2).

PROPLE’S UNION FOR CIVIL LIERTY V UNION OF INDIA

This petition - public interest - under Article 32 of the Constitution of India has been filed by the People's Union of Civil
Liberties, a voluntary organisation, high lighting the incidents of telephone tapping- “tapping of politicians phones” in
the recent past and has challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 (the
Act).

It was held in case for the ground mentioned in article 19(2) the central or state govt can allow CBI or police officer to
do telephone tapping , otherwise it will violate article 19(1)(a). justice subha rao has dissenting opinion according to
him telephone tapping in any case is violative of article 19(1)(a).

19(1)(d) RIGHT TO MOVEMENT

SMT. SELVI AND ORS. STATE OF KARNATKA

Pramarti educational cultural trust v union of india

Issue:whether by insertingArticle 21A by the Constitution (Eighty-Sixth Amendment) Act, 2002, the Parliament has altered the basic

structure or framework of the Constitution.

Article 21A is titled ‘Right to Education’ and it provides that the State shall provide free and compulsory education to all children of the
age of six to fourteen years in such manner as the State may, by law, determine. Article 21A is titled ‘Right to Education’ and it
provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years .

The validity of the 2009 Act was challenged and considered in Society for Unaided Private Schools of Rajasthan v. Union of India &
Anr. S.H. Kapadia C.J. and Swatanter Kumar J. held that the 2009 Act is constitutionally valid and shall apply to the following:
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its
expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and (iv) an unaided non-minority school not receiving
Section 12(1)(c) is violative of article of 30 which provide sepcial privilege to
unaided minority groups.
12(1)(c): that school belonging to specific category and unaided school shall admit
in class 1 to the extent of 25 percent of strength of that class children belonging
to weaker section and disadvantage group.
RTE act should not apply to unaided minority institutions.
So after that by 2012 amendment it was added subject to the article 29 and 30 of
constitution.
Minority opinion of case:
Differing from the majority opinion Radhakrishnan J. held that:
Article 21A casts an obligation on the State and not on unaided non-minority and
unaided minority schools to provide free and compulsory education to children of
the age of six to fourteen years.
Learned cpunsel for Petitioner:mr nariman
Article 21 a casts duty upon state and it instrumentalities under article 12 and
not put any obligation on private unaided schools. They agreed with the opinion of
Radha Krishna.
Smt. Vidya Verma v. Shiv Narain Verma (AIR 1956 SC 108) - the fundamental right of
personal liberty under Article 21 of the Constitution is available against only the
State and not against private individuals. He submitted that,
therefore, the word “State” in Article 21A of the Constitution would not include
private unaided educational institutions or private individuals.
if RTE act and 21 A aso applied to private institution then it will infringe 19(1)
(g).
Mr. Nariman submitted that the Objects and Reasons of the Bill which became the 2009 Act explicitly stated that the 2009 Act is
pursuant to Article 21A of the Constitution but did not make any reference to clause (5) of Article 15 of the Constitution. The validity
only to be tested according to article 21 A

Appellant: mr vishvnathan

under Article 30(1) of the Constitution all minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice. They submitted that the State while making the law to provide free and compulsory
education to all children of the age of six to fourteen years cannot be allowed to encroach on this right of the minority institutions
under Article 30(1) of the Constitution.

15(5) nothing in 19(1)(g) will prevent state from making any special provision by law for socially and backward classesofcitizen or for
SC/ST.

the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India &Anr. , has taken a view that
the 2009 Act will not apply to unaided minority schools but will apply to aided minority schools. But sub-section (4) of Section 1 of the
2009 Act provides that “subject to the provisions of articles 29 and 30 of the Constitution” so it cover all aided and unaided minority
institutions.
private educational institutions cannot have any grievance in this regard because they are performing a function akin to the function
of the State. He submitted that applying the functional test private educational institutions are also State within the meaning of Article
12 of the therefore, the argument of Mr. Nariman that the obligation of providing free and compulsory education to all children of the
age of six to fourteen years cannot be passed on by the State to private educational institutions has no substance.

It was held in TMA Pie case :

 private unaided educational institutions have the right to admit students of their choice, admission of a small percentage of
students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the
Government should also be done.
 a small percentage of seats may also be filled up to take care of poorer and backward sections of the society.
He submitted that the 2009 Act, therefore, has provided in Section 12(1) (c) that an unaided private school shall admit in Class I, to the
extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the
neighbourhood and provide free and compulsory elementary education till its completion and this provision of the 2009 Act, therefore,
is not ultra vires Article 19(1)(g) of the Constitution.

COURT:there is othing in RTE act and article 21 A which infringe the right of private institution under article 19(1)(g). but in case of
minorities consider following points:
 Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice. So they have a special constitutional right to establish and administer
educational schools of their choice and the State has no power to interfere with the administration of minority institutions and
can make only regulatory measures and has no power to force admission of students from amongst non-minority communities,
particularly in minority schools, so as to affect the minority character of the institutions.
 RTE Act 2009 provides that :
Section 12(1)(b): an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or
the local authority has to provide free and compulsory education to such proportion of children admitted subject to a minimum
of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary
education to children who need not be children of members of the minority community which has established the school.

Section 12(1)(c): read with Section an unaided school has to admit into twenty-five per cent of the strength of class I children
belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a
legal obligation again.
 Article 15(5) also not applied to minority institution it excludes them because it will then destroy the minority character of these
institutions.
1- if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the
Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of
Article 30 of the Constitution is ultra vires the Constitution.
2- RTE act , 21-A , !5(5) are applicable to private aided and unaided institutes.

RC cooper bank nationalization case

FACTS AND BACKGROUND:

the proposal to nationalize banks was mooted by AICC (All India Congress Committee) in the year 1948 itself. • There were
some leaders who were not in favor of nationalization when Indira Gandhi made up her mind to nationalize 14 banks They
were of the opinion that the amount of compensation (Initially estimated at Rs.85 crores) could be used to stimulate the
economy. The President of India on July 19, 1969 promulgated the ‘Banking Companies (Acquisition and Transfer of
Undertaking) Ordinance’ 1969, nationalizing 14 banks having deposits exceeding Rs.50 crores. The ordinance, at one stroke,
brought more than 75% of the banking sector under State Control. Two methods of compensation:
• Where the amount of compensation could be fixed by an agreement, it would be determined in accordance with such
agreement;
• Where no such agreement could be reached, the Central Govt. had to refer the matter to a Tribunal within a period of 3
months. The compensation so determined was to be given not in cash but in marketable Central Govt. securities
R.C Copper, filed a petition in the Supreme Court, through advocate Nani A Palkhiwala.
RC Cooper was then a director of the Central Bank of India Ltd. He held shares in this bank, Bank of India Ltd. And Bank of
Baroda Ltd