INTRODUCTION

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

- John Milton

Human beings have been endowed with the special gift of communication, which is the main
distinguishing factor when compared to other occupiers of the globe. The psychological
ability of a human brain to formulate thoughts and to convey it in the form of self-expression
is evident. The freedom of expression has directly originated from natural law and freedom is
one among the most important inalienable rights that is embodied in an individual. Believing
that the right to freedom of expression and speech has emanated from the concepts of natural
law, the whole idea has undergone an evolution over the past decades. The freedom of
expression has become a global issue, especially with regard to whether a restriction needs to
be imposed on this or not. It becomes important to understand the right to free speech as
practiced in various places.

The idea of freedom of speech had originated a long time ago. It was first introduced by the
Greeks. They used the term “Parrhesia” which means free speech or to speak frankly. This
term first appeared in the fifth-century B.C. Countries such as England and France have taken
a lot of time to adopt this freedom as a right. The English Bill of Rights, 1689 adopted
freedom of speech as a constitutional right and it is still in effect. Similarly, at the time of the
French revolution in 1789, the French had adopted the Declaration of the Rights of Man and
of Citizens.

The UN General Assembly adopted the Universal Declaration of Human Rights on 10

December 1948 under Article 19 which recognised the freedom of speech and expression as
one of the human rights.

The right to express one’s own ideas, thoughts and opinions freely through writing, printing,
picture, gestures, spoken words or any other mode is the essence of freedom of speech and
expression. It includes the expression of one’s ideas through visible representations such as
gestures, signs and other means of the communicable medium. It also includes the right to
propagate one’s views through print media or through any other communication channel.

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This implies that freedom of the press is also included in this category. Free propagation of
ideas is the necessary objective and this may be done through the press or any other platform.
These two freedoms i.e., freedom of speech and freedom of expression have their own
respective qualifications.

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. Part III of the
Constitution of India deals with the Fundamental Rights 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.1

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 to propagate or publish the views of other people,2
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.3

1
M. P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, 6th edn., 2012, p. 1078.
2
Srinivas v. State of Madras, AIR 1931 Mad 70.
3
J. N. Pandey, The Constitutional Law of India, Central Law Agency, 47th edn., 2010, p. 183.

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Freedom of speech and expression has been held to be basic and indivisible for a democratic
polity. It is 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,4 Patanjali Sastri, C. J. obersved:

“Freedom of speech and of the press lay at the foundation of all democratic 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.”

In Mahesh Bhatt v. Union of India & Anr.,5 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) 6 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, and 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.

4
AIR 1950 SC 124.
5
2008 (147) DLT 561
6
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.

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According to Article 19 of the International Covenant on Civil and Political Rights (ICCPR),
the freedom to seek, receive, and convey information and all kinds of ideas irrespective of
boundaries, either orally or in the form of writing, print, and art or through any other media of
their choice are included in the right to freedom of speech and expression.

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.

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Position in India:

Almost all Constitutions of democratic nations including India have given prime place to the
right to free speech. About two decades ago while addressing the Newspaper Society, famous
Indian jurist Nani Palkhivala observed: “Freedom is to the Press what oxygen is to the human
being; it is the essential condition of its survival. To talk of a democracy without a free press
is a contradiction in terms. A free press is not an optional extra in a democracy.” 7

Franklyn S. Haiman observes that “the freedom of speech and expression benefits more the
hearer than the speaker. The hearer and the speaker suffer as violation of their spiritual liberty
if they are denied access to the ideas of each other. This freedom is essential for the pursuit of
truth.”8 The freedom of speech and expression is regarded as the first condition of liberty.9

The Preamble of the Constitution of India itself secures, to the people, the liberty of thought,
expression, belief, faith and worship. Free speech is one of the most coveted fundamental
rights in the world. In India, the freedom of speech and expression is protected under Article
19(1)(a) of the Constitution of India. This is part of the basic fundamental rights. Though the
Indian Constitution does not use the expression “freedom of press” in Article 19, but it has
been included in one of the guarantees in Article 19(1) (a). This has been done by the wide
interpretation given to this right by the able judiciary of the country. Freedom of press has
always been regarded as an essential pre-requisite of a democratic form of government. This
freedom of press is not superior to that of an individual though. In fact, this freedom is
fundamental to the life of an individual.10

11
In Publisher, Sportstar Magazine Chennai v. Girish Sharma it was discussed that the
expression “freedom of press” means a freedom from interference from authority which
would have the effect of interference with the content and circulation of newspapers.

In Indian Express Newspapers (Bombay) Pvt. Ltd v. Union of India 12 the Court discussed that
democratic constitutions all over the world have made provisions guaranteeing the freedom

7
Nani. A. Phalkhivala, We The Nation- The Lost Decade, 1994 edn., p. 291. From the speech he delivered at
The Golden Jubilee Valedictory Function of the Indian Newspaper Society, Delhi, September 29, 1989.
8
Franklyn S. Haiman, Speech and Law in a Free Society, University of Chicago Press, 1981 edn.; see the
chapter “What is Speech” of the book.
9
Ramlila Maidan Incident, re, (2012) 5 SCC 1.
10
Justice Palok Basu, Law Relating to Protection of Human Rights under the Indian Constitution and Allied
Laws, Modern Law Publications, 2nd edn., 2011, 589.
11
2001 Cri. L. J. 1863 at pp. 1865, 1866.
12
AIR 1986 SC 515 at p. 527.

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of speech and expression laying down the limits of interference with it, with a view of
checking malpractices which interfere with free flow of information.

Constitutional Regulation of Freedom of Expression

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some curbs on this freedom for the maintenance of social order.
No freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2),
358 and 359, the state may make a law imposing restrictions on the exercise of the right to
freedom of speech and expression in the interest of the security of state.

(i) During Normal Times:

Reasonable Restrictions During normal time’s freedom of expression con be restricted,

under Article 19(2), only in the interest of security of the Stare, friendly relations with foreign
States, public order, decency or morality, in relation to contempt of court defamation or
incitement as an offence. These restrictions intend to strike a proper balance between the
liberty guaranteed under Article 19(1) (a) and the social interest specified under Article 19(2).
The court’s commitment to the freedom of expression demands that it cannot be suppressed
unless the situations created by allowing the freedom are pressing and the community interest
is endangered. It is settled law that the anticipated danger should not be remote, conjectural
or far-fetched. It should have a direct nexus with expression. It should be intrinsically
dangerous to the public interest. There is a heavy burden in the State to prove that the
restriction is reasonable. Of these restrictions, the one most habitually used by the State to
justify curtailing the liberty of its citizens is the ground of decency or morality.13

Very often, artistic depictions of the human body or sexuality, showing two men kissing
each other or M. F. Hussain’s paintings, have come under the frenzied hand of the State
claiming such art to be indecent or obscene. Similarly, the State has also justified legislating
on banning dances in bars, as in the opinion of the State they are obscene, vulgar, and
indecent. The hypocrisy of the State is exposed when they allow dances in movies that are
viewed by a huge audience, but shun same dances in bars performed in front of a restricted
adult audience, and when the State allows movie posters or fashion shows with women
wearing skimpy clothes but shuns paintings of art that depict nudity or sexuality on the
grounds or religion, morality and obscenity. The pertinent question is that how and who
decides what is vulgar indecent, lewd, obscene and not acceptable by society, thereby
13
. D. D. Basu, Dr Constitutional Law of India, 8th ed. 2009, LexisNexis Butterworth Wadhwa, p. 92

6
justifying a „reasonable restriction‟ or a curtailment of the freedom of speech and expression
that is so essential in a democracy?14

The eight grounds of restriction which are mentioned in clause (2) of Article 19 are:

a. Security of the State

b. Friendly Relations with Foreign State.
c. Public Order.
d. Decency or Morality.
e. Contempt of Court.
f. Defamation.
g. Incitement of an offence.
h. Sovereignty and integrity of India.

“Security of the State” means the absence of serious and aggravated forms of public disorder,
as distinguished from ordinary breach of public safety or public order which may not involve
any danger to the State itself. Thus, security of the State is endangered by crimes of violence
intended to overthrow the Government.15

“Friendly Relations with Foreign States” the object of this exception to the freedom of
speech and expression is to prevent libels against foreign States in the interests of maintaining
friendly relations with them.

“Public order” this ground was added by the Constitution (1st Amendment) Act, 1951, in
order to meet the situation arising from the Supreme Court’s decision in Romesh Thapper’s
case. In this case, it was held that ordinary or local breaches of public order were no grounds
for imposing restriction on the freedom of speech and expression guaranteed by the
Constitution. The Supreme Court said that public order is an expression of wide connotation
and signifies “that state of tranquillity which prevail among the members of political society
as a result of internal regulations enforced by the Government which they have established.”

Law and order, public order and security of State are different and could not be understood
synonymous. In Kishori Mohan v. State of W. B.,16 the Supreme Court explained the
differences between three concepts and Court said, it can be explained by three functional
concentric circles, the largest representing law and order, the next public order, and the

14
Ibid, p.93.
15
Santosh Singh v. Delhi Administration, AIR 1973 SC 1093.
16
AIR 1973 SC 1794.

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smallest, the security of the State. Every infraction of law must necessarily affect law and
order but not necessarily public order and an act may affect public order but not necessarily
security of State and an act may fall under two concepts at the same time affection public
order and security of the State.

“Decency and Morality” the words “morality and decency” are words of wide meaning. The
word “obscenity” of English law is identical with the word “indecency” under the Indian
Constitution. The test of obscenity is “whether the tendency of matter charged as obscene is
to deprave and corrupt those whose minds are open to such immoral influences” and into
those hands a publication of this sort is likely to fall. Thus a publication is obscene if it tends
to produce lascivious thoughts and arouses lustful desire in the minds of substantial numbers
of that public into whose hands the book is likely to fall. This test was laid down in an
English case of R. v. Hicklin.17

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 and morality. These sections prohibit the
sale or distribution or exhibition of obscene words, etc. in public places. But Indian Penal
Code does not lay down any test to determine obscenity. In Ranjit D. Udeshi v. state of
Maharashtra,18 the Supreme Court accepted the test laid down in the English case of R. v.
Hicklin to judge him obscenity of a matter. In P. K. Somnath v. State of Kerala,19 it was held
that even a nude body, whether male or female, cannot be regarded as an object of obscenity
without something more. The ‘something more’ is in the facial expression or the pose in
which it is photographed. It is to the subjective tastes of the viewer and does not base it on an
objective criteria or an artful depiction or just as an expression.

The word “morality” too has not been clearly defined. The conception or morality differs
from place to place and time to time. Therefore, it is imperative that the freedom of speech
and liberty should not be curtailed unless it causes harm to others only that should be
prevented by the law. The law should aim to establish minimum and not maximum standards
of behaviour, showing respect for tolerance and privacy.

“Contempt of Court” in the exercise of his right of freedom of speech and expression, nobody
can be allowed to interfere with the due course of justice or to lower the lower the prestige or
authority of the court, even in the garb of criticising a judgment.
17
LR 3 QB 360.
18
AIR 1965 SC 881.
19
1990 Cr. L.J. 542.

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“Defamation” just as every person possesses the freedom of speech and expression, every
person also possesses a right to his reputation which is regarded as property. Hence, nobody
can so use his freedom of speech or expression as to injure another’s reputation. Laws
penalising defamation do not, therefore, constitute infringement of the freedom of speech.

“Incitement to an Offence” this ground will permit legislation not only to punish or prevent
incitement to commit serious offences like murder which lead to breach of public order, but
also to commit and offence, which according to the General Clauses Act, means „any act or
omission made punishable by any law for the time being in force. Hence, it is not permissible
to instigate another to do any act which is prohibited and penalised by any law.

“Sovereignty and Integrity of India” this ground has been added as a ground of restriction on
the freedom of expression by the 16th Amendment of the Constitution. The object was to
enable the State to combat cries for secession and the like from organisations such as the
Dravida Kazhagam in the South and the Plebiscite Front in Kashmir, and activities in
pursuance thereof which might not possibility be brought within the fold of the expression
„security of the State‟. It is to be noted that sedition is not mentioned Article 19(2) as one of
the grounds on which restriction on freedom of speech and expression may be imposed. But it
has been held in Devi Saren v. State,20 that Sections 124-A and 153-A of Indian Penal Code
impose reasonable restriction in the interest of public order and is saved by Article 19(2). In
Kedar Nath v. State of Bihar,21 the constitutional validity of Section 124-A, I.P.C. was
considered by the Supreme Court. The Court held that the gist of the offence of sedition is
that the words written or spoken have tendency or intention of creation public disorder and
held the section constitutionally valid.

(ii) During Emergency:

Article 358 and 359 make provision for the suspension of fundamental right during
declaration of emergency. Marginal note of Article 358 is “suspension of provisions of
Article 19 during emergencies.” As soon as a Proclamation of Emergency has been issued
under Article 352 and so long as it lasts, Article 19 is suspended [subject to new clause (2)]
and the power of the legislatures as well as the executive is to that extent made wider. The
suspension of Art.19 during the pendency of the Proclamation of Emergency removes the
fetters created on the legislative and executive powers by Art.19 and if the legislature makes
laws or the executive acts which are inconsistent with the rights guaranteed by Art.19, their
20
AIR 1954 Pat. 254.
21
AIR 1962 SC 955.

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validity is not open to challenge either during the continuance of the emergency or even
thereafter. As soon as the Proclamation ceases to operate, the legislative enactments passed
and the executive actions taken during the course of the said emergency shall be inoperative
to the extent to which they conflict with the rights guaranteed under Art. 19 because as soon
as the emergency is lifted, Art. 19 which was suspended by the emergency is automatically
revived and begins to operate. Art. 358, however, makes it clear that things doe or omitted to
be done during the emergency cannot be challenged even after the emergency is over. In
other words, the suspension of Art.19 is complete during the period in question and
legislative and executive actions which contravene Art.19 cannot be questioned even after the
emergency is over.

Test of Constitutional Regulations

Freedom of expression guaranteed by Article 19(1) (a) is not absolute and uncontrolled, but
it is liable to be curtailed by laws made or to be made by the State to the extent mentioned in
clause (2) of Article 19. The principle on which the power of the state to impose restriction is
based is that all individual rights of a person are held subject to such reasonable limitations
and regulations as may be necessary or expedient for the protection of the rights of others,
generally expressed as social interest.22

The restriction which may be imposed under Article 19(2) must be reasonable restrictions. In
the original Constitution the word reasonable was absent from clause (2). The Constitution
(1st Amendment) Act, 1951 inserted the word reasonable before the word restriction min
clause (2). Hence, a law restricting the exercise of right guaranteed by Article 19(1) (a) to by
constitutionally valid, must satisfy two conditions, namely-

I. The restriction must be reasonable, and

II. The restriction must be for the particular purpose mentioned in the clause
permitting the imposition of the restriction on that particular right.

It may be emphasised that the requirement that a restriction should be reasonable is of great
constitutional significance, for it acts as a limitation on the power of the legislature, and
consequently, widens the scope of judicial review of laws restraining the exercise of freedom

22
V. N. Shukla, Constitution of India, 11th ed.2008, Eastern Book Company, Lucknow, p.118.

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guaranteed by Article 19. The determination by the legislature of what constitutes a
reasonable restriction is not final or conclusive; it is subject to supervision of courts.23

The Constitution does not define the expression reasonable restriction. Nor can an abstract
standard or general pattern of reasonableness be laid down for all cases and situations. The
test may vary under clause (1) from right to right restricted by the impugned law. 24 The
factors which should enter the judicial verdict are the underlying purpose of the restrictions
imposed, the extent and urgency of the evils sought to be remedied thereby, the disproportion
of the imposition, the prevailing conditions at the time, and the duration of the restrictions. 25
The standard is an elastic one: it varies with time, space and condition and from case to
case.26

When the law contains substantive restrictions with regard to the exercise of the right, as
well as procedural provisions, the Court would consider the reasonableness of both. In
determining the substantive reasonableness, the court has to take into consideration various
factors. Even a decision as to the reasonableness of a restriction imposed on one of the rights
conferred by Article 19(1) cannot have much value as a precedent for adjudging the validity
of the restrictions imposed on another right, because the reasonableness must depend on the
cumulative effect of the varying facts and circumstances of each case. Similarly, what is
reasonable in a temporary statute may not be unreasonable as regards a permanent statute. A
law which is so vague and uncertain that it gives no notice to a person as to what act or
conduct would constitute a violation thereof, is unreasonable from the substantive point of
view.

Procedural requirement of natural justice flows from Article 19. So principles of natural
justice are an element in considering the reasonableness of a restriction under Article 19. But
elaborate rules of natural justice may be excluded expressly or by necessary implication
where procedural provisions are made in the statute. 27 Exclusion of natural justice is,
however, subject to the requirement of reasonableness in Article 14. 28 Absence of provision
for review makes the provisions unreasonable. Retrospectivity of a law may also be a
relevant factor although retrospectivity of a law does not make it automatically unreasonable.

23
Id, p. 119.
24
State of Madras v. V. G. Row, AIR 1952 SC 196.
25
Krishnan Kakkamth v. Govt of Kerala, AIR 1997 SC 128.
26
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
27
Hardhan Saha v. State of W. B., (1975) 3 SCC 198.
28
Article 14 of the Constitution of India reads as: “Equality before law.- The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.”

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Discretion vested in an administrative authority is also a relevant factor. If its exercise is
properly controlled and safeguarded, it is reasonable otherwise it is not.29

Position in United States of America

Like India, the preamble to the constitution of the US also includes the words blessing of
liberty on ourselves‘. The constitution of the country was signed in 1787 in Philadelphia
which was presided over by George Washington. The most significant developments to the
constitution came only in 1791 when the Bill of Rights was passed by the parliament. It is
this set of ten amendments to the constitution that grants human rights and freedom to the
citizens of United States explicitly. The first amendment talks about right to speech and
expression.

The Americans fought with the colonial power mainly to attain liberty and freedom of speech
and expression is a basic tenet of this. The British colonized America for a long period of
time and they turned against the British only when they were convinced that their individual
autonomy and liberty was at stake. Due to the colonization, the American subcontinent was
largely influenced by the British ideas of liberty and free speech. In England, especially after
the invention of the printing press in 1476, the crown was critical of opinions being published
and printed. Hence, there were many restrictions against this . America being a colony was
also subjugate to this rule. But, unlike in England, the practice of free speech in America was
a precursor to the right of free speech itself and this could happen mainly because of the vast
distance between the mother country and America. In the period between 1776 and 1791, the
freedom of speech in America was practiced in its true sense where people actually came out
with their opinions and wildly criticized the government. This also shows that freedom of
expression was practiced even before the right was explicitly granted. Initially in 1787, when
the US constitution was first introduced, it did not include any clause that granted to its
citizens the liberty to speak. In 1789, James Madison introduced the draft of Bills of Rights
which were 12 amendments to the constitution, in the parliament which was later adopted in
1791. This bill was opposed by the federalists and Roger Sherman was one of the main
opponents of including Bill of rights in the constitution. Nevertheless, 10 out of 12
amendments proposed in the bill were adopted on 15th December 1791. The first amendment
talks about right to speech and expression. After the enactment of bill of rights certain events
29
Municipal Corpn. v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20.

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like the World War 1, the civil war and slavery threatened the free practice of this liberty. In
1798, during the presidency of John Adam, the US was at loggerheads with France which
pushed the states to the brink of war. This was referred to as the fever of 1798. In order to
maintain national security, the sedition law was enacted during this period. This law was
totally against the first amendment act. However, according to Section 4 of the act, it stated
that it would be in force until March 3rd, 1801 and not after that. The then Vice president
Thomas Jefferson was totally against this law. Jefferson and James Madison drafted the
Kentucky and Virginia reforms respectively which were adopted by the states of Kentucky
and Virginia. It basically stated that the state does cannot enact laws that were against the
civil liberties of the citizens. In the next election, Adams lost his seat and subsequently the
sedition law ceased to exist. This law is considered to be a black mark on the American
history. The dark age of slavery which subsequently lead to the civil war was one of those
time periods where the right to freedom of speech and expression was most exploited in the
country. Slaves were treated as mere objects and let alone their right to free speech; their
right to life was also not given any importance. Slavery first traces its origin to 1619 when the
Dutch ship brought slaves to the state of Virginia. They were mainly transported to work in
the tobacco fields and even later, over the 17th and the 18th centuries slaves were employed
to work under rich landlords, in the plantations. It was mainly because African slaves were
cheap to buy and the minds of the Whites were filled with racism that they deprived their
slaves of basic fundamental rights. From 1830s the abolition of slavery gained momentum
and finally the civil war occurred. During this period around 4 million slaves were freed and
Republican candidate Abraham Lincoln was elected as the president. His views supported the
protection of fundamental rights of citizens and he advocated antislavery. The 13th
amendment that was adopted in 1865 abolished slavery. But, even then the slaves were not
yet fully freed. Finally, the slaves were emancipated during the reconstruction and the civil
rights movement in the 1960s.

CASE LAWS

The right to freedom of speech and expression has evolved from a restrictive form to a liberal
form as can be seen today. Patterson v Colorado was a case in 1907 where the defendant had
published cartoons critical of the US Supreme Court and a case was filed for contempt.
Finally, he was acquitted and the test adopted by the court was the bad tendency test which
basically said that right to freedom of speech was not granted if it had the tendency to disturb
or harm the general welfare of the society. In the case of Schenck v US in 1919, the clear and

13
present danger test was put forth. In the case, the defendant issued leaflets in order to refrain
people from joining the military and hence the court held that his actions were in violation of
the Espionage Act and the right to freedom of speech was restricted because of the present
danger in the society. But in the case of Brandenburg v Ohio in the year 1969, the previous
judgements were overruled and the imminent lawlessness action test was devised. In this
case, the defendant who belonged to the Ku Klux Klan made statements in an assembly
against the government asking them to stop supporting the black race and to advocate the
white supremacy. A case was filed and he was acquitted because the court held that if he
were to be punished then it would be in violation of the first amendment and his words did
not cause immediate threat and lawlessness in the society. In the case of Snyder v Phelps
recently in 2011, Fred Phelps and his followers from the Baptist Church had strong negative
opinions about homosexuality especially in the military. Matthew Snyder, a soldier form the
army was martyred and during his funeral the church picketed and raised slogans which read
as ‗thank god for dead soldiers‘. The petitioner filed a case in the US court against that
church claiming that they had published defamatory statements. The jury of the district court
awarded compensation to Snyder, but the fourth circuit court of appeals reversed the decision
and said that the words of the church was protected by the first amendment to the constitution
of the country. It justified that the church made statements purely on public concerns and it
believed that debate over political social and community issues must be uninhibited. It can be
seen in this case that the US Supreme Court has observed and concluded that the citizens
have the right to give opinions and viewpoints about any matter of public concern and they
are protected by the first amendment. They are no restrictions or inhibitions to this right.

Position in United Kingdom

The UK provides for freedom of expression as a qualified right that may be restricted in
certain circumstances as prescribed by law. For any law restricting an individual’s freedom of
expression, various criteria must be met. The UK has laws in place that operate to prevent
people from heckling speakers, but these are not frequently implemented. The main laws that
appear to be used against hecklers are those aimed to preserve public order.

Foreign broadcasters operating in the UK and broadcasting to UK audiences must be licensed

by the UK’s communication regulator, Ofcom. In order to obtain a license, the broadcaster
must agree to license conditions and to comply with the Broadcasting Code. If a broadcaster

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fails to abide by these conditions or the Code and laws, Ofcom may take action, including
issuing its findings publicly, imposing a financial penalty, or suspending or revoking the
broadcaster’s license in the UK.

A number of laws protect freedom of expression across the UK.  While freedom of
expression is protected, it is a qualified right, meaning that there are certain circumstances in
which it may be overridden, provided a defined set of criteria are met. 

The UK has a number of criminal laws that can be used to stop individuals from heckling
speakers if the behaviour is disruptive, but these do not provide an absolute prohibition on
heckling and operate in balance with the need to ensure people have the right to express
themselves.

Broadcasters that provide services across the UK, including foreign broadcasters, must be
licensed by Ofcom, the UK’s regulator for broadcast media.  There are a number of criteria
that must be met by the broadcaster prior to Ofcom issuing a license and, once a license is
issued, the broadcaster must continue to abide by the conditions of that license.  If the
broadcaster fails to meet these criteria, Ofcom has a number of steps that it may take,
including revoking the license and thus the ability of the broadcaster to operate across the
UK. 

HECKLING

A. Freedom of Expression

The European Convention on Human Rights was incorporated into the national law of the
United Kingdom by the Human Rights Act 1998.  Article 10 of the European Convention on
Human Rights provides for freedom of expression and grants individuals the right to hold
opinions, and to receive and share ideas, without state interference.  It specifically includes
politics and matters of public interest:

Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.

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Freedom of expression is a qualified right, which means that it may be restricted in certain
circumstances provided it is prescribed by law and necessary in a democratic society to
protect a legitimate aim.  Article 10(2) specifies as follows:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, and for maintaining the authority and impartiality of the
judiciary.

The European Court of Human Rights has determined that whether the restriction on freedom
of expression is necessary “requires the existence of a pressing social need, and that the
restrictions should be no more than is proportionate.”

B. Criminal Legislation

A number of criminal laws may be used to prevent hecklers if the behavior is disruptive and
meets additional criteria.  The Public Meeting Act 1908 provides that it is an offense to act in
a disorderly manner at a public meeting if the purpose of the disorderly behavior is
“preventing the transaction of the business for which the meeting was called together.”  The
Act does not define “meeting” or “public meeting,” and much of the case law is focused on
whether or not the meeting is lawful. The offense is punishable by up to six months of
imprisonment and/or an unlimited fine.   In cases where the meeting is part of an electoral
campaign during the campaign period, it is unlawful under the Representation of People Act
1983 for a person to act, or incite others to act, in a disorderly manner to prevent the purpose
of the meeting from occurring.  “Lawful meeting” in this instance is “a political meeting held
in any constituency between the date of the issue of the writ for the return of a Member of
Parliament for the constituency and the date at which a return to the writ is made, or a
meeting held with reference to a [specified period for a] local government election.”  This
offense is punishable with an unlimited fine.

Section 5 of the Public Order Act, 1986 provides it is a criminal offense to “use threatening
or abusive words or behaviour, or disorderly behaviour . . . within the hearing . . . of a person

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likely to be caused harassment, alarm or distress thereby.”  This offense is punishable by a
fine of up to £1,000 (approximately US$1,300).  Any of the following three circumstances
may constitute a defense to this crime, however:

 The accused did not have any reason to believe there was any person within hearing
distance that would likely be caused harassment, alarm, or distress;

 The accused was inside a home and did not believe anyone outside that home could
hear; or

 The conduct was reasonable.

The law previously included using insulting words as part of the offense but after a campaign
to repeal this law and a government review, the word “insulting” was removed from the
offense in 2013.  During the review, campaigners argued that the section inhibited the public
from speaking openly, and that in a free and democratic society, insults should not be a
criminal offence.”

The common law offense of breach of the peace may also apply in circumstances where
hecklers cause harm, or are likely to cause harm, to a person or the person’s property in his or
her presence, or where the behaviour causes the person to be “in fear of being harmed
through an assault, affray, riot, unlawful assembly or other disturbance.” This offense has
been used against hecklers—for example, an individual received a deferred sentence for
breaching the peace by heckling at a memorial service.

Additional laws that could feasibly be used against hecklers who are particularly disruptive
include the Protection from Harassment Act, 1997.  This Act was enacted to protect
individuals from harassment from stalkers, but it has been argued that it might in some cases
be “applied against demonstrators whose acts cause harassment to particular individuals.” 
Section 1 of the Act prohibits individuals from acting in a manner that amounts to harassment
of another person, where the perpetrator knows, or ought to know, that the action amounts to
harassment.  This offense is punishable with up to six months of imprisonment.

An individual was ejected from a conference held by government ministers due to heckling
and then prevented from re-entering, reportedly pursuant to powers under section 44 of the
Terrorism Act, which at the time provided the police with the ability to stop and search
individuals in certain scenarios.  This incident later resulted in an apology from the political
party, which noted the way the individual had been treated was “inappropriate.”

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Foreign Broadcasters Working on Behalf of Foreign Governments

Foreign broadcasters working on behalf of foreign governments may be covered under EU

and UK legislation if they are uploading content to a satellite in the UK, or are broadcasting
content in the UK from other EU Member States.  The EU Audio visual Media Services
Directive provides that broadcasters located in other EU states may broadcast into the UK
and are covered under the laws of the country the broadcast originates from, or the state
where the content is uploaded to the satellite.

The Communications Act 2003 and Broadcasting Acts of 1990 and 1996 provide the

legislative framework within which broadcasters operating in the UK must operate.  Ofcom
was established under the Communications Act 2003 and has a number of roles, including
enforcing content standards across television and radio broadcasters and the UK’s media and
telecommunications companies.  When carrying out its statutory functions, Ofcom has a duty
to ensure that television and radio services have

. . . Standards that provide adequate protection to members of the public from the inclusion of
offensive and harmful material in such services [and that] provide adequate protection to
members of the public and all other persons from both:

(i) unfair treatment in programmes included in such services; and

(ii) unwarranted infringements of privacy resulting from activities carried on for the
purposes of such services.

In order to provide television, radio, or on-demand video services in the UK, broadcasters
must obtain a license from Ofcom under the Broadcasting Act 1990 and Broadcasting Act
1996.  In order to grant a license, Ofcom examines the application to determine whether the
applicant and the proposed programming are “fit and proper.” If it considers that these
criteria are met it may grant the license for a set duration, which may be renewed.  State-
controlled broadcasters that are licensed by Ofcom are required along with other broadcasters
to comply with the Broadcasting Code.  When granting licenses to state-controlled
broadcasters, Ofcom has stated the consideration of whether such a broadcaster is fit and
proper involves different considerations:

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17. . . . States have a unique range of activities, both domestically and internationally, that are
undertaken within a legal and conventional framework that is intrinsically different from that
which applies to individual and corporate licensees.

18. States whose services Ofcom has licensed vary greatly in the extent to which they accept
and conduct themselves according to UK and generally accepted international values. States
sometimes commit, or will have committed, acts which are contrary to these values. In our
judgment, it would be inappropriate for Ofcom always to place decisive weight on such
matters in determining whether state-funded broadcasters were fit and proper to hold
broadcast licences, independently of their broadcasting record. If we did, many state-funded
broadcasters (mostly those from states which may not share UK values) would be potentially
not fit and proper. This would be a poorer outcome for UK audiences in light of our duties on
plurality, diversity and freedom of expression.

Section 3(4) (g) of the Communications Act 2003 requires Ofcom to protect audiences
against harmful and offensive material “in the manner that best guarantees an appropriate
level of freedom of expression.”  Working together, the Communications Act 2003 and the
Broadcasting Act 1996 place a duty on Ofcom to establish the standards for broadcasts, and
compliance with these standards is part of the license conditions imposed on broadcasters.  

The Broadcasting Code contains various rules, including those

 protecting children under the age of eighteen years of age;

 prohibiting the broadcast of materials likely to incite crime or disorder;

 ensuring that news reports are provided with due accuracy and due impartiality, with
the Broadcasting Code notably specifying that, “[i]n dealing with matters of major
political and industrial controversy and major matters relating to current public policy
an appropriately wide range of significant views must be included and given due
weight in each programme or in clearly linked and timely programmes. Views and
facts must not be misrepresented”;

 avoiding unfair or unjust treatment of individuals or organizations within

programming; and

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  ensuring broadcasters maintain editorial independence and control over programing,
that there is a clear distinction between content and advertising, and that unsuitable
sponsorship is not permitted.

There have been instances where the government used licensing conditions to prohibit the
voices of specific members of a political group from being broadcast across the UK during
“the Troubles” in Northern Ireland.  The aim of this was to deny terrorists “the oxygen of
publicity” and it was deemed in the public interest to issue such a ban.  On October 19, 1988,
the then Home Secretary, Douglas Hurd, issued a notice under clause 13(4) of the BBC
Licence and Agreement to the BBC and under section 29(3) of the Broadcasting Act 1981 to
the Independent Broadcasting Authority prohibiting the broadcast of direct statements by
representatives or supporters of eleven Irish political and military organizations.  The
statements made by these individuals could still be broadcast, just not the individuals’ voices.

If a broadcaster breaches the Code, Ofcom publishes its findings explaining why the
broadcaster breached the Code and may direct that the program not be repeated or order the
broadcaster to air a correction or statement of its findings.  If a broadcaster breaches the Code
in a serious, deliberate, or repeated manner, Ofcom may impose statutory sanctions against
the broadcaster, including fines of up to £250,000 (approximately US$318,000) or 5% of the
broadcaster’s revenue, and it may shorten, suspend, or revoke the broadcaster’s license.
Examples of Ofcom findings over television shows that it has deemed to breach the
Broadcasting Code, and investigations, include the following:

 Fox News Broadcasts, which were found during the 2016 US presidential elections to
be “largely pro-Trump and did not sufficiently reflect alternative viewpoints,” and
thus violated the Code for not being impartial.  Fox News ceased broadcasting in the
UK prior to this decision being published, stating its decision was due to low audience
figures making the show commercially unviable.

 TV Novosti—which is financed by the Russian Federation and was determined by

Ofcom to be thus controlled by the Russian government—was investigated by Ofcom
after the poisoning by a nerve agent of two Russian nationals in England saw an
influx of programs broadcast on the channel that potentially violated the due
impartiality requirement of the license.  As a result, in April 2018, Ofcom opened
several investigations into whether news programs violated the terms of the license,
and these remain ongoing.

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  Press TV, an Iranian-funded television channel, broadcast shows featuring a British
politician. Ofcom determined the shows violated the broadcasting code by failing to
air alternative viewpoints on controversial issues. The content of the show was
comprised mainly of pro-Palestinian viewpoints, with very limited input from
individuals with pro-Israeli viewpoints.  In this case, Ofcom noted that, “where a
matter of major political controversy is being discussed, as here, the broadcaster must
ensure that an appropriately wide range of significant views must be included and
given due weight in each programme or in clearly linked and timely programmes.” It
determined that Press TV did not control its editorial content and Ofcom used its
powers to close the channel.

 Ariana International, a channel originating in Afghanistan but broadcasting in the UK

that broadcast a news item with a two-minute video filmed by a terrorist prior to him
conducting a terrorist attack.  Ofcom determined “the programme contained hate
speech and was likely to encourage or to incite the commission of crime or to lead to
disorder . . . with no surrounding content that sought to challenge, rebut or otherwise
contextualise Muhammad Riyad’s highly extreme views.” It imposed a penalty of
£200,000 (approximately US$250,000) on the channel.   

 News channels BBC World News and CNN International aired programs funded by
foreign governments, charities, and other bodies without informing viewers the shows
were sponsored content.  BBC World News stated it obtained some of these programs
for low fees and Ofcom stated that complex funding arrangements posed an “inherent
risk to independence and editorial integrity,” but determined that the broadcasters had
not compromised editorial independence.    

Ofcom has the ability to issue an order to proscribe a foreign satellite service if it deems the
service to be of an “unacceptable quality” and it is in the public interest to proscribe the
service.  The offensive subject matter must be “repeatedly contained in programmes included
in the service” and must offend “good taste or decency or [be] likely to encourage or incite to
crime or to lead to disorder or to be offensive to public feeling.”

Once a service has been proscribed, it is an offense for a person to engage in conduct in
support of the foreign satellite service. Such actions include supplying program material to be
included in the service, or arranging or inviting others to do so.  Such offenses are punishable
with up to two years of imprisonment.

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CONCLUSION

The concept of human rights developed in the UK long before they did in India and as such
the basic human rights or fundamental rights were available to the British before they were to
the Indians. However, the concrete codification of these rights into domestic law took place
in India half a century before the United Kingdom. The fundamental rights provided in the
Indian Constitution, while retaining the rights that are universal in application, also provides
for rights that are unique to India because of its diversity. In conclusion, it must be said that
while the development of human rights in the two countries is at different stages, it is largely
due to historical and cultural factors.

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.

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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.

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