B.A LLB (HONS.

)/ FIRST SEMESTER- OCTOBER 2021

RESEARCH PAPER

FREEDOM OF SPEECH AND EXPRESSION AND

JUDICIAL REVIEW

SUBMITTED TO:
MS. JHARNA SAHIJWANI

SUBMITTED BY:
SALONI CHOUDHARY
ROLL NO. B027
SAP ID- 81012100180
 TABLE OF CONTENTS
1. ABSTRACT

2. INTRODUCTION

3. RESEARCH PROBLEM

4. RESEARCH OBJECTIVES

5. MAIN ELEMENTS OF RIGHT OF FREEDOM OF SPEECH AND

EXPRESSION

6. IMPORTANCE OF FREEDOM OF SPEECH AND EXPRESSION

7. SCOPE OF FREEDOM OF SPEECH AND EXPRESSION

8. LANDMARK JUDGEMENTS OF SUPREME COURT OF INDIA:

FREEDOM OF SPEECH AND EXPRESSION

9. LANDMARK JUDGEMENTS OF SUPREME COURT OF INDIA:

REASONABLE RESTRICTION OF SPEECH AND EXPRESSION

10. CONCLUSION
 ABSTRACT

The researcher seeks to analyze the concept of freedom of speech and expression
granted under article 19(1) of Indian constitution. The research paper will cover
importance of speech and expression and reasonable restrictions to these freedoms.
Also some landmark judgement of Supreme Court and high court for protection of
freedom of speech and expression. At the end we’ll be discussing the issues and
scope of article 19(1).
INTRODUCTION

“Give me the liberty to know, to utter and to argue freely according to

conscience, above all liberties.”
-JOHN MILTON

In ancient and modern times, humanity has yearned for freedom of speech.
Censorship or appropriate limits, on the other hand, are old and worldwide
phenomena. The framers of Indian constitutions recognised the coexistence of
competing rights and constraints, and established Article 19 with a specific
reference to Reasonable restrictions. This has progressed as a result of the Indian
Judicial System's progressive judgments.

In an organized community, freedom of expression cannot be absolute, which

raises important questions about the allowable bounds of constraints on freedom of
expression. The nature of the limitation, its scope and extent, its length, and the
availability or lacks of an effective remedial mechanism to dispute the restriction
are all factors to examine. In general, it is the judiciary's job to balance freedom of
expression with public-interest imperatives like national security, public order,
public health, or morals, as well as individual rights like the right to reputation and
the right to privacy. The essence of the issue is whether or not censorship is ever
justified, and if so, under what conditions. In India, the judiciary has gone to great
lengths to strike a careful balance between freedom of expression and reasonable
restrictions. It has issued a number of precedent-setting decisions.

The freedom to think and talk freely, as well as to get knowledge from others
through publications and public dialogue, without fear of retaliation, limitations, or
repression by the government, is the essence of free speech. Article 19 (1) of the
Indian constitution establishes six essential rights in the nature of
liberties, which are enumerated in sub-clauses of Article 19 (1) as
follows:
(a) Freedom of speech and expression;

(b) The right to assemble peacefully and without arms;

(c) The right to form associations or unions;

(d) The right to move freely throughout India;

(e) The right to reside and settle in any part of India;

(f) The right to practise any profession, trade, or business.

Freedom of speech and expression means the ability to express opinions and speak
freely. Freedom of speech and expression plays a very important role in everyone’s
life. It really helps to shape the views and opinions of individual on economic,
social and political matters.

According to article 19 of Indian constitution, “all citizens shall have the right to
freedom of speech and expression”. "All citizens shall enjoy the right to freedom
of speech and expression," according to Article 19(1) (a) of the Indian
Constitution.

The rationale underlying this article may be found in the Constitution's Preamble,
where a solemn resolution is made to guarantee liberty of thought and expression
to all of the country's citizens. However, under Article 19(2) of the Indian
Constitution, the exercise of this right is subject to "reasonable limits" for specified
reasons. Nothing in sub clause (a) of clause (1) affects the operation of any existing
law or prevents the State from making a law insofar as such law imposes
reasonable restrictions on the exercise of the right conferred by the said subclause
in the interests of India's sovereignty and integrity, security, friendly relations with
foreign states, public order, and decency. The law imposes “reasonable restriction”
to protect the integrity and sovereignty of India, security and relations with foreign
countries.1

Research problem
What are the freedoms granted under article 19(1)(a)?

What are reasonable restrictions to freedom granted under article 19?

Research objectives
1. To understand Article 19 (1) (a)- Fundamental Right of Speech and Expression
2. Main elements of Article 19 (1) (a)

3. To understand Freedoms granted under Article 19 (1) (a) and Reasonable

Restrictions to these freedoms

4. Landmark Judgements of supreme court/High Court with respect to

Fundamental Right of Speech and Expression

1
Patnalawcollege.ac.in (2021), http://www.patnalawcollege.ac.in/notice/88274-e_content-_art_19.pdf (last
visited Dec 14, 2021).
MAIN ELEMENTS OF RIGHT OF FREEDOM OF SPEECH AND
EXPRESSION

1.This privilege is exclusively available to Indian citizens, not to foreign nationals.

2.Article 19(1) (a) of the Constitution guarantees the right to express one's thoughts
and opinions on any topic by any medium, including words, writing, printing,
pictures, films, and movies.

3. This right is not absolute, and it allows the government to enact laws that impose
reasonable restrictions in the interests of India's sovereignty and integrity, security,
friendly relations with foreign states, public order, decency, and morality, as well
as contempt of court, defamation, and incitement to an offence.

4. This constraint on a citizen's freedom of expression can be imposed by the

state's activity as well as its inaction. As a result, the state's refusal to provide all of
its inhabitants the fundamental right to freedom of expression and expression2

2
SUPRA NOTE1
 IMPORTANCE OF FREEDOM OF SPEECH AND EXPRESSION

Cicero, a Roman politician and jurist, famously stated, "The people's benefit is the
greatest law." The means by which this can be accomplished can be deduced from
our constitutional provisions, which indicate that if one person raises his or her
voice against an evil, everyone will listen to the voice and join in the fight to
eradicate the evil from its source.

Let us take a look at an example: compare the situation in the past when women
were not permitted to vote with the situation now. Women are now able to vote.
What causes this to happen? It occurs as a result of one's freedom to free speech
and expression. The freedom to free speech and expression has the ability to tear
down any enormous brick that stands in its way.

Freedom of speech and expression, which is also a fundamental human right,

supports other rights that allow or aid Indian society to evolve and advance.
Freedom of speech and expression has always been vital in history since it has
facilitated various revolutions, like the French revolution.

The right to free speech and expression involves not only the ability to express
oneself but also the ability to listen to what others have to say. When a person
voices an opinion, it alone bears that viewpoint's inherent value, and remaining
mute on that opinion is a violation of basic human rights.

Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matters. It has been variously described as a "basic human
right", "a natural right" and "a basic human right". 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. The right of freedom of expression
is crucial in a democracy, 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.34

3
Supranote1
4
Aqa Raza, ‘Freedom of Speech and Expression’ as a Fundamental Right in India and the Test of Constitutional
Regulations: The Constitutional Perspective Papers.ssrn.com (2021),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2827985#:~:text=Freedom%20of%20speech%20and%20exp
ression%20is%20guaranteed%20as%20a%20fundamental,and%20independent%20prerequisites%20are%20satisfi
ed (last visited Dec 14, 2021).
SCOPE OF FREEDOM OF SPEECH AND EXPRESSION
In many cases the Supreme Court of India has reiterated the need to protect the
fundamental right of freedom of speech and expression. Over the last few decades,
press and electronic media have emerged as major factors in our nation’s life. Our
system of government demands vigilance over exercise of governmental power by
the press and the media. It is essential for a good Government. The Court held that
the candidate who has filed an affidavit with false information cannot be treated at
par. If so done it will result in breach of fundamental right guaranteed under
Article 19(1) (a) of the Constitution, viz. „right to know”. Further Court directed
the Election Commission to issue a notification making it compulsory to provide
about their education, assets, liabilities and criminal antecedents for the benefit of
voters. Supreme Court has given new dimension to freedom of speech and
expression that Government has no monopoly on electronic media. No person can
be compelled to sing the National Anthem, "if he has genuine conscientious
objections based on his religious faith". Court affirmed that fundamental right
under Article 19(1) (a) which also includes the freedom of silence. Adverts which
are deceptive, unfair, misleading and untruthful could be regulated by the
Government. There are no geographical limitation on freedom of speech and
expression guaranteed by constitution. This freedom is exercisable not only in
India but outside and if State action sets up barriers to its citizens‟ freedom of
expression in any country in the world, it would violate Article 19(1) (a) as much
as if it inhibited such expression within the country. The purpose of the press is
to advance the public interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments. A citizen’s right to
propagate and publish extends not merely to the matter he was entitled to circulate
but also to the volume of circulation. The imposition of censorship on a journal
prior to its publication would amount to an infringement of Article 19(1)(a). The
imposition of pre-censorship of a journal is a restriction on the liberty of the press.
The Court said, the right of freedom of speech and expression cannot be taken
away with the object of placing restrictions on the business activity of a citizen.5

5
(2021),
https://www.researchgate.net/publication/306899769_'Freedom_of_Speech_and_Expression'_as_a_Fundamental
_Right_in_India_and_the_Test_of_Constitutional_Regulations_The_Constitutional_Perspective (last visited Dec
10, 2021).
Freedom of speech can only be restricted on the grounds mentioned in clause (2) of
Article 19(1) (a) and Article 14 of the Constitution. The Indian Supreme Court has
held that the Government cannot take power itself to pre-judge the nature of
contents of newspapers even before they are printed. Imposition of import duty and
levy of auxiliary duty on the newsprint was an infringement of the freedom of
press as it imposed a burden beyond capacity of the industry and affected the
circulation. The Court also held that "Expression of one’s gender identity is facet
of freedom of expression and state cannot prohibit or restrict transgender's
expression of such personality". Gender identity lies at the core of a person's
personal identity, gender expression and presentation, and therefore it will have to
be protected under Article 19(1)(a) of the Constitution.6

6
Supranote5
LANDMARK JUDGEMENTS OF SUPREME COURT OF INDIA:
FREEDOM OF SPEECH AND EXPRESSION:

Judicial creativity added the following aspects to widen the scope of freedom of
speech and expression:

A. Freedom of Press

B. Freedom of Commercial Speech

C. Right to Broadcast

D. Right to Information

E. Right to Criticize

F. Right to expression beyond national boundaries

G. Right not to speak or Right to silence is also included in the Right to speech and
expression.

LET US LOOK EACH ASPECT OF RIGHT IN THE LIGHT OF SUPREME

COURT JUDGEMENTS

A. FREEDOM OF PRESS
Democracy survives thanks to the legislature's watchful eye, public opinion's care
and direction, and a world-class press. The right to broadcast one's opinions
through print media or any other communication medium, such as radio or
television, is included in the right to freedom of expression, subject to reasonable
constraints established by Article 19 of the Constitution (2).

1. Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124)
was one of the first decisions decided by the Supreme Court, recognizing press
freedom to be a part of freedom of speech and expression.

'Freedom of Speech and Press lay at the core of all democratic organisations, for
without open political conversation, no public education, 7

7
Supranote1
so vital for the effective functioning of the government process, is conceivable,'
Patanjali Sastri, J., correctly stated.8

2. Union of India v. Indian Express (1985) It has been established in 1 SCC 641,
that the press plays a critical part in the democratic process. The courts have a
responsibility to protect journalistic freedom by declaring any legislation and
administrative measures that restrict it unconstitutional. Freedom of the press
encompasses the freedoms of publishing, circulation, and pre-censorship.

B. COMMERCIAL SPEECH FREEDOM

The Supreme Court concluded in Tata Press Ltd. vs. Mahanagar Telephone
Nigam Ltd. that a commercial advertising or commercial speech was likewise a
component of the freedom of speech and expression, which could be limited only
by Article 19(2). The Supreme Court ruled that advertising, although merely a
business transaction, is nonetheless the distribution of information about the
marketed commodity. The information made available through ads benefits the
general public. The open flow of business information is essential in a democratic
economy.

C. BROADCASTING RIGHTS
With the advancement of technology, the idea of speech and expression has
expanded to cover all accessible modes of expression and communication. The
electronic and broadcast media would be included in this category.

In Odyssey Communications (P) Ltd. v. The Supreme Lokvidayan

Sanghatana The right of a citizen to show films on the state channel –
Doordarshan – was upheld by the court.

Article 19(1) guarantees it as a basic right (a). In this instance, the petitioners
objected to a series called "Honi" being shown on Doordarshan. Anhonion"
because it fostered superstition and naive faith amongst the people (viewers). The
case was rejected because the petitioner failed to prove that there was any evidence
of discrimination to the general population.

8
Supranote1
D. THE RIGHT TO KNOW
The right to 'speech and expression' includes not only the ability to express oneself,
but also the ability to publish it and disseminate information, as well as receive
information. This was determined by the Supreme Court in a series of decisions
that addressed the right to information in a variety of contexts, ranging from
advertisements allowing citizens to obtain vital information about life-saving drugs
to sports fans' rights to watch cricket and voters' rights to learn about the
backgrounds of electoral candidates.

In Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294, the
Supreme Court stated, "One-sided information, deception, misinterpretation, and
no information all contribute to an uneducated public, rendering democracy a
farce. The right to give and receive information, as well as the freedom to have
ideas, is all part of freedom of speech and expression "..

E. THE ABILITY TO CRITIQUE

Everyone has a basic right to voice an opinion on any topic of public concern,
according to S. Rangarajan v. P. Jagjivan Ram Open criticism of government
policies and activities is not a justification for limiting freedom of expression.
Intolerance is as deadly to democracy as it is to the individual. It is not required in
a democracy for everyone to sing the same tune.

F. THE RIGHT TO FREEDOM OF EXPRESSION BEYOND

NATIONAL BORDERS
The Supreme Court decided in Maneka Gandhi vs. Union of India that Article
19(1)(a) of the Indian Constitution is not limited to Indian Territory and that
freedom of speech and expression is not limited to national borders.

G. THE RIGHT NOT TO SPEAK

Commonly known as the right to quiet, is incorporated in the right to freedom of
expression. Three pupils were dismissed from school for refusing to perform the
national anthem in the case of National Anthem. 9

9
Supranote1
When the national anthem was played, however, the youngsters stood up in
reverence. The legitimacy of the students' expulsion was contested before the
Kerala High Court, which affirmed the expulsion on the grounds that it was there
fundamental duty to sing national anthem. However, it was held by the Supreme
Court in response to an appeal filed against the Kerala High Court's ruling. The
Supreme Court ruled that the students did not violate the Prevention of Cruelty to
Children Act. The National Honor Act of 1971 prohibits insults to the nation's
honor. Furthermore, there was no legal framework in which they could operate.
Article 19(1) (a) basic right might be limited. State v. Bijoe Emmanuel Kerala
1986 3 SC 615.10

10
Supranote1
LANDMARK JUDGEMENTS OF SC: REASONABLE
RESTRICTIONS ON FREEDOM OF SPEECH AND
EXPRESSION
The right to freedom of speech and expression is subject to reasonable constraints,
and the Supreme Court of India has defined reasonable restriction to include the
following aspects.

A. The state's security

B. Relationship with a foreign country

C. Public order is maintained.

D. Morality and decency

E. Disobedience to the court

F. Incitement to commit a crime

G. India's Sovereignty and Integrity

Let's go through each part of Reasonable Restraints on Freedom of

Expression. In view of Supreme Court rulings, and Expression
(A)STATE SECURITY
Reasonable limits on freedom of speech and expression can be imposed
in the interests of state security. The terms state security and public order
must be separated. Security of the state refers to significant and
intensified types of public disruption, such as revolt, state warfare,
insurgency, and so on. 11

11
Supranote1
PUCL filed a public interest lawsuit (PIL) under Article 32 of the Indian
Constitution against the numerous cases of telephone tapping in
People's Union for Civil Liberty Vs. Union of India AIR 1997 SC
568. The constitutionality of Section 5(2) of the Indian Telegraph Act of
1885 was questioned. It was noted that the "occurrence of a public
emergency" and "in the interest of public safety" are both required for
the requirements of Section 5(2). If one of these two requirements exists,
If they aren't present, the government has no authority to use the
section's powers. As a result, unless it falls under the reasons of Article
19(1) (a), telephone tapping is illegal. Article 19 imposes appropriate
limits (2).
B. FOREIGN RELATIONS ARE FRIENDLY STATES
The Constitution added this ground Act of 1951 (First Amendment). The
government has the ability to do so, place appropriate constraints on If
there is freedom of speech and expression, obstructs India's favorable
connections with a different state or states.
C. PUBLIC ORDER
The Constitution (First Amendment) Act of 1951 inserted this basis to
address the situation created by the Supreme Court's judgement in the
Romesh Thapar case (AIR 1950 SC 124). Public order, according to
the Supreme court [Kishori Mohan v. State of West Bengal], is distinct
from law and order and state security. The term "public order" connotes
a sense of public peace, security, and tranquilly. Om Prakash v.
Emperor, AIR 1948 Nag, 199]: "Anything that disturbs public peace
disturbs public order." However, just criticising the government does not
always result in public disorder.12

12
Supranote1
 A regulation that punishes intentionally hurtful comments to religious
emotions of any class has been found to be a lawful and reasonable
limitation aimed at protecting public order.
D. MORALITY AND DECENCY
Sections 292 to 294 of the Indian Penal Code, which ban the sale,
distribution, or exhibition of obscene language, are examples of limits
on freedom of speech and expression based on decency and morality.
With the passage of time, the morality standard shifts. In Ranjit D.
Udeshi v. State of Maharashtra (AIR 1965 SC 881), the Supreme
Court affirmed a book seller's conviction for selling and holding the
book Lady Chatterley's Lover under Section 292, I.P.C.
E. CONTEMPT OF COURT:
Contempt of the courts would be prohibited under the fundamental right
to freedom of speech. The term "contempt of court" is defined under
Section 2 of the 1971 Contempt of Courts Act. The phrase "contempt of
court" refers to either civil or criminal contempt of court as defined by
the Act. The Supreme Court upheld the High Court's ruling in E.M.S.
Namboodripad v. T.N. Nambiar (1970) 2 SCC 325; AIR 1970 SC 2015),
finding Mr. Namboodripad guilty of contempt of court.
F. DEFAMATION:
Article 19 (2) prohibits anybody from making any comment that harms
another's reputation. In India, defamation is a felony enshrined in
Section 15 of the Indian Penal Code. Defamation is a crime in India, as
defined by Sections 499 and 500 of the Indian Penal Code. The right to
free expression isn't unqualified.13

13
Supranote1
 It does not imply the ability to harm another's reputation, which is
protected by Article 21 of the constitution. Although truth is considered
a defence against defamation, it will only aid if the remark was made
"for the public benefit," which is an issue of fact that will be decided by
the courts.
G. INCITEMENT TO COMMIT AN OFFENCE:
The Constitution (First Amendment) Act of 1951 introduced this basis
as well. A person is likewise prohibited under the Constitution from
making any comment that incites others to commit a crime.

H. INDIA'S SOVEREIGNTY AND INTEGRITY:

The Constitution (Sixteenth Amendment) Act, 1963 introduced this
basis later. This is intended to make it illegal for anybody to make
remarks that undermine India's integrity and sovereignty.14

14
Supranote1
 CONCLUSION
One of the most essential freedoms to people is freedom of expression in the
context of speech, which is provided by civil society. Finally, we may argue that
the right to freedom of speech and expression is an essential basic right whose
scope has been expanded to encompass freedom of the press, right to information
(including commercial information), right to remain silent, and right to criticise.

In today's world, the right to freedom of speech encompasses not only the ability to
express oneself through words, but also the ability to express oneself through a
variety of means of communication. Under Article 19(2) of the Indian
Constitution, the privilege we discussed is subject to reasonable limitations
15

15
Freedom of Speech & Expression: A detailed description with case laws, iPleaders (2021),
https://blog.ipleaders.in/freedom-speech-expression/ (last visited Dec 14, 2021).
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http://www.patnalawcollege.ac.in/notice/88274-e_content-_art_19.pdf