Government –

Section 67A and article 19(1)(a) –

In India, the constitution grants fundamental right to freedom of speech and expression in article
19 of the constitution. Article 19(1)(a) states that the citizens of India have the right to freedom
of speech and expression. This right is read with sub-article (2) that places reasonable restrictions
that the state has the power to impose. The grounds on which reasonable restriction can be
imposed include when speech leads to defamation, contempt of court, offends decency or
morality, security of the state, friendly relations with foreign states, provides incitement to an
offence, threat to public order, or sovereignty and integrity of India. This freedom is subject to
reasonable restrictions which may be thought necessary in the interest of general public and one
such is the interest of public decency and morality. 1Any law made on the basis of Article 19(2)
of the constitution is presumed to be valid and reasonable. According to H.M Seervai, 2 it is
complicated to interpret the words ‘reasonable restrictions’ and the test of ‘clear and personal
danger’, which is explained by the US Supreme Court on the matters related to First
Amendment. Justice Douglas in Kingsley Corporation v. Regents of the University of New
York3 explained the differences between Indian and American approach on the Freedom of
Speech in the following words –

“….If we had a provision in our Constitution for ‘Reasonable’ regulation of the press such as
India has included in hers there would be room for argument that censorship in the interest of
morality and decency would be permissible.”

In M.H Devendrappa v. Karnataka State Small Industrial Development Corporation 4, the court
held that the fundamental right to freedom of speech and expression and other rights under
Article 19 ‘must be harmoniously construed so that they are properly promoted with the
minimum of such implied and necessary restriction’.5 In K. Narayanan v. State of Kerela and
others6, the court held that the freedom of speech and expression conferred by Article 19(1)(a)
1
Ranjit D.Udeshi v.State of Maharashtra,(1965) 1 SCR 65 ; (1965) 2 Cri LJ 8 ; AIR 1965 SC 881. See also,
Devidas Ramchandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1.
2
Seervai,H.M., Constitutional Law of India: A Critical Commentary, Vol.1,N.M.Tripathy, Bombay,1975.
3
360 US 684 (1959).
4
(1998) 3 SCC 732, AIR 1998 SC 1064.
5
Ibid.
6
AIR 1973 Ker 97, 1972 CrLJ1637.
separately incorporated within it the freedom to read any book or literature subject to reasonable
restrictions imposed by the state.

For these reasons, therefore, Sections 67,67A & B of the IT Act, 2000 prohibits publishing or
transmitting obscene materials electronically7, publishing or transmitting material containing
sexually explicit act in electronic form8. This is a ‘reasonable restriction’ imposed on publishing
and transmitting obscene matter on internet.9

While the Supreme court has firmly rejected moves for censorship of the press, censorship of
films was permissible under Article 19(2). The court was more concerned with the issues of
decency and morality.10 The Supreme Court quoted this interesting passage by KRISHNA IYER
J: - 11

“the world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the
konarks and khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes
and prigs and State moralists prescribe paradigms and prescribe heterodoxies”

7
Section 67 of Information and Technology Act, 2000.
8
Section 67A of Information and Technology Act, 2000.
9
Book name
10
Abbas K.A v. Union of India, AIR 1971 SC 481.
11
Raj Kapur v. State,(1980) 1 SCC 43 : AIR 1980 SC 258.