University of Mumbai law academy

Name – Chaitali Omprakash Hawale

course – B.B. A LL.B 5 Year integrated course

Year/roll no – 5th year 9th sem - 14

Subject – Media and Law

Topic – Freedom of Speech, Expression and

limitation
 Submitted To – Prof. Palak Raina

Submitted by – Chaitali Hawale.

Index

Sr.no Topics Pg.no

1. Freedom of speech 3

2. Freedom of expression 3-4

3. BURNING PROBLEMS OF FREEDOM OF SPEECH 4-5

4. THE MAIN ELEMENTS OF FREEDOM OF SPEECH & 5-7

EXPRESSION
5. Freedom of expression in India 7-11

6. Some recent cases related with freedom of speech and 12-13

expressions
7. 13-14
To maintain friendly relations with foreign states

8. 14-15
LANDMARK JUDGEMENTS OF SUPREME COURT
OF INDIA:

9. 16
Conclusion
 Freedom of Speech and Expression and Limitations

Freedom of speech
Freedom of Speech is a principle that supports the freedom of an individual or a
community to articulate their opinions and ideas without fear of retaliation,
censorship, or legal sanction. The right to freedom of expression has been
recognised as a human right in the Universal Declaration of Human rights and
international human right law by the United Nations. Many countries have
Constitutional Law that protects free speech, Freedom of Speech, and Freedom
of Expression are used interchangeably in political discourse.
Freedom of speech is one of the core pillars upholding the democratic process
and protecting it is essential if we want to live in a society that is fair and equal
for everyone. Failing to do so weakens democracy.

Every time you share a news story on your social media channel, attend a
protest, or write to your local politician about an issue you care about, this is
free speech in action. Not just any speech is considered free speech. For
example, having an argument around the dinner table about whether or not to
eat your vegetables is not considered free speech.

Free speech exists when citizens can express their opinion – including views
that are critical towards the government without fearing negative consequences,
such as being put into prison or receiving threats of violence.

Freedom of expression
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.In
2000 freedom of expression was enshrined as a fundamental right in Article
11 of the Charter of Fundamental Rights of the European Union: 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. The freedom and pluralism of
the media shall be respected. However, the definition of free speech does not
protect every kind of speech. Like all fundamental rights the right to freedom of
expression is not absolute, meaning it can be subject to limitations provided
they have a legal basis.

The limitations must meet two conditions:

1) they are proportional - the limitations are no stronger than needed to achieve
their aim
2) they are necessary and genuinely fulfil objectives in the interest of the
general public or are needed to protect the rights and freedoms of others.

Therefore, someone who engages in criminalised forms of speech such as hate

speech, terrorist content or child pornography cannot defend themselves by
relying on their right to freedom of expression.

LET’S DISCUSS BURNING PROBLEMS OF FREEDOM OF SPEECH

1. Freedom of expression has been humanity’s yearning in times ancient and

modern. Similarly, censorship or reasonable restrictions are also ancient and
universal phenomenon.
2. The founders of Indian constitutions are aware about co-existence of
conflicting Right and Restrictions and enacted Article 19 with clear mention
of Reasonable restrictions. This has further evolved with progressive
judgements of Indian Judicial System.

3. The freedom of expression cannot be absolute in an orderly society, and this

raises crucial issues of the permissible limits of restrictions on freedom of
expression. Such issues involve consideration of the nature of the restriction,
its scope and extent, its duration and the presence or absence of an
efficacious corrective machinery to challenge the restriction. Generally, it is
the judiciary which performs the task of reconciling freedom of expression
with certain imperatives of public interest such as national security, public
order, public health or morals, and individual rights such as the right to
reputation and the right of privacy.

4. The crux of the matter is whether censorship is ever justifiable and, if so, in
what circumstances. In India Judiciary has taken enormous effort to ensure
delicate balance between Freedom of Speech and Expression and
Reasonable restriction. It has pronounced several landmark judgements.

5. THE ESSENCE OF FREE SPEECH is the ability to think and speak freely
and to obtain information from others through publications and public
discourse without fear of retribution, restrictions or repression by the
Government.

THE MAIN ELEMENTS OF FREEDOM OF SPEECH &

EXPRESSION:
 1. This right is available only to a citizen of India and not to foreign
nationals.

2. The freedom of speech under Article 19(1) (a) includes the right to
express one’s views and opinions at any issue through any medium, e.g., by
words of mouth, writing, printing, picture, film, movie etc.

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

4. This restriction on the freedom of speech of any citizen may be imposed

as much by an action of the State as by its inaction. Thus, failure on the part
of the State to guarantee to all its citizens the fundamental right to freedom
of speech and expression would also constitute a violation of Article 19(1)
(a).

Right to freedom of expression is a Right to liberty privileged to every Citizen

of India by the constitution of India under article 19(1) of the constitution. It
includes the right of a person to make his opinions and thoughts known or heard
to others and to hear the opinions and thoughts of his fellow man. A person
acquires several other rights from the Right of Expression which the law
provides. Among these are the right to get information and to perceive and
acknowledge the information. Right to demonstrate once thoughts and opinions
or to form an assembly is also extracted from the right of expression. It also
includes the right to hear music, read books, watch plays and movies, write
books or plays. Basically, right of expression is the assortment of rights with the
right of being heard and to hear at the core of it and the other rights abutting it.
Freedom of expression Is a complex system coiled with liberties and rights.
There are various facet to this right which cannot be explained by a single
explanation but various conclusions and discourse to justify this right. An
individual need to form an opinion which is free of all the confines and is filled
with inventiveness, imagination, expressiveness, vision, artistry,desires, and
gives boost to his spirits. It is the freedom of the society to communicate views
and opinions with each other without dismay and intolerance, to persuade or
influence one another so as to strengthen, secure and develop the democratic
administration.

It is important to notice that a Liberty of an individual should not outrage or

affront the liberty of any other individual. In the case of A.K. Gopalan vs The
State OF Madras it was pronounced that ‘man as a rational being desires to do
many things, but in a civil society his desires will have to be controlled with the
exercise of similar desires by other individuals’.It thus promulgates that an
individual has the right to share his opinion and views through the medium of
newspapers, radios or television.

Freedom of expression in India-

Article 19 of the constitution of India grants certain rights to its citizen which
forms the basic fundamentals of the constitution and any laws made in
contradiction of it will be null and void. Freedom of expression is stated in
article 19(1) which states it as –

1) All citizens shall have the right

• to freedom of speech and expression;

• to assemble peaceably and without arms;
• to form associations or unions;
• to move freely throughout the territory of India;
• to reside and settle in any part of the territory of India; and omitted
• to practice any profession, or to carry on any occupation, trade or business

Nonetheless the government has laid certain restrictions as to this right which is
laid in article 19(2) of the constitution –

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the said
sub clause in the interests of the sovereignty and integrity of India, the security
of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an
offence.

EXCEPTIONS -

It is necessary to preserve this right as well as certain restrictions are to be

imposed so as to avoid social disturbance and outrage among the people. Hence,
article 19(2) imposes certain restrictions on the right to freedom of speech and
expression which are stated and explained below –

o Safety and Security of the Nation – Security of the nation is of utmost

importance and imposing reasonable restrictions on activities risking the
security of the nation is of vital importance. However, the term security is
crucial and refers only to grave and accumulated form of public disorder i.e.,
waging war against the nation, riots, unlawful assembly, insurrection or
rebellion. Thus, such speeches or expressions which incite or encourage hate
which undermine the security of the nation needs to be restricted and kept in
control.
Freedom of speech and expression and the following:
Press : Freedom of press unlike USA, Art. 19(1)(a) does not expressly
mention about the freedom of speech and expression of press. Lord
Mansfield, by as early as 1784, in an English case had defined the liberty
of the press as consisting in printing without previous licence, subject to
the consequences of the law. Under freedom of press, a person need not
take permission before publishing or bringing something to public domain,
but it shall be liable for the consequences that will ensue under law, just
like any ordinary citizen. It is in this sense that freedom of print has
existed in England since the end of 18 th  All these platforms will be treated
as press including print and television broadcasting. Liberty of press
implicit in the Freedom of speech and expression stands on no higher
putting than the freedom of speech and expression of citizen and no
privilege is attached to the press as such as distinct from the ordinary
citizen. So, the press is also subject to general law of the land and is liable
for the consequences of their acts like the ordinary citizen.
In Brij Bhushan v State of Delhi , an order issued under section 7(1) of the
East Punjab safety Act, 1950, directing the editor and publisher of a
newspaper to submit for scrutiny in duplicate before publication till further
order all communal matters and news and views about Pakistan including
photographs and cartoons. This order was struck down by the Supreme
Court as unconstitutional. The hon’ble Supreme Court observed that there
can be little doubt that the imposition of pre censorship on a journal is a
restriction on the liberty of the press which is an essential part of the
freedom of speech and expression declared by Art. 19(1)(a). In  Romesh
Thapar v State of Madras , the notification banning the entry into or
circulation sale or distribution in the state of madras, or any part of it the
newspaper named crossroads, published at Bombay was held invalid.
Cinema : The scope of right to freedom of speech and expression has been
expanded to include a filmmaker’s right to express their thoughts and ideas
using the medium of cinema. However, the filmmaker’s expression
through their film subjects to restrictions if the film poses a threat to
sovereignty and security of the country, national peace, etc. Ahead of this,
the Cinematograph Act, 1952, and Cinematograph (Certification) Rules,
1983, prescribe the parameters and process for censorship of films and
grant of certification in respect of films declared to be fit for public
exhibition.
In the case of K. A. Abbas   v Union of India , where the filmmaker was not
given the  ‘U’ certificate for his film which showed the ‘tale of four cities’
in a form of documentary film, ahead of some ‘obscene’ scenes in the film.
The court granted the certificate and said that sex is not always obscene
and it depends on at what basis it is shown. Deciding on where the
constitutionality of the Cinematograph Act was challenged, and the
Supreme Court held that Cinema is different from other media and has a
different impact on people and thus legitimized the censorship on cinema.
In yet another case of S. Rangarajan   v P. Jagjivan Ram , where the film
was granted ‘U’ certificate after deletion of some scenes, but the High
Court had abrogated the said certificate for it would harm the social
harmony ahead of some controversial scenes in the movie. Deciding on the
matter, hon’ble Supreme Court set aside the HC judgement and held that it
was the duty of the state to protect the freedom of speech and expression
since it is the right granted against the state.

Demonstrations: Demonstrations usually involve three Fundamental

Rights – freedom of speech, freedom of assembly, and freedom of
movement. Demonstrations can be regarded as forms of freedom of speech
and expression. They are non-violent acts of persuasion. The rights to
make peaceful demonstration or taking out a procession or holding out
banners or arranging Public meeting, etc are democratic rights which the
Constitution of India has recognized, with reasonable restrictions.

Some recent cases related with freedom of speech and expressions

In the recent case of Re: Prashant Bhushan and Anr. , where a supreme
court Advocate Prashant Bhushan was charged with Criminal Contempt of
Court by a suo moto  cognisance of the apex court itself. The said advocate
had posted two tweets on twitter, one of which commented on photo of CJI
S A Bobde riding a fancy bike, and another which was a comment on the
role of four former CJIs in the last 6 years. While there were other issues
related to the case, one of them was whether the defence of right under
article 19(1)(a) could be taken or not. The Supreme Court deciding on the
matter on 31th August 2020, in its judgement observed “No doubt, one is
free to form an opinion and make fair criticism but if such an opinion is
scandalous and malicious, the public expression of the same would also be
at the risk of the contempt jurisdiction.”
In another case Arnab Ranjan Goswami v. Union of India and Ors ., where
the petitioner, who is a famous TV journalist filed a writ petition, under
article 32 of the constitution, in the supreme court, against number of FIRs
registered against him, which was infringement of his fundamental right to
freedom of speech and expression and that of liberty of press conferred
under article 19(1)(a) of the constitution. The FIRs were registered after
the journalist questioned the silence of Congress party’s president Mrs.
Sonia Gandhi over the Lynching of two sages in Palghar in his debate
show. The supreme court, in its judgement, while deciding the matter in
favour of the petitioner observed that, “The exercise of journalistic
freedom lies   at the core of speech and expression protected by Article
19(1)(a). The petitioner is a media journalist. The airing of views on
television shows which he hosts is in the exercise of his fundamental right
to speech and expression under Article 19(1)(a).”

Limitations to freedom of speech and expression

The right to freedom of speech and expression is not absolute and has been
reasonably restricted by the Constitution of India under Article 19(2). The
grounds for imposing these restrictions are:

Sovereignty and Integrity of India

India gained its sovereignty after 200 years of colonial rule and established
itself as an independent state wholly responsible for its internal affairs. Hence,
citizens have been restricted to make statements that can harm this hard-earned
sovereignty and hurt the integrity of the nation. This ground was added in 1963
through the Constitution (Sixteenth Amendment) Act to impose restrictions on
individuals or groups that were instigating secessionist movements in the
country. 

Security of the State

The government has the right to deny the freedom of speech and expression to
protect the security of the State. However, the threats against security must be
an aggravated threat to public order, such as rebellion, insurrection, waging war
against the State, etc.  
To maintain friendly relations with foreign states

In a globalized world with unequal power relations, maintaining positive

relations with neighbouring countries and other countries is significant. Hence,
if a person’s freedom of speech and expression threatens to hinder these
relations or harms the country’s international relations, it can be restricted. This
is essential to curb malicious actions by some to jeopardize the reputation of the
country.

Decency and Morality

One’s speech and expression must be decent and moral. It should not go against
the morals of contemporary society. Restrictions on freedom of speech and
expression imposed in the interest of decency and morality can be found
in Section 292 to Section 294 of the Indian Penal Code, they deal with content
that is deemed to be obscene. However, it must be noted that standards of
decency and morality evolve and change along with society and are not static.
The Hicklin test which originated in England is one of the tests to determine the
decency or morality of a publication by checking its effect on the most
vulnerable members of society. 

Contempt of Court

The judiciary holds great value in a democracy and hence to maintain its stature
and preserve public trust in the institution, free speech and expression can be
curbed. This is important to ensure that the courts are not vandalized or
jeopardized. Contempt of Court is punishable under Article 129 and Article
215 of the Constitution by the Supreme Court and High Courts respectively.
Defamation

Defamation is a criminal offence under Section 499 of IPC. The right to

freedom of speech and expression is not an ultimate license to defame another
person and hinder their reputation. Hence, the right to free speech and
expression does not provide anyone with the immunity to tarnish another
person’s reputation in society. If defamation is committed in the form of spoken
words, it is called slander, if the same is committed in a permanent form,
written or printed, it is called libel.

LANDMARK JUDGEMENTS OF SUPREME COURT OF INDIA:

Freedom of Speech and Expression: Judicial creativity, judicial wisdom and
judicial craftsmanship have widened the scope of freedom of speech &
expression by including in it the following aspects;-
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.
Conclusion
1. The Constitution of India assures several fundamental rights to a citizen
of India. One of these rights conferred is right to Freedom of Speech
and Expression under Article 19(1)(a) of the Constitution.
2. Right to freedom of speech and expression enables a person to express
his opinions freely with certain reasonable restrictions.
3. It is one of those rights which are indispensable in a democracy and is
guaranteed to all the citizens of India under Article 19(1)(a) of the
Indian Constitution.
4. It enshrines the principle of ‘liberty of thought and expression’ given in
the Preamble.
5. The right to freedom of Speech and Expression gives the Indian
Citizens the right to express their opinions and beliefs without any fear,
by modes of words, written or spoken, pictures, or any other
communicable or visual representation like gestures or signs.
6. It also includes the liberty to propagate one’s own views as well as the
right to  publish  the  views  of  other people.
7. However, the right to speech and expression is not an absolute right and
reasonable restrictions may be imposed by the State under Article 19(2)
of the Constitution.
8. Where Indian citizens have right to freedom of press, cinema, hold
demonstrations and perform activities so as to express themselves, all
these are subject to restrictions based upon sovereignty and integrity of
the country, security and safety of people, defamation and abuse,
decency and morality, perform contempt of court.
9. Where Indian citizens have right to freedom of press, cinema, hold
demonstrations and perform activities so as to express themselves, all
these are subject to restrictions based upon sovereignty and integrity of
the country, security and safety of people, defamation and abuse,
decency and morality, perform contempt of court.