Chapter 2 edom of Speech and Expression Article 19(1)(a) of the Constitution ‘Freedom’ is the condition of being free i.e. set at liberty. The Preamble ofthe Constitution of India promotes, “Liberty of thought, expression, belief, faith and worship’ Article 19(1)(a) of the Constitution provides that all citizens shall have a right to freedom of speech and expression. Section (2) of Article 19 of the Constitution of India provides that 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 interest 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. The freedoms guaranteed under Article 19(1) of the Constitution of India are available to Indian citizens only and not to an alien or a foreigner. A non- citizen cannot claim the fundamental rights of freedom guaranteed under Article 1). ‘Citizen’ under Article 19 means only a natural person and not legal person. A statutory corporation or a company registered under the Indian Companies. Act is a legal or artificial person but not citizen or natural person and, therefore, it cannot claim the right guaranteed under Art. 19 and consequently, cannot enforce these rights. Though a company cannot claim a right under Article 19, but the shareholders can claim the right guaranteed by Art. 19. ‘The fundamental rights guaranteed by Art, 19 are available against the State only. The ‘State’ in this context includes not only the legislative authorities of the Union and the States but also other local or statutory authorities e.g. municipalities, local bodies etc. within the territory of India or under the control of the Government of India. ‘The freedoms guaranteed in Art. 19(1) are not absolute or exhaustive, The clause (2) of Art. 19 recognizes the right of the State to make laws putting reasonable restrictions for the reasons set out in that clause, The freedom of expression guaranteed under Art, 19(1)(a) is subject to various limitations imposed for public good. The restrictions must be reasonable restrictions. Reasonable restriction on the freedom of speech and expression Art. 19(2) states that laws made by State to impose restrictions on freedom of press and expression should be reasonable. It is for the courts to decide as to what is reasonable. The court’s power in examining the question of reasonableness is unlimited. The court must determine the reasonableness of a restriction by objective standard and not by subjective one, In considering the reasonableness of legislative provisions restricting the exercise of fundamental 39 otaimieu wir LamScMedia Law and expression under AP. 19(1) py or speech ane ony Jor pe followin "Shy State Policy , , Knowledge; fa commor a e times: he facts “xground of # : Backs oee ous legistation: oraneo! Sat {reasonable restriction, Md -aning of ae ge the me . pt in view 2 Me reasonabl, the estiction must hay 1 in order the object which the legislation seeks to Bie eg excess of that object. e ess of a restriction has to be determined in an of and circumstances, 5 Reasonablen ei ef . ; maiiihe effect of @ 1aw which constitutes the 3, Ibis its objects whether good or bad is immatr it mh, reasonableness, rae ity of restriction, th judging the validity of restriction, the courts have neo * aan ‘irom the point of view of furthering the social ts jon to be valid must have a rational or Proximate 5, Arestricti A 3 per »” withthe grounds which the legislature is entitled to impose seapecf right to fredom of speech and expression i er Ail 19 ofthe Universal Declaration of Human Rigi «verre asthe rightto freedom of opinion and expression; this righting paescett hold opinions witout interference and to seek, receive an ‘redottion and ideas through any media and regardless of frontien™ Arise 1of he Interatonl Covenant on Civil and Polical Rig provides that * “(1 Everyone shall have the right to hold opinions without interterae (2) Everyone shall have the right to freedom of expression; thi righshg include freedom to seek, receive and impart information and ideas of lina regardless of frontiers, either orally, in writing or in print, in the form of aye through anyother media of his choice. __G) The exercise of the rights provided for in paragraph 2 of this re carries with it special duties and responsibilities. It may therefore be subj certain restrictions, but these shall 5 ‘ necessity; shall only be such as are provided by law a 4) For respect of the rights or reputations of others; : ; ? _Forthe protection of national security or of public order (ordre il oF of public health or morals”. otarmeu wit CamScFreedom of Speech and Expression a In India, according to Article 19(1 (a) of the Constitution, all citizens shall have the right to freedom of speech and expression. As per Section 19(2), the right to freedom and expression is subject to the restriction which may be imposed by the State. Art. 19(1\a) is based on the provisions of Amendment | of the Constitution of the USA which runs thus : “Congress shall make no law abridging the freedom of speech, or of the press.” Freedom of speech and expression is a bulwark of a democratic form of government. In Ramesh Thapar v. State of Madras, [AIR 1950 SC 124], it has been stated that, “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”. Freedom of “speech and expression’ means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s ideas through any communicable medium or visible representation, such as gesture, signs and the like. According to Halsbury’s Laws of England, the expression ‘freedom to express” incorporates both the right to receive and to express ideas and information and the secrecy of private communications. There are, however, constraints imposed by the law on this freedom with regard to the matters which broadly fall within the bonds of blasphemy, obscenity, sedition, treason, the official secrets Acts, insulting words or behaviour, incitement to racial hatred, contempt of Court and of Parliament and defamation. ‘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. It also includes the right to acquire and import ideas and information about matters of common interest. Freedom of expression has four broad special purposes to serve: i) ithelps an individual, to attain self-fulfilment; ii) it assists in the discovery of truth; iil) it strengthens the capacity of an individual in participating in decision making; and iv) itpprovides 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 beliefs and communicate them freely to others. There is no geographical limitation to the freedom of speech and expression, This freedom is exercisable not only in India but also outside India. In Maneka Gandhi v. Union of India, {AIR 1978 SC 597], the Supreme Court held that if the State action sets up barriers to its citizens freedom of expression in any country in the world, it will be taken as the infringement or violation of the freedom of ‘speech and expression, guaranteed by Article 19(1)(a). otaimieu wir CamScMedia Li ~ = Wayonr The fundamental principle involved in the right of freedom of speech a on is the ‘people's right to know’. In democratic countries with a gericipation of people inthe administration, Governments function with mere cautions in their actions. In Life Insurance Corporation of India v. Manubhai D. Shah, {(1992) 3. SCC 637], the Supreme Court examined the scope and extent of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, The Court said, “the words ‘freedom of speech and expression must be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio visual instrumentalities. It, therefore, includes the right to propagate one’s views through the print media or through any other communication channel e.g., the radio and the television. Every citizen of this country, therefore, has the right to air his or her views through the printing and or the electronic media subject, of course, to permissible restrictions imposed under Art. 19(2) of the Constitution. The print media, the radio and the tiny screen play the public education so vital to the growth of a healthy democracy. Freedom, to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and Gevelopments that have taken place and thereby educating the voters, ar considered significant for the vibrant functioning of a democracy. Therefor. any setup more so in democracy setup lke ours, dissemination of news and vie® for popular consumption is a must and any attempt to deny the same must frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. A citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or throu electronic media”. ki Tin this case, the Supreme Court observed that the right to propagate ov view through print media or through any other communication channel ©£-"% or television is included within the expression of the “freedom of speech expression’. Tn Odyssey Communication Lid. v. Lokvidayan Sanghatan. ee SC 1642}, Doordarshan rejected to telecast the film on the Bhopal G2°" titled “Beyond Genocide’, which was awarded the Golden Lotus being non-feature film of 1987. The Doordarshan refused to telecast the ©, ground that the contents were outdated and did not have relevane™ telecast. The respondent filed a writ petition challenging the of violation of his fundamental right under Article 19(1)(@)- ‘The Supreme Court has held that the right of a citizen to exh Doordarshan subject to the terms and conditions to be imPé Doordarshan is part ofthe fundamental right of freedom of spee< 82 by Art. 19(1)(a) and it can be curtailed only under © exUAL, Ch.3] Press in India 43 which are set under Art, 19(2). Here, it could not be proved that the films did not conform to the norms set by the Doordarshan and therefore refusal by the Doordarshan to exhibit the film was held to be violative of Art 19(1)(a). The court has held that Doordarshan being State controlled agency funded by public funds cannot deny the exhibition of the film on Doordarshan except on valid grounds. Scope of grounds for reasonable restrictions on the freedom of speech and expression Art. 19(2) of the Constitution provides that “Nothing in sub-section (9) of clause (i) (i.e., all citizens shall have the right to freedom of speech and expressions, 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 interest of — i) the sovereignty and integrity of India; ii) the security of the State; iii) friendly relations with foreign States; iv) public order; vy) decency or morality; or vi) in relation to contempt of Court; vil) defamation; or viii) incitement to an offence. 1. In the interest of integrity and Sovereignty of India The restriction can be imposed on the freedom of speech and expression in the interest of integrity and sovereignty of India. This restriction has been inserted in Art. 19(2) by the Constitution (Sixteenth Amendment) Act, 1963 wef. 5-10-1963. Accordingly, Parliament can make law so as to prevent any person from propagating secession of any part of India from the Indian Union. The expression ‘in the interest of” indicates that the restriction on freedom of speech and expression may be imposed not only when it disintegration of the country but also when it has tendency to cause disintegration of the country. This expression also indicates that the restriction imposed must have reasonable connection with the sovereignty or integrity of India, Section 124-A of IPC which punishes the crime of waging war against the State has been upheld as constitutional under this clause. 2. In the interest of Security of State In the interest of the security of state, reasonable restriction under Art 19(2) can be imposed on the freedom of speech and expression of a citizen. In State of Bihar v. Shashibala Devi, {AIR 1952 SC 329), th me Court hhas held that the terrn, rity of State’ means only to serious and aggravated forms of public disorder like rebellion or waging war against Indian Government. ocvatmeu wir LaMScaa Media Law se v In Ramesh Thapper v State of Madras, [AIR 1950 Sc 14) Weng Court has explained the words ‘Security of the State’ thus ral. ® Sure grades of offences against ‘public order’, Every public Tegarded as threatening the security of the State, The term refers only to serious an We ditt disorder ¢ if AHNOL fy CCUTILY Of the St garegated forms of public disorder. waging waragainst the State, insurrection and not ordinary breach ot gag and public safety e.g, untayeful assembly, riot, alfray icon In State of Bihar \. Shalibala Devi, [AIR 1952 SC 329}, it has bee that the speech or expression which incites to or encourages the commer Violent erimes like murder, no doubt, undermines the security ot Suman therefore, the re nd The expression ‘in the interest of” indicates that the restriction on freedom of speech and expression may be imposed not only when it actually caused serions public disorder but also when it has tendency to cause such effect. The expression ‘in the interest of” also indicates that the restriction must have reasonable and rational relation with the public order 3. Friendly Relation with Foreign State The restriction on the freedom of speech and expression is aimed at to prohibit unrestrained aganda against a foreign friendly State which may jeopardise the maintenance of good relations between India State. This ground has been added by the Constitution (First Aw 1951. According to Article 367(3) of the constitution ‘foreign S' State other than India, provided that, subject to the provisions of any law made by Parliament, the president may by order declare any State not to be a foreign State for such purpose as may be specified in the order’, The Constitution (Declaration as to Foreign States) Order, 1950 declares that a Commonwealth Country will not be treated as a Foreign State for the purposes of the constitution However in Jagan Nath v. Union of India, [AIR 1960 SC 675], the Supren® Court has made it clear that a Commonwealth Country is a ‘foreign’ Count) for the purposes of Article 19(2). Foreign Relations Act (XII of 1932) provides punishment for libel by Indian Citizen against foreign dignitaries, Similarly, the Foreign Recruiting Act (IV °! 1874) empowers the Executive to prohibit recruitment of any citizen of India® the army of foreign States. But the interests of friendly relations with fore!s? States, would not justify the suppression of fair criticism of foreign policy of Government. 4. Public Order The term ‘public order’ is an expression of wide connotation and sigh!" “that state of tranquillity which prevails among the members of political °° 85 a result of internal regulations enforced by the Government which they established, ‘The concept ‘public order’ includes every ordinary breach of Publ order like riot, affray but the concept ‘security of State’ refers only t0 8°" riction on such speech or expression will be justified and the Foreign ndment) Act ocdiIicUu WILT vansScwag Freedom of Speech and Broression 4s sad aggrrvatad Roms of peblic disorder like overthrowing the State or waging ‘war againet the Stme etc. Pubic orders something more than ordinary maintenance of law and order. “Pablic onder” ik qunonymoes with Public peace’, sate order implies absence of violence and an orderly state of: cam peacefally purser ther normal avocation of life. ‘Tee sition on feedim of sqeech and exprescion on the ground of public eeder was added by the Comsination (Firs Amendment) Act, 1951 to meet the Stauton froma the Gacision of the Sopreme Court in the case of Romesh Thaper = Suaray Madras [AIR 1950 SC 124). Ia this case the Supreme Court struck Sosma ew banning the catry of a journal in the State of Madras in the ‘interest st pubic order” became Article 19(2) did not contain the expression ‘public seder’~ To meet Gh ution arising from this decision the expression ‘public cue” was ixexied im Art 19(2) by the Constitution (First Amendment) Act, BSL 3s Magia: Limave x SDM. [AIR 1971 SC 2486), Section 144 of CrPC. ‘Stach capowers the Magistrate to ban processions, meetings etc., has been ‘neld to be valid ws the ground Ghat it is done in the interest of public order. Asytiing that Gisexrbs pabtic tranquillity oc public peace disturbs public (ged Tims puitiic onder implies absence of violence and an orderly state of affairs Se sch tees com pea flly poree their normal avocation of life. Ie Weenies = Stee of Parsich, [AIR 1958 SC 986]. the legislation to Prevear the ince of ftciies of hatred between different sections of the SOY is proteceed ender At 1912), Amer ciicinm of Goverment [Jamal ». State of Mysore, AIR 1966 SC 1GS7] or scamous zack spon the character and ineearity of 2 judze [Sadho Sambar © Ste of Peps AIR 1954 SC 276], bes no rational connection with he pablic onder. 4a Kixtori Mohan ». State of West Bengal, [AIR 1972 SC 1749}, the ‘Supreme Conn hes bold that cvery infraction of laws amst necessarily affect onder bat not cocssarily peblic ores, and 2n act may affect public order, but ‘not necessarily seomrity of state. The word “sedition’ is not mentioned in clause (2) of Art 19 2s one of the fronds os miich restriction on freedom of speech and expression may be Seesed Is Kedar Nath ». State of Bihar, [ATR 1952 SC 955], it has been held shat Secticas 12+ A IPC is constitutionally valid in the interest of public order #6 tic conn farther held thatthe gist ofthe offence of sedition is that the words ‘Stites or spoken have tendency or intention of creating public disorder. otatmeu wir GamSc- a Media Law —_———— “ i uy, 5. Decency or morality ty ‘The words ‘decency and morality’ are words of wide meaning sindeceney is identical withthe word ‘obscenity’ of English lay pW bscenity is ‘whether the tendency of matter charged as obscene jg yt snd corrupt those whose minds are open to such immoral influences Sy whose hands a publication of this sort is likely to fall fn R.v. ieklin. tine 360), it has been laid down that a publication is obscene if it tendg 11°20 lascivious thoughts and arouses lustful desire in the minds of substantia ree of that public into whose hands the book is likely to fall UMbe Sections 292 to 294 of IPC provide instances of restrictions o| speech and expression in the interest of decency or morality. But it down any test for determining the obscenity. In Ranjit Udeshi v. State of Maharashtra, [AIR 1965 §c Supreme Court followed the test laid down in English case of R.V, Hi 3 QB 360] and held the novel ‘Lady Chaterley’s Lover’ was an obs, as it had the tendency to corrupt the minds of those who read it, freedom y does not 881, 4 ikl, SCENE book However, the Rule laid down in R.V. Hicklin a vague and arbite Standard for judging decency and morality has to be put forth. But, nog. standard can be laid down as to what is moral and indecent. The standart morality varies from time to time and from place to place. Now, itseems justia, not to follow the rule laid down nearly hundred years ago by an English Judge « R.V. Hicklin and follow the present day changed circumstances in Indian Sccey 6. Contempt of Court ‘ Restriction on the freedom of speech and expression can be imposed fj amounts to contempt of court. Section 2 of the Contempt of Courts Act, 1971 defines the term ‘Conten of courts provides that “contempt of Court may be either ‘civil contempt’ ¢ “Criminal contempt’. ‘Civil Contempt’ means wilful disobedience to any judgmen, decree, direction, order, writ or other process of a court or wilful breach of i undertaking given toa court. ‘Criminal Contempt’ means the publication (whethe by words spoken or written or by signs or by visible representations or othenvi) or any matter or the doing of any other act whatsoever, which— i) scandalises or tends to scandalise or lowers or tends to lower te authority of any court; ii) prejudices or interferes or tends to interfere with the due coursed! any judicial proceedings; or iil) interferes or tends to interfere with, or obstructs or tends to obstret the administration of justice in any other manner.” However, the following acts are not contempt of courts. Publication and distribution of any matter. lication of fair and accurate report of judicial proceedings ocdiIicu Will vamsSc¢ut, Ch.2) Freedom of Speech and Expression a7 3. Fair criticism of judicial act. 4, Complaint against Presiding Officers made in good faith 5. Publication of fair information relating to proceedings in in camera [Articles 125 and 215 of the Indian Constitution authorise the Supreme Court and the High Court respectively to punish for their contempt. In C.K. Daphtari 1. O.P. Gupta, [ATR 1971 S.C. 1132], the Supreme Court ruled that a law relating to contempt imposes reasonable restrictions on the right guaranteed by Article 19(1)(a). In E.M.S. Namboodiripad v. T.N. Nambiar, [AIR 1970 SC 2015), the Court held that Namboodiripad’s charge that judiciary is an instrument of oppression and the judges were guided and dominated by class hatred had effect of lowering the prestige of the judges and Courts in the eyes of the people and, therefore, amounted to contempt of court. In Arundhati Roy, In re, [AIR 2002 SC 1375], the Supreme Court has held that maintenance of dignity of court is cardinal principle of the rule of law. The criticism which undermines the dignity of the court cannot be permitted under cloak of freedom of speech and expression. . In Mulgaonkar (in re), [AIR 1978 SC 727], guidelines for the use of contempt of court law have been laid down as given below: 1, Economic use of this jurisdiction is desirable. 2. Harmonisation between free criticism and the judiciary should be the goal. 3. Confusion between personal protection of a libelled judge and prevention of obstruction of public justice should be avoided. 4, _ Press should be given free play within reasonable limits, even when the focus of its critical attention is the court. 5. Judges should not be hypersensitive, even where distortions and criticism overstep the limits. 6. If, after taking into account all these considerations, the Court finds contempt of court beyond condonable limits, then the strong arm of the law must be used in the name of public interest and public justice. According to Justice Krishna lyer, ‘justice’ and not judge should be the keynote and creative legal journalism and activist statesmanship for judicial reform cannot be jeopardized by an undefined apprehension of contempt action. Jn Rama Dayal Markarha v. State of Madhya Pradesh, (AIR 1978 SC 921], it was observed that the path of justice is not strewn with roses and justice ing not a cloistered virtue, it must be allowed to suffer the scrutiny and Fespectful, even though outspoken, comments of ordinary man. Hence in recent Cases, the court has adopted a liberal attitude towards contempt of court (PN. Duda ¥, P. Shiv Shankar, AIR 1988 SC 1208]; Conscientious Group ¥- Mohammad Yunus, AIR 1987 SC 1451 etc.] otaimeu wir GamScUh) Media iow 7, Defamation A Bintement whieh Injures & Man's reputation ainounty y Defariation conelite in expowiig aman ta hatred, Ndicule oy made hy Mate (to impose reasonable festriction on freediy expreasion in relation to defamation are protected under An jy) No par Gin 0 eR ETEINE Hid Freedorn of speeeh aid expression us to injure the rept af another person, In Printers Mysore & Avsitant Commen ial Lay Office ((1004) 2. NCC 494), iL than been held that the press is net ininune from th Jaw of lability for defamation Aections A99 and 500 of IPC define defamation which means exposings Win 10 Hatred, Contempt or ridicule. These sections wre constitutional ws they Iinpone Fensonable restrictions an the fre Wawa penallning the defamation are reasonable restriction on the freedon ol hpeech And expression and, therefore protected under Art, 19(2) of the Constitition, 8. Inclement to commit an offence ‘The ground of incitement to commit an offence 5 freedom of speech and expression was added by the Constitution (fit Amendment Act, 1951), The right freedom of speeeh and expression ie NOL BIVe permlasion to citizens to incite a person to comunit un offence The ve ‘offence’ haw not been defined in the Constitution, According to the Ge ne Cliunes Act, the word ‘offence! means Any wet oF omission made punishibl by laws: Thus, a perron cannot be allowed to instigate another person to 00 Hot made punishable by law, What constitutes incitement will, however, lave fe bo determined by the Court with reference to the fuets and circumstances 4 ouch cane, |n Kedar Nath ¥, State of Bihan, [ALR 1962 $C. 955}, it has been ld that mere instigation not to pay tax may not necensari ly amount to incitemen! an offence, Reasonableness of restrictions on the freedom of speech and MitenigA ener mn of speech und expression, Te rentriction on (he Art. 192) states that laws made by of press and expression should be reas what is reasonabl ; a ecdo State to impose restrictions on freed” nable, It is for the courts to decide a le. The court's p in examini jon of right OF eno epiaative Provisions restricting the exercise of fundameo! ino ceaniaeren Speech and expression under Art, 19(1) the courts may take ion the following, Directive Principles of State Policy; %) Matters of a Common Knowledg, iil) History of the times; : otatmeu wiur LamScUi, Ch} Freedom of Speech and Expression 49 iv) Background of the facts and circumstances; v) Contemporaneous legislation. Inorder to judge the meaning of reasonable restriction, the following aspects of the matter be kept in view: 1. In order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object. 2. Reasonableness of a restriction has to be determined in an objective manner; 3. It is the effect of a law which constitutes the test of its reasonableness, its objects whether good or bad is immaterial for this purpose. 4, Inadjudging the validity of restriction, the courts have necessarily to approach it from the point of view of furthering the social interest. 5. A restriction to be valid must have a rational or proximate relation with the grounds which the legislature is entitled to impose. Scanned with CamSc