Assignment

BA LLB 204 - Constitutional Law - II

Topic:– Emerging trends in Right to Freedom
of speech and expression in India
PSDA – 1

Submitted by: Submitted to:

Student Name Faculty Name

Jivitesh Singh (3316503820) Dr. Ravinder Kumar

Rishi Raj (5416503820)
Rishabh (5316503820)

Course: B.A. LL.B.

Semester: Fourth

UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES

Guru Gobind Singh Indraprastha University
Dwarka, Sector-16C, New Delhi-110078

Spring 2022
Contents
1 Introduction 1

2 Necessity of Freedom of Speech and Expression 2

2.1 Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3 Earlier Interpretation of Article 19(1)(a) by Judiciary 3

3.1 Pre-censorship of Journal Invalid . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Freedom of Press Includes Freedom of Circulation . . . . . . . . . . . . . . . . . 3
3.3 Commercial Advertisements Are Not Part of Article 19(1)(a) . . . . . . . . . . . 3
3.4 Peaceful Demonstration Permitted, but Strike Prohibited Under Article 19(1)(a) 3
3.5 Film Censorship Is Valid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

4 Latest Interpretation of Article 19(1)(a) 4

4.1 No excessive taxes on press . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Freedom of speech include the right not to speak . . . . . . . . . . . . . . . . . . 4
4.3 Commercial advertisements are included in article 19(1)(a) . . . . . . . . . . . . 4
4.4 No right to call or enforce bandh, hartals and blockades . . . . . . . . . . . . . . 5
4.5 Right of the voters to know the antecedents of the candidates at election . . . . 5
4.6 Right to fly the National Flag . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.7 Right of the examinee to have access to evaluated scripts . . . . . . . . . . . . . 5
4.8 Article 19(1)(a) and trial by media . . . . . . . . . . . . . . . . . . . . . . . . . 5

5 Conclusion 6

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 Abstract

Freedom of speech and expression is the life line of democracy. It has been recognized
as a fundamental right under the Indian Constitution. This freedom is available to Indian
citizens only and casts a restriction on the state not to unnecessarily meddle with this vital
freedom, except the imposition of reasonable restrictions mentioned under the Constitution.
The judiciary in India, particularly the apex court, has interpreted this freedom giving it
a wider connotation by covering various facets of this basic freedom. The objective of
the present paper is, therefore, to analyze the various interpretations of freedom of speech
and expression given by the highest court. An attempt has also been made to examine the
expansionist approach of the Supreme Court towards this freedom, during previous decades,
commencing since the adoption of Indian Constitution, by studying important case laws.
The present study is doctrinal in nature and is based on secondary data gathered from
various sources such as books, journals, reports etc.

1 Introduction
The freedom of expression and speech is a cornerstone of the Indian Constitution. It is the
basic and fundamental premise that underpins all democracies across the world. The right
to free expression is the bedrock of democratic government. This independence is required
for the democratic process to work properly. The freedom of expression and speech is seen
as the fundamental requirement of liberty 1 . It has a preferential place in the hierarchy of
freedoms, providing assistance and protection to all other liberties. It is true that it is the
mother of all other liberty. Soon after the Constitution’s inauguration, India joined the long
line of democracies whose institutional values were put to the test against the government of
the day2 . Our Constitution followed the model set by the United States and included essential
rights in the document itself3 . Article 19 of the Indian Constitution provides people of India
six essential rights that they can exercise throughout and in all regions of India’s territory. The
rights specified in article 19(1) are those fundamental and fundamental rights that are regarded
as natural rights inherent in citizenship4 . According to article 19(1)(a), all citizens have the
right to free expression and expression. As established in Article 12 of the Indian Constitution,
a non-citizen cannot assert this privilege, which is accessible solely against the state5 .
1
M.P. Jain, Indian Constitutional Law, Lexis Nexis, Haryana, 6 th edn., 2013, p. 1078.
2
Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University
Press, New Delhi, 2012, p. 38.
3
H.M. Seervai, Constitutional Law of India, Universal Law Publishing Co. Pvt. Ltd., New Delhi, Vol. 1, 4 th
edn., 2013, p. 349.
4
Mahendra P. Singh, Constitution of India, Eastern Book Company, Lucknow, 11 th edn., 2012, p. 118.
5
Kailash Rai, The Constitutional Law of India, Central Law Publications, Allahabad, 11 th edn., 2013, p.
219.

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2 Necessity of Freedom of Speech and Expression
The fundamental rights stated in Article 19 are not always and in all cases mutually supporting,
but when considered collectively, they weave a fabric of a free and equitable democratic society6 .
In a democracy, freedom of speech and expression allows for open debate of topics. Freedom of
expression is critical in shaping public opinion on social, political, and economic issues. Since
the 1950s, the Supreme Court has interpreted freedom of speech and expression, as well as the
equality clause and the protection of life and liberty, quite liberally. It has been variably referred
to as a ”fundamental human right,” a ”natural right,” and other terms. It encompasses within
its scope the freedom of idea propagation and exchange, distribution of information that aids in
the formation of one’s opinion and point of view, and discussions on matters of public interest7 .
C.J. Patanjali Sastri observed in Romesh Thappar v. State of Madras8 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.” J. Bhagwati underlined the importance of free speech and expression
in Maneka Gandhi v. Union of India9 , stating “Democracy is based essentially on free debate
and open discussion, for that is the only corrective of government action in democratic set up. If
democracy means government of the people, by the people, it is obvious that every citizen must
be entitled to participate in the democratic process and in order to enable him to intelligently
exercise his right of making a choice, free and general discussion of public matters is absolutely
essential.”

2.1 Meaning
19th Article (1) (a) ensures two rights: (a) freedom of speech and (b) freedom of expression.
The right to freely communicate one’s opinions, thoughts, convictions, sentiments, or emotions
to others through spoken utterances is referred to as freedom of speech. Freedom of expression
entails the ability to completely convey one’s opinions to others through writing, art, signage, or
any other visible medium. It also involves press freedom. A democratic government places a high
value on this freedom because without it, the appeal to reason, which is the foundation of democ-
racy, cannot be made. It promotes the generation of new ideas and information, the discovery
of truth, the development of tolerance and receptivity, and is necessary for self-government10 . It
does not imply that one has the right to speak whatever, whenever, and wherever one wants.
6
Durga Das Basu, Shorter Constitution of India, Lexis Nexis Butterworths Wadhwa, Nagpur, Vol. 1, 14 th
edn., 2012, p. 247.
7
Supra note 1.
8
AIR 1950 SC 124 at 128.
9
AIR 1978 SC 597.
10
Supra note 4 at p. 124.

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3 Earlier Interpretation of Article 19(1)(a) by Judiciary
The Supreme Court of India has interpreted the expression freedom of speech and expression
in a broader sense since the 1950s, but it was only after the 1980s that the apex court truly
broadened its ambit by adopting an expansionist approach, covering various aspects and giving
new dimensions to this vital freedom. The Supreme Court previously interpreted this freedom
as follows:

3.1 Pre-censorship of Journal Invalid

In the case of Brij Bhushan v. Delhi11 , the Supreme Court held 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 right to freedom of speech and expression declared by article
19(1)(a).”

3.2 Freedom of Press Includes Freedom of Circulation

In Romesh Thappar v. Madras,12 the apex court held that, “. . . there can be no doubt that
freedom of speech and expression includes freedom of propagation of ideas, and that freedom is
ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as
the liberty of publication. Indeed, without circulation, the publication would be of little value.”

3.3 Commercial Advertisements Are Not Part of Article 19(1)(a)

In the case of Hamdard Dawakhana v. Union of India13 , Supreme Court held that an advertise-
ment promoting drugs and commodities, the sale of which is not in public interest, could not be
regarded as propagating any idea and, as such, could not claim the protection of article 19(1)(a).

3.4 Peaceful Demonstration Permitted, but Strike Prohibited Under

Article 19(1)(a)
The Supreme Court ruled in Kameshwar Prasad v. State of Bihar14 that while orderly protests
are protected by article 19(1)(a), those that threaten public order are not (a). Restriction on
any sort of demonstration, whether violent or nonviolent, violates the right to free expression.
The court, however, ruled that there was no basic right to strike.
11
1950 SCR 605 at 608.
12
1950 SCR 594 at 597.
13
AIR 1960 SC 554.
14
AIR 1962 SC 1166.

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3.5 Film Censorship Is Valid
In the case of K.A. Abbas v. Union of India 15 , the Supreme Court supported cinema censorship
under article 19(1)(a) on the grounds that films must be treated separately from other forms of
art and expression since a motion picture may elicit more intense emotions than any other form
of art. As a result, a film can be prohibited for the reasons specified in article 19(2).

4 Latest Interpretation of Article 19(1)(a)

4.1 No excessive taxes on press
The Supreme Court underlined in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of
India 16 that the government should be more cautious when levying taxes on items impacting the
newspaper sector than when levying taxes on other matters. The court ruled that the journal
had not been given tax exemption. The exercise of taxing authority, on the other hand, should
be scrutinised by the courts. The application of a tax, such as the customs duty on newsprint,
the court stated, was an imposition of a tax on knowledge and would essentially amount to a
penalty placed on a man for being literate and mindful of his obligation as a citizen to teach
himself of the world around him.

4.2 Freedom of speech include the right not to speak

The Supreme Court ruled in Bijoe Emmanuel v. State of Kerala17 that no one may be forced
to sing the National Anthem if he had genuine conscientious objections based on his religious
beliefs. The court also stated that the youngsters did not violate the Prevention of Insults to
National Honour Act of 1971 since they stood respectfully while the national anthem was sung
at their school. As a result, it is possible to argue that freedom of expression includes the right
not to express.

4.3 Commercial advertisements are included in article 19(1)(a)

The Supreme Court concluded in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. 18
that ’commercial speech’ is part of the freedom of speech and expression guaranteed by article
19(1)(a), and that the protection of the aforementioned article cannot be denied just because it
is published by a businessman. The court said unequivocally that the general public has a right
to hear commercial communication. In relation to the Supreme Court’s decision in the Hamdard
Dawakhana case in 1960, the verdict was confined to offensive advertising.
15
AIR 1971 SC 481.
16
AIR 1986 SC 515.
17
AIR 1987 SC 748.
18
AIR 1995 SC 2438.

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4.4 No right to call or enforce bandh, hartals and blockades
In Communist Party of India v. Bharat Kumar19 , the Supreme Court ruled that there was no
right to call or enforce bandhs that interfered with other citizens’ enjoyment of basic freedoms,
incurring national damage in a variety of ways. No political party or group may claim the right
to halt the whole state or nation’s economy and trade.

4.5 Right of the voters to know the antecedents of the candidates at

election
The Supreme Court concluded in Union of India v. Association for Democratic Reforms 20 that
the right of a voter to get substantial information about a candidate fighting election for a post,
which was critical in a democracy, was implied in the freedom of expression protected by article
19(1)(a).

4.6 Right to fly the National Flag

In Union of India v. Naveen Jindal21 , the Supreme Court ruled that the freedom to display the
national flag freely and with dignity is enshrined in article 19(1). (a). As long as the statement
is limited to nationalism, patriotism, and love for the homeland, the usage of the national flag
to express those feelings is a basic right. It cannot be used for commercial or other purposes.

4.7 Right of the examinee to have access to evaluated scripts

The Supreme Court ruled in Secretary, West Bengal Council of Higher Secondary Education
v. Ayan Das22 that courts should not normally order the production of answer scripts to be
inspected by examinees unless a case was made out to show that either some questions had not
been evaluated or the evaluation had been done contrary to the norms set by the examining
body.

4.8 Article 19(1)(a) and trial by media

In Sidhartha Vashisht v. State (NCT of Delhi)23 , the Supreme Court stated that the print and
electronic media should make every effort to ensure that the difference between trial by media
and trial by informatics media is always preserved. Trial by media should be avoided, especially
when the suspect is entitled to constitutional protection. According to the court, the trial by
media not only hampered fair investigation but also amounted to a travesty of justice.
19
AIR 1998 SC 184.
20
AIR 2002 SC 2112.
21
AIR 2004 SC 1559.
22
AIR 2007 SC 3098.
23
AIR 2010 SC 2352.

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5 Conclusion
Freedom of expression and speech is the most basic and essential freedom in the Indian demo-
cratic system. Any attempt to choke or muzzle this freedom will be the death knell for democracy,
as democracy cannot exist without it. The Supreme Court of India has taken an expansionist
approach to freedom of speech and expression, broadening its scope by thoroughly examining
numerous facets of it in order to truly give meaningful interpretation to this essential right. It is
critical to the rule of law and citizens’ freedoms. However, it should be noted that this freedom
is not absolute and can be curtailed by the state by imposing reasonable restrictions, and only
on the grounds mentioned under article 19(2).