Issue 2

Whether the PONS Act violates the fundamental right to freedom of

speech and expression in the Gokuldham Constitution.

Summary of Arguments

It is submitted that there is no violation of Fundamental Rights to freedom of speech and expression
by the provisions of the PONS Act.

Further the restrictions imposed are necessary for the public order to be maintained and duly fall
under the reasonable restrictions category of 19(2) and hence are not at all arbitratry.

Arguments Advanced

The respondents submit that where there is a reasonable apprehension to spreading antinational
content to the general public, reasonable restrictions can be imposed under Article 19 1 (2) of the
freedom of speech and expression for public good. In the case of The State of Bihar v. Shailabala
Devi (1952) - The State of Bihar banned the entry and circulation of a journal called "Swarajya"
within the state, claiming that it contained inflammatory content that could incite violence.

The Supreme Court upheld the ban, ruling that the state government had the authority to impose
such restrictions if they were necessary to prevent incitement to violence. The Court found that the
content of the journal was likely to disturb public order and hence justified the restriction.

The case highlighted that the government could restrict publications that posed a threat to public
order and security.

Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression as a
fundamental right for all citizens. The freedoms of speech, assembly, formation of unions, free
movement and residence across India as outlined in Article 19(1) are subject to restrictions set by
the Government under Article 19(2). ‘Reasonable restrictions’ as outlined in Article 19(2) of the
Constitution allows for restrictions in the interests of the security and sovereignty of India, friendly
relations with Foreign States, public order, decency or morality in the relation to contempt of court,
defamation or incitement to an offence.

The freedom to criticise and dissent are part of one’s broader freedom of speech, which is seen as
fundamental to the functioning of a democracy. If a state’s citizenry is not free to express
themselves, then their other civil and political rights are also under threat.

The freedom of expression, however, is paramount to the working of a democracy and it includes
the right to offend. For a little over half a decade, questions of whether “hate speech” can be
excused under the right to freedom of speech, have been raised by various quarters of society—
their stance often varying from one case to the other.

The freedom of press is also crucial to the functioning of participative democracy. In the absence of a
free press, citizens lose their ability to make informed decisions in a free and fair electoral process.
In conclusion,
“Intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for
centuries. But it is precisely in the ready acceptance of the right to dissent, as distinct from its mere
tolerance, that a free society distinguishes itself.”

—A G Noorani, 1999

Further, in this scenario shutting down of the further publication of the magazine hence comes
under the restrictions provided under 19(2), as it contained anti national content as submitted by
the respondents.

Morover, the Pre-trial detention of individuals accused of spreading anti-national content is a

sensitive area that involves balancing national security concerns with individual rights to freedom of
speech and personal liberty. In A.K. Gopalan v. State of Madras (1950)

A.K. Gopalan, a communist leader, was detained under the Preventive Detention Act, 1950, which
allowed the government to detain individuals without trial to prevent them from acting in a manner
prejudicial to the state.

The Supreme Court upheld the constitutionality of the Preventive Detention Act, emphasizing that
the right to personal liberty under Article 21 is subject to procedure established by law. However,
the Court also highlighted that such laws must comply with procedural fairness. The case laid down
the principle that preventive detention is permissible under the Constitution but must adhere to
procedural safeguards.

Another case discussing the same issue is of Joginder Kumar v. State of Uttar Pradesh (1994)

Joginder Kumar was detained by the police without any formal charges. The case raised questions
about the arbitrary use of arrest and detention powers.

The Supreme Court held that arrest and detention must not be arbitrary and that police officers
must follow due process and record reasons for the arrest. The Court laid down guidelines to
prevent misuse of power.

The said precedents can very well be linked here.

Also , the PONS Act provisions also mention the provisions for appeal and public safeguards
available to the general public at large.