Freedom of Speech and

Expression
CONSTITUTIONAL STATUS OF THE MEDIA
 Ramlila Maidan Incident,re(2012) 5 SCC 1

• The freedom od speech and expression is regarded as the first condition of

liberty. It occupies a preferred position the hierarchy of liberties, giving succour
and protection to all other liberties. It has been truly said that it is the mother of
all other liberties, freedom of speech plays a crucial role in the formation of
public opinion on social, political and economic matters. It has been described as
basic human right.
• With the development of law in India the right to freedom of speech and
expression has taken within its ambit the right to receive information as well as
the right of press.
U.S.A. – Amendment I

• Liberty of the press

• The USA constitution, which says "congress shall make no law ... abridging the
free”
• Douglas J. in Terminiello v. Chicago, 337 U.S. 1.
• Mills v. Alabana, 384 U.S. 214
• Art. 19 UDHR - Everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of
frontiers.
 CONSTITUENT ASSEMBLY DEBATE

• Damodar Swarup Seth moved art. 13 with changes

• Subject to public order or morality the citizens are guaranteed–
• (a) freedom of speech and expression;
• (b) freedom of the press;
• (c) freedom to form association or unions;
• (d) freedom to assemble peaceably and without arms;
• (e) secrecy of postal, telegraphic and telephonic communications.
• The present is the age of the press and the press is getting more and more powerful today. It
seems desirable and proper, therefore, that the freedom of the press should be mentioned
separately and explicitly.:
• K.T. Shah : subject to the other provisions of this article, all citizens shall have the right-- (a) to
freedom of speech and expression; of thought and worship; of press and publication
• The freedom of the press, as is very well known, is one of the items round which the greatest, the
bitterest of constitutional struggles have been waged in all constitutions and in all countries
where liberal constitutions prevail. They have been attained at considerable sacrifice and
suffering. They have now been achieved and enshrined in those countries. Where there is no
written constitution, they are in the well established conventions or judicial decisions. In those
which have written constitutions, they have been expressly included as the freedom of the press.
• Dr. B.R. Ambedkar : The press is merely another way of stating an individual or a citizen.
• The press has no special rights which are not to be given or which are not to be given or which
are not to be exercised by the citizen in his individual capacity.
• The editors of press or the manager are all citizens and therefore when they choose to write in
news paper they are merely exercising their right of freedom of speech and expression and in my
judgment therefore no special mention is necessary of the freedom of press at all.
• Preamble: resolves to secure for the citizens of India, liberty of thought, expression and belief
• Article 19(1)(a) : All citizens shall have the right- to freedom of speech and expression
• Art. 19(2) : Reasonable restriction
• M.S.M. Sharma v. Sri Krishna Sinha (Searchlight case) : AIR 1959 SC 395 – A non-citizen running
a newspaper is not entitled to the FR to freedom of speech and expression. The liberty of press in
India stands on no higher footing than the freedom of speech and expression.
• Romesh Thappar v. State v. Madras – AIR 1950 SC 124
 The supreme court struck down section 9 (1) (A) of the madras maintenance of Public order act
of1949
• Brij Bhushan v. State of Delhi, A.I.R. 1950 S.C. 129
 The supreme court declared unconstitutional an order issued under section 7(1)(c)of the East Punjab
safety act of 1950 which directed the editor and publisher of the newspaper organiser to submit for
scrutiny, in duplicate and before publication, all communal matters and news and views about
Pakistan, including photographs and carto
• In State of Bihar v. Shailabala, 1952 SCR 654 - a pamphlet entitled ' Sangram ' (revolution) was
printed at the respondent's press and allegedly circulated in a b]Bihar town. The leaflet, written in
Bengali, contained a clear invocation to the reader to join an all- out, deadly struggle to bring about a
violent revolution that was to result in complete annihilation of, those whom the writer considered
oppressors, perpetrators of wrongs and injustices; (ii) participants in parochial national politics; and
(iii) persons who disgraced the motherland. The government of the State of Bihar determined that the
pamphlet contained objectionable matter, under section 4(1)(a) of the Indian Press (emergency
powers) act of 1931and ordered the press to furnish security of Rs. 2,000, as authorized by section
3(3) of Act. – Patna HC 13 Oct 1950
• Article 19(2) only allowed the government to impose limits on free speech if the speech in question
was likely to have a tendency to “overthrow” the state.
•  “Public order” (a term which Ambedkar had tried to bring into the constitution, from Motilal Nehru’s
report and the Irish constitution) was not an enumerated exception to the right to free speech,
• The above noted decisions acknowledging freedom of the press did not find
favor with the government
• Amendment provided for three additional grounds that would permit the
imposition of legislative restrictions, namely, (1) friendly relations with foreign
states; (2) public order; and (3) incitement of an offence.
• Article 19(2) was further amended via the constitution (sixteenth amendment)
act of 1963- the sovereignty and integrity of India
 Facets of Speech and Expression under Art. 19(1)(a)

• Right to circulate :
o Sakal Papers(P) Ltd. V. U.O.I., AIR 1962 SC 305
o Bennett Coleman & Co. v. U.O.I., (1972) 2 SCC 788
o LIC v. Manubhai D. Shah, (1992) 3 SCC 637

• Right to dissent
o Romesh Thappar v. State of Madras, AIR 1950 SC 124
o Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955
o S. Khushboo v. Kanniammal, (2010) 5 SCC 600
o Rule of majority is an integral part of democracy but majoritarianism is the antithesis of democracy.
• Right to portray social evil
o Anand Patwardhan, (2006) 8 SCC 433
o Mahesh Bhatt v. U.O.I., (2009) 156 DLT 725
o K.A. Abbas v. U.O.I., (1970) 2 SCC 780
o Bobby International v. Om Pal Singh Hoon, (1996) 4 SCC I

• Right to advertise : Tata Press Ltd. v. MTNL, (1995) 5 SCC 139

• Right to broadcast : Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC
410.
 Morality, Obscenity and Censorship
• Exceptions to freedom of speech and expression- Decency and morality – Art. 19(2).
• S. 292-294 IPC,1860- sale, letting to hire, distribution of obscene material an offence, punishable
with imprisonment and fine.
• The Cinematograph Act, 1952 – s. 5-B, s 4 and 5-A prohibits the certification of a film by the
Censor Board for public exhibition, if the film or any part of it is against the interest of morality
and decency.
• The Dramatic Performances Act, 1876 s. 3(c), s. 6 – empowers the government to prohibit public
dramatic performances on the ground of obscenity and visits the disobedience of a prohibition
with imprisonment.
• The Customs Act, 1962 – s. 11(b)- empowers the government to prohibit or impose conditions on
the import or export of goods in the interest of decency and morality.
• The Post Office Act, 1898 – s. 20 prohibits the transmission, by post, of any material on the
ground of decency or obscenity.
• The Indecent Representation of Women (Prohibition) Act, 1986 – ss. 3-6 prohibits the indecent
representation of women through advertisement or other publications.
• The Young Persons (Harmful Publications) Act, 1956 – ss. 3-7 prohibits publication which could
corrupt a child or young person and incite him to commit crimes of violence or cruelty etc.
• The IT Act, 2000- the publication and transmission in electronic form of material which is
lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it. S. 67
 Meaning of decency and Morality

• Vague and elastic

• Evolve with time and social change
• Vary between different cultures
• Wide interpretation – not confined to sexual morality
• Shri Chandrakant Kalyandas Kakodkar v. State of Madras & Other, (1969) 2 SCC 687
 Indecency and obscenity

• Expressly prohibited by s. 292(1) IPC

• Obscenity – if it is lascivious or appeals to the prurient interest or if it its taken as whole deprave
and corrupt person who are likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it.
• Obscenity is used to describe expressions that offend prevalent sexual morality
• Indecency is wider than obscenity
• Indecent merely means non-conformance with accepted standards of morality, obscenity refers to
that which is prurient or lascivious
• To be considered obscene requires three elements:
– the material appeals to prurient interest;
– the material is “patently offensive” in the community; and
– the material lacks redeeming social value.
• Obscene refers to material which “the average person applying contemporary standards would
find that, taken as whole, appeals to the prurient interset. ”
 Obscenity, Vulgarity, Sex and Nudity

• Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289.

• Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1
• Maqbool Fida Husian v. Raj Kumar Pandey, 2008 Cri LJ 4107 (Del).
• Strict Liability in case of obscenity
 Test of Obscenity

• No uniform test – case to case basis

 Hicklin’s Test
The Likely Audience Test
Literary merit and prepondering social purpose
The aversion defence
Contemporary/national standards
Judging the work as a whole, Test of the ordinary man
 Hicklin test
• The Hicklin test is an obscenity standard that originated in an English case.
• Obscene Publication Act,1857
• In Regina v. Hicklin (1868), Lord Chief Justice Alexander Cockburn
• Whether the tendency of the matter is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort may fall.
• Effect of the publication on the most vulnerable members of society.
• Whether or not they were likely to read it or not
• Hicklin allowed portions of a suspect work to be judged independently of context.
• If any portion of a work was deemed obscene, the entire work could be outlawed.
 Ranjit D. Udeshi v. State of Maharastra
(1965) 1SCR 65
• Appellant partner of a firm – a book-stall in Bombay- Happy Book Stall
• Prosecuted under s. 292 IPC.
• Book Lady Chatterley’s Lover
• When everything said in its favor we find that in treating with sex the impugned portions viewed
separately and also in the setting of the whole book pass the permissible limits judged of from
our community standards.
• There is no social gain to us which can be said to preponderate.
• The judges had indicated that the concept of obscenity would change with the passage of time
and what might have been obscene at one point of time would not be considered as obscene at a
later period.
• Even though the case is heavily criticized for having curtailed the freedom of speech and
expression, this observation in the case stands out to show how the community standards
mattered even then
• Section 292 of the Indian Penal code requires any material which is in question to be ‘taken as a
whole’. When the material is taken as a whole, if it is lascivious and tends to deprave and corrupt
persons who read, see or hear the matter contained.
• The Hicklin test is in contravention of IPC as the former requires the passages to be seen in
isolation
 Bobby Art International v. Om Pal Singh Hoon
(1996) 4 SCC 1

• ‘She is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of breasts and
genitalia to those men is intended by those who strip her to demean her.’
• The portrayal of the tragic story of dacoit Phoolan Devi in Bandit Queen fell in a legal battle when a criminal case of obscenity was filed against the
makers.
• The petitioners objected to some scenes depicting nudity and violence in the movie and claimed that they were obscene, lascivious, and would
corrupt and deprave the minds of the viewers and hence, a criminal act under section 292 of the IPC.
• The scenes depicting nudity must not be seen in isolation. They must be seen in the context or the background in which they (film, portrait, writing,
and photograph) are made.
• The message being conveyed through the portrayal is of utmost importance when deciding the obscenity of an act. The movie Phoolan Devi depicts
the social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit.
• The object of the scenes was not to titillate the cinemagoer’s lust but to arouse in him the sympathy for the victim and disgust for the perpetrators.
‘Nakedness does not always arouse baser instinct.’
Boris Beckar and Barbara Feltus
• In 1994, German magazine STERN published an article with a picture of Boris Becker, a world
renowned tennis player and his dark-skinned fiancée, German actress Barbara Feltus.
• In the picture, both Becker and Feltus were naked and he had put his arms around her in a
manner to cover her breasts with his palms.
• The article states that, in an interview, both spoke freely about their engagement, their lives and
future plans and the message they wanted to convey to the people at large, for posing to such a
photograph.
• Article picturizes Boris Becker as a strident protester of the pernicious practice of “apartheid”.
• Further, it was stated that the purpose of the photograph was also to signify that love champions
over hatred.
 Aveek Sarkar & Anr. V. State of W.B. & Ors.
Criminal Appeal No. 902 of 2004 (Roth Test)
• The article along with the photograph was published in an Indian magazine “Sports World”
• Title : “Posing nude dropping out of tournaments, battling racism in Germany. Boris Becker explains his recent approach to life-
Boris Becker unmasked”
• A Kolkata based newspaper Anandabazar Patrika.
• Aveek Sarkar, a lawyer filed a case under section 292 of IPC against the editor, publisher and printer of the newspaper
• The editor of the magazine alleging the photograph will corrupt and deprave the minds of the young and were against the
cultural and moral values of society.
• Also stated that unless such type of obscene photographs are censured and banned and accused persons are punished, the dignity
and honor of our womanhood would be in jeopardy.
• He further alleged that both the publishing houses had published the photograph particularly with the intent of increasing sales.
• The acceptable level of obscenity in films, photographs, paintings, and stories and novels, is not yet settled in India.
• In terms of section 292 of the IPC, any matter is obscene if taken as a whole, it is lascivious or appeals to the
prurient interest or if its effect and tends to deprave and corrupt persons who read, see or hear the matter contained
or embodied in it. 
• The terms ‘obscene’ or ‘obscenity’ have not been defined in IPC, which makes the application of community
standards test more suitable to India.
• The community standards test is more adaptive to any changing society. One cannot miss the myriad changes in the
continuously emerging Indian society.
• If the society accepts the portrayal of sexual activities on the silver screen, the court must not strike it down for the
sake of a few sensitive persons.
• If it is acceptable to the society in general, the court must accept it too.
• Needs to look into the bigger picture, the message being conveyed through the otherwise obscene material. The
message should be beneficial and helpful to the society.
• People should have the freedom to send a message to the society through images/films/paintings/writings which if
seen in isolation would be considered obscene or lascivious.
“Don't stare, we have to breastfeed”.
 Felix M.A. v. Gangadharan
W.P.(C) no. 7778 of 2018
• Kerala HC -
• Antony Dominic, C.J. And Dama Seshadri Naidu, 
• The petitioner  contended that the over page offended sections 3(c) and 5(j), III of the Protection
of Children from Sexual Offences Act and Rules,  as well as section 45 of the Juvenile Justice
Act.
• He has also roped in sections 3 and 4 of the Indecent Representation of Women Act.
• What may be obscene to some may be artistic to other; one man’s vulgarity is other man’s lyric
 The Likely Audience Test

• Most vulnerable person test now not applicable

• Impact on those who can gain access
• Targeted audience –class not an isolated case
• Chandrakant Kalyandas Kakodhar case
• Ajay Goswami – Adult cannot be deprived of entertainment within acceptable norms of decency
• Channel Zoning
 Literary Merit Test

• Art, literary or social merit and obscenity – artistic work outweighs obscenity
• Medical Science
• The requirement of art and literature include within themselves a comprehensive view of social life.
• Anand Patwardhan Case :
1. Whether the average person, applying contemporary community standards would find that the
work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law;
3. Whether the work, taken as a whole, lacks serious literary artistic, political or scientific value.
M.F. Hussain – Bharatmata
• Dr. Shashi Tharoor – Freedom of Literature Bill , 2018
• Rehana Fathima's case - the video was created with the intention of spreading proper awareness
about sexuality and narrow-minded views on obscenity.
• She stated that the video was made and uploaded with the intention of spreading a message to
"normalize the female form of body for her children and to not allow distorted ideas of
sexualization pervade their minds".
• "Not interested in this kind of a case. How can you make use of children for this? What kind of a
culture will the children perceive?” – J. Arun mishra
 The Aversion Defence

• Nudity and sexual explicitness do not by themselves constitute obscenity.

• Sometimes depiction of nudity not to arose sexual desire but to arouse horror and revulsion.
• Aversion Defence –UK
• Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.
• Judging the work as whole- s. 5 B, Cinematograph Act, 1952
• Anand Patwardhan Case
• Test of the Ordinary Man – Not out of the ordinary or hypersensitive man
• K.A. Abbas Case- Average Person Test
 Sum-up

• Vague – not defined.

• The acceptable level of obscenity in cinemas, photographs, paintings and literature is still not settled in India, and there
is still more to be talked about.
• Community standard – National or local.
• The material must be utterly obscene without redeeming social value.
• Difficult to get a conviction for obscenity.
• Sexual and vulgar contents are no more unethical or unaccepted social feature, rather such contents represent the
present trend. 
• Justice for Rights Foundation v. Union of India, 2019