CONTENTS

Page No.
1. Introduction

2. Meaning and scope of Article 19(1)a

3. Reasonable restrictions

4. Present position of Article 19(1)a

5. New dimensions to Article 19(1)a

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6. Freedom of the Press

12

7. Trial by the Media

14

8.

Conclusion

15

9.

Biblography

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INTRODUCTION
"I disapprove of what you say, but I will defend to the death your right to say it" - Voltaire.
This one line sums up for me the whole essence of democratic behaviour. Speech is God's gift
to mankind. Through speech a human being conveys his thoughts sentiments and feelings to
others. Freedom of speech and expression is thus a natural right which a human being
acquires on birth. It is, therefore a basic right. "Everyone has the right to freedom of opinion
and expression; the right includes freedom to hold opinions without interference and to seek
and receive and impart information and ideas through any media and regardless of frontiers"
proclaims the Universal Declaration of Human Rights (1948).
The people of India declared in the Preamble of the Constitution, which they gave unto
themselves their resolve to secure to all the citizens liberty of thought and expression. This
resolve is reflected in Article 19(1)(a) which is one of the Articles found in Part III of the
Constitution which enumerates the Fundamental Rights. Similar laws exist in other
democracies.
Man as rational being desires to do many things, but in a civil society his desires have to be
controlled, regulated and reconciled with the exercise of similar desires by other individuals.
The guarantee of each of the above right is, therefore, restricted by the Constitution in the
larger interest of the community. The right to freedom of speech and expression is therefore
subject to limitations imposed under Article 19(2) by the First Amendment to the Constitution
in 1951 which attempted to strengthen state regulation over the freedom of speech and
expression by expanding the scope of Article 19(2).

MEANING & SCOPE

Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of
speech and expression. 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 idea through any communicable medium
or visible representation such as gesture, signs, and the like. This expression connotes also
publication and thus the freedom of press is included in this category. Free propagation of
ideas is the necessary objective and this may be done on the platform or through the press.
This propagation of ideas is secured by freedom of circulation. Liberty of circulation is
essential to that freedom as the liberty of publication. Indeed without circulation the
publication would be of little value. 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; otherwise this freedom would not include the freedom of press.

Freedom of expression has four broad special purposes to serve:

1) It helps an individual to attain self-fulfilment.
2) It assists in the discovery of truth.
3) It strengthens the capacity of an individual in participating in decision-making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
5) All members of society would be able to form their own beliefs and communicate them
freely to others.
In sum the fundamental principle involved here is the people's right to know. Freedom of
speech and expression should therefore receive generous support from all those who believe
in the participation of people in the administration. It is on account of this special interest
which society has in the freedom of speech and expression that the approach of the
Government should be more cautious while levying taxes on matters of concerning
newspaper industry than while levying taxes on other matters.
Explaining the scope of freedom of speech and expression Supreme Court has said that the
words "freedom of speech and expression" must be broadly constructed to include the
freedom to circulate one's views by words of mouth or in writing or through audiovisual
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 their views through the printing and
or the electronic media subject of course to permissible restrictions imposed under Article
19(2) of the Constitution.
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Freedom to air one's view 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 development that have taken place and
thereby educating the voters a role considered significant for the vibrant functioning of a
democracy. Therefore in any setup more so in a democratic setup like ours, dissemination of
news and views for popular consumption is a must and any attempt to deny the same must be
frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.
The various communication channels are great purveyors of news and views and make
considerable impact on the minds of readers and viewers and our known to mould public
opinion on vitals issues of national importance. The freedom of speech and expression
includes freedom of circulation and propagation of ideas and therefore the right extends to the
citizen to use the media to answer the criticism levelled against the views propagated by him.
Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must
however be exercised with circumspection and care must be taken not to trench on the rights
of other citizens or to jeopardise public interest

REASONABLE RESTRICTIONS UNDER ARTICLE 19(2)

The freedom of speech and expression does not confer an absolute right to speak and publish
without responsibility whatever one may choose or an unrestricted or unbridled licence that
gives immunity for every possible use of language and does not prevent punishments for
those who abuse this freedom.1 Clause (2) of Article 19 specifies the grounds on which the
freedom of speech and expression may be restricted. It enables the legislature to impose
reasonable restrictions on the right to free speech in the interests of or in relation to the
following:
1)
2)
3)
4)
5)
6)
7)
8)

Sovereignty and integrity of India.

Security of the state.
Friendly relations with foreign states.
Public Order.
Decency and Morality.
Contempt of court.
Defamation.
Incitement to an offence.

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not
by an executive action.2 Now we shall consider these heads separately in the above given
order
1. Sovereignty and Integrity of India This ground has been by the Constitution
(Sixteenth Amendment) Act, 1963. The present amendment is made to guard against
the freedom of speech and expression being used to assail the territorial integrity and
sovereignty of the Union. Thus it will be legitimate for the Parliament under this
clause to restrict the right of free speech if it preaches secession of any part of the
territory of India from the Union. However what has to be kept in mind is that the
restriction is with respect to the territorial integrity of the Union of India and not with
respect to the territorial integrity of the constituent states.3
2. Security of the state The security of the state may well be endangered by the
crimes of violence intended to overthrow the government waging of war and rebellion
1 Romesh Thappar v. State of Madras, AIR 1950 SC 124
2 Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133; Bijoe Emmanuel v. State of Kerela,
(1986)3 SCC 615

3 Article 3 of the Constitution : Formation of new states and alteration of areas, boundaries or names
of existing states
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against the government external aggression or war etc. Serious or aggravated forms of
public disorder are within the expression security of state. Every public disorder
cannot be regarded as threatening the security of the state. In Romesh Thapar case4
the Supreme Court pointed out that the expression does not refer to ordinary breaches
of public order which do not involve any danger to the state itself.
Incitement to commit violent crimes like murder would endanger the security of the
state. Thus, in State of Bihar v. Shailabala Devi5, the law which made the signs, words
or visual representations which caused the incitement of violence fall squarely within
Article 19(2). After the amendment of the Constitution in 1951 public order was
added as a ground for restrictive laws.
3. Friendly relations with foreign states This ground was added by the Constitution
(First Amendment) Act of 1951. The State can impose reasonable restrictions on the
freedom of speech in the interest of friendly relations with foreign states. The
justification is obvious unrestrained malicious propaganda against a friendly foreign
state may jeopardise the maintenance of good relations between India and that state.
4. Public Order The preservation of public order is one of the grounds for imposing
restrictions on the freedom of speech and expression. This ground did not occur in the
Constitution as framed in 1950 but was added later by the First (Amendment) Act,
1951.
Public order is something more than ordinary maintenance of law and order. 'Public
order' is synonymous with public peace, safety and tranquility. The test for
determining whether an act affects law and order or public order is to see whether the
act leads to the disturbances of the current life of the community so as to amount to a
disturbance of the public order or whether it affects merely an individual being the
tranquility of the society undisturbed.
Anything that disturbs public tranquility or public peace disturbs public order. Thus
communal disturbances and strikes promoted with the sole object of a causing unrest
among workmen are offences against public order. Public order thus implies absence
of violence and an orderly state of affairs in which citizens can peacefully pursue their
normal avocation of life. Public order also includes public safety. Thus creating
internal disorder or rebellion would affect public order and public safety. But mere
criticism of government does not necessarily disturb public order. In its external
aspect 'public safety' means protection of the country from foreign aggression. Under
public order the State would be entitled to prevent propaganda for a state of war with
India.
The words 'in the interest of public order' includes not only such utterances as are
directly intended to lead to disorder but also those that have the tendency to lead to
disorder. Thus a law punishing utterances made with the deliberate intention to hurt
the religious feelings of any class of persons is valid because it imposes a restriction
4 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
5 AIR 1952 SC 329.
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on the right of free speech in the interest of public order since such speech or writing
has the tendency to create public disorder even if in some case those activities may
not actually lead to a breach of peace. But there must be reasonable and proper nexus
or relationship between the restrictions and the achievements of public order.
5. Decency and morality Decency and morality is another ground on which freedom
of speech and expression may be reasonably restricted. Decency is same as lack of
obscenity. Obscenity becomes a subject of constitutional interest since it illustrates
well the clash between the right of individuals to freely express their opinion and the
duty of the state to safeguard their morals. It is obvious that the right to freedom of
speech and expression cannot be used to deprave and corrupt the community.
In Ranjit Udeshi v. State of Maharashtra6the Supreme Court for the first time was
called upon to lay down the test to determine obscenity. The facts were that the
appellants, a Bombay bookseller was prosecuted under Section 292of the Indian
Penal Code for selling and for keeping for sale the well known book, Lady Chatterlys
Lover written by D.H. Lawrence. The Magistrate held that the book was obscene and
sentenced the appellant. The court held that it had the right to restrict the freedom on
the grounds of decency and morality.
6. Contempt of Court The constitutional right to freedom of speech does not prevent
the courts from punishing for their contempt spoken or printed words or any other
expression calculated to have that effect.7 The expression contempt of court is now
defined in Section 2 of the Contempt of Courts Act, 1971 as under:
a) contempt of court means civil contempt or criminal contempt;
b) civil contempt means wilful disobedience to any judgement, decree, direction,
order, writ or any other process of a court or wilful breach of an undertaking given
to a court;
c) criminal contempt means the publication (whether by words spoken or written,
or by signs, or by visible representations, or otherwise) of any matter or the doing
of any other act whatsoever which
i)
Scandalizes or tends to scandalize or lowers or tends to lower the authority
of any court
ii)
Prejudices, or interferes or tends to interfere with the due course of any
judicial proceedings
iii)
Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.
7. Defamation: Defamatory matter exposes a person to hatred, ridicule or contempt.
The law of defamation is divided into libel and slander. Defamatory matter, if in
matter, if in writing, printing or some other permanent medium, is a libel; if in spoken
6 AIR 1976 SC 881.
7 L.R. Frey v. R. Prasad, AIR 1958 .
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words or gestures, a slander. Right to free speech does not entitle us to violate the
rights of others.
8. Incitement to an offence This is also a ground added in 1951. The freedom of
speech and expression cannot be used as a licence to incite people to commit an
offence. During the debate in the parliament for the inclusion of this clause it was
argued that the phrase incitement to violence should be used instead as the word
offence has a very wide meaning and can include any act which is punishable
under the Indian Penal Code or any other law. However, this suggestion was rejected.
In State of Bihar v. Shailabala Devi8 the supreme court held that incitement to murder
or any other violent crime would generally endanger the security of the state; hence a
restriction against such incitement would be valid law under Article 19(2).
Sedition: Sedition embraces all those practices that, whether by word, deed or action
are calculated to disturb the peace and tranquillity of the State and lead innocent
people to subvert the government9. Incitement to violence and public disorder is the
gist of the offence. However, criticism of the existing government or system and
expression of a desire for a different system altogether is not prohibited.10

8 AIR 1952 SC 329

9 R. v. Sullivan, (1968) 11 Cox Cases 55.
10 Nihrendu v. Emperor, AIR 1942 FC 22, 26
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THE PRESENT POSITION OF ARTICLE 19(1)a

The present position as to the applications of article 19 of the Constitution to various
categories of persons may be stated in the form of propositions as under :(1) Article 19 of the Constitution being confined to citizens, foreigners cannot claim any
right there under11.
(2) A corporation cannot claim citizenship12and cannot therefore claim any right under
article 19 as it stands at present
(3) This is so even though the corporation is a company whose shareholders are citizens
of India.
(4) But the shareholders of a company can challenge the constitutional validity of the law
on the ground of infringement of Article 19 if their own rights are infringed13 and in
such a proceeding the company may be joined as a party.
Chronologically, the first important case to be noticed on the point at issue is of 1957. The
Supreme Court had, in that case14, hinted at the difficulty that may arise out of the fact that a
non citizen running a newspaper is not entitled to the fundamental right of freedom of speech
and expression and therefore cannot claim the benefit of liberty of the press15.
Thereafter, there are two decisions of the Supreme Court reported in 1964 relevant to the
subject. The first was a ruling of a bench of nine judges which by majority held that the
provisions of the Citizenship Act were conclusive on the question that a corporation or a
company could not be a citizen of India16. In the second case of 1964, it was unanimously
decided by a bench of five judges of the Supreme Court that Article 19 guaranteed the rights
11 Anwar v. State of J. & K. AIR 1971 SC 337, 338.
12 Barium Chemicals v. Company Law Board, AIR 1967 SC 295; Tata Engineering Co. v. State of Bihar, AIR
1965 SC 40;

13 Bennett Coleman v. Union of India, AIR 1973 SC 106.

14 M.S.M. Sharma v. Shri Krishna Sinha, (1959) Suppl. I.S.C.R. 806.
15 S.T. C. v. Commercial Tax Officer, (1964) 4 SCR 90.
9

in question only to citizens as such and that an association such as a company could not claim
these rights on the basis that they were an aggregation of citizens.
In 1970, the Supreme Court17 held that the jurisdiction of the court to grant relief cannot be
denied when the rights of the individual shareholder are impaired by State action, if the state
action impairs the rights of a company as well. The test for determining whether the
shareholders rights are impaired is not formal it is essentially qualitative if the State action
impairs the rights of the shareholders as well of the company, the court will not concentrating
merely on the technical operation of the action deny itself jurisdiction to grant relief.

However, it should be pointed that Shah J. in the above decision18 definitely said that the
Supreme Court rulings of 1964 had no relevance to the question at issue. The petitioner had
sought to challenge an infringement of his own rights and not an infringement of rights of the
bank.
In 1973, the majority of the Supreme Court19 held that although a company is not a citizen,
the citizen shareholders can enforce their rights of free speech as the company is only a
medium of for expression of their views.

16 Tata Engineering and Locomotive v .State of Bihar ,AIR 1965 SC 40

17 R.C. Cooper v. UOI, (1970) 3 SCR 530.
18 Para 2-3, supra.
19 Bennett Coleman v. UOI, AIR 1973 SC 106.
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NEW DIMENSIONS OF FREEDOM OF SPEECH &

EXPRESSION
Government has no monopoly on electronic media: The Supreme Court widened the scope
and extent of the right to freedom of speech and expression and held that the government has
no monopoly on electronic media and a citizen has under Art. 19(1)(a) a right to telecast and
broadcast to the viewers/listeners through electronic media television and radio any important
event. The government can impose restrictions on such a right only on grounds specified in
clause (2) of Art. 19 and not on any other ground. A citizen has fundamental right to use the
best means of imparting and receiving communication and as such have an access to
telecasting for the purpose.
Commercial Advertisements: The court held that commercial speech (advertisement) is a
part of the freedom of speech and expression. The court however made it clear that the
government could regulate the commercial advertisements which are deceptive, unfair,
misleading and untruthful. Examined from another angle the Court said that the public at
large has a right to receive the "Commercial Speech". Art. 19(1)(a) of the constitution not
only guaranteed freedom of speech and expression it also protects the right of an individual to
listen, read, and receive the said speech.
Telephone Tapping: Invasion on right to privacy : Telephone tapping violates Art. 19(1)(a)
unless it comes within grounds of restriction under Art. 19(2). Under the guidelines laid down
by the Court the Home Secretary of the center and state governments can only issue an order
for telephone tapping. The order is subject to review by a higher power review committee and

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the period for telephone tapping cannot exceed two months unless approved by the review
authority.

FREEDOM OF PRESS
The constitution of India does not specifically mention the freedom of press. Freedom of
press is implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the
restrictions that are provided under the Article 19(2) of the Constitution. Before
Independence there was no constitutional or statutory provision to protect the freedom of
press.
As observed by the Privy Council in Channing Arnold v. King Emperor20: The freedom of
the journalist is an ordinary part of the freedom of the subject and to whatever length the
subject in general may go so also may the journalist but apart from statute law his privilege is
no other and no higher. The range of his assertions his criticisms or his comments is as wide
as and no wider than that of any other subject.
The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression.
Freedom of the press has been included as part of freedom of speech and expression under
the Article 19 of the UDHR. The heart of the Article 19 says: 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.
In Romesh Thapar v. State of Madras21, Patanjali Shastri, CJ observed: Freedom of speech
and of the press lay at the foundation of all democratic organisations, for without free
20 (1914) 16 BOMLR 544.
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political discussion no public education, so essential for the proper functioning of the process
of popular government, is possible.
The Supreme Court observed in Union of India v. Assn. for Democratic Reforms22: One
sided information, disinformation, misinformation and non information, all equally create an
uninformed citizenry which makes democracy a farce. Freedom of speech and expression
includes right to impart and receive information which includes freedom to hold opinions.
In Indian Express v. Union of India23, it has been held that the press plays a very significant
role in the democratic machinery. The courts have duty to uphold the freedom of press and
invalidate all laws and administrative actions that abridge that freedom. Freedom of press has
three essential elements. They are:
1. freedom of access to all sources of information,
2. freedom of publication, and
3. freedom of circulation.
In India, the press has not been able to exercise its freedom to express the popular
views. In Sakal Papers Ltd. v. Union of India24, the Daily Newspapers (Price and
Page) Order, 1960, which fixed the number of pages and size which a newspaper
could publish at a price was held to be violative of freedom of press and not a
reasonable restriction under the Article 19(2).
Similarly, in Bennett Coleman and Co. v. Union of India25, the validity of the
Newsprint Control Order, which fixed the maximum number of pages, was struck
down by the Court holding it to be violative of provision of Article 19(1)(a) and not to
be reasonable restriction under Article 19(2). The Court struck down the plea of the
Government that it would help small newspapers to grow.

21 AIR 1950 SC 124.

22 2002(005) SCC 0361SC.
23 AIR 1995 SC 965.
24 1962 SCR (3) 842.
25 AIR 1973 SC 106.
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TRIAL BY MEDIA
The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial
under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has
recommended a law to debar the media from reporting anything prejudicial to the rights of
the accused in criminal cases, from the time of arrest to investigation and trial.
The commission has said, "Today there is feeling that in view of the extensive use of the
television and cable services, the whole pattern of publication of news has changed and
several such publications are likely to have a prejudicial impact on the suspects, accused,
witnesses and even judges and in general on the administration of justice".
This is criminal contempt of court, according to the commission; if the provisions of the Act
14

impose reasonable restrictions on freedom of speech, such restrictions would be valid.

It has suggested an amendment to Section 3(2) of the Contempt of Courts Act. Under the
present provision such publications would come within the definition of contempt only after
the charge sheet is filed in a criminal case, whereas it should be invoked from the time of
arrest.
The Supreme Court has ruled in many cases that freedom of the press is a fundamental right
covered by the right to freedom of expression under Article 19 of the Constitution.
But the right to fair trial has not explicitly been made a fundamental right. That does not
mean that it is a less important right. More than a legal right, it is basic principle of natural
justice that everyone gets a fair trial and an opportunity to defend one self.
The NHRC in its special leave petition filed before the Supreme Court against acquittal of
the accused in the Best Bakery case, contended that the concept of a fair trial is a
constitutional imperative recognised in Articles 14, 19, 21, 22 and 39-A as well as by the
CrPC. If there is a clash between the two rights freedom of expression and fair trial
which should prevail? It is true that contempt of court is a ground for restricting the freedom
of speech, but the media has not tried to lower the dignity of the judiciary by exposing
loopholes of the investigation and the prosecution and if judicial decisions also appear to be
arbitrary, they must be subjected to ruthless scrutiny. It will be dangerous to gag the press in
the name of contempt of court. If the appellate court feels that the media publicity affected
fair trial, it can always reverse the decision of the lower court.
The Supreme Court's pronouncement in Rajendra Sail case, though given in context of
criminal contempt, provides the proper guideline: "For rule of law and orderly society, a free
press and independent judiciary are both indispensable".

CONCLUSION
From the above it can be easily concluded that right to freedom of speech and expression is
one of the most important fundamental rights. It includes circulating one's views by words or
in writing or through audiovisual instrumentalities, through advertisements and through any
other communication channel. It also comprises of right to information, freedom of press etc.
Thus this fundamental right has a vast scope.
From the above case law analysis it is evident that the Court has always placed a broad
interpretation on the value and content of Article 19(1)(a), making it subjective only to the
restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or
15

suffocate this freedom have always been firmly repelled, more so when public authorities
have betrayed autocratic tendencies.
It can also be comprehended that public order holds a lot of significance as a ground of
restriction on this fundamental right. But there should be reasonable and proper nexus or
relationship between the restriction and achievement of public order. The words 'in the
interest of public order' include not only utterances as are directly intended to lead to disorder
but also those that have the tendency to lead to disorder.

16

BIBILOGRAPHY

Constitution of India V.N. Shukla; Revised by Mahendra P. Singh; 10th Edition,

Eastern Book Company

Indian Constitutional Law M. P. Jain; 5th edition(2003); Volume I & II

www.practicallawyer.com

www.legalservicesindia.com

www.indiankanoon.com

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