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MODULE-01
 What is LAW?
Law is, generally, a system of rules which are enforced through social institutions to govern
behaviour. Laws can be made by legislatures through legislation (resulting in statutes), the executive
through decrees and regulations, or judges through binding precedent (normally in common law
jurisdictions). Private individuals can create legally binding contracts, including (in some
jurisdictions) arbitration agreements that may elect to accept alternative arbitration to the normal
court process. The formation of laws themselves may be influenced by a constitution (written or
unwritten) and the rights encoded therein. The law shapes politics, economics, and society in various
ways and serves as a mediator of relations between people.

Law is generally divided into two main areas referred to as (i) Criminal law and (ii) Civil law.
Criminal law deals with conduct that is considered harmful to social order and in which the guilty
party may be imprisoned or fined. Civil law (not to be confused with civil law jurisdictions above)
deals with the resolution of lawsuits (disputes) between individuals or organisations. These
resolutions seek to provide a legal remedy (often monetary damages) to the winning litigant.
International law governs affairs between sovereign states in activities ranging from trade to military
action. To implement and enforce the law and provide services to the public by public servants, a
government's bureaucracy, military, and police are vital. While all these organs of the state are
creatures created and bound by law, an independent legal profession and a vibrant civil society
inform and support their progress [citation needed].

 INDIAN LEGAL SYSTEM

The Indian Legal System is one of the oldest legal systems in the entire history of the world.
It has altered as well as developed over the past few centuries to absorb inferences from the legal
systems across the world. The Constitution of India is the source of the Indian Legal System. It
demonstrates the Anglo‐Saxon character of judiciary which is basically drawn from the British Legal
System because of the long period of British colonial influence during the British Raj.

Each state drafts its own laws, however all the states have more or less the same laws. Laws
directed by the central government and the Supreme Court of India via judicial precedent or general
policy directives are binding on all citizens of each state. Each state has its own labour laws and
taxation rates.
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India is a land of diversified culture, local customs and various conventions which are not in
opposition to the statue or ethics. People of different religions as well as traditions are regulated by
all the different sets of personal laws in order to relate to family affairs.

Modern nation-state functions through a set of institutions. Parliament, the judiciary, executive
apparatus such as bureaucracy and the police, and the formal structures of union –state relations
as well as the electoral system are the set of institutions constituted by the idea of constitutionalism.
Their arrangements, dependencies and inter-dependencies are directly shaped by the Meta politico-
legal document- i.e., Constitution. The legal system derives its authority from the Constitution and
is deeply embedded in the political system; the presence of judiciary substantiates the theory of
separation of power wherein the other two organs, viz. legislature and executive stand relatively
apart from it.

Parliamentary democracy works on the principle of ‘fusion of power,’ and in the making of law, there
is direct participation of the legislature and the executive, it is the judiciary that remains independent
and strong safeguarding the interests of the citizens by not allowing the other organs to go beyond
the Constitution. It acts, therefore, as a check on the arbitrariness and unconstitutionality of the
legislature and the executive. Judiciary is the final arbiter in interpreting constitutional arrangements.
It is in fact the guardian and conscience keeper of the normative values that are ‘authoritatively
allocated by the state.’ The nature of the democracy and development depends much on how the
legal system conducts itself to sustain the overall socio-economic and political environment.

ORIGIN OF JUDICIARY IN INDIA

Indian judiciary is a single integrated system of courts for the union as well as the states, which
administers both the union and state laws, and at the head of the entire system stands the Supreme
Court of India. The development of the judicial system can be traced to the growth of modern-nation
states and constitutionalism.

During ancient times, the concept of justice was inextricably linked with religion and was embedded
in the ascriptive norms of socially stratified caste groups. Caste panchayats performed the role of
judiciary at the local level, which was tied up with the religious laws made by the monarchs. Most of
the Kings’ courts dispensed justice according to ‘dharma’, a set of eternal laws rested upon the
individual duty to be performed in four stages of life (ashrama) and status of the individual according
to his status (varna). The King’s power to make laws depended on the religious texts and the King
had virtually no power to legislate ‘on his own initiative and pleasure’. Ancient state laws were largely
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customary laws and any deviation from it or contradiction from dharma was rejected by the
community.

In medieval times, the dictum ‘King can do no wrong’ was applied and the King arrogated to himself
an important role in administering justice. He became the apostle of justice and so the highest judge
in the kingdom. Perhaps, the theory of institutionalism guided justice, manifesting gross arbitrariness
and authoritarianism.

Modern Judiciary in India

With the advent of the British colonial administration, India witnessed a judicial system
introduced on the basis of Anglo-Saxon jurisprudence. The Royal Charter of Charles II of the year
1661 gave the Governor and Council the power to settle both civil and criminal cases according to
the laws of England. However, the Regulating Act of 1773 established for the first time the Supreme
Court of India in Calcutta, consisting of the Chief Justice and three judges (later reduced to two)
appointed by the Crown acting as King’s court and not East India Company’s court.

Later, Supreme Courts were established in Madras and Bombay. The Court held jurisdiction
over “His Majesty’s subjects”. In this period the judicial system had two distinct systems of courts,
the English system of Royal Courts, which followed the English law and procedure in the
presidencies and the Indian system of Adalat/Sadr courts, which followed the Regulation laws and
Personal laws in the provinces. Under the High Court Act of 1861, these two systems were merged,
replacing the Supreme Courts and the native courts (Sadr Dewani Adalat and Sadr Nizamat Adalat)
in the presidency towns of Calcutta, Bombay and Madras with High Courts. However, the highest
court of appeal was the judicial committee of the Privy Council. British efforts were made to develop
the Indian legal system as a unified court system. Indians had neither laws nor courts of their own,
and both the courts and laws had been designed to meet the needs of the colonial power.

The Government of India Act of 1935 (section 200) set up the Federal Court of India to act as an
intermediate appellant between High courts and the Privy Council in regard to matters involving the
interpretation of the Indian Constitution. It was not to ‘pronounce any judgement other than a
declaratory judgement’ which meant that it could declare what the law was but did not have authority
to exact compliance with its decisions. The Federal Court’s power of ‘judicial review’ was largely a
paper work and therefore a body with very limited power.

Despite the restrictions placed on it, the Federal Court continued to function till 26th January 1950,
when independent India’s Constitution came into force. In the meantime, the Constituent Assembly
became busy drafting the basic framework of the legal system and judiciary.
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Constituent Assembly: the Background

The members of the Constituent Assembly envisaged the judiciary as the bastion of rights and
justice. They wanted to insulate the courts from attempted coercion from forces within and outside
the government. Sapru Committee Report on judiciary and the Constituent Assembly’s ad hoc
committee on the Supreme Court report formed the bulk of the guidelines for judiciary. A.K.Ayyar,
K.Santhanam, M.A.Ayyangar, Tej Bahadur Sapru, B.N.Rau, K.M. Munshi, Saadulla and
B.R.Ambedkar played important roles in shaping the judicial system of India.

The unitary judicial system seems to have been accepted with the least questioning. The Supreme
Court was to have a special, countrywide responsibility for the protection of individual rights.
Ambedkar was perhaps the greatest apostle in the Assembly of what he described as ‘one single
integrated judiciary having jurisdiction and providing remedies in all cases arising under the
Constitutional law, the Civil, or the criminal law, essential to maintain the unity of the country’.

SUMMARY

In a democracy, the legal system and the judiciary are important constituents within the larger
political milieu. The modern judiciary in India derives its sources from the Constitution, and acts as
a check on the arbitrary decisions of the legislature and the executive. The Constituent Assembly
foresaw the significance of Judiciary as a guardian of rights and justice. While the Supreme Court
is the highest court of law in India, whose decisions are equally binding on all, the High Courts and
the Subordinate Courts ensure justice at the state and district levels respectively. The provision for
judicial review and public interest litigation ensure that the rule of law is maintained, thereby
providing for a dignified living and rightful concern for all. Thus, the unit broadly analyses the
structure, process, behaviour and interaction of the judiciary within a broad framework to achieve
the goals of development and democracy.

 Fundamental Rights

The Fundamental Rights are defined as basic human freedoms which every Indian citizen has
the right to enjoy for a proper and harmonious development of personality. These rights
universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender.
Foreigners are also considered in matters like equality before law.
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Fundamental rights are rights provided by Constitution of India and it guarantees civil liberties
such that all Indians can lead their lives in peace and harmony as citizens of India. These include
individual rights common to most liberal democracies, such as equality before law, freedom of
speech and expression, and peaceful assembly, freedom to practice religion, and the right to
constitutional remedies for the protection of civil rights by means of writs such as habeas corpus.
Violation of these rights result in punishments as prescribed in the Indian Penal Code or other
special laws, subject to discretion of the judiciary.

There are eight fundamental rights recognised by the Indian constitution.

1. Right to equality: Which includes equality before law, prohibition of discrimination on grounds
of religion, race, caste, gender or place of birth, and equality of opportunity in matters of
employment, abolition of untouchability and abolition of titles.

2. Right to freedom: Which includes speech and expression, assembly, association or union or
cooperatives, movement, residence, and right to practice any profession or occupation (some of
these rights are subject to security of the State, friendly relations with foreign countries, public
order, decency or morality), right to life and liberty, right to education, protection in respect to
conviction in offences and protection against arrest and detention in certain cases.

3. Right against exploitation: Which prohibits all forms of forced labour, child labour and traffic
of human beings.

4. Right to freedom of religion: Which includes freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from certain
taxes and freedom from religious instructions in certain educational institutes.

5. Cultural and Educational rights: Preserve the right of any section of citizens to conserve
their culture, language or script, and right of minorities to establish and administer educational
institutions of their choice.

6. Right to constitutional remedies: Which is present for enforcement of Fundamental Rights.

7. Right to elementary education: Which implies that any child between the ages of 6 to 14
should and can be educated.

8. Right to Information. The right to know, 'receive and impart information has been recognized
within the right to freedom of speech and expression. A citizen has a fundamental right to use
the best means of imparting and receiving information and as such to have an access to
telecasting for the purpose. The right to know has, however, not yet extended to the extent of
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invalidating Section 5 of the Official Secrets Act, 1923 which prohibits disclosure of certain official
documents. One can conclude that 'right to information is nothing but one small limb of right of
speech and expression.

Right to property was originally a fundamental right, but under 44th Amendment Act, right to
property ceased to be a Fundamental right. Instead the right to property is mentioned under
300A of Indian Constitution, stating that no person can be deprived of his property save by law.

Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-
independence social practices. Specifically, they have also been used to abolish untouchability
and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth.
They also forbid trafficking of human beings and forced labour. They also protect cultural and
educational rights of ethnic and religious minorities by allowing them to preserve their languages
and also establish and administer their own education institutions.

a) Right To Equality

Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution.
It is the principal foundation of all other rights and liberties, and guarantees the following:

Equality before law: Article 14 of the constitution guarantees that all people shall be equally
protected by the laws of the country. It means that the State will treat people in the same
circumstances alike. This article also means that individuals, whether citizens of India or otherwise
shall be treated differently if the circumstances are different.

Social equality and equal access to public areas: Article 15 of the constitution states that no
person shall be discriminated on the basis of religion, race, caste, sex or place of birth. Every person
shall have equal access to public places like public parks, museums, wells, bathing Ghats and
temples. However, the State may make any special provision for women and children. Special
provisions may be made for the advancements of any socially or educationally backward class or
scheduled castes or scheduled tribes.

Equality in matters of public employment: Article 16 of the constitution lays down that the State
cannot discriminate against anyone in the matters of employment. All citizens can apply for
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government jobs. There are some exceptions. The Parliament may enact a law stating that certain
jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that
require knowledge of the locality and language of the area. The State may also reserve posts for
members of backward classes, scheduled castes or scheduled tribes which are not adequately
represented in the services under the State to bring up the weaker sections of the society.

Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability.

Practice of untouchability is an offence and anyone doing so is punishable by law. The
Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided
penalties for preventing a person from entering a place of worship or from taking water from a tank
or well.

Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles.
Citizens of India cannot accept titles from a foreign State. The British government had created an
aristocratic class known as Rai Bahadurs and Khan Bahadurs in India – these titles were also
abolished. However, Military and academic distinctions can be conferred on the citizens of India.
The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and
do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15
December 1995, upheld the validity of such awards.

b) Right to freedom

The Constitution of India contains the right to freedom, given in articles 19, 20, 21, 21A and 22, with
the view of guaranteeing individual rights that were considered vital by the framers of the
constitution. It is a cluster of four main laws. The right to freedom in Article 19 guarantees the
following six freedoms.

Freedom to assemble peacefully without arms, on which the State can impose reasonable
restrictions in the interest of public order and the sovereignty and integrity of India.

Freedom to form associations or unions or co-operative societies on which the State can impose
reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty
and integrity of India.

Freedom to move freely throughout the territory of India though reasonable restrictions can be
imposed on this right in the interest of the general public, for example, restrictions may be imposed
on movement and travelling, so as to control epidemics.
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Freedom to reside and settle in any part of the territory of India which is also subject to reasonable
restrictions by the State in the interest of the general public or for the protection of the scheduled
tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous
and tribal peoples from exploitation and coercion. Article 370 restricts citizens from other Indian
states and Kashmiri women who marry men from other states from purchasing land or property in
Jammu & Kashmir.

Freedom to practice any profession or to carry on any occupation, trade or business on which the
State may impose reasonable restrictions in the interest of the general public. Thus, there is no right
to carry on a business which is dangerous or immoral. Also, professional or technical qualifications
may be prescribed for practising any profession or carrying on any trade.

c) Right to elementary education.

The State shall provide free and compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine.

The constitution also imposes restrictions on these rights. The government restricts these freedoms
in the interest of the independence, sovereignty and integrity of India. In the interest of morality and
public order, the government can also impose restrictions. However, the right to life and personal
liberty cannot be suspended. The six freedoms are also automatically suspended or have
restrictions imposed on them during a state of emergency.

d) Right against exploitation

Child labour and Beggar is prohibited under Right against exploitation.

The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the
abolition of trafficking in human beings and Beggar (forced labour) and abolition of employment of
children below the age of 14 years in dangerous jobs like factories, mines, etc. Child labour is
considered a gross violation of the spirit and provisions of the constitution. Trafficking in humans for
the purpose of slave trade or prostitution is also prohibited by law. An exception is made in
employment without payment for compulsory services for public purposes. Compulsory military
conscription is covered by this provision.

e) Right to freedom of religion

Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all
citizens of India. The objective of this right is to sustain the principle of secularism in India. According
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to the Constitution, all religions are equal before the State and no religion shall be given preference
over the other. Citizens are free to preach, practice and propagate any religion of their choice.

Religious communities can set up charitable institutions of their own. However, activities in such
institutions which are not religious are performed according to the laws laid down by the government.
Establishing a charitable institution can also be restricted in the interest of public order, morality and
health. No person shall be compelled to pay taxes for the promotion of a particular religion.

f) Right to life

The constitution guarantees the right to life and personal liberty, which in turn cites specific
provisions in which these rights are applied and enforced.

Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21
declares that no citizen can be denied his life and liberty except by law. This means that a person's
life and personal liberty can only be disputed if that person has committed a crime. However, the
right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence.
(Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of
India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under
which people attempting suicide could face prosecution and prison terms of up to one year.
"Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six
freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.

Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal
liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person
has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought
before the nearest magistrate within 24 hours. Under preventive detention, the government can
imprison a person for a maximum of three months. It means that if the government feels that a
person being at liberty can be a threat to the law and order or to the unity and integrity of the nation,
it can detain or arrest that person to prevent him from doing this possible harm. After three months
such a case is brought before an advisory board for review.

g) Cultural and educational rights

All minorities, religious or linguistic, can set up their own educational institutions to preserve and
develop their own culture. In granting aid to institutions, the State cannot discriminate against any
institution on the basis of the fact that it is administered by a minority institution. But the right to
administer does not mean that the State cannot interfere in case of administration. It can also issue
guidelines for ensuring the security of the services of the teachers or other employees of the
institution.
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h) Right to constitutional remedies

Right to constitutional remedies [Article 32 to 35] empowers the citizens to move a court of law in
case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can
ask the court to see if it is according to the provisions of the law of the country. If the court finds that
it is not, the person will have to be freed. This procedure of asking the courts to preserve or
safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various
kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari.
When a national or state emergency is declared, this right is suspended by the central government.

i) Right to education

Article 21A – On 2 April 2010, India joined a group of few countries in the world, with a historic law
making education as a fundamental right of every child coming into force. Making elementary
education an entitlement for children in the 6–14 age group, the Right of Children to Free and
Compulsory Education Act will directly benefit children who do not go to school at present.

 Directive principles

The Directive Principles of State Policy are guidelines/principles given to the central and state
governments of India, to be kept in mind while framing laws and policies. These provisions,
contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles
laid down therein are considered fundamental in the governance of the country, making it the duty
of the State to apply these principles in making laws to establish a just society in the country. The
principles have been inspired by the Directive Principles given in the Constitution of Ireland and also
by the principles of Gandhism.

The Directive Principles of State Policies aim to create social and economic conditions under which
the citizens can lead a good life. They also aim to establish social and economic democracy through
a welfare state. They act as a check on the government, theorized as a measure in the hands of the
people to measure the performance of the government and vote it out of power if it does not fulfil
the promises made during the elections. The Directive Principles are non-justiciable rights of the
people.

The directive principles ensure that the State shall strive to promote the welfare of the people by
promoting a social order in which social, economic and political justice is informed in all institutions
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of life. Also, the State shall work towards reducing economic inequality as well as inequalities in
status and opportunities, not only among individuals, but also among groups of people residing in
different areas or engaged in different vocations. The State shall aim for securing right to an
adequate means of livelihood for all citizens, both men and women as well as equal pay for equal
work for both men and women. The State should work to prevent concentration of wealth and means
of production in a few hands, and try to ensure that ownership and control of the material resources
is distributed to best serve the common good. Child abuse and exploitation of workers should be
prevented. Children should be allowed to develop in a healthy manner and should be protected
against exploitation and against moral and material abandonment. The State shall provide free legal
aid to ensure that equal opportunities for securing justice is ensured to all, and is not denied by
reason of economic or other disabilities. The State shall also work for organisation of village
panchayats and help enable them to function as units of self-government. The State shall endeavour
to provide the right to work, to education and to public assistance in cases of unemployment, old
age, sickness and disablement, within the limits of economic capacity, as well as provide for just
and humane conditions of work and maternity relief.

The State should also ensure living wage and proper working conditions for workers, with full
enjoyment of leisure and social and cultural activities. Also, the promotion of cottage industries in
rural areas is one of the obligations of the State. The State shall take steps to promote their
participation in management of industrial undertakings.

Also, the State shall endeavour to secure a uniform civil code for all citizens, and provide free and
compulsory education to all children till they attain the age of 14 years. This directive regarding
education of children was added by the 86th Amendment Act, 2002. It should and work for the
economic and educational upliftment of scheduled castes, scheduled tribes and other weaker
sections of the society.

The directive principles commit the State to raise the level of nutrition and the standard of living and
to improve public health, particularly by prohibiting intoxicating drinks and drugs injurious to health
except for medicinal purposes. It should also organise agriculture and animal husbandry on modern
and scientific lines by improving breeds and prohibiting slaughter of cows, calves, other mulch and
draught cattle. It should protect and improve the environment and safeguard the forests and wild life
of the country. This directive, regarding protection of forests and wildlife was added by the 42nd
Amendment Act, 1976.

Protection of monuments, places and objects of historic and artistic interest and national importance
against destruction and damage, and separation of judiciary from executive in public services are
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also the obligations of the State as laid down in the directive principles. Finally, the directive
principles, in Article 51 ensure that the State shall strive for the promotion and maintenance of
international peace and security, just and honourable relations between nations, respect for
international law and treaty obligations, as well as settlement of international disputes by arbitration.

 Freedom of the press

Freedom of the press or freedom of the media is the freedom of communication and
expression through vehicles including various electronic media and published materials. While such
freedom mostly implies the absence of interference from an overreaching state, its preservation may
be sought through constitutional or other legal protections.
With respect to governmental information, any government may distinguish which materials
are public or protected from disclosure to the public based on classification of information as
sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the
information to protecting the national interest.
The Universal Declaration of Human Rights states: "Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without interference, and impart
information and ideas through any media regardless of frontiers".
This philosophy is usually accompanied by legislation ensuring various degrees of freedom
of scientific research (known as scientific freedom), publishing, press and printing the depth to which
these laws are entrenched in a country's legal system can go as far down as its constitution. The
concept of freedom of speech is often covered by the same laws as freedom of the press, thereby
giving equal treatment to spoken and published expression.

i. Evolution of the concept of freedom of the press

Historically, restriction of the press has occurred in two ways. The first may be either censorship or
mandatory licensing by the government in advance of publication; the second is punishment for
printed material, especially that considered by the government to be seditious libel, i.e., material that
may "excite disaffection" against constituted authority. Censorship of the press began not long after
the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to
submit copy to church authorities before publication, in order to prevent heresy. Penalties for
bypassing the censors included fines and excommunication.
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Early English Restrictions and Developments

In England, where the struggle for press freedom first began, the appearance of unauthorized
publications resulted in a royal proclamation (1534) requiring prepublication licensing. Stronger
restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to
be applied more too political criticism than religious heresy. John Milton, in his Areopagitica (1644),
attacked the licensing law and called on Parliament to suppress offensive publications after their
appearance if necessary. Milton's objections to prior restraint eventually became a cornerstone of
press freedom, but it was not until 1695 that the licensing and censorship laws were abolished.
Severe restrictions on the press continued, however, in the form of seditious libel laws under which
the government was able to arrest and punish any printer who published material in any way critical
of the government. There was no clear definition of what constituted seditious libel, and in the 18th
cent. the printing of parliamentary debates had to be disguised as debates between classical figures.
At this time, both true and false criticism of the government was considered libel. In fact, legal
doctrine proclaimed that "the greater the truth the greater the libel." Only in the mid-19th cent
In the United States
The defence of John Peter Zenger against libel charges in 1735 is often seen as the cornerstone of
American press freedom. After the American Revolution, several states provided for freedom of the
press, and the First Amendment (1791) to the U.S. Constitution declared that "Congress shall make
no law … abridging the freedom of speech or of the press." Whether these acts were intended to
prohibit prosecution for seditious libel or merely to prohibit prior restraint has been a matter of
controversy. In reaction to the Sedition Act (1798), a more libertarian interpretation of the First
Amendment became dominant, which saw it as rejecting seditious libel as a crime. The First
Amendment was later (beginning in the 1920s) applied to all the states by judicial interpretation of
the Fourteenth Amendment (1868).
Wartime situations often present challenges to the legal limits of press freedom. What was looked
upon as irresponsible reporting during the Civil War led to attempts by civil and military authorities
to impose restrictions upon the press? Appeals by the War Department for publishers to voluntarily
suppress news that was strategic to the war were, however, largely ineffective. During World War I,
near hysteria over the possibility of sabotage led Congress to pass the Espionage Acts (1917) and
the Sedition Act (1918). These acts limited freedom of the press to such an extent that not only was
censorship exercised against pro-German publications but also against German-language
publications and those advocating socialism or pacifism.
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ii. Freedom of speech and expression in Indian Constitution

Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments
and feeling 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.

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 subject to limitations imposed
under Article 19(2).

Public order as a ground of imposing restrictions was added by the Constitution (First Amendment)
Act, 1951. Public order is something more than ordinary maintenance of law and order. Public order
in the present context is synonymous with public peace, safety and tranquillity.

Meaning and 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.
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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.

New Dimensions of Freedom of Speech and 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 centre and state governments can only issue an order for telephone
tapping. The order is subject to review by a higher power review committee and the period for
telephone tapping cannot exceed two months unless approved by the review authority.

iii. Reasonable restrictions on Freedom of Speech and Expression [Art:19 (1)

(a)]
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Article 19(2) contains the grounds on which restrictions on the freedom of speech and expression
can be imposed:-

1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of
speech and expression in the interest of security of State. The term "security of state" refers only to
serious and aggravated forms of public order e.g. rebellion, wage war against the State, insurrection
and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus
speeches or expression on the part of an individual, which incite to or encourage the commission of
violent crimes, such as, murder are matters, which would undermine the security of State.

2) Friendly relations with foreign states: This ground was added by the constitution (First
Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious
propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations
between India, and that state. No similar provision is present in any other Constitution of the world.
In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens
against foreign dignitary. Interest of friendly relations with foreign States, would not justify the
suppression of fair criticism of foreign policy of the Government.

It is to be noted that member of the commonwealth including Pakistan is not a "foreign state" for the
purposes of this Constitution. The result is that freedom of speech and expression cannot be
restricted on the ground that the matter is adverse to Pakistan.

3) Public Order: This ground was added by the Constitution (First Amendment) Act. 'Public order'
is an expression of wide connotation and signifies "that state of tranquility which prevails among the
members of political society as a result of internal regulations enforced by the Government which
they have established."

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 of 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 accusing 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
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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 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.

4) Decency or morality: The words 'morality or decency' are words of wide meaning. Sections 292
to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and
expression in the interest of decency or morality. These sections prohibit the sale or distribution or
exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is
moral and indecent. The standard of morality varies from time to time and from place to place.

5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it
exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2
'Contempt of court' may be either 'civil contempt' or 'criminal contempt.'

6) Defamation: A statement, which injures a man's reputation, amounts to defamation. Defamation

consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is
still uncodified in India and subject to certain exceptions.

7) Incitement to an offence: This ground was also added by the constitution (First Amendment)
Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to
commit offence. The word 'offence' is defined as any act or omission made punishable by law for
the time being in force.

8) Sedition: As understood by English law, sedition embraces all those practices whether by words,
or writing which are calculated to disturb the tranquility of the State and lead ignorant person to
subvert the government. It should be noted that the sedition is not mentioned in clause (2) of Art. 19
as one of the grounds on which restrictions on freedom of speech and expression may be imposed.

Conclusion

From this article it can be easily concluded that right to freedom of speech and expression is one of
the most important fundamental right. It includes circulating one's views by words or in writing or
through audio visual instrumentalities, through advertisements and through any other
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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 suffocate this freedom
have always been firmly repelled, more so when public authorities have betrayed autocratic
tendencies.

It can also be comprehend 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.