RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

By PITTA ISAAC NEWTON, LL.M, B. Tech, PGD-HR, PGD-CL&IPR, PGD-FDR.

Email-Id: pittaisaacnewton@gmail.com, Mobile: +91 – 8179314765.

Abstract:
Part III of the Indian Constitution guarantees a person the fundamental rights and
liberties by which he can keep up his dignified life. Under Article 19(1)(a) of the
Constitution, freedom of speech and expression is given. Freedom of speech and
expression is live wire of the democracy; it is integral to the expansion and fulfillment
of individual personality. Democracy being collective will of the people, personality of
individuals shapes the society into a cohesive, well-knit and viable administrative unit.
The rights conferred under Article 19 of the Constitution are the rights of free man.
These are natural law or common law rights and not created by a statute. As such every
citizen is entitled to exercise such rights provided conditions to be imposed whenever so
required by the State.
Keywords:
1. INTRODUCTION:
Freedom of speech and expression is live wire of the democracy; it is integral to the
expansion and fulfillment of individual personality. Democracy being collective will of
the people, personality of individuals shapes the society into a cohesive, well-knit and
viable administrative unit. Milton in his Areopagitica says that without this freedom
„there can be no health in the moral and intellectual life of either the individual or the
nation‟ freedom of speech and expression is more essential in a democratic set up of
state where people are the sovereign rulers. In “without freedom of speech” says Ivor
Jennings, “the appeal to reason which is the basis of democracy cannot be made” Public
discussion of political, economic and social problems being essential to the proper
functioning of a democratic government it is imperative that free society should keep the
channels of communication wide open to the free circulation of ideas and this is well
achieved by the guarantee of freedom of speech and expression.
Internal autonomy is very essence of freedom; there should not be any outside
intervention in the life of individual. An individual has to form his own opinions,
thoughts and ideas and must be entitled to express them as that alone will result in
realization of his character and potentiality as a human being. Among all creatures, man
alone has been endowed with reason, which can germinate thoughts. It is necessary
condition for self-fulfillment that he should have uninhibited right to express them.
Personality can be developed only by self-expression by the right to form one’s own
beliefs and opinions. It is privilege of every human being to use and interpret experience
in his own way and act of choosing between alternatives bring a man’s moral faculties
into play. Free speech is traffic in indispensable commodity namely ideas. There are
many instruments that came into existence at international level for laying down the
standards of freedom of speech and expression such as: Universal Declaration of Human
Rights, International Covenant on Civil and Political Rights, International Covenant on
Economic, Social and Cultural Rights, International Convention on the Elimination of
All Forms of Racial Discrimination, Convention on the Elimination of All Forms of
Discrimination against Women. There are some regional attempts made for giving
encouragement to the freedom of speech and expression as American Convention on
Human Rights, Declaration on Principles of Freedom of Expression, African Charter on
Human and Peoples' Rights, Declaration of Principles on Freedom of Expression in
Africa, Amsterdam’s Recommendations, Freedom of the Media and the Internet, and
Organization for Security and Co-operation in Europe. Right to express is not only
limited to speaking but also includes various forms, freedom of speech and expression
found its place in United Nations, Universal Declaration of Human Rights, there are
various countries throughout the world that have given the formal recognition in their
Constitutions, though practice approach to provide legal protection may differ nation to
nation, such nations include: Africa, Hon Kong, India, Japan, China, Philippines,
Thailand, Australia, Europe, Denmark, Finland, France, Germany, Greece, Hungary,
Ireland, Netherlands, Sweden, United Kingdom, Norway, Russia, Switzerland, Turkey,
Canada, United State, Brazil, etc.
There was in British regime rise the demand for freedom of speech and expression on
various occasions as: Nehru Committee (1928), Indian National Congress Karachi
Session (1931) Round Table Conference for the discussion over the Constitutional
Reforms (1930- 32), the Government of India Act, (1935), and finally after the Indian
Independence Constitution of India incorporated Under Art. 19 (1)(a). One of the main
objectives of the Indian Constitution as envisages in the preamble, is to secure Liberty
of thought and expression to all the citizens. With the intention to give effects to
objectives mentioned in the Preamble Constitution maker have incorporated freedom of
speech and expression as fundamental rights which means it is guaranteed against state
actions In order to give effect to these objectives mentioned in the preamble by our
Constitutional framers, “freedom of speech and expression” has been guaranteed as
fundamental rights under Article 19(1)(a) available to all citizens, subject only to
restrictions which may be imposed by the State under clause (2) of that Article. Art. 19
(2) nothing in sub clause (a) of clause (1) shall effect the operation of any existing law,
or prevent the state from making law, in so far as such law imposed reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interest of
sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence. Freedom of speech considering the basic
freedom by the Indian judiciary interpreted it various facets and expand various
horizons in various cases like freedom of speech and expression under 19(1)(a) which
includes freedom of press or media, right to know that is right to information,
Telecasting or Broadcasting Rights, Commercial Advertisements, Right to Reply or
Answer the Criticism against One’s Views, Right to Exhibition of Films, Right to Fly
National Flag Right to Remain Silent, etc.
2. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IN INDIA:
Chapter III of the Indian Constitution guarantee fundamental right to citizens of India, it
is treated as the Magna Charta of India. Fundamental rights which are inviolable and are
to be guaranteed to him, the principle underlying such guarantee of fundamental rights
and the necessity for securing, These rights to the people is present in all modern
Constitutions. Right to freedoms which are very basic and necessary for the
development of individuals, out of these freedoms, freedom of speech and expression is
the one of them as fundamental right incorporated in u/Art. 19 (1)(a) , before to see this
provision necessary to historical back ground of freedom of speech and expression.
3. HISTORICAL BACKGROUND:
What we see the fundamental rights today in the Indian Constitution, it has long struggle
in British regime, for the first declaration of fundamental rights arose in the year 1928 at
the all parties‟ conference in which Nehru Committee incorporated these rights in its
report. The committee stated that:
“Our first care should be to have our fundamental rights guaranteed in a manner which
will not permit their withdrawal under any circumstances.” Indian National Congress
Karachi Session held in the year 1931, in which Session it was declared that any
Constitution which might be proposed would be acceptable only, if it contained certain
fundamental rights as formulated by it.
British government organized three Round table conference for the discussion over the
Constitutional reforms in India during the 1930- 32.
Our Indian national leaders given the tress for Bill of Rights in the new Constitution
Act, the view was that to binding the administration with certain declaration of rights of
Indians. But unfortunately, the Simon Commission rejected this demand. Stating that:
“We are aware that such provisions have been inserted in many Constitutions, notably in
those of the European States formed after the war. Experience however has not shown
them to be of any practical value. Abstract declarations are useless unless there exist the
will and means to make them effective”.
India appointed joint parliamentary committee which was one type of adhoc
Parliamentary committee. Such committee agreed with the observations as to the value
of a bill of Rights and presented it as a dilemma.
“Either the declaration of Rights is of so abstract a nature that has no legal effect of any
kind, or its legal effect will be to impose an embarrassing restriction on the power of the
Legislature and to create a grave risk that a large number of laws may be declared
invalid by the Courts because of inconsistency with one or other of the rights so
declared”.
In the Government of India Act, 1935, however certain concessions were made. Section
275 provided: “A person shall not be disqualified by sex for being appointed to any civil
service or civil post under the Crown in India, other than such a service or post as may
be specified by general or special order made by Governor-General or the secretary of
State for India as the case may be”.
Section 298(1) of the Act further said:
“No subject of His Majesty domiciled in India shall on ground only of religion, place of
birth, decent, color or any of them is ineligible for office under the Crown in India or be
prohibited on any such grounds from acquiring holding or disposing of property or
carrying on any occupation, trade, business or profession in British India”.
Section 299 (1) and (2) Stated: No person shall be deprived of his property in British
India, save by authority of law.
Neither the federal nor a provincial legislature shall have power to make any law
authorizing compulsory acquisition for public purposes of any land, or any commercial
or industrial undertaking or any interest in, or any company owning, any commercial or
industrial undertaking, unless the law provides for the payment of compensation for the
property acquired and either fixes the amount of compensation or specifies the
principles on which and the manner in which it is to be determined”. The Constitution
assembly adopted the objectives resolution moved, by Pandit Nehru, stating that the
object of the Constitution Assembly was to draw up a Constitution, when the occasion
arose to draft the Constitution for independent India. The people of India gave to
themselves, the Constitution of India, with a view make it Sovereign, Democratic,
Socialist, secular and Republic. In our democratic society, pride to place has been
provided to freedom of speech and expression, which is mother of all liberties.
One of the main objectives of the Indian Constitution as envisages in the preamble, is
secure LIBERTY OF THOUGHT AND EXPRESSION to all the citizens. Freedom of
expression is among the foremost of human rights. It is the system of administration;
various Constitutions make a mention of the freedom of expression. While freedom of
thought is a personal freedom. Freedom of expression is collective freedom; whose
character becomes more and more pronounced as the technical methods of their
diffusion multiply and improve.
The right of free speech is absolutely requisite for the prevention of a free society in
which government is based upon the consent of an informed citizenry and is dedicated
to the protection of the rights of all, even the most despised minorities. By inserting the
fundamental rights in the Constitution, India has consciously torn herself from the
British Tradition. British liberty was directly only against the executive to capture, and
tyranny while parliament was always held sacrosanct, above the scrutiny of the court of
justice. The American concept was the judicial supremacy making the congress subject
to the Supreme Court sphere of interpretation. The pattern adopted under the
Constitution of India is compromise between the parliamentary sovereignty of the U.K.
and the judicial supremacy of the U.S.A.
4. CONSTITUTIONAL SAFEGUARD: RIGHT TO FREEDOM OF SPEECH
AND EXPRESSION:
In the preamble, the people of India gave to themselves, the Constitution of India, with a
view to make it Sovereign, Democratic, Socialist, secular and Republic. In our
democratic society, pride to place has been provided to freedom of speech and
expression, which is mother of all liberties. One of the main objectives of the Indian
Constitution as envisages in the preamble, is secure LIBERTY OF THOUGHT AND
EXPRESSION to all the citizens. In order to give effect to this objectives mentioned in
the preamble by our Constitutional maker, “freedom of speech and expression” has been
guaranteed as a fundamental rights under Article 19(1)(a) available to all citizens,
subject only to restrictions which may be imposed by the State under clause (2) of that
Article. The relevant portion of Article 19 read as follows: Art.19. (1) All citizens shall
have rights
a) To Freedom of speech and expression;
b) To assemble peaceable and without arms,
c) To form association or union,
d) To move freely throughout the territory of India,
e) To reside and settle in any part of the territory of India,
f) To acquire, hold and dispose of property
g) To practice any profession or to carry on any occupation, trade or business.
Art. 19 (2) nothing in sub clause (a) of clause (1) shall effect the operation of any
existing law, or prevent the State from making law, in so far as such law imposed
reasonable restrictions on the exercise of the right conferred by the said sub-clause in
the interest of sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.
Art. 19 (1) guarantees certain fundamental rights, subject to the power of the State to
impose restrictions on the exercise of those rights. The Article was thus intended to
protect these rights against State action other than in the legitimate exercise of its power
to regulate private rights in the public interest.
Violation of the fundamental rights of one individual by another individual (without
support of State) is not within the purview of Art. 19 The scope of this guarantee has
however been defined by the limitations incorporated in clause (2) to (6) of the Art. 19.
Itself. These clauses permit the State to impose reasonable restrictions for the purpose of
any objectives mentioned therein. The Article thus consists of two parts:
(i) the declaration of rights in clause (1), comprising seven sub-Clauses,
(ii) The limitation contained in clauses (2) to (6).
The courts have to consider these questions, namely, whether the impugned law imposes
a restriction on any these rights, whether restriction imposed is for the purpose of
achieving any of the objects, mentioned in the relevant clause, and whether the
restriction is reasonable. There is no definite or positive test to adjudge the
reasonableness of restriction. Each case is to be judged on its own merit, and no abstract
standard or general pattern of reasonableness can be laid down as applicable to all cases.
The impugned law may contain substantive as well as procedural provisions and both
must satisfy the test of reasonableness. Patanjali Shastri C.J. formulated the following
wing test for determining the reasonableness of restriction: “The nature of the right
alleged to have been infringed, the underlying purpose of the restriction imposed, the
extent and urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time should all enter into the judicial
verdict.” Courts of India have wider discretionary powers U/Art. 19 for determination of
reasonableness of the restrictions imposed by the State on freedom speech and
expression.
4.1. Nature of the Right in General:
Certain rights to freedoms guarantee U/Art. 19. subject to the power of the State, to
impose restrictions on the exercise of those rights. The Article thus was intended to
protect these rights against State action other than in the legitimate exercise of its power
to regulate private rights in the public interest.
 (i) It may be observed that Art. 19 are confined to what are known as civil rights
as distinguished from political rights.
(ii) Though the concept of natural rights is not relevant in India for ascertaining
whether these are any inviolable rights apart from those included in the
Constitution, the concept has nevertheless been utilized for determining the
ambit of the fundamental rights themselves, for determining how far the
guarantee under Art. 19 will be available. The Supreme Court has observed
that Art. 19 refer to what are known as natural or common law rights as
distinguished from the right created by the statute. The Supreme Court has
observed that Art. 19 (1) Guarantees. “These great and basic rights which are
recognized and guaranteed as the natural rights, inherent in the status of a
citizen of a free country.”
(iii) Whatever a right is created by the statute, it can be exercised only subject to
the conditions imposed by the statute, and it can be restricted in any manner
or taken away by the legislature at any time. Fundamental rights guarantee
under the Constitution, it cannot be taken away by the legislature. It can only
be subjected to such restrictions as are permissible under the Constitution,
for example, the right to freedom of speech and expression in Art. 19 (1)(a)
can be subjected to reasonable restrictions only on any of the grounds
specified in Art. 19 (2)
(iv) The right guaranteed by Art. 19 are different from contractual rights. The
right to carry on any business or to hold property and to enter into contracts
as incidental to such rights is a fundamental right, but these rights granted by
a contract are not fundamental rights, they are protected by the ordinary law
of the land.
4.2. Nature of Limitations in General:
Unrestricted individual rights cannot exist in any modern political society. In fact, there
is no formal declaration of any fundamental rights in England. In the England prevails
the doctrine of the Sovereignty of parliament, which gives unlimited power on
parliament to abridge, modify or even abolish any of the rights of the people. The
British concept does not envisage a legal check on the power of parliament which
theoretically is free to make any law which pleases, even though it affects the basic civil
rights and liberties of the people.
In the United States, also even though the Constitutional guarantees of fundamental
rights and the limitations are permissible through various devices contrived and
sanctioned by the Supreme Court. As the U.S. Supreme court said:
“The liberty of the individual to do as pleases in innocent matters is not absolute. It must
frequently yield to the common good”.
The inherent conflict between the interests of the society and the interest of the
individual is a never-ending problem of political theory and at every stage in human
history, some workable reconciliation between these conflicting interests has to be
evolved.
When law is validated as having imposed a restriction upon a freedom of speech and
expression, what the court has to examine is the substantive of the legislation, without
being attract by the mere appearance of legislation. The legislative power being subject
to the fundamental rights, the legislature cannot indirectly take away or abridge the
fundamental rights in which it cannot do directly.
On the other hand, effect of legislature is applicable for this purpose only in so for as
they are direct and unavoidable consequences or the effect which could be said to have
been in the contemplation of the legislature.
A restriction cannot be said to be a restriction within the meaning of Art. 19 unless it is
imposed by law and which the citizen has no option but to obey. Where the restraint is
self-imposed inasmuch as the operation of the law is attracted by reason of a contract
which the citizen is free to enter into his own or choice, he cannot complain of the
unreasonable of the law.
5. REASONABLENESS OF RESTRICTIONS IMPOSED ON RIGHTS TO
FREEDOMS U/A 19:
In examining the reasonableness of a statutory provision whether it is infringement of
the fundamental rights guaranteed under Art. 19, The directive principles of State
policy. Restrictions must not be inconsistent or of an uncontrolled nature so as to go
beyond the requirement of the interest of general public. In order to judge the
reasonableness of the restrictions, no conceptual or general pattern or a fixed principle
can be laid down so as to be universal application and the same will be very form case
to case as also with regard to changing conditions, values of human life, social
philosophy of the Constitution, prevalent conditions and all around circumstances. A
just balance has to be struck between the restrictions imposed and the social control
anticipates by Art. 19(6). Current social values as also needs which are intended to be
satisfied by the restrictions. There must be a direct and immediate nexus or reasonable
connection between the restrictions imposed and the object sought to be achieved. If
there is a direct nexus between the restrictions, and the object of the Act, then a strong
presumption in favor the Constitutionality of the Act will naturally arise.
As if the parliament want impose restrictions on the fundamental rights of freedom
under Article 19.as above discussed it must be on both way substantive as well as
procedural reasonableness. It means whatever law enacted by the parliament to impose
restrictions on fundamental freedoms of citizens of India such law must be reasonable
and whatsoever procedure adopted restrict the fundamental freedom Under Article 19
(1), such process require that person must be given an opportunity of being heard in
defense before his freedoms deprived.
Article 19 (1) (a) freedom of speech and expression
Right to freedom of speech and expression under Article 19 (1)(a) means the right to
express one’s thought and opinion freely by word of mouth, writing, printing, picture, or
electronic media, or in any other manner (addressed to the eyes or the ears) it would thus
include not only the freedom of the press, but the expression of one’s ideas by any
visible demonstration, such as gestures and the like. Expression naturally presupposes a
second party to whom the ideas are expressed or communicated. In short, freedom of
expression includes the freedom of propagation of ideas, their publication and
circulation and right to answer the criticism leveled against such views, the right to
acquire and import the ideas and information about matter of common interest. It would
not however, include every concomitant right except where, in given case; it forms an
integral part of the named fundamental right. It is necessary for the operation of the
democratic system and for self-development and setting up a homogeneous egalitarian
society.
5.1. Grounds of Restriction on Freedom of Speech and Expression:
Any restriction imposed upon the above fundamental right of freedoms is prima facie
unconstitutional, unless it can be legitimate under the limitation clause, i. e. Cl. (2) of
the Article 19 of the Indian Constitution. This clause authorized the State impose
restrictions upon the freedom of speech only on certain specified grounds so that, if any
particular case, the restrictive law cannot rationally` be shown to relate to any of these
specified grounds, the law must be held to be void. The right to freedom of speech and
expression cannot rise of above the national interest and the interest of the society which
is another name for the interest of general public. It is true that Article 19(2) does not
use the word “national interest,” “interest of society” or “public Interest” but the several
grounds mentioned in Clause (2) are ultimately referable to the interest of the nation and
the society. Cl. (2) of the Article 19 of the Indian Constitution as amended, enable the
legislature to impose restrictions upon the freedom of speech and expression, on the
following grounds.
1. Sovereignty and Integrity of India
This ground has been added as a ground of restriction on the freedom of expression by
the 16thAmendment of the Constitution with effect from October 1963. The object was
to enable the State to combat cries for secession and the like from organization such as
the Dravida Kazhgam in south and the plebiscite front in Jammu and Kashmir and
activities in pursuance thereof which might not possibly be brought within the fold of
the expression “Security of State”.
2. Security of the State
The security of the State meaning is the “absence of serious and aggravated form of
public disorder” as different from ordinary breaches of “public safety” or “public order”
which may not involve any danger to the State itself. So, security of the State is
endangered by crimes of violence intended to overthrow the government, levying of war
and rebellion against the government, external aggression or war, but not by minor
breaches of public order or tranquility, such as unlawful assembly, riot affray, rash
driving, promoting enmity between classes and the like. But incitement of violence
crime like murder which is an offence against “public order” may also undermine the
security of the State.
3. Friendly Relations with Foreign States
The object of this exception to the freedom of speech and expression is to prevent libel
against foreign State in the interest of maintaining friendly relations with them.
4. Public Order
This ground was introduced by the Constitution (1st Amendment) Act, 1951. In order to
meet the situation arising from the Supreme Court decision in Romesh Thapper’s case,
the ordinary or local breaches of public order were no ground for restriction the freedom
of speech guaranteed by the Constitution. In the following this decision, it was held in
some cases that incitement to individual murder or promoting disaffection amongst
classes did not tend to undermine the security of the State and was not accordingly,
punishable under the Constitution. As it was to override the above judicial decisions that
the ground “public order” was inserted. The concept of “public order” must be
distinguished from the popular concept of “law and order” and of “security of State”.
They refer to three concentric circles. In “Law and Order” represent the largest circle
within which is the next circle representing public order and the smallest circle
represents security of the State. Hence, an activity which affects law and order may not
necessary affect public order, and activity which may be prejudicial to public order may
not necessary affect security of State. Absence of public order is an aggravated form of
disturbance of public peace, which affects the general current of public life and any act
which merely affect the security of others may not constitute a breach of public order.
5. Decency or Morality
This exception has been engrafted for the purpose of restricting speeches and
publications which tend to undermine public morals. Where decency or morality is not
confined to sexual morality alone and decency indicates that the action must be in
conformity with the current standard of behavior or propriety.
6. Contempt of Court
In the exercise of one ‘s right of freedom of speech and expression, nobody can be
allowed to interfere with due course of justice or to lower the reputation or authority of
the court.
But in the contempt jurisdiction should not be used by judge to uphold their own
dignity. In the free marketplace of ideas criticism about the judicial system or the Judges
should be welcomed, so long as criticisms do not impair or hamper the “administration
of justice”.
7. Defamation
Just as every person possesses the freedom of speech and expression, every person also
possesses a right to his reputation which is regarded a property. Hence nobody can so
use his freedom of speech or expression as to injure another’s reputation. Laws
penalizing defamation do not, thereof, constitute infringement of the freedom of speech.

8. Incitement to an Offence.
This ground will permit legislation not only punish or prevent incitement to commit
serious offences like murder which lead to breach of public order, but also commit any
offence, which as according to the General Clauses Act, means any act or omission
made punishable by any law for the time being in force. Hence, as it is not permissible
to instigate another to do any act which is prohibited and penalized by any law. But
mere instigation does not to pay a tax or may not necessarily constitute incitement to an
offence.
5.2. Expanding horizons of freedom of Speech and Expression:
Government has not monopoly on electronic media. The Supreme Court of India
widened the scope and extent of the right to freedom of speech and expression, and held
that the government has not 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 also radio any important event. The government can impose
restrictions on such a right only on grounds specified in clause (2) of Art. 19 and no
other ground. A citizen has fundamental right to use the best means of imparting and
receiving communication and as such have access to telecasting for the purpose.
6. CONCLUSION:
Right to freedom of speech and expression is the human rights which is guaranteed in
the almost all the written Constitutions of the democratic countries which include
freedom of press also. It is essential for the development of one’s own individuality and
for the success of parliamentary democracy. It is said that, the right to free expression is
not only the right of an individual but rather a right of the society to hear and be
informed in a democracy. The right to freedom of speech and expression is closely
related to other rights, and may be restricted when conflicting with other rights, to
privacy, fair trial as well as the honor and reputation of others. Right to freedom of
speech and expression is one of the most necessary fundamental rights. It includes
circulating one’s views by words or in writing or through audio-visual instrumentalities,
advertisements or through any other communication means. It also content of right to
information, freedom of press etc. Thus, this fundamental right has an extensive scope.