1

Freedom of Speech and Expression always met

its ends of justice until Government
intervened...
‘The more you strive for the closer you get

The less you incarcerate the more liberating it gets

Accompany it with conscience for it will never let you perish

Until last breath Beyond the death...’

Freedom...of Speech and Expression and we own a right over it i.e.

Right to Freedom of Speech and Expression under Art.19(1)(a)1, which is
one of the Fundamental rights conferred by Part III of Indian Constitution
and which constitutes integral part of Basic Structure too. Our Constitution
protects and ensures Freedom of speech and expression but doesn't allow
someone curtail it in order to accomplish anticipated ill objectives nor does
its misuse in the quest for Change. Today the world is so closely connected
through social media that consequences of wrong at one place can be seen at
other places and the situation at Delhi border demonstrated the same. As far
as that scenario is concerned, we need to be more pragmatic towards these
Constitutional provisions and understand where it's all heading to.

Historical Backdrop (Evolution of Freedom of Speech and

Expression) : Digging deep in the pursuit of roots of Freedom of speech
and expression, we find it in England's Bill of Rights, 16892, an Act signed

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1. The Constitution of India, 1950, Art.19 (1) (a)

2. The Bill of Rights (1689), I Will and AMP; Mary, session 2, c.2. An Act for declaring the
rights and liberties of the subject and settling the succession of the Crown
by 2William III and Mary II who became co-rulers ousting King James II as
a result of revolution in England in 1688-1689 and which gave rise to
Constitutional monarchy with more power to Parliament ensuring
incapability of Monarchy to govern nation without Parliament.The Bill of
Rights provides for 13 Freedoms with ‘Freedom of Speech in Parliament’
being one of them. The Bill also turned out to be an inspiration for the U.S.
Bill of Rights3.

Moreover Art.10 of European Convention on Human Rights4 confers

upon people Freedom of Expression and this freedom is also included in
Human Rights Act 1998. But this Freedom of Expression is not absolute but
subject to some reasonable restrictions.

As one of the outcomes of French Revolution, 1789 “The Declaration of

the Rights of Man and of Citizen”5 was passed by France's National
Constituent Assembly in 1789 - A Document which guaranteed to all the
citizens Freedom of Speech.

U.S. Bill of Rights, 1791, A Document protecting civil liberties under

U.S. Law is definitely influenced by Revolution in England and English Bill
of Rights, 1689 which led to First Amendment in U.S. Constitution (1791)6
- “Congress shall make no law abridging Freedom of Speech or of Press”
granting all Americans liberty to criticize the government and speak their
minds without fear of being censored or persecuted. Constitution also
protects the notion that “Individual's ability to express himself freely,

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3. Engrossed Bill of Rights, September 25, 1789; General Records of the United States
Government; Record Group 11; National Archives
4. Council of Europe, (Art.10)European Convention for the Protection of Human Rights
and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950,
ETS 5
5. Declaration of the Rights of Man and Citizen, 26 August 1789
6. U.S. Constitutional amendment I
3
without the fear of punishment by government produces the autonomy and
liberty that promotes better government”. Having said that, this Right of
Free Speech and Expression, it is not absolute but subject to some
reasonable restrictions.

Universal Declaration of Human Rights, 1948

Art.197: 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. India got signatory to it on 26 December,1949.

European Convention on Human Rights 1953

Art.10 (1)8 :

Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
Article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.

International Covenant on Civil and Political Rights (ICCPR) 1976

Article 199 :

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all

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7. Article 19, Universal Declaration of Human Rights (10 Dec. 1948), U.N.G.A.

8. Council of Europe, [Art.10(1)] European Convention for the Protection of Human Rights
and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November
1950,ETS 5
9. Art. 19 International Covenant on Civil and Political Rights, United Nations, Treaty
Series, vol. 999, p. 171
4
kinds, regardless of frontiers, either orally / in writing / in print / in the
form of art / through any other media of his choice.

3. The exercise of the rights that have been provided herein carry along
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and
are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order or of public

health.

European Charter of Fundamental Rights 200910

Art.11 (1) : Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers.

(2) : The freedom and pluralism of the media shall be respected.

Gradual Development (in India regarding Freedom of Speech

and Expression) :

Indians were often denied Freedom of Speech and Expression during the
Colonial era, extensive efforts were made by British rulers to curb free
speech of Indian people. New amendment was introduced in Indian Penal
Code, 1860 inserting sec.124 A11 - Law of Sedition in 1870 by Law Member
of Viceroy's Executive Council, after English Court in the case of R Vs
Sullivan [1868] AC 15612 held that “Sedition stands for inciting people to

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10. “[Art.11 (2)] Charter of Fundamental Rights of the European Union.” Official Journal
of the European Union C83, vol. 53, European Union, 2010, p. 380
11. Sec. 124A, The Indian Penal Code, 1860
12. R Vs Sullivan [1868] AC 156
5
take up arms against Government or encourage people to violently
overthrow Government, making people hate Government. In 1897, In
Queen Empress v. Bal Gangadhar Tilak, ILR 22 Bom 112 (D) 1897,
Lokmanya Tilak had to face trial for Sedition as he had started KESARI
newspaper making people aware about outraged epidemic disease Bubonic
Plague across the Country and ridiculous behaviour of administrative
authorities with women at railway station which was succeeded by death of
the then Commissioner Volterman as he got shot by Chafekar Bandhus.
Later Bail under Sedition became discretion of the Magistrate and many
Indians were charged with Sedition as a result of its misuse by British
administration. Sedition law in 1870, Sec.295A of Hate Speech Law, The
Prevention of Seditious Meeting Act,1907 were tactics used by Britishers to
curb Indian voices.13

In 1948, India got independence and in 1949 India adopted its own
Constitution which confers on its citizens Fundamental right to Freedom of
Speech and Expression under Art.19(1)(a) which also involves Freedom of
Press applicable to only Indian citizens and Foreign Freedom Fighters but
not to their children. Having said that the given right is not absolute but
subject to eight reasonable restrictions as per Art.19(2).

Art.19 : Protection of certain rights regarding freedom of speech etc :

(1) All citizens shall have the right :

(a) to freedom of speech and expression; subject to :

Art.19 (2) : (Two rectifications since the commencement of Constitution)

i. the sovereignty and integrity of India

ii. the security of the State

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13. Abhinav Chandrachud, The Republic of Rhetoric : Free Speech and the Constitution
of India (2018)
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iii. friendly relations with foreign States

iv. public order

v. decency or morality

vi. contempt of court

vii. defamation

viii. incitement to an offence

A. 1st Amendment, 195014 : Insertion of Public order, Incitement to

offence, Friendly relations with foreign states as restrictions in Art.19(2)

Judgements instrumental :

In case of Romesh thapar Vs State of Madras AIR 1950 SC 12415,

wherein State of Madras had banned Romesh Thapar's ‘Cross Roads'
(weekly magazine) circulation in Madras under the guise of maintaining
public order or public safety invoking Madras Maintenance of Public Order
Act, 1949 Sec.9[1A]16. So he went to the Apex Court of India and the Court
held that - Freedom of Speech and Expression includes Freedom of
Probation of ideas and Security of State inscribed in Constitution is a
reasonable restriction to it but not Public order so struck down the provision
and revoked ban on magazine.

In case of Brij Bhushan and Another Vs State of Delhi AIR 1950 SC

12917, Brij Bhushan was publisher of “Organiser" A right-wing weekly by
RSS. The Chief Commissioner of Delhi imposed prior restraint on it

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14. The Constitution of India, 1950, Article19 (2), inserted vide the The Constitution
(First Amendment) Act, 1951 (w.e.f. June 18, 1951)
15. Romesh thapar Vs State of Madras AIR 1950 SC 124
16. Sec. 9[1A], The Madras Maintenance of Public Order Act, 1949
17. Brij Bhushan and Another Vs State of Delhi AIR 1950 SC 129
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under Sec.7(1)(c) of The East Punjab Public Safety Act, 194918. The
Supreme Court struck down Sec. 7(1)(c) as unconstitutional and also
quashed Chief Commissioner's order of pre-censorship of the journal before
its publication as amounting to infringement of Art.19(1) (1).

In case of Bharti Press, Smt. Shaila Bala Devi Vs The Chief Secretary
to Delhi Government 1951 CriLJ 30919, Keeper of Bharti Press was
forfeited of the deposit she paid under Sec.4 (1) (c) of The Indian Press
(Emergency Powers) Act, 193120 as Government alleged use of Press to
incite people for commission of offence like murder or any offence
involving violence. Patna HC struck down Sec.4(1)(c) of Act as
unconstitutional and also held that - if a person was to go incite people to
commit murder or cognizable offence through press or words, he can do so
invoking Art.19(1)(a).

As a result of Supreme Court's decision in Romesh Thapar, Brij Bhushan

case and Mukherji, a member of PM's cabinet after resignation started
criticizing government policies towards Pakistan and spoke of AKHANDA
BHARAT publically, the then Home Minister Sardar Patel wrote to then
Prime Minister Nehru stating both the Cases knocked bottom of Freedom of
Speech and Expression and can not stop Mukhrji unless amendment in
Constitution. Six days after Patna HC's judgement in Shaila Bhala Devi case
on 13 october 1950, Nehru wrote to Dr.Babasaheb Ambedkar, then Law
minister asking for amendment in Free speech provisions. And the 1st
amendment of the Constitution, 1950 occurred21.

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18. Sec.7 (1)(c), The East Punjab Public Safety Act, 1949

19. Bharti Press, Smt.Shaila Bala Devi Vs The Chief Secretary to Delhi Government 1951
CriLJ 309
20. Sec.4 (1)(c), The Indian Press(Emergency Powers) Act, 1931
21. Abhinav Chabdrachud, The Republic of Rhetoric : Free Speech and the Constitution of
India (2018)
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B. 16th amendment, 196322 :

It targeted DMK, a political party in South and included amendment in

Oath and permission for enactment of laws restraining Freedom of Speech
and Expression to ensure sovereignty and integrity of State, eg.Unlawful
Activities Prevention Act 196723, Criminal Laws (Amendment) Act, 1990
criminalizing publication of map not in accordance with official map of
Government of India.

Global perspective ( Is the very notion of Freedom of Speech

and Expression ensured..?):

“Give me the liberty to know, to alter and argue freely according to

conscience, above all liberties - John Milton” through which he points out
what the Freedom of Speech and Expression stands for, what Freedom of
press is all about. In India, Freedom to speak also includes Freedom to
remain silent. For intensive and pragmatic insight into this issue we need to
have a holistic approach with solidary global perspective.

One of the integral disparities between Democratic Country and

Dictatorship is Right to speak, express against wrong, unfair and Countries
like England, America, France, India confer that right on their citizens
whereas Countries like Russia, North-Korea don't. In England’s Bill of
Rights 1689, The Declaration of the Rights of the man and citizens 1789,
France ( effect of French revolution), U.S.Bill of Rights amounting to First
Constitutional amendment, 1791 during Presidency of Abraham Lincoln in
America, all these conferred and acknowledged Right to Freedom of Speech
and Expression of citizens subject to reasonable restrictions.

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22.The Constitution (Sixteenth Amendment) Act, 1963 (w.e.f. 05.10.1963)

23.The Unlawful Activities (Prevention) Act,1967, Criminal Laws (Amendment) Act, 1990
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Indian scenario :

Indeed Indian citizens are conferred this Right to Freedom of Speech and
Expression as per Art.19(1)(a) with some reasonable restrictions under
Art.19(2). Other legal provisions like Sec.124A of IPC 1860,
Cinematographic Act 1952, Information Technology Act (amendment)
2008, UDHR 1948, ICCPR 1976 govern freedom to speak and express. But
often we have witnessed these provisions being misused, invoked to
suppress the truth, undermine it, satisfy personal motives and what not.

Notorious nexus between Sedition and Freedom of Speech and

Expression :

Chanting anti-national slogans, speeches, written work, news articles

inciting violence or disrupting public order or hatred or disaffection towards
Government established by Law amount to Offence of Sedition under
Sec.124A of Indian Penal Code, 1860 with punishment ranging from 3
months to lifetime or fine or both. This provision has been misused to
suppress voices against the Government. Tilak, Mahatma Gandhi were tried
under sedition. Many activists protesting against Citizenship (Amendment)
Act, 201924 got arrested for sedition. Kanhaiya Kumar was charged with
Sedition for allegedly chanting anti-national slogans along with other
students in JNU but received bail due to lack of evidence amounting to
offence of sedition. Along with Shashi Tharoor, 6 journalists faced charges
of sedition for supporting farmer's protest at Delhi border. Having said that,
Sometimes people do misuse their Freedom of Speech and Expression for
inciting violence, public disorder through hate speeches.

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24. Act No. 47 of 2019, Citizenship (Amendment) Act, 2019
Freedom of Press :

Brij Bhushan's “Organiser" a weekly journal got publication ban in Delhi

by Delhi Commissioner, many journalists got arrested during anti-CAA
protest and during recent Farmers’ protest at Delhi border including
Mandeep Punia, a freelance journalist which led to infringement of their
Freedom of Press.

But sometimes paid Media misuses its Freedom of press by running

agenda based campaigns under the guise of investigative journalism.

Social Media and Freedom of Speech and Expression :

Supreme Court advocate Prashant Bhushan got convicted with Re 1 under

Contempt of Court for tweeting on photo of Former Chief Justice of India
Bobde riding sportsbike in premises of Supreme Court without mask. Indian
Government threatened and opted for other social media platform "Koo"
compelling Twitter to ban many accounts which had tweeted against
Government of India regarding Farmers’ protest at Delhi border which led
to infringement their Right to Free speech and Expression. Social media
platforms are often misused to spread delusion, incite violence.

Freedom of Speech and Expression infringed by Censorship :

Censorship provisions of Cinematographic Act, 1952 are misused many

times in order to stop movie release, delay in certifying movies, wrongful
certification of movies infringing Freedom to Express.

Freedom of Speech and Expression nexus with Nationalism :

Today, Nationality has got directly proportional to pro-government

perspective. The more one supports the Government and its policies the
more Nationalist and patriotic he gets. And if one speaks against
Government for justice, immediately he gets labelled as Anti-national or
Terrorist or Khalistani and what not which clearly undermines the very crux
of Freedom to speak and express as per Constitution.
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Internet cut off amounting to infringement of Free speech and
expression :

A society not well informed is not a society that is truly free. Freedom of
speech and expression is vital for the development of public opinion. It
entails a collective right to receive any information whatsoever and to have
access to thoughts expressed by others. We have often witnessed internet cut
down in Jammu and Kashmir so far, or at Delhi border Union Government
ordered internet cut off amidst agitation by farmers against Farm laws. This
clearly leads to infringement of their fundamental Right to receive
information which is an integral part of Freedom to speak and express.

Indian Judicial pronouncements in Freedom of Speech and

Expression :

1. Romesh Thappar Vs State of Madras AIR 1950 SC 124 25

SC - Freedom of Speech and Expression under Art.19(1)(a) includes

Freedom of Probation of ideas and Security of State inscribed in
Constitution is a reasonable restriction to it but not Public order so SC
struck down the provision as unconstitutional and revoked ban on magazine
imposed in Madras State.

2. Brij Bhushan Vs State of Delhi AIR 1950 SC 12926

SC - Prior restraint on a weekly before publication amounts to infringement

of Art.19(1)(a) so SC revoked ban on publication of “Organiser" a weekly

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25. Romesh Thappar Vs State of Madras AIR 1950 SC 124

26. Brij Bhushan Vs State of Delhi AIR 1950 SC 129

which was imposed by Delhi Chief Commissioner in Delhi and struck down
the same provision and proclaiming the ban as unconstitutional.

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3. Bharti Press, Smt. Shaila Bala Devi Vs The Chief Secretary to Delhi
Government 1951 CriLJ 30927

Patna HC revoked order authorizing Government officials of Patna to forfeit

the deposit paid by Shaila Bala Devi, a keeper of publishing house and also
stated that Art.19(1)(a) involves Freedom to incite people to commit murder
or any cognizable offence and struck down the provision authorizing
officials to forfeit the deposit as unconstitutional.

4. Shreya Singhal Vs Union of India (2013) 12 S.C.C. 7328

SC - Freedom of Speech and Expression is available on Social media or

internet so SC struck down Sec.66A of IT Act, 2008 which had authorized
police action on social media post construed as “offensive”.

5. Bijoe Emmanuel v. State of Kerala 1986 3 SC 615 (National Anthem

Case)29

SC - Freedom of Speech under Art.19 (1) (a) also involves Right not to
speak, mere not singing National Anthem doesn't amount to offence.

6. Indian Express newspaper ltd. Vs Union of India 1985 2 SCC 43430

SC - Freedom of Press is a part of Art.19 (1) (a), it is the heart of social and
political intercourse, it has assumed the role of Public educator. Freedom of

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27. Bharti Press, Smt. Shaila Bala Devi Vs The Chief Secretary to Delhi Government
1951 CriLJ 309
28. Shreya Singhal Vs Union of India (2013) 12 S.C.C. 73
29. Bijoe Emmanuel v. State of Kerala 1986 3 SC 615 (National Anthem Case)
30. Indian Express newspaper ltd. Vs Union of India 1985 2 SCC 434
Press to publish facts and opinions helps the Government to make
responsible judgements.
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7. Kedar Nath Vs State of Bihar AIR 1962 SC 95531

SC - Kedarnath was charged with offence of Sedition for intemperate

speech, which he began by saying, “Today the dogs of the CID are loitering
around Barauni....”. Five judges of SC held provision of Sedition under
Sec.124 A of IPC, 1860 constitutional.

8. Balwant Singh and Anr.Vs State of Punjab (1995) 3 SCC 21432

Petitioners were convicted of sedition for chanting slogans after

assassination of Indira Gandhi by lower court, but SC struck down the order
of lower court as slogans didn't amount to sedition as didn't incite violence.

9. People’s Union for Civil Liberties (PUCL) v. Union of India AIR 1997
SC 56833

SC - Telephone tapping violates Article 19(1) (a) unless it comes within the
grounds of reasonable restrictions under Article 19(2).

10. Kanhaiya Kumar Vs State of NCT of Delhi P. (CRL) 558/201634

The Jawaharlal Nehru University’s Students Union President Kanhaiya

Kumar was arrested after ‘anti-national’ slogans were allegedly made. But
Kanhaiya Kumar was released on bail by the Delhi High Court as the police
investigation was still at nascent stage and Kumar’s exact role in the protest
was not clear.

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31. Kedar Nath Vs State of Bihar AIR 1962 SC 955

32. Balwant Singh and Anr. Vs State of Punjab (1995) 3 SCC 214
33. People’s Union for Civil Liberties (PUCL) v. Union of India AIR 1997 SC 568
34. Kanhaiya Kumar Vs State of NCT of Delhi P. (CRL) 558/2016
35. Prashant Bhushan and Anr Vs Court
11. Prashant Bhushan and Anr Vs Court 35

Prashant Bhushan got convicted with Re 1 under Contempt of Court 13for

tweeting about SC and former Chief Justices and on photo of Former CJI
Bobde riding sportsbike in premises of Supreme Court without mask during
lockdown and various restrictions in Delhi.

12. Disha A. Ravi Vs State (NCT of Delhi), February 19, 202136

Disha Ravi, a 22 yrs old environmental activist was arrested by Delhi

police for her involvement in circulation of a digital toolkit during Farmers'
protest against Indian Farm Bills, 2020. She was accused of provoking
people to cause riot, criminal conspiracy. But Delhi High Court granted her
bail as there was no reason to restrain someone with no criminal antecedent.

Findings responsible for misuse of legal provisions of

Freedom of Speech and Expression :

1. Government policy to suppress amplified voices against Government

2. Ill political motives to accomplish

3. Threatening and suppressing people standing against injustice

4. Endeavour to avoid criticism on government policies

5. Government trying to have absolute power with no accountability

Changes requisite to avoid the misuse :

To avoid misuse of legal provisions regarding Freedom of Speech and

Expression by government and to maintain its very notion, it is requisite to
make some changes in current legal provisions :

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36. Disha A. Ravi Vs State (NCT of Delhi), February 19, 2021
1. There should be a Committee presided over by Former Supreme Court
judge accompanied with four former Chief Justices of HC, four members of
Parliament out of which two from government and two from opposition.
The committee will look into whether the Government misuses Free speech
and expression provisions or not and report to the Chief Justice of India.

2. Rectifications in INFORMATION TECHNOLOGY (GUIDELINES FOR

INTERMEDIARIES AND DIGITAL MEDIA ETHICS CODE) RULES,
2021 :

(a) End to End encryption shall not be removed to know “First Originator of
message in Facebook / Twitter under IT Rules, 2021”.

(b) Certification of online curated content (OTT content) and license to

publishers of online curated content (OTT platforms) shall be solely
regulated by Board of Online Content Scrutiny (BOCS) so that people will
not misuse their right to free speech and expression through OTTs to hurt
sentiments of people and incite violence.

3. Writ Petition has been filed in Supreme Court against sec.124A of IPC,
Supreme Court must declare sec.124A of Indian Penal Code, 1860
unconstitutional and relinquish it from IPC to halt Government from
misusing this unconstitutional provision.

Conclusion :

Being Indian citizens it is our duty to think about the answer to the
question “whether one is free to speak and express or one not incarcerated to
speak and stand to injustice?” What has been perceived so far from the
research clearly denotes the misuse of legal provisions just to satisfy
political agendas, to suppress the truth. Many people got into jail for
speaking against CAA, for supporting Farmers’ protest at Delhi border and
what not. The parameter for Patriotism is now the Pro-Government mindset
which undermines the crux of the Constitution. Accountability is
stipulation for any Government which fortifies the real essence of
Parliamentary Democracy. As an integral part of this democracy, we are
supposed to uphold the spirit of it by standing against injustice and work
accordingly. As

“Injustice anywhere is a threat to Justice everywhere...”

- Martin Luther King,

Jr.

SHRUTI RAVIRAJ CHAVAN

NLC IVth YEAR