INTRODUCTION

The Constitution of India is the supreme document of the nation. Amongst various other
provisions that state the working of the executive, legislature and judiciary, it also sets down
the rights, duties and freedoms available to every citizen and the restrictions thereupon. These
rights were considered inevitable by the framers of Constitution in order to guarantee a
proper living of all citizens of the nation. Article 19(1)(a) of the Constitution of India
specifies that:

“All citizens shall have the right to freedom of speech and expression.”

These are the following essential elements of the freedom of Speech and Expression:

1. This right is only available to a citizen of India and not to persons belonging to other
nations i.e. foreign nationals.

2. The freedom of speech under Article 19(1)(a) includes the right to express one’s

views and opinions about any kind of issue and it can be done through any kind of
medium, such as by words of mouth, by writing, by printing, through visual
representations or through a movie.

3. This right is not absolute as it allows the Government of India to frame laws which
can impose reasonable restrictions in the cases which are involved with the
sovereignty and integrity of India or the security of the state, or friendly relations with
foreign nations, even public order, decency and morality and contempt of court,
defamation and incitement to an offence.

4. Such a restriction on the freedom of speech of any citizen may be imposed as much
by an action of the State as by its inaction. Thus, if failure is found on the part of the
State to guarantee to all its citizens the fundamental right to freedom of speech and
expression would also constitute a violation of Article 19(1)(a).

PRIVACY AND FREEDOM OF SPEECH

Article 19(1)(a) corresponds to Amendment I of the U.S. Constitution which says:

“Congress shall make no law abridging the freedom of speech or of the press.” Unlike Art.

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 19(1)(a) of the Indian Constitution, the provision in the U.S. Constitution has two notable
features:

i. Freedom of Press is specifically mentioned in the provision unlike the Indian Constitution
where there is no express mention of the Freedom of press. (Although Article 19 does not
express provision for freedom of press but the fundamental right of the freedom of press
implicit in the right the freedom of speech and expression. In the famous case Express
Newspapers (Bombay) (P) Ltd. v. Union of India court observed the importance of
press very aptly. Court held in this case that “In today’s free world freedom of press is
the heart of social and political intercourse.” 
ii. No restrictions are mentioned on the freedom of speech unlike Art. 19(2) which spells out
the restrictions on Art. 19(1). The Courts in the U.S.A. have to spell out the restrictions
on this right from case to case.

The concept of freedom of speech originated long back. England’s Bill of Rights, 1689
adopted freedom of speech as a constitutional right and still in effect. Freedom of speech is
guaranteed not only by the constitution or statutes of various states but also by various
international conventions like Universal Declaration of Human Rights, European
convention on Human Rights and fundamental freedoms, International Covenant on
Civil and Political Rights, etc. These declarations expressly talk about protection of freedom
of speech and expression. 

Restrictions on Freedom of speech and expression is mentioned under Article 19(2) which
are:

1. Security of the State

2. Friendly relations with foreign States

3. Public order

4. Decency and Morality

5. Contempt of court

6. Defamation

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 7. Incitement to an offence, and

8. Sovereignty and integrity of India.

IMPORTANCE OF FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech and expression is the bulwark of democratic government. This freedom is
essential for the proper functioning of the democratic process. The freedom of speech and
expression is regarded as the first condition of liberty. It occupies a preferred position in the
hierarchy of liberties giving support and protection to all other liberties. It has been truly said
that it is the mother of all other liberties. This was stated by the Supreme Court in the Ram
Lila Maidan case AIR 2012 SC(Supp) 266.

SPREAD OF INFORMATION THROUGH THE INTERNET

Due to continuous developments in science and technology, the media has developed modern
manners of presenting its news stories. Gutenberg’s invention of printing press in the 14 th
century has proved to be a boon to the world. The newspapers that can be printed in millions
of copies everyday now would have been impossible otherwise. But gone are the days when
print media alone was the sole pioneer of the entire media landscape. Today, even though
newspapers have created a firm space amidst the people, the news carried through social and
electronic media is equally welcomed by the public. The invention of internet and its easy
accessibility through computers, smartphones, notebooks and other electronic devices has
changed the way people get the news. E-papers, online news, opinion polls, online surveys,
tweets and commenting have made news system not just a one-way communication from
media houses to the public but an informal and prompt exchange of views and ideas in
respect of current affairs or any political event. People have found a platform wherefrom they
can express what they feel in respect of anything that is happening in the world.

But like everything that is in excess becomes unhealthy and unadvisable, even media can be
held responsible for several flaws emerging out of the freedom of speech and expression that
has been provided to it. Due to 24x7 news channels, people get prompt report of latest
happenings from across the world but simultaneously there are also instances of paid news,

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sting operations, media trials, etc. Likewise, there are entertainment and film channels, but
the content of their programs also needs a check considering the vast audience of various age
groups to which such programs are broadcast. In absence of such measures, the channels
often take liberty to broadcast program content of any level without any restriction, thus
sometimes offending the viewer groups like women and children. Even on social media
which is the biggest platform used by every individual, many feel that they cannot express
themselves completely while others use the same platform to abuse the rights of others, be it
publicly or personally. Thus, it can as well be said that development of media has resulted in
an increasing number of sources of media which again has proved both, a virtue and a vice.

The landmark judgment of Shreya Singhal vs. Union of India set utmost standards of free
speech and expression by striking down Sec. 66A of the Information Technology Act which
set limits on free speech on the internet. the Section also indirectly restricted political satire,
caricatures and cartoons which were based on current affairs. Due to this, even a healthy
expression of ideas by artists and cartoonists became getting restricted. The Court in its
judgment held that Section 66A was vague, open-minded and undefined. It was
unconstitutional, void and hindered free speech on social media.

This proves the vital importance of freedom of speech and expression and that even the
judiciary is prepared to take over the legislature wherever it has wrongly implemented a law.

There has also been an increase in Hate speeches on social media. Social media platforms
like Facebook and Youtube have several guidelines regarding any content posted which
spreads hatred. They are usually removed by these websites. The Government also has the
authority to order the authorities to take such a post down within 24 hours with all the details
of the users so that action can be taken against the person. But even after all this, we still
notice a lot of content on social media that spreads hate. The social media websites are still
not that effective when it comes to this aspect. The best example being the Bangalore riots
where so much destruction happened because of offensive content being posted. But another
alarming thing that is happening is how several riots that have happened have been the reason
for social media posts. If this is not enough, there is a lot of fake news on the internet adding
fuel to the fire and spreading a lot more hate between various sections of the society.

In the case of Mohammad Ajmal Mohammad Amir Kasab vs. State of Maharashtra,
During the entire terrorist attack, even while the rescue operation was in process, the Indian
media namely the anchors of news channels had jumped into the picture eager to send the

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“breaking news” and the first pictures and videos of the live coverage of the rescue operation.
Such was a frenzy to telecast the same on TV channels that nobody cared to realize that while
the TV channels were broadcasting the rescue operations to their citizens in order to earn a
few TRP ratings, the same broadcasts were also helping the terrorists who had planned the
entire attack to take their next step and keep an eye over how their terror attack was being
accomplished. The Court held that Any attempt to justify the conduct of the TV channels by
citing the right to freedom of speech and expression would be totally wrong and unacceptable
in such a situation. The freedom of expression, like all other freedoms under Article 19, is
subject to reasonable restrictions. An action tending to violate another person's right to life
guaranteed under Article 21 or putting the national security in jeopardy can never be justified
by taking the plea of freedom of speech and expression.

In the case of Manu Sharma v. NCT of Delhi, the issue of media trials was addressed. The
Court held that “Despite the significance of print and electronic media in present day, it is not
only desirable but least that is expected of the persons at the helm of affairs in the field to
ensure that trial by media does not hamper fair investigation by the investigating agency and
more importantly does not prejudice the right of defence of accused in any manner
whatsoever. It will amount to travesty of justice if either of this causes impediments in the
accepted judicious and fair investigation and trial.”

In the case of State of Maharashtra vs. Rajendra Gandhi, Supreme Court observed that
“there is a procedure established by law governing the conduct of trial of a person accused of
an offence. A trial by press, electronic media or public agitation is very antithesis of rule of
law. It can well lead to miscarriage of justice. A judge has to guard himself against any such
pressure and is to be guided strictly by rules of law.

FREEDOM OF SPEECH & EXPRESSION VS. CONTEMPT OF THE COURT

Under Articles 129 and 215 of the Constitution of India, Supreme Court of India and High
Courts of States respectively are empowered to punish people for their respective contempt.

There are two reasons for the uncertainty in the law of contempt of court. In the Contempt of
Court Act, 1952 there was no definition of ‘contempt.’ Secondly, even when a definition was
introduced by the Contempt of Court Act, 1971 (vide Section 2), there was no definition of

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what constitutes scandalizing the court or what prejudices, or interferes with the course of
justice. What could be regarded as scandalous earlier may not be regarded as scandalous
today and what could earlier be regarded as prejudicing or interfering with the course of
justice may not be so regarded today.

In the most recent case of Advocate Prashant Bhushan, The SC commented that Bhushan,
being part of the institution of administration of justice, instead of protecting the majesty of
law had indulged in an act tends to bring disrepute to the institution of administration of
justice and that there is a line between free speech and contempt. The bench opined that  it
could not be said that the tweets can be said to be a fair criticism of the functioning of the
judiciary, made bona fide in the public interest.

In E.M.Sankaran Nambbodiripad v T. Narayanana Nambiar1 it has been held that while

Article 19(1) (a) guaranteed the freedom of speech and expression, Article 19(2) showed that
it was also intended that contempt of court should not be committed in exercising that right.
The liberty of free expression is not to be compounded with licence to make unfounded
allegations of corruption against judiciary. The abuse of the liberty of free speech and
expression carries the case nearer the law of contempt.2

In the case of Supreme Court Bar Association v. Union of India &others, AIR 1998 SC
1895, it was held that The Contempt of Court jurisdiction is exercised not to protect the
dignity of an individual judge but to protect the administration of justice from being
maligned.

It is contended that no matter the criticism or specifically, the allegation is true, it is on the
discretion of the court whether to hold that allegation as contempt of court. In the case of
Bathina Ramakrishna Reddy v. The State of Madras 3, the appellant alleged the high court
judge to be indulged in bribery and after investigation, it was found that the allegations were
true even then the court held the appellant liable for contempt of court. But, in another case of
Brahma Prakash Sharma v. U.P 4 when the appellant claimed two high court judges as
incompetent in law, the court affirmed with the contention of the appellant and didn’t hold
him liable for contempt of court.

1
AIR 1970 SC 2015
2
M.R.Prashar v. Dr. Farooq Abdhullah (1984) 1 Cr LC 433
3
1952 SCR 425
4
1954 SCR 1169

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Although this confusion was resolved to some extent with The Contempt of Court
Amendment Act, 2006 by which truth has been declared as a valid defence for contempt of
court but its necessity to be in public interest and of bonafide intention has provided a
window to court to exercise the power to punish for contempt of court. This was seen in the
case of Court on its motion v. M.K. Tayal 5, wherein an article was published by the
respondent in which he said that the sons of former CJI of Supreme Court Y.K. Sabharwal
have been operating their commercial business from the official residence of judge.
Respondent duly filed affidavits stating that what they have alleged is true and submitted
evidence for the same. But, court, taking the window of public interest and bonafide, held the
respondent liable for contempt of court.

In the case of Indirect Tax Practitioners Assn. vs R.K.Jain, it was held by court that, “Truth
based on the facts should be allowed as a valid defence if courts are asked to decide contempt
proceedings relating to contempt proceeding relating to a speech or an editorial or article”.
The qualification is that such defence should not cover-up to escape from the consequences
of a deliberate effort to scandalize the court.

It is interesting to note that Indian judges have been touchier in the cases of contempt of court
as compared to English judges. For example, in the case of Balogh v. Court Crown6, the
defendant said to the judge, “You are a humourless automaton. Why don’t you self
destruct?” The judge just smiled but didn’t hold him liable for contempt of court.

In an incident where a person tagged judges as ‘fools’, Fali S. Nariman asked Lord
Templeman that why the person isn’t tried for contempt of court, he answered that they
(English judges) don’t take notice of such comments.

It is the judiciary that needs to understand the importance of criticism of any judicial action
and not to hold every such act as contempt of court. Lastly, the judge should remember the
following words of Lord Denning whenever a case of contempt of court comes in front of
them:

“Let me say at once that we will never use this jurisdiction to uphold our own dignity. That
must rest on surer foundations. Nor will we use it to suppress those who speak against us. We
do not fear criticism, nor do we resent it. For there is something far more important at stake.
It is no less than freedom of speech itself.”

5
2007(98)DRJ41
6
[1975] 1 QB 73

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ROLE OF NARRATIVE VS FREEDOM OF SPEECH & EXPRESSION IN THE
AMERICAN RIOTS

In the recent riots that happened in USA, the topic of Freedom of Speech and Expression was
widely discussed in the Country. Protesters are critical to a democracy, and their expression is
protected by the First Amendment. There were a lot of violent protests and damage to
property and even looting of stores. Even though the right of Freedom of Speech and
Expression has a wider scope and power in the United States, it still has restrictions. Violent
protests are not protected under the First Amendment.

Any attempt to limit free expression must meet three requirements, according to the U.S.
Supreme Court in the case of Ward v. Rock Against Racism (1989):

 Any regulation of free speech must be applied equally to all, regardless of their

cause or message.

 The government must make any restrictions narrow and limited.

 Those who are prevented from sharing their message must have alternate ways to get
the word out.

Does the First Amendment protect hate speech?

Yes. A bedrock principle of U.S. jurisprudence is that the First Amendment allows for hate
speech, including that which denigrates people on the basis of their race, gender or sexual
orientation. In the landmark 1969 case of Brandenburg v. Ohio, the high court upheld the
free speech rights of a Ku Klux Klan member.

“The vast majority of speech that could be deemed hateful is protected by the First
Amendment,”

But, in the same In the Brandenburg case, the Supreme Court said speech loses First
Amendment protection if it calls for and is likely to lead to “imminent lawless action.”
(violence).

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