BabasaheB Bhimrao Ambedkar University

A Central University, Vidya Vihar, Raebareli Road, Lucknow- 226025 || accredited ‘A’ Grade by
NAAC in 2015

“Importance of Freedom of Speech and Expression

in India”

Paper name:-Fundamental Rights and Directive Principles of State Policy

Paper code: - PGL CA 1 LL.M,

SUBMITTED TO: SUBMITTED BY:

Dr.Sonali Roy Samriddhi Mishra
Resource Person, Centre for Post Graduate Legal Studies LL.M. (One Year), 1st Semester
BabaSaheb BhimRao Ambedkar University, Lucknow CPGLS, BBAU, Lucknow
Session 2022-23

Table of Contents Page

no.
  Introduction
…………………………………………………………………………………….3

 Historical Background …………………………………………………………………….

………...4

 Importance of freedom of speech and expression …………………………..….

…….5

 Is it an absolute right? …………………………………………………….

……………………..….6

 Reasonable Restrictions ………………………………………………………….

……….7

 Test of reasonable Restrictions ………….

………………………………………………….…9

 Conclusion
…………………………………………………………………………………………….…11

 References …………………………………………………………….
………………………………11

INTRODUCTION:

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The right to freedom in Article 19 guarantees the Freedom of speech and expression, as one of its six
freedoms. It is enshrined under Article 19(1) (a) of the constitution of India.

The freedom of speech is regarded as the first condition of liberty and most basic right of all freedom
provided to the people.  J Patanjali Shastri, has said in the case of Romesh Thaper v. State of
Madras1 that freedom of speech and that of the press lay at the foundation of a democratic society,
for without free political discussions, no public education is possible, which is so important for the
proper functioning of the govt.

It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the
freedom of speech that it is the mother of all other liberties. 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. In modern time it is widely accepted that the right to freedom of
speech is the essence of free society and it must be safeguarded at all time. The first principle of a
free society is an untrammelled flow of words in an open forum. Liberty to express opinions and
ideas without hindrance, and especially without fear of punishment plays significant role in the
development of that particular society and ultimately for that state. It is one of the most important
fundamental liberties guaranteed against state suppression or regulation.

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 Right, 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.

This Right includes:

 The right to fly national flag and sing national anthem

 Right to silence
 Right to receive information
 Freedom of press

HISTORICAL BACKGROUND:

1
AIR 1950 SC 

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The declaration of rights of man and of citizen adopted during the French revolution in 1789
specifically affirmed freedom of speech as an inalienable right. The declaration provides for freedom
of expression in Article 11, which says that –
   

“The free communication of ideas and opinions is one of the most precious of the rights of man.
Every citizen may, accordingly, speak, write and print with freedom but shall be responsible for such
abuses of his freedom as shall be defined by law.”

The right to freedom of expression is recognised as a human right under Art. 19 of the Universal
Declaration of Human Rights and further recognised in International human rights law in the
International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPCR states that-

“Everyone shall have the right to hold opinions without interference and everyone shall have the
right to freedom of expression; the right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers either orally or in writing or print, in the
form of art, or through any other media of their choice”.

IMPORTANCE OF FREEDOM OF SPEECH AND EXPRESSION:

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all
liberties”.   – John Milton

John argued that without human freedom there can be no progress in science, law or politics, which
according to him required free discussion of opinion. Mill's On Liberty, published in 1859 became a
classic defence of the right to freedom of expression.

 John argued that truth drives out falsity, therefore, the free expression of ideas, true or false,
should not be feared. The truth is not stable or fixed but evolves with time.
 John also argued that free discussion is necessary to prevent the "deep slumber of a decided
opinion". The discussion would drive the onwards march of truth and by considering false
views the basis of true views could be re-affirmed.

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  An opinion only carries intrinsic value to the owner of that opinion, thus silencing the
expression of that opinion is an injustice to a basic human right. For Mill, the only instance in
which speech can be justifiably suppressed is in order to prevent harm from a clear and direct
threat. Neither economic or moral implications, nor the speakers own well-being would
justify suppression of speech.

In Maneka Gandhi v. Union of India2, Bhagwati J has emphasized on the significance of freedom
of speech and expression in these words,

"Democracy is based essentially on free debate and open discussion, for that is the only corrective of
government action in a democratic setup. If democracy means government of the people by the
people, it is obvious that every citizen must be entitled to participate in the democratic process and in
order to enable him to intelligently exercise his right of making a choice, free and general discussion
of public matters is absolutely essential."

In 1927, in Whitney v. California3, Louis Brandeis J, made a classic statement on the freedom of
speech in the context of the U.S Constitution:

"Those who won our independence believed that the final end of the state was to make men free to
develop their faculties... They believed liberty to be secret of happiness and courage to be the secret
of liberty. They believed that the freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that without free speech and assembly
discussion would be futile.... that public discussion is a political duty; and that this should be a
fundamental principle of the American government."

The Right to freedom of speech and expression as per as Indian Constitution means the right to
express one’s own convictions and opinions freely. The word “freely” means including by words of
mouth, writing, printing, banners, signs, and even by way of silence.

2
1978 AIR 597, 1978 SCR (2) 621
3
274 U.S. 357 (1927)

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  The supreme court of India has held that hosting the National Flag by citizens is a form of
freedom of speech and expression in Union of India v. Naveen Jindal & Anr4, 2004.
 Freedom of press is an inferred right implicit under art. 19(1) a.
 The Right to Information (RTI) emerges as a fundamental right under Article 19(1) a, as a
freedom of speech and expression are meaningless without access to information.

IS IT AN ABSOLUTE RIGHT?

No right is absolute for, it is necessary to maintain social order, peace and tranquillity of the nation.
J.S Mill has rightly said “freedom which is absolute is no freedom in true sense”. There should be
some restriction in order to protect the rights of another individual. Hence, Supreme Court in the
famous decision in Romesh Thapar vs State of Madras5 stated concern regarding restrictions to be
imposed on this right.  First amendment act (1951) lays down grounds for reasonable restriction.

REASONABLE RESTRICTIONS:

Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain
restrictions on free speech under following heads:

1. Security of the State: Reasonable restrictions can be imposed on the freedom of speech
and expression, in the interest of the security of the State. All the utterances intended to
endanger the security of the State by crimes of violence intended to overthrow the
government, waging of war and rebellion against the government, external aggression or
war, etc., may be restrained in the interest of the security of the State. It does not refer to
the ordinary breaches of public order which do not involve any danger to the State.
2. Friendly relations with foreign States: This ground was added by the Constitution (First
Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of
speech and expression, if it tends to jeopardise the friendly relations of India with other
State.
3. Public order: This ground was added by the Constitution (First Amendment) Act, 1951
in order to meet the situation arising from the Supreme Court's decision in Romesh
4
(2004) 2 SCC 510: AIR 2004 SC 1559
5
AIR 1950 SC 124: 1950 SCR 594

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 Thapar, s case6. The expression 'public order' connotes the sense of public peace, safety
and tranquillity.

In Kishori Mohan v. State of West Bengal7, the Supreme Court explained the differences between
three concepts: law and order, public order, security of State. Anything that disturbs public peace or
public tranquillity disturbs public order. But mere criticism of the government does not necessarily
disturb public order. A law punishing the utterances deliberately tending to hurt the religious feelings
of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public
order. AQ `It is also necessary that there must be a reasonable nexus between the restriction
imposed and the achievement of public order.

In Superintendent, Central Prison v. Ram Manohar Lohiya8 , the Court held the Section 3 of U.P.
Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer
the payment of Government dues, as there was no reasonable nexus between the speech and public
order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue
directions to protect the public order or tranquillity.

4. Decency and morality: The word 'obscenity' is identical with the word 'indecency' of the
Indian Constitution. In an English case of R. v. Hicklin9, the test was laid down according
to which it is seen 'whether the tendency of the matter charged as obscene tend to deprave
and corrupt the minds which are open to such immoral influences'. This test was upheld
by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra10. In this case the
Court upheld the conviction of a book seller who was prosecuted under Section 292,
I.P.C., for selling and keeping the book Lady Chatterley's Lover. The standard of morality
varies from time to time and from place to place.
5. Contempt of court: The constitutional right to freedom of speech would not allow a
person to contempt the courts. The expression Contempt of Court has been defined
Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil
contempt or criminal contempt under the Act. But judges do not have any general
immunity from criticism of their judicial conduct, provided that it is made in good faith
and is genuine criticism, and not any attempt to impair the administration of justice.

6
AIR 1950 SC 124
7
AIR 1972 SC 1749
8
AIR 1960 SC 633
9
L.R. 3 Q.B. 360
10
AIR 1965 SC 881

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In re Arundhati Roy11, the Supreme Court of India followed the view taken in the American
Supreme Court (Frankfurter, J.) in Pennekamp v. Florida12 in which the United States Supreme
Court observed: “If men, including judges and journalists, were angels, there would be no problem of
contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic
journalists would not seek to influence them. The power to punish for contempt, as a means of
safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of
men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a
safeguard not for judges as persons but for the function which they exercise”.

6. Defamation: The clause (2) of Article 19 prevents any person from making any statement
that injures the reputation of another. With the same view, defamation has been
criminalised in India by inserting it into Section 499 of the I.P.C.
7. Incitement to an offense: This ground was also added by the Constitution (First
Amendment) Act, 1951. The Constitution also prohibits a person from making any
statement that incites people to commit offense.
8. Sovereignty and integrity of India: This ground was also added subsequently by the
Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from
making the statements that challenge the integrity and sovereignty of India.

“Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not
by executive action.”

In order to be a valid limitation under clause 19(2)-19(6) must comply with the following condition:

 There should be a law made by a state.

 It should not be just an executive order.
 The restriction must be proximately related to any of the grounds specified in the limitation
clause (2) to (6) which may be relevant to the fundamental right in question.

11
(2002) 3 SCC 343)
12
328 US 331 : 90 L Ed 1295 (1946)

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  The restriction imposed by law must be reasonable except in cases coming under sub clause
(i) – (ii) of clause (6).

Supreme Court has defined the ambit of Sec 19(2) in the recent judgement of Shreya Singhal
v Union of India:-
“There are three concepts which are fundamental in understanding the reach of this most
basic of human rights. The first is a discussion, the second is advocacy and the third is
incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is
at the heart of Article 19(2). It is only when such discussion or advocacy reaches the level of
incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the
speech or expression that leads inexorably to or tends to or tends to affect the sovereignty
and integrity of the India, Security of state, friendly relation with foreign state etc.”

Test of reasonable restrictions:

Spanning several cases, SC has laid down the following guidelines:

1. It is the courts and not the legislature that will decide whether a law is reasonable or not.
2. Reasonable means that the law is not arbitrary and the restriction is not beyond what is
required in public interest. The time and duration of the restriction cannot be unlimited.
3. There is no fixed standard for reasonableness. Each case must be decided on its own merits.
4. The restriction must be reasonable from substantive as well as procedural stand point.
5. Restrictions imposed due to implementation of Directive Principles may deemed to be
reasonable.
6. The test of reasonability must be objective in the sense that it does not matter what a Judge or
Court thinks what is reasonable but what a normal reasonable person would think.
7. The restriction must have a relation to the object that is sought through the law and must not
be excessive.
8. It is the reasonableness of the restriction that a count has to determine and not the
reasonableness of the law itself.
9. Restriction may amount to prohibition.

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 The following are important cases that have attenuated the scope of this right:

1. CPI (M) v. Bharat Kumar13: In this case SC has held that bundhs called by various political
parties are illegal because they prevent the citizens from exercising their right to freedom.

2. Ranjit Udeshi v. State of Mah.14: In this case, a bookseller was prohibited from selling book
containing obscene material.

3. Hamdard Dawakhana vs Union of India15: In this case, SC held that obnoxious and
fraudulent advertising is not protected under freedom of speech.

CONCLUSION:

Freedom of speech and expression is indeed the most important of all freedoms. However, today, this
right is being routinely suppressed under the guise of morality and decency or public order. Even a
13
AIR 1998 SC
14
AIR  1965 SC
15
AIR 1960 SC

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slight criticism of a public leader or past king causes the political parties to involve in damage of
public property. Any book that talks about problems in a religion is banned in the name of public
order. It is extremely unfortunate that the executive, instead of the upholding peoples' right to speech
and expression by preventing unscrupulous element from hurting the author, is more interested in
stifling the voice by banning their works. By doing this they are not doing their job responsibility.
This right is a very wide and covers many rights within it, some are discovered and many are still
under sand of thoughts.
For Chinese Human Rights activist, Liu Xiaobo, very aptly puts, “free expression is the base of
human rights, the root of human nature and the mother of truth. To kill free speech is to insult human
rights, to stifle human nature and to suppress truth”. 

REFRENCES:

 http://www.lawctopus.com/academike/freedom-of-speech-and-expression/
 Indian Constitutional Law, 7th edition M.P Jain
 http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html
 https://en.wikipedia.org/wiki/Freedom_of_expression_in_India
 http://www.lawteacher.net/free-law-essays/constitutional-law/freedom-of-
speech-and-expression-constitutional-law-essay.php
 http://lex-warrier.in/2013/04/a-critical-analysis-on-fundamental-right-of-speech-
and-expression/#identifier_0_2963

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