h Chapter 2 reedom of Speech and Expression | Article 19(1)(a) of the Constitution vine SSA of being free ie. stat liberty. The Preamble 0 " dia promotes, “Liberty of thought, expression, belief, faith | and wo! i, | Article 19(1)(a) of the Constitution provides that all citizens shall have a right to freedom of speech and expression. , Section (2) of Article 19 of the Constitution of India provides that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable Sra the exercise or the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendl; relations with Foreign States, public order, decency or morality ror in lton contempt of Court, defamation or incitement to an offence. The freedoms guaranteed under Article 19(1) of the Constitution of India are available to Indian citizens only and not to an alien or a foreigner. A non- citizen cannot claim the fundamental rights of freedom guaranteed under Article, 19(1). ‘Citizen’ under Article 19 means only a natural person and not legal person, A statutory corporation or a company registered under the Indian Companies ‘Act is a legal or artificial person but not citizen or ‘natural person and, therefore, it cannot claim the right guaranteed under Art. 19 and consequently, cannot enforce these rights. Though a company cannot claim a right under Article 19, but the shareholders can claim the right guaranteed by Art. 19. ‘The fundamental rights guaranteed by Art. 19 are available against the State only, The ‘State’ in this context includes not only the legislative authorities of the Union and the States but also other Jocal or statutory authorities e.g. municipalities, local bodies etc. within the territory of India or under the control of the Government of India. ‘The freedoms guaranteed in Art. 19(1) are not absolute or. exhaustive. The clause (2) of Art. 19 recognizes the right of the State to make laws putting reasonable restrictions for the reasons set out in that clause. The freedom of expression guaranteed under Art. 19(1)(a) is subject to various limitations imposed for public good. The restrictions must be reasonable restrictions. Reasonable restriction on the freedom of speech and expression se restrictions on freedom Art, 19(2) states that laws made by State to impo: f of press and expression should be reasonable. Iti the courts to decide as to what is reasonable. The court’s power in examining the question of reasonableness is unlimited. The court must determine the reasonablencs* a a restriction by objective standard and not | subjective one. Jn considering Teasonableness of legislative provisions re the exercise of fundamet 39 ocanneu wiut LainiScaa = Media Law [uayeng right of freedom of speech and expression under Art, 19(1) the courts may take into consideration the following: i) Directive Principles of State Policy; ii) Matters of a Common Knowledge; iii) History of the times; iv) Background of the facts and circumstances; v) Contemporaneous legislation. Inorder to judge the meaning of reasonable restriction, the following aspects of the matter be kept in view: 1. In order to be reasonable, the restriction must have a reasonable ‘relation to the object which the legislation seeks to achieve and must not go in excess of that object. Reasonableness of a restriction has to be determined in an objective 2. manner; 3, It is the effect of a law which constitutes the test of its reasonableness, its objects whether good or bad is immaterial for this purpose. 4, Inadjudging the validity of restriction, the courts have necessarily 0 approach it from the point of view of furthering the social interest, 5, A restriction to be valid must have a rational or proximate relation \with the grounds which the legislature is entitled to impose. Scope of right to freedom of speech and expression ‘cle 19 of the Universal Declaration of Hu: ; As Peete aM to freedom of opinion and expression’ hig pibbts, 1948, “Everyone hi ‘ Every‘ inions without interference and to seek, receive and impart imp: freedom to hold opinion: fe Faformation and ideas through any media and regardless of frontiers" vantle 19 of the International Covenanton Civiland Politiegy eat rovides that: ; fc PI “(1) Everyone shall have the right to hold opinions without res (2) Everyone shall have the right to freedom of expression; ths + arene include freedom to seek, receive and impart information and igege ht shall regardless of frontiers, either orally, 10 writing OF in Print in the foc au tne fia of his choice. of art rough any other media of his ; : o throt z ‘The exercise of the rights provided for in paragraph 2 gy ©) igneeponsibilties. ICm2Y therefor "his artigye i cial duties an carries with it SPECI hese shall only be Such 28 are provide te te aw certain restrictions, ae ars For respect of the rights or reputations of others; a a) For the protection of national security Or of public onde b) ith or morals”. x or of public healpeech and expre Nis subject to the based on the h runs thus. have # right (0 he ie » freedom and express py the State. Art. 19(1)(a) Constitution of the USA wh abridging the freedom of spec Freedom of speech and expression isa bulwark gvemnment. In Ramesh Thapar v. State of Madras Al ect jasbecn stated that, “Freedom of speech and ofthe pr a of all democratic or ions, for without free polit education, SO ¢ enti: Government, is Freedom of ‘speech and expression’ means the ri | convictions and opinions freely by words of mouth, saat exons one’s ovn ‘other mode. It thus includes the expression of one’s ideas eeu any A a en municable medium or visible representation, cuch as gesture, signs and the tke. ‘According to Halsbury’s Laws of England, the expression [freedom to express’ incorporates both the right to receive and to express ideas and information and the secrecy of private communications. There are, however, constraints imposed by the law on this freedom with regard to the matters which broadly fall within the bonds of blasphemy, obscenity, sedition, treason, the official secrets Acts, insulting words or behaviour, incitement to racial hatred, contempt of Court and of Parliament and defamation. The ‘freedom of speech and expression’ includes liberty to propagate not one's views only. It also includes the right to propagate or publish the views of «ther people Italso includes the right to acquire and import ideas and information about matters of common interest. Freedom of expression has four broad special purposes (0 serve: i) ithelps an individual, to attain self-fulfilment; ii) itassists in the discovery of truth; mocratic form of 950 SC 124}, it lay al the foundation al for the proper functioning of the p ble”. SiON no public Process of popular ual in participating in decision ii) itstrengthens the capacity of an individ making; and i 4) itprovides a mechanism by which it would be possible to oe a retsonable balance between stability and social change. Almere sy soriety should be able to form their own beliefs and communte: them i th freely to others. speech and expression. % is lere is No geographical limitation to the freedom 0! “dom is exercisable not only in India but also outside Indie i a tes Union of india, [AIR. 1978 SC 5971, the SUPFEME FT yc he aon Sets up barriers to its citizens freedom of expression in dom of “ech ang put Will be taken as the infringement OF ae of the ‘ 1)(a)- pression, guaranteed by Article 19( bh i ~- scanneu witr@@thscaMedia Law involved in the right of freedom of, Peceh, to know’. In democratic countries with! 4 *s right the ‘people's right to knov Mries v trae cin the administration, Governments function With tg partic’ r cautions in their actions. - In Life Insurance Corporation of India v, Manubhai D. Shah, (195, 3 SCC 637], the Supreme Court ‘examined the scope and extent of the freed 3SCC 637}, d by Article 19(1)(a) of the Constitutg of speech and expression guarantee 0 TheCourt said “the words ‘freedom of speech and expression must be bro construed to include the freedom to circulate one’s views by words of mouth in writing or through audio visual instrumentalities. It, therefore, includes the rig to propagate one’s views through the print media or through any other communication channel e.g,, the radio and the television. Every citizen of ths country, therefore, has the right to air his or her views through the printing and or the electronic media subject, of course, to permissible restrictions imposed under Art, 19(2) of the Constitution, The print media, the radio and the tiny screex play the public education so vital to the growth of a healthy democracy. Freedom to air one’s views is the lifeline of any democratic institution and any attemptto stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a demon Th Pe in any setup more so in democracy setup like ours, disseminat eee erefore, for popular consumption is a must and any attempt to d a frowned upon unless it falls within the mischief eeny the same must be Constitution. A citizen for propagation of his or her fas Article 19(2) of the ideas has a right to publish dical: . ®: magazines and journals or through for circulation his views in pi electronic media” In this case, the Supreme Court observed that the r Sea piaiee Se eee other communication oy rroPagate one’s a Pression of the ‘fy ‘annel e.g. radio expression’. Feedom of pea In Odyssey Commas Ld. v. Lokvidayan San 7 ois SC 1642], Doordarshan rejected to telecast th nghat, fitled "Beyond Genocide’, which was awarded un on the Bhopar LAIR 1988 non-feature film of 1987. The Doordarshan refused to 4g) <°%Us be; ‘as disaster ground that the contents were outdated and did not h lecase the ‘iN the best {elecast. The respondent filed a wrt petition challenging av’ PSleya a On the of violation of his fundamental right under Article 19¢1 4, "Usa} ae for the ‘The Supreme Court has held that the right ofa citize, the, Doordarshan subject to the terms and conditions t¢ be exh an is pa the fundamental right of freed © i darshan is part of the fun lom of yP® im Praranteed by Art, 19(1)(a) and ite pes be curtailed only MeechPressin india unde 9 minder Art. 19(2), Here “ wh m to th | tthe roy Hor conform 10 the NOAMS set by the Doo kd not be proved i Fpondarstian (0 eShiDi€ the Filmy wash Wieland there the films dia as held that Doorda ‘a8 held to be violaty lore refusal by rout has held that Doordarshan being iolative of vy the “ # State contr MAH 19a). 4 . rolled ag a). The ot deny the exhibition of cl nnot deny the exhibition of the rency funded by public funds 2" fi grounds iim on Doordarshan except on vag li scope of grounds for reasonable restrictions on th eats fe freedom of speech and 9(2) of the C i Art, 19(2) of the Constitution provides that “Nothing in sub t in sub-section (9) of clause (i) (he. all citizens shall have the expressions, shall affect the operation of any exist shall affect the 9 al sting Ia fea making any’ law in so far as such law imposes # ; aie earinoaes the exerse of the right conferred by the said sub-clause in tie ieietor ” sue aus crest of — i) _ the sovereignty and integrity of India; rest of ight to freedom of speech and i) _ the security of the State; ji) friendly relations with foreign States; iv) public order; \) decency or morality; or yi) in relation to contempt of Court; vii) defamation; or viii) incitement to an offence. 1.In the interest of integrity and Sovereignty of India The restriction can be imposed on the freedom of speech and expression in the interest of integrity and sovereignty of India. This restriction has been insested in Art. 19(2) by the Constitution (Sixteenth Amendment) Act, 1963 wef, 5-10-1963. Accordingly, Parliament can ‘make law so as to prevent any person from propagating secession of any part of India from the Indian Union. The expression ‘in the interest of” indicates that the restriction on freedom of speech and expression may be only when it actually leads (0. disintegration of the country but also tendency to. cause disintegration of the country, This expression also in jetion imposed must have reasonable connection with the sovereignty oF inteBttY of India. Section 124-A of IPC which punishes theycrime of waging WT ¢ Sat has been upheld as constitutional under this clause. restriction under Art. > Inthe interest of Security of State the intee security of state, reasonable a \ interest of the security of states roa i bi 2) can ke inne the eed seech and expression ofa at 952 SC 3291, the SUPT vated ans only f0 Serious ANC ernment, State oy of, Hihar-v. Shashibala Devi [AIR I iat the term, ‘Security of State—m' vaging war ag! imposed not when it has , dicates that the restr je th Sof " Public disorder like rebellion oF W' Scanned w against iScaax In Rame Court has exp es of offence’ regarded asthreatening the refers only © serious am waging waragainst He State ; awl and public safety &8- unlawl 7 P In State of Bihar Y ‘Shalibata Devis [AIR 1952 SC 329], it has been hel thatthe speech or expression ro incites to or encourages the commission violent crimes like murder, no doubt, undermines the security of State and therefore, the restriction on such speech or expression will bej justified and valid The expression ‘ind he interest of” indicates that the restriction on freedom ‘of speech and expression may: be imposed not only when it actually caused serious public disorder but also when it has tendency to cause such effect. The expression sin the interest of” also indicat es that the restriction must have reasonable and rational relation with the public order. 3, Friendly Relation with Foreign State The restriction on the freedom of speech and expression is aimed at to prohibit unrestrained malicious propaganda against a foreign friendly State which fray jeopardise the maintenance of good relations between India and the Foreign Fae This ground has been added by the Constitution (First Amendment) Act 1951. According to Article 367(3) of the constitution ‘foreign State” means ‘any State other than India, provided that, subject to the provisions of any law made by Parliament, the president may by order declare any State not to be @ foreign State for such purpose as may be specified in the order’. The Constitution (Declaration as to Foreign States) Order, 1950 declares that a Commonweal Country will not be treated as a Foreign State for the purposes of the constitution Nee eae Union of India, [AIR 1960 SC 675], the Supre fe it clear that a , i ieee ea aes cael Country is a ‘foreign’ Coun? Foreign Relatio f . . Citizen against foreign ae 1932) provides punishment for libel BY Inia 1874) empowers the Executive to; Similarly, the Foreign Recruiting Act avo ive to prohibit recruitment of any citizen of India the armny of foreig ign States, But the intere: : State, ould not sly these ieee of friendly relations with tee $ ol jained the words ‘Set Qf snst ‘public order security of the State. The term “security of the Staye rogated forms of public disorder e.., rebellgn str on and not ordinary breach of publicong, cr assembly, Fiot, allay. ivery publ Government ir criticism of foreign policy 4, Public Order ‘The term 4 “ ‘public order’ j ‘that state of tranquil der’ is an ex) oression of aT ee lity which ness oF wide connotation an a signifi as a result of intern; ilsamon. ane estblsied. The cone ions ‘enforced by te embers of political society onder like riot, affr Pt ‘public order Tee cat whi y ba? ‘ay but the concept ‘securite ob security oflik wi : overthrowing the State of Wagin, ‘aging ordinary mai synonymous with 4 Maintenance of law q ynonymous with Public peace’, safely and trang anquillity’. Public ‘an orderly state of affairs j “erly state of affairs in which cit avocation of life, os The restriction on freedom of speech and order was added by the Constitution (First Amendme 2 : ° nt cl situation from the decision of the Supreme Court in the eerie e re x, State of Madras, [AIR 1950 SC 124]. In this case the Supreme Sa eee s rt struc downa law banning the entry ofa journal in the State of Mei : tn Sta jadra ‘ of public order” because Article 19(2) did not contain the exprersren se To meet the situation arising from this decision the expression “oh inserted in Art. 19(2) by the Constitution (First ‘Amendment Act, ‘public order onder implies absence of violence and an peacefully pursue their normal expression on the ground of public order order 1951. __In Madhu Limaye v. SDM, [AIR 1971 SC 2486}, Section 144 of CrP-C. which empowers the Magistrate to ban Processions, meetings etc., has been held to be valid as the ground that it is done in the interest of public order. Anything that disturbs public tranquillity or public peace disturbs public order. Thus public order implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. | In Virendra v, State of Punjab, [AIR 1958 SC 986}, the legislation to_ prevent the incitement of feeling of hatred between different sections of the community is protected under Art. 19(2). Communal disturbances and strikes promoted with the sole objectof causing unrest among the workers are considered as offences against public order. The legislation to prevent the use of loudspeakers likely to cause public nuisance is protected under Article 19(2). A mere criticism of Government [Jawali v. State of Mysore, AIR 1966 SC 1387], or scurrilous attack upon the character and integrity of ajudge [Sadho Samsher y, State of Pepsu, AIR 1954 SC 276}, has no rational connection with the public order, . In Kishori Mohan v. State of West Bengal, (AIR 1972 SC im Supreme Court has held that every infraction of laws must necessarily order but not necessarily public order, and an act may affect public order, NOt necessarily security of state. The word ‘sedition’ is not. Rounds on which restriction on f 'mposed, y 9], the affect but ne of the sii 19.280 ned in clause (z) of Art. ay be lom of speech and expression IR 1952 SC 955], it has eas le ly valid in the interest of public * ition is that the wores tite: COU further held that shat te OF spoken have tendene’ canned wit VainScaMedia Law tus 46 ly vy or moral ly : / are words of wide meaning. The ‘decency and morality” a “The words ‘decency {ne "are words of : js identical with the word ‘obscenity’ of English law. The tat whether the tendency of matter charged as obscene isto leprae pe reads are open to such immoral influences’ ang in, avhose hands a pub corti likely t0 fall. In R. v. Hicklin, [LR3.Q3 360), it has been Jaid down that & publication is obscene if it tends to produce lasci ovsuses lustful desire in the minds of substantial numb, ascivious thoughts and ire i in of that public into whose hands the book is likely to fall. Sections 292 to 294 of IPC provide instances of restrictions of freedom «peech and expression in the interest of decency of morality. But it does nota dprwn any test for determining the obscenity. In Ranjit Udeshi v. State of Maharashtra, [AIR 1965 SC 881], the Supreme Court followed the test laid down in English case of R. V. Hicklin, (LR 3.08 360) and held the novel ‘Lady Chaterley’s Lover’ was an obscene bock, as it had the tendency to corrupt the minds of those who read it. However, the Rule laid down in R.V. Hicklin a vague and arbitra, Standard for judging decency and morality has to be put forth. But, no fixed standard can be laid down as to what is moral and indecent. The standard of morality varies from time totime and from place to place. Now, it seems jusifib notiofollow the rule laid down nearly hundred years ago by an English Judgeis .V. Hicklin and follow the present day changed circumstances in Indian Socie 6. Contempt of Court Restriction on the f : ; Erraiis conta feedom of speech and expression can be imposed if Section 2 of the Cont of courts provides that pein Ls 1971 defines the term ‘Contet! “Cima come Coe gee may be either ‘civil contempt cree, direction, order, wri means wilful disobedience to any jud undertaking sven toacoutl Gh Oatenocess of a court or wilful Teach oft ords sf ‘tan. ‘01 Y ae "ei ey gee ea Sapna 'e doing of any e, ssble representations or other" andalises other act w i aethlles or tends to scandal poke whl iD re of any court; se or lowers or tends to lower C&S OF interfe ‘ any judi feres or . iudicial proceedingg genes © interfere with the due course 5, Dec ‘obscenity is : and corrupt those wh jon of this it, or obstructs or tends to ob8™ \y other manner.”st Presiding Officers made in good faith information relating _ Articles 125 and 215 ofthe Indian Constiutig ! \ ] iin Constitution authorise the §; andthe High Court respectively to punish for meen me enreme Court 1 OP. Gupta, [AIR 1971 S.C. 1132} the Supreme Court ruled yk: Dapltari tocontempt imposes reasonable restrictions on the right meg lating eco guaranteed by Article In EMS. Namboodiripad v. T.N. Nambs imboodiripad v. TN. Nambiar, [AIR 1970 $C : Court held that Namboodiripad’s charge that judiciary isan litle oppression and the judges were guided and dominated by class hatred edt of lowering the prestige of the judges and Cours in the eyes ofthe pecolo net therefore, amounted to contempt of court, : i In Arundhati Roy; In re, [AIR 2002 $C 1375}, the Supreme Court has held that maintenance of dignity of cour is cardinal principle ofthe rule of law. The criticism which undermines the dignity of the court cannot be permitted under cloak of freedom of speech and expression, In Mulgaonkar (in re), [AIR 1978 SC 727}, guidelines for the use of contempt of court law have been laid down as given below: 1. Economic use of this jurisdiction is desirable. 2. Harmonisation between free criticism and the judiciary should be the goal. 3. Confusion between personal protection of a libelled judge and prevention of obstruction of public justice should be avoided. 4. Press should be given free play within reasonable limits, even when the focus of its critical attention is the court. 5. Judges should not be hypersensitive, even where distortions and criticism overstep the limits. 6. If, after taking into account all these considerations, the Court finds contempt of court beyond condonable limits, then the strong arm of the law must be used in the name of public interest and public justice. According to Justice Krishna Iyer, ‘justice’ and not judge should be Gi keynote and creative legal journalism and activist statesmanship for judicial reform cannot be jeopardized by an undefined apprehension of contempt action In Rama Dayal Markarha v, State of Madhya Pradesh, (AIR 1978 SC 21], it was observed that the path of justice is not strewn with roses and justice iny and ing not a cloistered virtue, it must be allowed to suffer the scrutiny . finary man, Hence in recent "spectful, even thou BPOKE: a ward: : gh outspoken, comments ¢ EN cs, the court has adopted a liberal attitude towards contempt of oun v. Mad 2 Shiv Shankar, AIR 1988 S Ce ‘ammad Yunus, AIR 1987 SC 1451 ete 10 proc dings in in camera, = ocadlineu wiul Ga ScaMedia Law lu 48 ation . ee 7. Defam hich injures a man’s reputation amounts to defy, ree n exposing a man (0 hatred, ridicule, or contempt, Defamation co! ; P impose ‘onable restriction on freedom of Speech meee te ation to defamation are protected under Art. 19(2). No expression ine eedom of speech and expression as t0 injure the epg a 80 enon, In Printers Mysore v. Assistant Commercial Law og fl ay 3seC 434) ithas been held that the press 1s not immune from the. gene ive ility for defamation. a Sections 499 and 500 of IPC define defamation which means exposing man to hatred, contempt or ridicule. These sections are constitutional @ the impose reasonable restrictions on the freedom of speech and expression, Th laws penalising the defamation are reasonable restriction on the freedom 9 speech and expression and, therefore, protected under Art. 19(2) of ti Constitution. 8. Incitement to commit an offence The ground of incitement to commit an offence as a restriction on te freedom of speech and expression was added by the Constitution (Fis Amendment Act, 1951). The right to freedom of speech and expression dos not give permission to citizens to incite a person to commit an offence. The wor! ‘offence’ has not been defined in the Constitution. According to the Gened! Clauses Act, the word ‘offence’ means any act or omission made punishibe by laws. Thus, a person cannot be allowed to instigate another person to doz act made punishable by law, What constitutes incitement will, however, have!’ be determined by th : h cacy eimined by the Court with reference to the facts and circumstances ‘A Statement WI r In Kedar Nath y, , that mere instigation ng” 2f Bihar, [AIR 1962 SC 955}, it has been bi ion not t an offence, © Pay tax may not necessarily amount to incitemed!" Reasonablen Ne Fa expresion ""** Of Festrictions on the freedom of speech Art. 19(2) st; of press and 2 States that laws. Made by ‘Pression gf dy State to it a crate hae er eceare waee an Py object ca cou st geectamning the questi, WeOvisions rest eee In const i t 19(1) the courts may ‘ocarineu wit GainScauel, Ch.2] iv) vy) Freedom of Speech and Expression 49 Background of the facts and circumstances; Contemporaneous legisl: lation. Inorder to judge the meaning of reasonable restriction, the following aspects of the matter be kept in view: 1. In order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object. Reasonableness of a restriction has to be determined in an objective manner; It is the effect of a law which constitutes the test of its reasonableness, its objects whether good or bad is immaterial for this Inadjudging the validity of restriction, the courts have necessarily to approach it from the point of view of furthering the social interest. A restriction to be valid must have a rational or proximate relation with the grounds which the legislature is entitled to impose. canned wit VarnSca