Freedom of Speech and Expression 3

CHAPTER IV
EVOLUTION OF FREEDOM OF SPEECH

AND EXPRESSION –
A CONSTITUTIONAL PHILOSOPHY
Chapter IV Evolution of Freedom of Speech and Expression – A Constitutional Philosophy
CHAPTER IV
EVOLUTION OF FREEDOM OF SPEECH AND EXPRESSION
– A CONSTITUTIONAL PHILOSOPHY
The freedom of speech and expression has played a vital role in the
development of human civilization. We have also deduced logically that Indian
civilization, throughout its journey has experienced vital role of this freedom of
speech and expression. This very element has provided a breeding ground for culture,
in particular the literature as well as different religious philosophies. The thoughts and
philosophies experienced the process that generates wisdom i.e. Thesis, Anti-Thesis,
Synthesis. Hence we find the whole Indian history full with events of assertion as well
as denial of the freedom of speech and expression. It has also witnessed the fight
between the philosophies which advocate importance of freedom of speech and
expression and those oppose the freedom. It can be put in better words as; the history
of Indian civilization is the history of struggle between such contradicting
philosophies. In this struggle freedom of speech and expression played a very
significant contribution. The British regime consolidated its rule in India by
introducing its legal system. It saw brutal attack on this freedom during modern times.
It did every attempt to deny the right with laws relating to Press, Sedition etc. The
freedom struggle movement and its leaders were well aware about this fact. Therefore
the makers of modern India, knowing its crucial role, wanted to guarantee her people
with this basic human right of freedom of speech and expression. This fact was
positively recognized during Constitution making. This is clearly evident from the
Constituent Assembly debates. Accordingly this chapter aims to analyze the
evolution of freedom of speech and expression jurisprudence as a matter of India’s
Constitutional philosophy.
4.1 Evolution of Freedom of Speech and Expression: A Historical Review
In order to trace the origin of free speech jurisprudence related issues we need
to take a look on the attempts of censorship of press during British regime. In other
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words the history of struggle for freedom of speech and expression runs parallel to
that of repressive legal history that introduced censorship in India.
4.1.2 Pre-Censorship v/s Freedom of Speech and Expression
After the introduction of English education in India, it paved new way for
enlightenment. The press played significant role in this regard. But the mutiny of
1857 and subsequent uprisings threatened the very foundation as well as future of
British regime. Therefore the Britishers wished to crush the press. Accordingly the
laws to regulate the press were enacted. The aim of such laws was to empower the
police machinery to regulate the printing presses and restrain them from printing the
alleged inflammatory matter in the news papers, magazines. The press could not
operate without license, issued by the Government. It was immaterial whether the
press was English or vernacular. The press that criticized British policies was brought
under scanner and could be penalized. The Vernacular Press Act (1878) crossed all
the limits. The then Viceroy of India, Lord Lytton was the brain behind this Act. This
law required government’s prior approval to the editorials to be published. The Act
stated that, “… any magistrate or commissioner of police had the authority to call
upon the printer or publisher of a newspaper to enter into a bond, undertaking not to
print any material deemed objectionable.”1 Instead of the judiciary, the police were
authorized to adjudge which expression, through print, was Seditious.
In 1908, the Newspapers (Incitement to Offences) Act was introduced which

aimed to target extremist nationalist activities. It empowered the magistrates to
confiscate press property which had objectionable material that was likely to cause
incitement to murder or acts of violence. Similarly the Indian Press Act, passed in
1910, empowered the government to demand a security at the time of registration of a
newspaper. If the newspaper was proved to have printed offending material then as a
matter of penalty the newspaper could be deregistered.2 During the World Wars the
Government resorted to more repressive acts against the press, curtailing freedom of
speech and expression arbitrarily.
1
C. K. Mathew, First Amendment to Constitution of India, Economic and Political Weekly, VOL LI
NO 19 (May 7, 2016), p. 22.
2
Id.
92
The right to freedom of speech and expression is a subject matter of modern

jurisprudence. In order to trace its origin and evolution as a right we need to go
through the pre-Constitutional as well as Constitutional history of India. This study
may bring us the birth and development of free speech jurisprudence in India.
4.1.3 Pre-Constitutional Legacy: An Overview
The fundamental rights, that include freedom of speech and expression, we

find under the present Indian Constitution have their roots in the principles upon
which the struggle of independence was successfully fought. Exercise of this freedom
also can be seen as a positive reaction against arbitrary British rule. Once the
Company rule was substituted by the Queen’s direct rule the role of British
Parliament got changed. The post 1857 era has seen introduction of principles of
British legal system, either to guarantee the rights or to curtail them lawfully. It has
seen laws that were introduced to suppress the dissent against the rule, gave farewell
to the principle of rule of law. By the end of 19th century the demand for the
constitutional guarantee of fundamental rights became more vocal against the
repressive and brutal British regime. The demands certainly included freedom of
speech and expression. We can note few of the important instances where in the
demand was asserted by freedom fighters.
In 1895 the Constitution of India Bill was proposed, Mrs. Annie Besant
described it as Home Rule Bill.3 The Bill provided with guarantee to freedom of
expression to all citizens along with other rights. It proposed that, every citizen may
express his thoughts by words or writings. It also proposed guarantee to the right to
publish one’s thoughts without liability to censure. It also laid down restrictions
against exercise of this right. The exercise of the right was answerable to the abuses,
which might be caused while exercise of these rights. The Parliament was empowered
to determine limit of the right.4 Thus the citizens were ensured with freedom of
speech and expression along with restraints that to be determined by the Parliament.
3
B. Shiva Rao,(ed), The Framing of India’s Constitution-A Study, Vol. 5 (Universal Law Pub., New
Delhi, 1 edn., 1968, Reprint 2012), p. 171.
4
Cl. 16, The Constitution of India Bill, 1895, See. B. Shiva Rao, The Framing of India’s Constitution-
SELECT DOCUMENTS, Vol. 1 (Universal Law Pub., New Delhi, 1966, Reprint 2012), p. 7.
93
Another significant provision it had was regarding the special right guaranteed to the
Members of Parliament. Accordingly every member had right to ask any questions
regarding the Government of the Empire.5 This was certainly a freedom of speech and
expression, but a prerogative of Members of Parliament.
Law of Sedition had been advocated by the British regime to curtail freedom
of speech and expression. That resulted in to the birth of Section 124A under Indian
Penal Code. The Select Committee that was reviewing the Bill, with regard to
proposed Amendments to Section 124A in 1897, recommended that Sedition must be
distinguished from stirring up class hatred. It reasoned that:6
For the Committee offence of Sedition is against the

State. It differs in many ways to that of offence of
stirring up Class-hatred… It comes more
appropriately in the chapter relating to offences
against the public tranquility. The offence of
stirring up class hatred only affects the Government
or the State indirectly, and the essence of the
offence is that it predisposes classes of the people
to action which may disturb the public tranquility. The
fact that this offence is punishable in England as
seditious libel is probably due to historical causes,
and has nothing to do with logical arrangement.
(Emphasis supplied)
Therefore in order to qualify as Sedition, the impugned expression (alleged violation

of reasonable restriction on freedom of speech and expression) must threaten the
sovereignty and integrity of India and security of the State.
Special session of Indian National Congress held at Bombay in August 1918

put forward the demand for inclusion of declaration of the rights of the people of
India as British citizens under the new Government of India Act. Along with other
freedoms and rights the declaration was to include freedom of speech and press. In the
same year itself the Indian National Congress in its Delhi session passed resolution
5
Cl. 52, The Constitution of India Bill, 1895. Id. at, p. 9.
6
W.R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India, (Thacker,
Spink and Co., Calcutta, 1911), p. 164 . See. The Law Commission of India- Two Hundred Sixty
Seventh Report: Hate Speech (Government of India, 2017), note 136, Para 6.20, p.45.
94
that demanded immediate repeal of all laws, regulations, ordinances that aimed to
restrict the free discussion of political questions.7 The resolution was regarding right
to self-determination for the Indians. In order to make possible the application of this
principle under Clause 2 (a)8 of the resolution it was demanded that all the hindrances
to the free discussion shall be removed. Therefore the laws, regulations and
ordinances that aimed to restrict free discussion of political questions in press, private
or public meetings shall be immediately repealed. The resolution desired that the
legitimate aspirations and opinions of all the citizens may be allowed to be freely
expressed.
The Constitutional developments in Ireland during 1920s influenced the

Indian freedom struggle. As a result the Commonwealth of India Bill finalized by the
National Convention in 1925 included free expression of opinion along with freedom
of conscience and free profession and practice of religion as part and parcel of
fundamental rights.9 The Commonwealth of India Bill under declaration of rights
provided guarantee to fundamental rights of every person. That included free
expression of opinion.
All-Parties Conference appointed Nehru Committee (1928), the committee in

its report enumerated various fundamental rights with an aim to incorporate them in
the Constitution of India to be drafted in future. The recommendations of Nehru
Committee Report included right of free expression of opinion….subject to public
order or morality.10 The Nehru Report did mention only two grounds which could be
justified while restraining the free expression of opinion. This can be seen as dynamic
change that occurred during the framing of the said freedom. The report also referred
privileges, immunities and powers to be exercised by the members of Senate and
7
B. Shiva Rao, (ed), The Framing of India’s Constitution: SELECT DOCUMENTS, Vol. 1 (Universal
Law Pub., New Delhi, 1966, Reprint 2012) p. 31. (Hereinafter B. Shiva Rao-Select Documents, Vol. 1).
8
Congress Resolution on Self-determination (Dec. 1918), See. B. Shiva Rao-Select Documents, Vol. 1,
id., p. 31.
9
Declaration of Rights clause 4 (c), The Commonwealth of India Bill (1925), See B. Shiva Rao-Select
Documents, Vol. 1, Id. at, p.44.
10
Clause 4 (iv)-Nehru Report(1928): B. Shiva Rao-Select Documents, Vol. 1, p. 59.
95
House of Representatives11 reminds us the Parliamentary privileges guaranteed to the

legislators.
The Indian Statutory Commission (also known as Simon Commission) did not
support the idea to include and guarantee the fundamental rights in the proposed
Constitution Act. Majority of the Indians opposed the commission hence became
controversial part in the history of freedom struggle. At Karachi session of Indian
National Congress in March 1931 the resolution was passed that expressed dire need
to have written guarantee to the fundamental rights under future Constitutional
setup.12 The three Round Table Conferences discussed various rights to be guaranteed
to the Indians.
4.2 Constituent Assembly: Journey of Articulating the Fundamental Right to

Freedom of Speech and Expression
On the eve of constitution of Constituent Assembly speedy political process

was witnessed. The British Cabinet Mission of 1946 expressly recognized the need
for written guarantee to the fundamental rights under proposed Constitution. The
Mission plan also recommended setting up an Advisory Committee with the duty to
report on fundamental rights. Accordingly the Constituent Assembly came in to
existence.
4.2.1 Pre-Constituent Assembly Debates Developments
The Constituent Assembly adopted the Objectives Resolution on January 20,

1947 and solemnly pledged to draft the Constitution for the independent India. It also
pledged that the future Constitution shall guarantee freedom of thought and
expression.13 It, thus explains expression is an overt act that is preceded and
influenced by certain thoughts generated in the mind.
11
Cl. 12, Nehru Report, See. B. Shiva Rao-Select Documents, Vol. 1, id.,), p. 61.
12
B. Shiva Rao, (ed), The Framing of India’s Constitution: SELECT DOCUMENTS, Vol. 2 (Universal
Law Pub., New Delhi, 1967, Reprint 2012) p.173.(Hereinafter B. Shiva Rao- Select Documents, Vol.
2).
13
Id., at, p. 4.
96
Honourable K. T Shah, in his Note on Fundamental Rights, proposed

guarantee to fundamental rights including freedom of expression. For him the term
freedom of expression included words spoken, written, printed or published, material,
pictures, photographs, cartoons and the like. This freedom he wanted to be beyond
censorship by any public authority. But he supported censorship under special
legislations in the times of emergency like war.14
Accordingly the Constituent Assembly elected an Advisory Committee for

reporting on fundamental rights etc. Thereafter the Advisory Committee constituted
five sub-committees on February 27, 1947. One of such committee was constituted to
deal with fundamental rights. The Sub-Committee on Fundamental Rights had
Honourable members namely; J. B. Kripalani, M. R. Masani, K. T. Shah, Rajkumari
Amrit Kaur, Alladi Krishnaswami Ayyar, Sardar Hukum Singh, Maulana Abul Kalam
Azad, B. R. Ambedkar, Jairamdas Daulatram and K. M. Munshi. B. N. Rau, Alladi
Krishnaswami Ayyar, K. M. Munshi and Dr. B. R. Ambedkar took special efforts to
design and draft the fundamental rights of the proposed Constitution. The Constituent
Assembly assumed full sovereign powers for the governance of India in its special
historic session on midnight of August 14/15, 1947. In his speech Pandit Nehru said;
“Long years ago we made a tryst with destiny, and now the time comes when we shall
redeem our pledge, not wholly or in full measure, but very substantially. At the stroke
of the midnight hour, when the world sleeps, India will awake to life and freedom”.
(Emphasis supplied)
The speech of Nehru conveys that the role of Constituent Assembly would pour life in
Indians and would serve hard to ensure freedoms to its people.
The discussion on the draft provisions of the fundamental rights took place in
the Constituent Assembly during the months November-December of 1948 and
August, September and October months of 1949. After frequent scrutiny the revised
Draft was placed for final discussion in November 1949, which ultimately gave birth
to fundamental rights-that became cornerstone of present Indian Constitution.
14
B. Shiva Rao- Select Documents, Vol. 2, at pp. 49-50.
97
4.3 Scope of Freedom and Restrictions
Before the Constituent Assembly could discuss the fundamental right to

freedom of speech and expression different drafts were submitted before various
committees. The Sub-Committee on Fundamental Rights was constituted to scrutinize
the drafts and discuss the nature and scope of freedom of speech and expression under
the proposed Constitution. It also aimed to discuss the restrictions too.
4.3.1 A Review of Different Drafts
Honourable K. T Shah, in his Note on Fundamental Rights, proposed

guarantee to fundamental rights including freedom of expression. For him the term
freedom of expression included words spoken, written, printed or published, material,
pictures, photographs, cartoons and the like. This freedom he wanted to be beyond
censorship by any public authority. But he supported censorship under special
legislations in the times of emergency like war.15 Accordingly we can deduce the
scope of this freedom as follows.
K. M. Munshi’s draft submitted to the Sub-Committee on Fundamental

Rights recommended to include right of freedom of expression along with the freedom
of press subject to the restrictions imposed under the law in the interest of public
order or morality.16 Munshi in his said draft proposed that the exercise of
fundamental rights could be restricted in the interest of:17
5(a) public order, morality, or health and general welfare;
(b) the correlative duty to respect the rights of others; and
(c) national defence (Emphasis supplied)
15
Id.
16
Draft by K. M. Munshi, B. Shiva Rao- Select Documents, Vol. 2, p. 73. See B. Shiva Rao, (ed), The
Framing of India’s Constitution-A STUDY, Vol. 5 (Universal Law Pub., New Delhi, 1 edn., 1968,
Reprint 2012), p. 211 (Hereinafter B. Shiva Rao, Vol. 5).
17
Draft Article I (5), B. Shiva Rao- Select Documents, Vol. 2, p. 73.
98
Harnam Singh in his Draft on Fundamental Rights (March 18, 1947)18

proposed that the freedom of press etc shall be guaranteed by the Constitution. He
also wished that his fundamental right to meet peaceably without arms should not
adversely affect the right to wear Kirpan, a mode of expressing one being Sikh.
Dr. Ambedkar’s draft19 also provided that “no law shall be made abridging the
freedom of speech, of press …. except for the consideration of public order and
morality.” Munshi referred public order or morality but Ambedkar saw both the
concepts differently hence made them separate grounds to curtail the freedom.20
The Sub-Committee on Fundamental Rights gave preference to the rights to

freedom of expression etc contained under the drafts prepared by K. M. Munshi and
B. R. Ambedkar on March 25, 1947.21 Accordingly the sub-committee in its draft
report came up with five specific rights to be guaranteed to the citizens of independent
India. One of them was the right to freedom of speech and expression. The report also
provided the reasonable restraints to these freedoms. Alladi Krishnaswami Ayyar was
not happy with the probable effect of section 153A, that refer obscene, slanderous
and libellous utterances, on freedom of speech and expression. He wanted specific
mention of “class hatred” as a ground to restrain the freedom. This reminds us his
vision regarding hate speech which has become menace to Indian democracy in 21st
century. Ayyar also wanted the clause 9 should include the ground of existence of
grave emergency threatening the Union or its units in addition to other grounds
namely; public order and morality. The contemporary existing socio-political
situation was the reason for his concern. This is evident from his letter to B. N. Rau
on April 4, 1947.22 Another member K. T. Shah disagreed with the grounds “public
order and morality” as he thought these terms are very vague. He felt that these
concepts are contextual and their meaning keeps on changing with the change in time
18
B. Shiva Rao- Select Documents, Vol. 2, p.81.
19
Article II-Section I (12), Ambedkar’s Memorandum and Draft Articles on the Rights of States and
Minorities (March 24, 1947). See B. Shiva Rao- Select Documents, Vol. 2, p.87.
20
B. Shiva Rao, Vol. 5, p. 211.
21
Id.
22
Id., at p. 212
99
and space.23 The sub-committee agreed with the view of Alladi Krishnaswami Ayyar
to include situation of grave emergency and danger to the security of the State as a
ground to limit the freedoms.24 The sub-committee consolidated the clauses 9 and 14
in single clause 10 in its report. This clause now could be read as; there shall be
liberty for exercise of right of every citizen to freedom of speech and expression (sub
clause of clause 10) subject to public order and morality or to the existence of grave
emergency that endangered the security of the State. At the same time any publication
or utterance of seditious, obscene, slanderous, libellous or defamatory25 matter did
not get protection under the freedom of speech and expression. Rather they acted as
lawful grounds to restrain the freedom.
While considering the clause 10 along with the recommendations of the

Minorities Sub-Committee, the Advisory Committee allowed discussion on certain
reasonable restraints to freedom of speech and expression. On April 21, 1947 Alladi
Krishnaswami Ayyar once again emphasized the need to insert phrase “class hatred”
in the proviso to sub clause (a) of clause 10. He was supported by Rajagopalachari for
the reason that such restrain would allow to counter communal hatred. But the views
of Alladi Krishnaswami Ayyar and Rajagopalachari were strongly opposed by
Shyama Prasad Mookerjee, Munshi and Bakshi Tek Chand.26 They opposed the
insertion of the term class hatred as they feared misuse of section 153A by the police
as they did in the past.
The draft went under several changes. When it finally reached to the Drafting
Committee, the clause read as:
(1) Subject to the other provisions of this article, all citizens

shall have the right: (a) to freedom of speech and
expression.
23
Id., p.212; it is to be specifically noted that post-Constitutional judicial history has experienced
frequent debates in the court rooms to define what is morality. Till date the courts have not yet found
satisfactory definition in the age of “BAN” encouraging and advocating culture.
24
Id.
25
Id., at p. 213.
26
Id., at pp. 214-15.
100
The right was subject to restraint as per the provision

referred under clause (2) which provided the grounds
for limitation- the existing laws, laws relating to libel,
slander, defamation, sedition, the matters that offend
against decency or morality or undermines the
authority or foundation of the State.27
(Emphasis supplied)
Honourable member Jay Prakash Narayan proposed redrafting of the whole

clause as he found it to be clumsily drafted.28 B. N. Rau even did not agree to Mr. Jay
Prakash Narayan with regard to insertion of freedom of press specifically.29
4.3.2 Constituent Assembly Debates- A Study
Once the Draft Constitution came for the discussion in the Constituent
Assembly, Honourable members of the Assembly enthusiastically participated in the
debate. The Constituent Assembly was very much enthusiastic and positive to
introduce the freedom of speech and expression as fundamental right under the
Constitution. The debates show how the honourable members evaluated its
importance. Advocating relevance of fundamental rights Honourable Sardar Hukum
Singh30 explained the main purpose of declaring the rights as fundamental was to ,
“…safeguard the freedom of the citizen…” against any sort of interference by the
ordinary legislature as well as the executive action in future.
Sardar Bhopinder Singh Man,31 honourable member of the Constituent

Assembly and Sikh representative from East Punjab, opined that he regarded freedom
of speech and expression as the very life of civil liberty and therefore as fundamental.
He further added that he accord great importance to association and to free speech for
the public in general, and for the minorities in particular. He also opined that, through
27
Id., at pp. 217-218.
28
Id., at p.219.
29
Id., at pp.219-220.
30
1st Dec. 1948, CAD, Vol. VII (Lok Sabha Secretariat, New Delhi, Fifth Reprint, 2009), p. 732.
(Hereinafter CAD, Vol. VII).
31
2nd Dec. 1948, CAD, Vol. VII, pp. 749-750.
101
them that we can make our voice felt by the Government, and can stop the injustice
that might be done to us.
4.3.3 Artistic Expressions
Prof. K. T. Shah32 opined that the word, under Art. 13 (1) (a) of the Draft
Constitution, “expression” is a wider term; it encompasses expression by pictorial or
other similar artistic devices which do not consist merely in words or in speech. This
explains the vision of the Constituent Assembly behind guaranteeing this right as
fundamental. Prof. K. T. Shah also wanted to insert word freedom of worship through
an act of expression as he believed that majority of Indian are religious and they love
to get involved in such overt acts of worship. But the Drafting Committee did not
respond positively to this suggestion. The committee has done right thing as freedom
of worship can be interpreted under the word expression. Similarly Article 25 of the
existing Constitution also provides this right.
4.3.4 Freedom of Press
The history of press in India goes parallel with the movement of independence
struggle. The freedom fighters used the medium of press to articulate enlightenment
amongst the Indian masses and vent their grievances against the British regime. As a
response the Britishers tried to impose restrictions on freedom of press. The rule opted
various ways to gag this valuable freedom. They repressed the freedom of press,
whether it was English or vernacular Indian press. Noted leader B. G. Tilak was tried
and convicted under the charges of sedition for criticizing the British policies through
his newspaper. The framers of the Constitution were very much aware of this fact.
Therefore issue of freedom of speech along with freedom of press was seriously
discussed in the Constituent Assembly.
Shri Damodar Swarup Seth33, Honourable member of the Constituent

Assembly wanted the freedom of press should be mentioned separately and explicitly
32
1st December 1948, CAD, Vol. VII, at pp. 715-716.
33
Id., at p. 712.
102
under the proposed constitution. Prof. K. T. Shah34 also wished to add freedom of
press and publication under the sub-clause (a) of clause (1) of article 13, which read
freedom of speech and expression; of thought and worship; of press and publication.
Thus Prof. K. T. Shah considered relevance of inserting “freedom of the press, and
freedom of publication” under the proposed draft article. He argued that the press has
suffered and sacrificed a lot for the achievement of liberal constitutions (all over the
globe) and the bitterest of constitutional struggles for the same. In the countries,
where there is unwritten Constitution freedom of press is well established by the
conventions and judicial precedents. Where there is written constitution, they have
expressly included freedom of press. Therefore he was surprised why the freedom of
press has not been mentioned expressly. Hence he wished the freedom of press be
inserted on the lines of United Nations Charter. He further asserted that though there
is chance of abuse on the part of freedom of press, it is necessary that we must
guarantee the freedom to it, if we will not, then morally we will not be able to call
ours’ is a progressive liberal Constitution.
Dr. Ambedkar responded to these criticisms and justified why the proposed
Constitution did not mention freedom of press. He found the reply, in this regard,
given by one of the Honourable member of Constituent Assembly
Mr. Ananthasayanam Ayyangar was self sufficient. He asserted that the press needs
not to be given special rights as the citizens have. In fact the editors of a press or
managers are citizens. When they choose to write in the newspapers they actually
exercise their right to freedom of speech and expression. Therefore in his judgment,
“no special mention is necessary of the freedom of the press at all.”35
4.3.5 Vision of Democracy
The term democracy has been defined and theorized by different thinkers and
philosophers. But much of the times these interpretations focus upon the form of
government and political system. That has unnecessarily given weight to election
oriented political activities. The framers of the Constitution did interpret the term in
34
Id., at p. 715.
35
2nd Dec. 1948, CAD, Vol. VII, at p. 780.
103
different angle. In this regard we need to take in to account the views of Dr. B. R.
Ambedkar. Ambedkar in his concluding speech at Constituent Assembly on 25th
November, 1949 has tried to explain what he means the democracy.
He said;
[We] must … not [limit the interpretation] …with mere

political democracy. We must [endeavour to] make our
political democracy a social democracy as well.
Political democracy cannot last [long] unless there lies
at the base of it social democracy. What does social
democracy mean? It means a way of life which
recognizes liberty, equality and fraternity as the
principles of life. These principles of liberty, equality
and fraternity as the principles of life. These principles
of liberty, equality and fraternity… [shall never]… be
treated as separate items in a trinity. They form a union
of trinity…[if we attempt to]… divorce one from the
other…[would ultimately]…defeat the very purpose of
democracy. Liberty cannot be divorced from equality;
equality…[can never]…be divorced from liberty. Nor
can liberty and equality be divorced from fraternity.
Without equality, liberty would produce the
…[tyranny]… of the few over the many. Equality
without liberty would kill individual initiative. Without
fraternity, liberty and equality could not become a
natural course of things. It would [necessarily] require a
constable to enforce them.
(Emphasis supplied)
In brief he argued that political democracy is meaningless if not founded upon

the foundation of social democracy. For realization of social democracy liberty,
equality and fraternity shall necessarily be made principles of human life. Segregation
of these three principles i.e. trinity would be fatal and a very purpose of democracy
would be defeated, he opined. With this he tried to propound his own theory of
democracy, which is dynamic in nature. At the same time we can infer from his
opinion that where liberty, equality and fraternity are made principles of social life
there one can enjoy freedom of speech and expression without hindrances. That
would be an ideal situation where true democracy would bear true fruits in the form of
guarantee to free speech.
104
He was also aware of hurdles in achieving the social democracy. A realist he

knew all the contradictions in Indian society. He says;
We must begin by acknowledging the fact that there is

complete absence of two things in Indian Society.
One…is equality. On the social plane, we have in India
a society based on the principle of [caste-Varna-gender
based] graded inequality which we have a society in
which there are some who have immense wealth as
against many who live in abject poverty. On the 26th of
January 1950, we [as Indians] are going to enter into a
life of contradictions. In politics we will have equality
and in social and economic life we will have inequality.
In politics we will be [compelled to recognize] the
principle of one man one vote and one vote one value.
[But in] our social and economic life, we shall, by
reason of our social and economic structure [of
discrimination], [would] continue to deny the principle
of one man one value.
(Emphasis supplied)
With this he predicted that the post constitutional history would have
contradictions. On one hand we will have political equality on other hand we will be
facing inequality in social sphere. He opined that if we shall continue to live with life
of contradictions and continue to deny equality in our social and economic life there
would be great danger before democracy. This danger would poison the freedom of
speech and expression and would spoil the existence of democracy. Therefore he
warned;
If we continue to deny it for long, we will do so only by

putting our political democracy in peril. We must
remove this contradiction at the earliest possible
moment or else those who suffer from inequality will
blow up the structure of political democracy which is
[this Constituent] Assembly has to laboriously built up.
(Emphasis supplied)
Thus he wanted such a social system wherein all individuals and sections of
society would enjoy equal rights and would have equal opportunities to develop. This
was the democracy for him. This abovementioned speech is seen as an attempt to
theorize his view regarding the concept of democracy. Till date the concept of
105
democracy is been discussed in the context of voting and election oriented politics.
This is very parochial and narrow interpretation. Dr. Ambedkar viewed democracy
dynamically covering all spheres of human life.
In order to sustain the democratic set up, he proposed a concrete idea. He said
“If we wish to maintain democracy not merely in form, but also in fact, what must we
do?” He suggest instead of going with violent and bloody methods of revolution we
must go with constitutional methods of achieving our social and economic objectives.
He further proposes that if we have an option and the path of constitutional methods
for achieving economic and social objectives then we must abandon the method of
civil disobedience, non-cooperation and Satyagraha. The unconstitutional methods
could be justified only then when the constitutional mechanism fails to deliver.
Therefore “where constitutional methods are open, there can be no justification for
these unconstitutional methods.” His thoughts are relevant even today where forceful
satyagrahas and violent agitations (modes of expression) are going on in different
parts of India. This is being done in the name of democracy. Such methods might
have appealed some sections of society, might have achieved in replacing the
governments or succeeded in challenging the authority of the government, but he
denounced such attempts. For him, “these methods are nothing but the Grammar of
Anarchy…” and therefore “the sooner they are abandoned, the better for us.” Thus
Dr. Ambedkar did not wish to use freedom of speech and expression in the democracy
in such a way which would lead us to anarchy. If it is allowed so; then we will not be
able to build a new social order on the foundation of liberty, equality and fraternity.
Dr. Ambedkar wished to relate social democracy wherein freedom of speech and
expression would be automatically guaranteed without unreasonable hindrances.
Therefore we can infer that the freedom of speech and expression can be ensured
under the social democracy only. Mere political democracy is not enough to guarantee
the said fundament right.
4.4 Defining the Reasonability of Reasonable Restrictions
The freedom struggle for the Indian independence has made the Indians to
sacrifice a lot. During the struggle every day Indians faced grave violation of their
fundamental rights. Freedom of speech and expression also met the same fate and was
106
often crushed under the boots of repressive law. At the time of drafting the
Constitution the framers were aware about these sacrifices. Therefore they did not
want the freedoms, liberties shall be restricted. They wanted the citizens of
independent India shall have unfettered liberties and freedom. The question before the
Constituent Assembly came that whether the fundamental right to freedom of speech
and expression could be absolute? The members had difference of opinions.
The Article 13 of the Draft Constitution was criticized for the restrictions put
on the various freedoms of the citizen. They opined that the restrictions have literally
taken away the freedoms. Dr. B. R. Ambedkar responded the criticism with regard to
drafting committee. With the help of American case law Gitlow v. New York36 (1925)
he logically proved that the freedoms can never be absolute.37 That paved way to
insertion of exceptions to the freedoms in the form of reasonable restrictions. The
post-Constitutional era has experienced debate over the restrictions as well as their
logic of being reasonable. Let’s see few of the restrictions that were seriously debated
in the Constituent Assembly.
Few members like Shri Brajeshwar Prasad did advocate imposition of legal
fetters over these freedoms. They had their own logic. Shri Brajeshwar Prasad38
argued that, personal freedom has to be curtailed in order to tackle the menace of
capitalism. Majority of the members opined the freedoms cannot be absolute.
Honourable K. T Shah in his ‘Note on Fundamental Rights (December 23, 1946)’
expresses his opinion regarding fundamental rights of citizens and human beings. He
stated that in civilized society, which is based upon co-operation, the fundamental
rights of citizens and of human beings are neither absolute nor unconditional. For his
absolute freedom leads to undisciplined impulses that suits to savage cage dwellers or
the beast of the jungle.39 He even wished guarantee for every citizen’s freedom of
opinion subject to the laws that aim to maintain friendliness and good relations
36
268 U.S. 652.
37
4th Nov., 1948, CAD, Vol. VII, at pp. 40-41.
38
2nd Dec. 1948, CAD, Vol. VII, at p. 760.
39
B. Shiva Rao- Select Documents, Vol. 2, at p.48.
107
between the several communities and citizens and also laws relating to libel or
slander.40
The issue of restriction was discussed in the context of proposed draft Art 13
that was dealing with right to Freedom of Speech and Expression. Honourable
Mahboob Ali Baig Sahib Bahadur41 wanted the proposed Constitution should delete
clauses (2) to (6) of article 13 that were dealing with restrictions on the freedom of
speech and expression. He argued that fundamental rights are fundamental, permanent
as well as sacred and therefore ought to be guaranteed against coercive powers of a
State by excluding the jurisdiction of the executive and the legislature. He feared, if
the jurisdiction of the executive and the legislature was not excluded, these
fundamental rights would be reduced to ordinary rights and would also cease to be
fundamental. He agreed with the opinion of Ambedkar that fundamental rights are not
absolute. He also agreed that the fundamental rights are always subject to the interests
of the general public and the safety of the State. But he pointed out a practical
difficulty. According to him, if any certain citizen over steps the limits, then who
would judge that whether that act has endangered the safety of the State. He also
answered the question. He wished neither the executive nor the legislature be allowed
to judge but the duty shall be casted only upon the independent judiciary. In this
regard he gave logical support to his argument by citing example of American
Constitution. According to the Fourteenth Amendment (1791), it has clearly drafted
that the Congress (American legislature) cannot make any law to prejudice the
freedom of speech, the freedom of association and the freedom of the press. And if
any American citizen transgressed the limits thereby endangered the State, the
judiciary would judge him and not the legislature or the executive. Therefore he did
not wish the restrictions should be imposed by the legislature as well as the executive
on freedom of speech and expression in India.
Mahboob Ali Baig Sahib Bahadur42 even cited example of British legal
system. Under which, even though there is no written Constitution, the principle of
40
Id. at p.49.
41
1st Dec. 1948, CAD, Vol. VII., pp. 727-728.
42
1st Dec. 1948, CAD, Vol. VII, at p. 728.
108
due process of law protects the freedom of thought as well as freedom of expression.
He also pointed out threat in empowering the legislature to curtail the fundamental
rights, as that happened under German Constitution. This provision thus empowered
Hitler to pass any law to take away the fundamental rights. That ultimately paved way
to establishment of Totalitarianism, fascism in Germany.
Honourable member of Constituent Assembly Sardar Bhopinder Singh Man,43

honourable member of the Constituent Assembly and Sikh representative from East
Punjab while expressing his opinion regarding freedom of speech and expression
explained that how we fought a great battle and took hardship to win the recognition
for these rights. Therefore he wished that, these rights of freedoms should not be
restricted so much. According to him the opposition is a vital part of every democratic
Government. Hence he expected that all oppositions that are peaceful and not
seditious should get full opportunity. He further added that suppression of lawful and
peaceful opposition would surely heads towards fascism. K. M. Munshi also
emphasized that, “…essence of democracy is criticism of Government.”44
Honourable T. T. Krishnamachari45 opined that, we are the complex society

with diverse ideas. In such situation (on the eve of independence) guaranteeing the
right absolutely may prove to be disastrous. Therefore he praised the attempt of
drafting committee, in particular of Dr. Ambedkar, for finding golden mean in the
form of reasonable restrictions. He also considered concerns shown towards the word
‘sedition’ as raised by members like K. M. Munshi expressed that such laws would
not have future in India.
The restrictions were finally justified. Some of the restrictions, that became
part of the Constitution, have brought the debate of their reasonability during past
couple of decades. Therefore we need to have a critical appraisal of the journey that
shaped them.
43
2nd Dec. 1948, CAD, Vol. VII.
44
1st Dec. 1948, CAD, Vol. VII, p. 731.
45
2nd Dec. 1948, CAD, Vol. VII, at pp. 771-774.
109
4.4.1 Public Order and Morality
The importance of freedom of speech and expression was undoubtedly

recognized by the Constituent Assembly. Some of the members advocated the
guarantee of this fundamental right absolutely, but it did not get sufficient support.
This resulted in to insertion of restrictions. One of the restrictions was Public Order
and Morality, whose presence was fiercely debated.
Dr. Ambedkar’s draft46 also provided that “no law shall be made abridging the
freedom of speech, of press….. except for the consideration of public order and
morality. Munshi referred public order or morality but Ambedkar saw both the
concepts differently hence made them separate grounds to curtail the freedom.47
K. T. Shah disagreed with the grounds “public order and morality” as he

thought these terms are very vague. He felt that these concepts are contextual and
their meaning keeps on changing with the change in time and space.48
4.4.2 Hate Speech
Alladi Krishnaswami Ayyar was not happy with the probable effect of section
153A of the Indian Penal Code, that refer words; obscene, slanderous and libellous
utterances, on freedom of speech and expression. He wanted specific mention of
“class hatred” as a ground to restrain the freedom. This reminds us his vision
regarding hate speech which has become menace to Indian democracy in 21st century.
4.4.3 Sedition: An Unreasonable Restriction
The entire British rule has seen ruthless suppression of the freedom of speech
and expression of native Indians. The laws aimed to curtail the freedom became more
and more stringent after the revolt of 1857. In fact the subsequent series of uprisings
46
Article II-Section I (12), Ambedkar’s Memorandum and Draft Articles on the Rights of States and
Minorities (March 24, 1947). See B. Shiva Rao- Select Documents, Vol. 2, at p.87.
47
B. Shiva Rao, Vol. 5, p. 211.
48
Id.,at p.212; it is to be specifically noted that post-Constitutional judicial history has experienced
frequent debates in the court rooms to define what is morality. Till date the courts have not yet found
satisfactory definition in the age of “BAN” encouraging and advocating culture.
110
(post 1857) against the colonial rule needed stringent laws to curb the freedom of
speech. The reason was such exercise of freedom of speech and expression could
threaten the very foundation of British rule. To repress and curtail the potential threat
the regime invented Law of Sedition. It was an obvious and inevitable step. The law
was challenged by the victim freedom fighters. The eminent leaders like B. G. Tikal,
Mahatma Gandhi had to face the charges of sedition. The Constituent Assembly took
serious note of this fact. Shri Damodahr Swarup Seth argued that continuation of Law
of Sedition, the repressive laws like Official Secrets Act would make all civil liberties
subject to the police powers. Therefore he wished that the said restrictions should not
have any place under the Draft Constitution.49 Honourable member of the Constituent
Assembly Mr. K. M. Munshi was very much against insertion of sedition as a ground
for restricting the freedom of speech and expression. He gave in length the historic
background50 of the law of sedition in the west and the havoc it created due to the
chance of vague interpretation. While doing so he demarcated clear line between
criticisms of Government which and incitement which would undermine the security
or order on which civilized life is based, or which is calculated to overthrow the State.
Under democracy earlier should prevail and therefore should be welcome. Thus he
justified omission of the word sedition from the constitutionally permitted restrictions.
He even pointed out that freedom to criticize the Government is an essence of
democracy.51 Under the democracy an advocacy for the replacement of one
Government by another is a necessary exercise. Thus criticism of the Government
gives vitality to a democracy. Therefore he was very much against insertion of
sedition as a ground for restricting the freedom of speech and expression.
49
1st Dec.1948, CAD, Vol. VII, p. 713.
50
Shri K. M. Munshi pointed out that, “the word ‘sedition’ has been a word of varying import and has
created considerable doubt in the minds of not only the members of this House but of Courts of Law all
over the world. Its definition has been very simple and given so far back in 1868. It says “sedition
embraces all those practices whether by word or deed or writing which are calculated to disturb the
tranquility of the State and lead ignorant persons to subvert the Government”. But in practice it has had
a curious fortune. A hundred and fifty years ago in England, in holding a meeting or conducting a
procession was considered sedition. Even holding an opinion against, which will bring ill-will towards
Government, was considered sedition once. Our notorious Section 124-A of Penal Code was
sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged
to be covered by Section 124-A.”
51
1st Dec. 1948, CAD, Vol. VII, at p. 731.
111
Honourable member of the Constituent Assembly Sardar Hukum Singh52

argued that freedom of speech and expression referred under Article 13(1) (of the
Draft Constitution), sub-clause (a) [along with (b) and (c)] aims to give constitutional
protection to the individual against the coercive power of the State, provided they
stand on their own, without fetters. But the proposed restrictions, he opined that,
under the sub-clauses (2) to (6) of article 13 would literally appear to take away the
very soul out of these protective clauses. Such restrictions would continue to abrogate
the rights and suppress human liberties. That would be the same thing which was
experienced during the British regime, he feared. He further added that, the main
purpose of declaring these rights as fundamental was to safeguard the freedom of the
citizen against any interference by the ordinary legislature and the executive of the
day. He argued that the rights under the Article 13(1) are inalienable and even not
defeated by free will to alienate. In the context of subjecting the freedoms to certain
restrictions he alleged that the Draft Constitution has made the freedom of the press
(including freedom of assembling, and other freedoms) so precarious and entirely left
at the mercy of the legislature that the whole beauty and the charm has been taken
away.
Honourable members of Constituent Assembly namely; Damodhar Swaroop

Seth, Mehboob Ali Baig, Hukum Singh, Bhupinder Sing Mann, Syed Karimuddin,
Amiyo Kumar Ghosh, Lakshminarayan Sahu and H. J. Khandekar strongly opposed
the restrictive clauses (2) to (6). They viewed them as the stumbling block in
guaranteeing the free enjoyment of the rights. Hence they advocated that the
restrictive clauses should be deleted.53 Honourable Kazi Syed Karimuddin branded
the restrictive clauses (2) to (6) as very dangerous for the reason they have robbed the
people. It was the only guarantee that could have made the people secured.54
But those, who opposed the restrictive clauses, were in minority. The members
in huge majority did support the presence of these limitations. They felt it was a need
of that time. That included Honourable members of the Constituent Assembly
52
Id., at pp. 732-733.
53
B. Shiva Rao, Vol. 5, p.223.
54
CAD, Vol. VII, pp. 756-757
112
namely; Govind Das, K. Hanumanthaiya, Brajeshwar Prasad, Shibban Lal Saxena,

Algu Rai Shastri, Deshbandhu Gupta, T. T. Krishnamachari. While Brajeshwar
Prasad opined that the restrictions are justified due to the legacy of centuries old
backwardness and foreign misrule.55 He viewed that the wrongs could be corrected by
such restrictions. T. T. Krishnamachari also emphasized the need of restrictive clauses
in the context of socio-economical as well as political situation prevailing in the
newly born country. He thought that the clauses would empower the State in tackling
the situation.56
In this regard it needs to be taken in to account that the Unites States of

America brought in Sedition Act57 in order to prevent violent overthrow of the
Government as happened during the French revolution. The constitutionality of the
Act was never tested by the Supreme Court that led the law to get expired in 1801.
Further the then President Thomas Jefferson pardoned those who were convicted for
the commission of offence under the said Act. The Congress even enacted a law to
reimburse the imposed fine in this regard. But with the sporadic spread of
communism after Russian Revolution and changed political scenario after the end of
World War I, Americans viewed communist ideology as a threat. In order to tackle
the same Congress amended Espionage Act in 1918. It criminalized such statements
or publications that were disloyal, profane, scurrilous and abusive towards the U. S.
Government, Constitution or incited resistance against the U. S. Government. The
State used the law to curb the revolutionary communist unionism. Even the Supreme
Court upheld the convictions. But finally with the dissenting judgment of Justice
Holmes in Abrams v. United States [250 U.S. 616 (1919)] and thereafter opinion of
Justice Brandeis in Whitney v. California [274 U.S. 357 (1927)] the scope of free
speech has been widened by limiting the scope of Sedition laws.
The curb and suppression of free speech did not stop there. After the Second
World War the Smith Act aimed to target the communist zealous political activists in
the name of prohibition of diffusion of such doctrines that advocate violent overthrow
55
Ibid., at, pp.223- 224. See CAD, Vol. VII, pp. 760.
56
CAD, Vol. VII, p. 771. See B. Shiva Rao, Vol. 5, p. 224.
57
An Act for the Punishment of Certain Crimes Against the United States, (1798).
113
of the Government. McCarthyism58 made the suppression of freedom of speech and

expression of communists’ worst. The Courts did not show sympathy towards
dissenters against the curb. Later on the Court tried to distinguish between advocacy
of communism and incitement of illegal action. In Yates v. United States59 the court
indicated that suppression of incitement of illegal action was constitutional while
suppression of communism would not be constitutional. Thereafter in Brandenburg v.
Ohio60 the court declared that only the suppression of incitement of imminent lawless
action is justified under the First Amendment.61 This clearly indicates that an act
similar to McCarthyism does not have any place under the democracy.
4.4.4 Parliamentary Privileges: An Exception to Restrictions
It has been British legal tradition to guarantee freedom of speech and

expression as an absolute right for the members of legislature. The Britishers fought a
great struggle to ensure this right to the parliamentarians. Accordingly parliamentary
privileges became an exception to the reasonable restrictions. These privileges
provide the members of legislature a higher status than common Indian citizens. Thus
these privileges transformed the right to freedom of speech and expression in to
absolute kind of freedom.
Mr. Naziruddin Ahmad62, while expressing his view on the provisions of

parliamentary privileges to the members of legislature opined that, certain aspects of
article 85(the then provision under the draft Constitution, presently Article 105) deals
with the privileges and immunities of Members. He considered the freedom of the
Press is a very important item among the rights of the people. He wanted that the
58
It is the name given to historic period of United States, wherein Wisconsin Senator Joseph
McCarthy, in order to target the communists, produced series of investigations and hearings during
1950s. Since then the term has become synonym for defamation of character or reputation by means of
indiscriminate allegations without any substantiate charges.
https://www.britannica.com/topic/McCarthyism.
59
341 U.S. 494 (1951).
60
395 U.S. 444, 449 (1969).
61
Zoller, Elisabeth (2009) The United States Supreme Court and the Freedom of Expression, Indiana
Law Journal: V ol. 84: Iss. 3, Article 6, at pp. 897-898.
Available at: http://www.repository.law.indiana.edu/ilj/vol84/iss3/6.
62
19th May 1949, CAD, Vol. VIII, p. 147.
114
Press should be enabled to publish the proceedings of the House and also offer fair
comments on them. He wished that if anything that could be published by or under the
authority of the House, the Press should have freedom to publish the same. He felt
that if the Press is disallowed to publish what could be published by the authority of
the House, is somewhat anomalous. Therefore he thought that this is the lacuna in the
Draft Constitution which requires careful consideration.
But honourable Shri Jagat Narain Lal 63 strongly objected to the view of
honourable Mr. Naziruddin Ahmad. He wanted that the member who has delivered a
speech in the parliament should not have any further immunity and accordingly
should not be granted the right and privilege of publishing their speech outside in the
Press. If he is allowed to do so that may relate to the freedom of the Press, but would
not pertain to the freedom of the member so far as his speech or his vote in the
parliament is concerned.
Honourable Shri M. Ananthasayanam Ayyangar64 argued that under the 1919

Act the members of legislature were disallowed to utter seditious words even inside
the House. The Speaker of the house had enough powers to restrict such speech in the
house. But this thing got changed once Act of 1935 came in to existence. Under the
1935 any member of the House could utter any statement which he could not be able
to make outside. That gave absolute freedom inside the House. The research does not
attempt to focus upon parliamentary privileges as an exception to reasonable
restriction. But since the era of coalition governments has been started in India, many
a times opposition party members are not been allowed to speak in the house, making
the privilege meaningless. Frequent adjournments, verbal arguments have reduced
this privilege to nothing.
4.5 Impact of Freedom of Speech and Expression on Other Fundamental Rights
When we talk of constitutional protection to the freedom of speech and

expression, our discussion should not be confined merely to the Articles 19 (1) (a) and
63
Id., at p. 150.
64
Id., at p. 154.
115
19 (2) only. The freedom of expression goes beyond these articles and encompass
under it expression in the form of peaceable assembly without arms, in the form of
freedom to form associations as well as unions, to practice any profession or carry out
any occupation.
The freedom of expressing support to the practice of untouchablity has been

condemned under Article 17 by declaring its abolition. Further Article 21 of the
Constitution ensures right to life and liberty of freedom of speech and expression
seeking Indian citizen. India is a multi-religious country. The religious overt
expressions are part and parcel of public life. Article 25 of the Constitution
guarantees all persons the right to express freedom of conscience, their religious
beliefs by granting freedom to profess, practice and propagate their religion. But this
expression is subject to reasonable restrictions, i.e. subject to public order, morality
and health as well as other provisions of Part III of the Constitution. Therefore we
cannot see guarantee and exercise of freedom of speech and expression in isolation
rather has to be construed in the context of other constitutional as well as legal
provisions. On doing so, the expression of religious thoughts advocating Sati is
penalized under the law. The restriction goes to such extent that even the supporter of
such inhuman degrading practice shall be barred from participating in democratic
process of elections under the Representation of People Act, 1951.
4.6 Reasonable Restrictions: A Post-Constitutional Experience
Once the Constitution came in to existence certain difficulties came before the
judiciary. It has been alleged that the Nehru government policies faced strong
criticism by leftist parties. The courts also took the view in favour of freedom of
speech and expression. But the government felt that the freedom of speech and
expression guaranteed under Article 19 (1) (a) of the Constitution has been abused.
The reason was frequent criticisms against the Congress Government policies. The
communists were at the front to attack the Government. In parallel to these events
communist ideology was gaining roots and momentum in then Madras and today’s
Kerala region. Under these circumstances, in 1950, a leftist leaning English journal
Cross Roads published by Romesh Thapar, was banned by the then Madras State for
publishing critical views on Nehruvian policy. Thapar approached the Supreme Court
116
of India against the ban. The case was heard along with Brij Bhushan v. State of
Delhi. Accordingly the Supreme Court delivered the landmark judgment of Brij
Bhushan v. State of Delhi65 in which the Court found that liberty of the press is an
essential part of the right to freedom of speech and expression enshrined under Article
19(1) (a). Therefore it held that the imposition of pre-censorship on a journal, through
an executive order, amounted to a restriction against the spirit of Indian Constitution.
This frustrated the Nehru Government. Therefore the Government wished to take an
action to empower the executive machinery to place the curbs on the unfettered
freedom of expression. This was aimed to be done where issues of public tranquility
and order are involved. All these events and repercussions eventually resulted in to
the First Amendment of the Constitution. It is very much clear that the reason behind
the said amendment was the need of the contemporary time to preserve friendly
relations with foreign states. Another reason was to prevent future harsh and critical
comments against the Government as happened in case of Romesh Thapar’s Cross
Roads.
The objects and reasons66 behind the move for the First Constitutional
Amendment clearly indicate this fact. In fact, said amendment set the precedent for
amending the Constitution to overcome judicial pronouncements. It has been alleged
that, these judgments were seen as impediments for the fulfillment of the
government’s responsibilities to particular policies and programmes.67 This
culminated in to drastic change in the words of the Art 19 through First Amendment
65
AIR 1950 SC 129.
66
The statement of Objects and Reasons at the introduction of the First Amendment Bill enumerates
the reasons and objectives to be achieved through the Constitutional Amendment. One of the important
aspects is the Amendment to freedom of speech and expression clause. The statement reads,
During the last fifteen months of the working of the Constitution,
certain difficulties have been brought to light by judicial
decisions…. specially in regard to the chapter on fundamental
rights. The citizen’s right to freedom of speech and expression
guaranteed by Article 19 (1) (a) has been held by some courts to be
so comprehensive as not to render a person culpable even if he
advocates murder and other crimes of violence. In other countries
with written constitutions, freedom of speech and the press is not
regarded as debarring the State from punishing or preventing abuse
of this freedom. (Emphasis supp.)
67
C. K. Mathew, First Amendment to Constitution of India, Economic and Political Weekly, VOL LI
NO 19(May 7, 2016), p. 21.
117
of the Constitution. Before this amendment Article 19 provided for the protection of
certain rights regarding freedom of speech, etc.- it read under clause (1) that all
citizens shall have the right- (a) to freedom of speech and expression;... The freedom
under clause 19 (1) (a) was subject to permissible restrictions under clause (2) that
allowed to limit the exercise of this freedom. It ensured that though the fundamental
right would contradict with the operation of existing laws; the laws would continue to
remain constitutionally valid. At the same time this clause allowed the State to make
any law relating to libel, slander, defamation, contempt of court or any matter which
offends against decency or morality or which undermines the security of, or tends to
overthrow, the State. That means the laws that were in force at the time of
introduction of the Constitution would continue to apply validly, though they curtailed
freedom of speech and expression.
With the First Amendment, the changes were brought in Article 19 (2). It
allowed;
a. The State to make a law and impose reasonable restrictions on the

exercise of the right conferred by the said sub-clause.
The State could do so in the interests of
b. (i) the sovereignty and integrity of India,
(ii) the security of the State,
(iii) friendly relations with foreign States,
(iv) public order, decency or morality or
(v) in relation to contempt of court, defamation, or
(vi) incitement to an offence.
This Amendment brought following changes.
1. The Amendment coined new terminology reasonable restrictions. It

empowered the State to impose restrictions, which shall be reasonable. The
118
Judiciary was casted with the duty to adjudicate and apply test of
reasonability.
2. It increased number of grounds for limiting the freedom of speech and

expression.
3. It also sought to maintain friendly relations with the foreign States. It might be
having reason to strengthen friendly bond with neighbours in the context of
regional politics.
4. Element of fear to over throw the authority of State was replaced with new
grounds i.e. incitement to an offence. In earlier provision the freedom of
speech and expression could be restricted in the extreme situations where there
was element of fear to over throw the authority of State. The newly introduced
change allowed the State to take away the freedom of speech and expression
on the ground of incitement to an offence. This ground equipped the police
authorities with more powers. Now the State has power to curtail the freedom
of speech and expression in any such case, where the speech has is chance to
incitement to an offence. That shrunk the scope of free speech jurisprudence in
India. This ground opened gateway for the curtailment of freedom of speech
and expression in post Amendment era.
5. Introduction of ground of public order in the context of decency or morality

widened the scope for interpretation. The more chance for the use of police
powers.
This Constitutional Amendment gave birth to the Press (Objectionable Matter)

Act, 1951that remained in force till 1956. The Act empowered the Government to
demand and forfeit security for publication of “objectionable matter.” Aggrieved
owners and printers were given the right to demand trial by jury. Worst days were yet
to come. They came with the declaration of national emergency. The Government
promulgated the Prevention of Publication of Objectionable Matter Ordinance in
1975. With the restoration of the Parliamentary Proceedings (Protection of
Publications) Act, 1956 the Janata Party led Government restored freedom of
119
expression and speech. But we have to agree for one thing, the First Amendment to
the Indian Constitution transformed the free speech jurisprudence in India.
India has accepted Parliamentary form of democracy and the Constitution

upholds its validity. Under such system right of self determination and the election of
representative of people are at the centre stage. It is possible that the person may
employ corrupt practices to win the elections. The candidate or his agents, official
representatives, party men may exercise freedom of speech and expression to polarize
the voters. Taking in to account this threat to democracy the reasonable restriction has
been imposed under the Representative of People Act, 1951. Under Section 123 of the
Representation of the People Act, 1951 the term “Corrupt Practice” has been defined.
Specifically under Section 123 (3) of the Act, the exercise of freedom of speech and
expression making an appeal to seek the vote or to refrain from voting on the ground
of religion, race, caste, community or language is strictly prohibited. At the same time
sub Section (3A) of Section 123 puts restriction on the exercise of speech as well as
expression if that amounts to hate speech. More precisely the subsection strictly
prohibits:
[T]he promotion of, or attempt to promote, feelings of

enmity or hatred between different classes of the
citizens of India on the grounds of religion, race, caste,
community, or language, by a candidate or his agent or
any other person with the consent of a candidate or his
election agent for the furtherance of the prospectus of
the election of the candidate (to polarize the voters in
his own favour) or for prejudicially affecting the
election of any candidate (by polarizing the voters
against the opposite candidate.
(Emphasis supplied)
Further the expression exercised to glorify the evil practice of Sati by the
election contesting candidate or his agent shall not be protected under article 19 (1)
(a) of the Constitution.
4.6.1 Indian Penal Code-Hate Speech and Reasonable Restrictions
In pursuance of the Constitutional provisions after the relevant Amendments,

certain provision under Sections 153A, 153B, 295A have been added in the Indian
120
Penal Code to deal with offences of particular category of general expression of hate
speech. According to the said Penal Code categories of Offences Relating to Religion,
Offences against Public Tranquillity and Criminal Intimidation, causing Insult and
Annoyance are related to hate speech. Rather these provisions operate as reasonable
restrictions on exercise of freedom of speech and expression. Therefore one (the
citizen of India) cannot claim protection for his speech. Section 124A of the Indian
Penal Code provides for penal sanction to Sedition, promoting enmity among groups
on the grounds of …. and doing acts prejudicial to maintenance of harmony is
penalized under Section 153A. In addition to these provisions Section 153B of the
Code penalizes imputations, assertions prejudicial to national integration by words
(spoken or written) or by signs or by visible representation. Section 295A of the Code
penalizes deliberate and malicious acts, intended to outrage religious feelings of any
class by insulting its religion or religious beliefs. In support to this provision Section
298 of the Indian Penal Code penalizes uttering, words that have been used with
deliberate intent to wound the religious feelings of any person. Section 505 deals with
statements (by publication or circulation or in the form of rumours) conducing to
public mischief and are penalized accordingly.
Under the plural society, that struggles to survive under democracy these
provisions assume key position in free speech jurisprudence.
Apart from this under patriarchal society outraging modesty of woman is a bitter
truth. But that goes against the constitutionally guaranteed fundament right to
equality. Therefore the (speech) words intended to insult the modesty of woman is
penalized under Section 509 of the Indian penal Code. Section 499 also penalizes the
speech that amounts to defamation.
121
4.6.2 Role of Law Commission of India
The Law Commission of India had discussed prospectus of widening of scope

of freedom of speech and expression under Article 19 (1) (a) of the Constitution.
Accordingly in its 101st report the Commission dealt with two important issues.68
1. To guarantee the protection under Article 19 (1) (a) to the entities-

corporations like the natural persons;
2. It should be ensured that the corporations have an “Indian” character, just

as natural person.
Accordingly the Commission recommended that Article 19 should be added

with Explanation69 in order to (widen the scope of protection) extend the guarantee of
this fundamental right to corporations as suggested in the report.
In it 200th Report70 on Trial by Media and its interrelationship between the free
speech, the Law Commission of India discussed vital issue of democracy under the
digital era which is dominated by the media. In order to tackle this menace trial by
media the report has recommended amendments in Contempt of Courts Act, 1971.
68
Law Commission of India, Hundred and First Report: FREEDOM OF SPEECH AND EXPRESSION
UNDER ARTICLE 19 OF THE CONSTITUTION: RECOMMENDATION TO EXTEND IT TO INDIAN
CORPORATIONS (Government of India, May, 1984), Ch. 7, p. 18. The Commission was chaired by
Honourable Justice K. K. Mathew.
69
“Explanation, for the purpose of this articles in so far as it relates to the freedom of speech and
expression, the following shall be deemed to be citizens of India:
(a) all companies in India in which the entire share capital is held:-
(i) by citizen of India; or
(ii) by the Government ; or
(iii) by corporation specified in clause (b) of this explanation. or
(iv) by a company incorporated in India in which entire share capital is held by the
citizen of India/Government.
(b) All corporations, (other than companies), established by or under any law of the time
being in force in India.” (Emphasis supplied)
Id. p. 19.
70
Law Commission of India, Two Hundredth Report: Trial by Media: Free Speech and Fair Trial
under Criminal Procedure Code, 1973(Government of India, Aug. 2006). The Commission was
chaired by Honourable Justice M. Jagannadhrao.
Available at http://lawcommissionofindia.nic.in/reports/rep200.pdf.
122
The Report has discussed the relevance of investigative journalism. At the same
time it explains the treats to administration of justice out of investigative journalism.
Therefore the report claims that by the “….virtue of the private investigation, the
person is described as guilty or innocent, such a publication can prejudice the courts,
the witnesses and the public and can amount to contempt.”71 Due to this reason the
Commission has recommended that the existing Section 2 (c) of the Contempt of
Courts Act should be amended to widen the interpretation of the word “publication.”72
It has recommended that an explanation be added to widen the interpretation as
“publication includes publication in print, radio broadcast, electronic media,
cable television network, world wide web.” This certainly makes us understand
changing dimension of freedom of speech and expression in the media dominated age.
The Report in its IX Chapter73 also gives reasoning behind the

recommendations. It states that the Chapter aims to educate the media and the public
about the objectionable things that are going on in the media. Such thing may amount
to contempt of court irrespective of tolerance shown by the courts.
Chapter IX of the Report also gives categories of media publications that

are recognized as prejudicial to a suspect of or an accused of offence. The Report
therefore has recommended that the syllabus in Journalism should cover different
aspects of law relating to freedom of speech and expression under Article 19 (1) (a),
reasonable restrictions under Article 19 (2) of the Indian Constitution, human rights,
law of defamation and contempt and also suggested that there is dire need to introduce
Diploma as well Degree Course in Journalism and the law.74
Though it is true that proposed wide interpretation of the term publication (via
amendment) necessarily would shrink the space of freedom of speech and expression,
it is equally required to tame the hooliganism of media. That becomes necessary to
preserve democratic institute of administration of justice from the attacks of
prejudices and bias.
71
Id, p. 214.
72
Id, proposed Contempt of Court (Amendment) Bill, 2006, p. 235.
73
Id, at p. 220.
74
Id, at p. 232.
123
The Law Commission of India’s 267th Report75 is another mile stone in the
development of free speech jurisprudence in India. Recently, in March 2017 the
Commission headed by Justice Dr. B. S. Chauhan has submitted the Report on though
delicate but vital issue of Hate Speech.
The Report has referred the Honourable Supreme Court of India’s observation
in Pravasi Bhalai Sangathan v. Union of India and Ors76to justify the object behind
the report. In this case the court expressed its desire that the Law Commission of India
should undertake the issue of hate speech. It expected that the Commission should
take efforts to define the term “Hate Speech” and make recommendations to the
Parliament of India so that menace could be tackled by strengthening the Election
Commission of India.
The Law Commission of India in it 267th Report has recommended certain

amendments in the existing Indian Penal Code as well as Criminal Procedure Code.
It has proposed Amendment of Section 153 C that reads “Prohibiting incitement

to hatred.” It proposes to provide that:
Whoever on grounds of religion, race caste or

community, sex, gender identity, sexual orientation,
place of birth, residence, language, disability or tribe-
(a) uses gravely threatening words either spoken or

written, signs,
visible representations within the hearing or sight of

a person with the intention to cause, fear or alarm; or
(b) advocates hatred by words either spoken or

written, signs, visible representations, that causes
incitement to violence…..” shall be penalized with
imprisonment up to two years and fine up to Rs. 5000 or
both. (Emphasis supplied)
The Commission has further recommended that new Section 505A be inserted
in the Indian Penal Code. Under such circumstance the section would read:
75
Law Commission of India, Two Hundred Sixty Seventh Report: Hate Speech (Government of India,
March 2017) Available at http://lawcommissionofindia.nic.in/reports/Report267.pdf.
76
AIR 2014 SC 1591.
124
Whoever in public intentionally on grounds of religion,

race caste or community, sex, gender identity, sexual
orientation, place of birth, residence, language,
disability or tribe- uses words, or displays any
writing, sign, or other visible representation which is
gravely threatening, or derogatory;
(i) within the hearing or sight of a person, causing fear

or alarm, or;
(ii) with the intent to provoke the use of unlawful

violence, against that person or another….” shall be
penalized with imprisonment up to one year and fine up
to Rs. 5000 or both. (Emphasis supplied)
The Law Commission has also recommended amendment to the

Criminal Procedure Code of 1973. According to it Section 153C (Prohibiting
incitement to hatred) of the proposed amendment has been made the offence
cognizable and non bailable. At the same time amendment in the form of
Section 505A under Indian Penal Code the offence of “Causing fear, alarm, or
provocation of violence in certain cases” has been proposed to be made non-
cognizable and bailable.
The Law Commission of India has observed that calling any member
of Scheduled caste with his caste name in the public results in to humiliation.
It need not always be directed against public order. Such hate speech may not
be related to public order but may be treated as directly linked to decency and
morality. Therefore the S. C. & S. T. (Prevention of Atrocities) Act, can be
justified as reasonable restriction as it penalizes the person, who intentionally
insults or intimidates with intent to humiliate a member of a Scheduled Caste
or a Scheduled Tribe in any place within public view.77
4.6.3 National Commission to Review the Working of the Constitution
The then NDA Government constituted the National Commission to Review

the Working of the Constitution under the Chairpersonship of former Chief Justice of
India, Justice M. N. Venkatchaliah. It submitted its report to the prime Minister on
77
Law Commission of India, Two Hundred Sixty Seventh Report: Hate Speech (Government of India,
March 2017), at Para 6.7.
125
March 31, 2002. The Report has discussed various Constitutional issues at length.
Obviously it discussed the freedom of speech and expression.
The report under its chapter 3 has referred the freedom of press and freedom
of information.78 The report recommended that under present Article 19 (1) (a) of the
Constitution the freedom of the press and other media (in present context electronic
and social media), the freedom to hold opinion and to seek, receive and impart
information and ideas must be expressly included. It also provided for additional
ground to restrict the freedom i.e. restriction on disclosure of information received in
confidence except if required in public interest. That means the judiciary is expected
to invent new meaning for the public interest. That may further limit the scope of
freedom of speech and expression. It is to be noted that the Constituent Assembly did
not accept the proposals of the then members of the Assembly to include freedom of
press. The reasons are also properly discussed, but still the report wish to bring in the
change. It needs to be noted that the media is not a natural person, a citizen therefore
it cannot exercise its freedom without human agency.
The report has also recommended that it shall be open for the Courts to allow
plea to defend statements (a defense of justification by truth) that amount to contempt
of court as an exception to restriction.
The Parliamentary Privileges are seen as an instrument that nearly transformed

the freedom of speech and expression in to absolute kind of freedom. The report has
recommended the amendment under Article 105(2) to include corrupt acts as an
exception to Parliamentary privileges. It suggested the corrupt acts to include taking
bribe for the purpose of voting, raising particular questions in the house.79 Therefore it
has been alleged that the report opened Pandora’s Box.
The Constitutional philosophy of the right to freedom of speech and

expression is dynamic. It evolution has been influenced by various events as well as
factors. The Britishers attempted to control and censor the freedom, which culminated
78
Report of the National Commission to Review the Working of the Constitution (2002), See. Dr.
Subhash C. Kashyap, Constitution Making Since 1950:AN OVERVIEW (Universal Law Pub., 2012),
pp. 320-321.
79
Id., at pp. 370-371.
126
in to enforcement of various repressive laws. The Indian people had to scarify a lot in
this regard. The makers of modern India, freedom fighters were aware of this fact
hence wanted Constitutional guarantee to this freedom. They were visionary;
therefore they did not make the freedoms absolute. They were subject to certain
restrictions. Later on they became to be called as reasonable restrictions. These
grounds of restrictions, their abuse, have been an issue of great debate since
independence. That led to Constitutional Amendment. It is to be concluded since
Constitution came in to existence, the list of reasonable restrictions kept on enlarging
while freedom of speech and expression is on the verge of shrinking.
It is to be noted that attempt to curb the political dissent has often revokes
sedition law. In the age of Media, under the influence of market economy, communal
intolerance and hooliganism, freedom of press has become vulnerable. Therefore
National Commission to Review the Working of the Constitution has also
recommended amendment to Article 19 (1) (a) by inserting freedom of press and
other media, freedom to seek, receive and impart information and ideas. These are
mere recommendations. At the same time random use of restrictions has raised alarm
towards viability of democracy. That suggests, the existing Constitutional
jurisprudence is not been able to tackle the challenges before the freedom of speech
and expression.
127

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CHAPTER IV

EVOLUTION OF FREEDOM OF SPEECH

EVOLUTION OF FREEDOM OF SPEECH AND EXPRESSION

4.1 Evolution of Freedom of Speech and Expression: A Historical Review

4.1.2 Pre-Censorship v/s Freedom of Speech and Expression

In 1908, the Newspapers (Incitement to Offences) Act was introduced which

The right to freedom of speech and expression is a subject matter of modern

4.1.3 Pre-Constitutional Legacy: An Overview

The fundamental rights, that include freedom of speech and expression, we

For the Committee offence of Sedition is against the

Therefore in order to qualify as Sedition, the impugned expression (alleged violation

Special session of Indian National Congress held at Bombay in August 1918

The Constitutional developments in Ireland during 1920s influenced the

All-Parties Conference appointed Nehru Committee (1928), the committee in

House of Representatives11 reminds us the Parliamentary privileges guaranteed to the

4.2 Constituent Assembly: Journey of Articulating the Fundamental Right to

On the eve of constitution of Constituent Assembly speedy political process

4.2.1 Pre-Constituent Assembly Debates Developments

The Constituent Assembly adopted the Objectives Resolution on January 20,

Honourable K. T Shah, in his Note on Fundamental Rights, proposed

Accordingly the Constituent Assembly elected an Advisory Committee for

4.3 Scope of Freedom and Restrictions

Before the Constituent Assembly could discuss the fundamental right to

4.3.1 A Review of Different Drafts

Honourable K. T Shah, in his Note on Fundamental Rights, proposed

K. M. Munshi’s draft submitted to the Sub-Committee on Fundamental

5(a) public order, morality, or health and general welfare;

(b) the correlative duty to respect the rights of others; and

(c) national defence (Emphasis supplied)

Harnam Singh in his Draft on Fundamental Rights (March 18, 1947)18

The Sub-Committee on Fundamental Rights gave preference to the rights to

While considering the clause 10 along with the recommendations of the

(1) Subject to the other provisions of this article, all citizens

The right was subject to restraint as per the provision

Honourable member Jay Prakash Narayan proposed redrafting of the whole

4.3.2 Constituent Assembly Debates- A Study

Sardar Bhopinder Singh Man,31 honourable member of the Constituent

4.3.3 Artistic Expressions

4.3.4 Freedom of Press

Shri Damodar Swarup Seth33, Honourable member of the Constituent

4.3.5 Vision of Democracy

[We] must … not [limit the interpretation] …with mere

In brief he argued that political democracy is meaningless if not founded upon

He was also aware of hurdles in achieving the social democracy. A realist he

We must begin by acknowledging the fact that there is

If we continue to deny it for long, we will do so only by

4.4 Defining the Reasonability of Reasonable Restrictions

Honourable member of Constituent Assembly Sardar Bhopinder Singh Man,43

Honourable T. T. Krishnamachari45 opined that, we are the complex society

4.4.1 Public Order and Morality

The importance of freedom of speech and expression was undoubtedly

K. T. Shah disagreed with the grounds “public order and morality” as he

4.4.2 Hate Speech

4.4.3 Sedition: An Unreasonable Restriction

Honourable member of the Constituent Assembly Sardar Hukum Singh52

Honourable members of Constituent Assembly namely; Damodhar Swaroop

namely; Govind Das, K. Hanumanthaiya, Brajeshwar Prasad, Shibban Lal Saxena,

In this regard it needs to be taken in to account that the Unites States of

of the Government. McCarthyism58 made the suppression of freedom of speech and

4.4.4 Parliamentary Privileges: An Exception to Restrictions

It has been British legal tradition to guarantee freedom of speech and

Mr. Naziruddin Ahmad62, while expressing his view on the provisions of

Honourable Shri M. Ananthasayanam Ayyangar64 argued that under the 1919