Art 19 (1) (A) and 19 (2) PPT For Students

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1 9 . P R O T E C T I O N O F C E R TA I N R I G H T S
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY REGARDING FREEDOM OF SPEECH,
ETC.—
• (1) All citizens shall have the right—
• (a) to freedom of speech and expression;
• (b) to assemble peaceably and without arms;
• (c) to form associations or unions 2 [or co-operative
societies];
• (d) to move freely throughout the territory of India;
• (e) to reside and settle in any part of the territory of
India; 3 [and] 4* * * * *
• (g) to practise any profession, or to carry on any
occupation, trade or business.
ATUL KUMAR TIWARI’S CLASS
…ART-19
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
• 5 [(2) 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 reasoable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of 6 [the
sovereignty and integrity of India,] the security of the State, friendly
relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an
offence.]
• (3) Nothing in sub-clause (b) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of 6 [the
sovereignty and integrity of India or] public order, reasonable
restrictions on the exercise of the right conferred by the said sub-
clause.
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…ART-19
• (4) Nothing in sub-clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public
order or morality, reasonable restrictions on the exercise of
the right conferred by the said sub-clause.
• (5) Nothing in 1 [sub-clauses (d) and (e)] of the said clause
shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights
conferred by the said sub-clauses either in the interests of the
general public or for the protection of the interests of any
Scheduled Tribe.
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…ART-19
• (6) Nothing in sub-clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub-clause, and, in
particular, 2 [nothing in the said sub-clause shall affect the
operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,—
• (i) the professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade
or business, or
• (ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of
citizens or otherwise].
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FREEDOM OF SPEECH AND EXPRESSION
Article 19 of the Constitution guarantees six fundamental rights to

the citizens of India, exercisable throughout India

19 (1) (a) Freedom of speech and expression
(b) Assembly
(c) Association
(d) Movement
(e) Residence and settlement; and
(f)*
(g) Profession, occupation, trade or business
*Clause (f) : Right to acquire, hold and dispose of property was

omitted by the Constitution 44th Amendment Act, 1978 with effect
from June 20,1979
•
NATURE OF RIGHT
Natural rights inherent in the status of a citizen.

- None of these rights is absolute or uncontrolled,
- Each is liable to be curtailed by laws made or to
be made by the State to the extent mentioned in
clause (2)-(6) of Article 19
- the difference in content of clauses (2)-
(6) indicates that the rights in clause (1) do not
stand on a common pedestal but have varying
dimensions and underlying philosophies.
-
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CITIZENS
Rights under Article 19 are available only

to citizens.
• A foreigner has no rights under this article.
• Juristic persons such as companies are not
citizens within the meaning of Article 19.
• Citizen means only natural persons who
have status of citizenship under the law
• Registered companies and societies are
not treated as citizens
R.C. COOPER V. UNION OF INDIA,

AIR 1970 SC 564
• The petitioner, share holder, director and

shareholder of deposit of current accounts in
the bank, challenged the nationalization of the
bank, which was a company.
• The Court held- when by State action the
rights of the individual shareholder are
impaired,
• even if that action impairs the rights of the
company as well- jurisdiction of the court to
grant relief cannot be denied.
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BENNETT COLEMAN AND COMPANY V.

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY UNION OF INDIA, AIR 1973 SC 106
Approving Cooper case the court said that the fundamental

rights of citizens are not lost when they are associated to form
a company.
• - Citizens Do not lose their rights under article 19 (1) merely
because they have formed a company and the State action
affecting their rights refers to the company and not to citizens
as individuals.
• - In the application of the rights- the nature of the right
should be relevant.
• -Right to trade or business cannot claim the same
consideration as the right to freedom of speech and
expression.
F R E E D O M O F T H E P R ES S
• Unlike the United State Constitution, Article 19

(1)(a) does not expressly mention the liberty of
the press
• Lord Mansfield, as early as 1784 had defined

the “Liberty of the Press” as consisting in “
printing without previous licence, subject to
the consequences of law”. (R v. Dean of
Asaph, (1784) 3TR428), it is in this sense that
freedom has existed in England since the end
of the seventeenth century.
•
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PRE CENSORSHIP
Brij Bhushan v State of Delhi, AIR 1950 SC 129
• An order issued under section 7(1)(c), East Punjab Safety Act,

1950 directing the editor and publisher of a newspaper
.
• “to submit for scrutiny in duplicate before publication, till
further orders, all communal matters and news and views
about Pakistan, including photographs and cartoons”.
• was struck down by the Supreme Court observing:
• “ there can be little doubt that the imposition of pre-
censorship on a journal is a restriction on the liberty of the
press which is an essential part of the freedom of speech and
expression declared by article 19 (1) (a)”.
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FREEDOM OF CIRCULATION
ROMESH THAPAR V. STATE OF
MADRAS, AIR 1950 SC 124
• The notification banning the entry into or

circulation, sale, or distribution in the state of
Madras or any part of it of the newspaper
entitled Crossroads published at Bombay was
held invalid
• because, “without Liberty of circulation the
publication would be of little value”
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SAKAL PAPERS (P) LTD. V. UNION OF

INDIA, AIR 1962 SC 305
• The Daily Newspaper (Price and Page) Order 1960 - fixed

number of pages and size which newspaper could published
at a price
• - was challenged by the petitioners on the ground that it
infringed the liberty of the press implicit in Article 19 (1)(a)
• - adoption of the order would mean,
• - either the reduction in the existing number of pages or
• - raising of the price
• - in either case, there would be reduction in the volume or
circulation of the paper
• - and therefore, a direct violation of the Liberty of the press
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…SAKAL
• State- the law was justified as a reasonable restriction on

the business activity of a newspaper in the interests of the
general public.
• Court- accepted that the order affected the circulation and
so restrained the dissemination of news and views which
newspaper had the freedom to do.
• - the order was struck down and held to be inoperative
• -The only restrictions which could be imposed on the press
were those which clause (2) of Article 19 permits and no
other
•
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FREEDOM OF EMPLOYMENT AND NON

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY EMPLOYMENT OF NECESSARY MEANS
• Example:
• freedom of employment in the editorial force of newspaper;
• freedom from a measure intended or calculated to undermine the
independence of the press by driving it to seek government aid.
• it would not be legitimate to subject the press to Laws
which take away or abridge the freedom of speech and
expression or
• adopt measures calculated or intended to curtail circulation
and thereby narrow the scope of dissemination of opinion.
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BENNETT COLEMAN AND COMPANY V.

UNION OF INDIA, AIR 1973SC106
• The import policy for news print for 1972- 73, along with
the Newsprint Control Order, 1962 (issued under section 3
Essential Commodities Act, 1955) Which provided for
• Bar on starting newspaper or edition by common ownership unit
• rigid limitation of 10 pages
• bar on interchangeability within common ownership unit and
• allowance of 20% page increase only to newspapers having below
10 pages
• -the court struck down the policy as being violative of
article 19(1)(a)
• -provisions directly in conflict with the freedom of press
which did not fall under any of the exceptions in Article 19
(2)
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… BENNETT COLEMAN
• Union’s plea got rejected:

• - that the purpose of the Policy was regulation of news print
and not newspapers
• - held, not the purpose but the effect of Policy was decisive
justice Mathew dissented:

• If the scheme of distribution of new sprint was calculated to
protect dominance of a few companies ruling the market
and thus check the tendency of monopoly in the market,
that could not be open to any objection on the ground that
the scheme involved a regulation of the press which would
amount to an abridgment of the freedom of speech.
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COMMERCIAL ADVERTISEMENTS
Not protected as free speech?
•- were at one stage considered

outside the protection of freedom of
speech and expression
•- they were considered having an

element of trade and Commerce
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HAMDARD DAWAKHANA VS UNION OF

INDIA, AIR 1960 SC 554
• -- The object of the Drug and Magic

Remedies (Objectionable Advertisement)
Act, 1954 was the prevention of self
medication and self treatment by
prohibiting instruments which may be used
to advocate the same or which tended to
spread the Evil.
• -- the object was not merely the stopping of
advertisement, offending against morality
and decency
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...HAMDARD DAWAKHANA
• HELD
• -- Act which prohibited advertisements
commending the efficacy, Value and importance in
the treatment of particular disease of certain drugs
and medicines, did not fall under article 19 (1) (a)
• -- advertisement is no doubt a form of speech, but
its true character is reflected by the object for the
promotion of which it is employed.
• -- it is only when an advertisement is concerned
with the expression or propagation of ideas that it
can be said to be related to freedom of speech.
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TATA PRESS LIMITED VS MTNL,

AIR 1995 SC 2438
• Tata press yellow pages comprising paid

advertisements from businessman, traders
and professionals was upheld as an
exercise of freedom of speech and
expression under article 19 (1) (a)
• notwithstanding Rule 458, Indian Telegraph
Rules, 1951 requiring the permission of the
telegraph authority to publish any list of
Telecom subscribers.
•
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DRAMATIC PERFORMANCE
• Is a form of speech and expression

• - the constitutionality of film as a medium of expression and
its prior censorship came up in the case of
K A Abbas v. Union of India, AIR 1971 SC 481
• (Chief justice Hidayatullah)
• FACT: K A Abbas made a film “A Tale of Four Cities”
• The film attempted to portray the contrast between the life
of the rich and the poor in the four principal cities of the-
country.
• The film included certain shots of the red light district in
Bombay.
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… K A ABBAS
• Unable to get ’U’ certificate for his film “ tale of four

cities”
• -K.A . Abbas questioned the validity of the
Cinematograph Act, 1952 along with the rules made
under it.
• -The government decided to grant the certificate
while the petition was pending in the supreme court
• - The court observed that censorship of films
including pre censorship was constitutionally valid in
India as it was a reasonable restriction within the
ambit of article 19 sub clause (2)-
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S RANGARAJAN V. P. JAGJIVAN RAM,

(1989) 2 SCC 574
• FACT: The appellant, S. Rangarajan is a film producer. He

produced a Tamil film "Ore Oru Gramathile" and applied for
certificate for exhibition of the film.
• 'U' certificate was granted which was challenged in the High
Court by means of writ petitions.
• It was contended before the High Court that the film is treated in
an irresponsible manner,
• the reservation policy of the Govt. has been projected in a
biased manner and
• the so-called appeal in the film that "India is one" is
a hollow appeal which touches caste sensitivity
of the Brahmin forward caste.
• It was also asserted that the film would create law
and order problem in Tamil Nadu.
• The Writ Petitions were dismissed by the Single Judge but
upon appeal they were allowed and the 'U' certificate issued
to the appellant- producer was revoked.
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… S RANGARAJAN
• - the Madras High Court revoked the ‘U’ certificate issued

to a film on the ground that the exhibition of film was
likely to cause public disorder and violence.
• - on appeal the Supreme Court reversed the order of the
High Court
• -- Supreme Court also held that if Exhibition of the film
cannot be validly restricted under article 19 sub clause
(2)
• -“it cannot be suppressed on account of threat of
demonstration and procession or threat of violence”.
• “It is the duty of the state to protect the freedom of expression
since it is a liberty guaranteed against the state.
• the state cannot plead its inability to handle the hostile
audience problem. It is its obligatory duty to prevent it and
protect the freedom of expression”.
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VIACON 18 MEDIA PVT. LTD. V. UNION OF INDIA (2018) 1 SCC

76
• Petition was filed for staying the orders passed by the States of Gujarat and
Rajasthan prohibiting the exhibition of the film “Padmavat” in their states.
• The court noted that the CBFC had given approval for exhibition of the film after
certain cuts made on the recommendations of an expert committee and two
disclaimers by the producers.
• The court, issuing a stay order against the prohibitory orders of the two states,
held:
• Once the parliamentary legislation confers the responsibility and the power
on a statutory Board and the Board grants certification, non-exhibition of the
film by the States would be contrary to the statutory provisions and infringe
the fundamental right of the petitioners….
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CASTING VOTE IS A FORM OF SPEECH
For the exercise of that right the voter also has the right to
know the antecedents of the persons who he has to vote for,
so that he can make an informed choice. (Union of India vs
Association for Democratic Reforms, AIR 2002 SC 2112)
• The decision of Court was influenced by the allegation of
widespread criminalization of politics
• In pursuance of court’s decision Parliament changed the
election law, that is the Representative of the People Act,
1951
• The amended law did not provide for all the information
that the court had directed to provide.
• Moreover, it clearly prohibited demand for further
information from any candidate irrespective of any Court
decision .
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…CASTING OF VOTE
• In a fresh petition,
• People's Union for Civil liberties vs Union of
India, AIR 2003 SC 2363.
• The court invalidated the law in so far as it
did not comply with the court decision
reiterating that voter has a fundamental right
under article 19(1)(a) to know the
antecedents of the candidate.
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…CASTING OF VOTE
• The court clarified that the right to vote is not

a fundamental right
• It is basically a statutory or at the most a
constitutional right
Kuldip Nayar v. Union of India, AIR 2006 SC

3127
• The court held that a right to
elect, fundamental though it is to democracy,
is neither a fundamental right nor a common
law right, but pure and simple, a statutory
right.
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DEMONSTRATION / BANDH/ HARTAL

• Within certain limits picketing or

demonstration may be regarded as
manifestation of one’s freedom of speech
and expression.
• Peaceful picketing is free speech
• non violent acts are like words
• picketing or demonstration is a non-violent
act of persuasion
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IN RE: V. VENGAN, AIR 1952 MAD 95

(REVISION PETITION)
• Fact: petitioners went to the shop of Krishan Chand

Chellaram with black cards and Black Flag and shouted to
dissuade intending customers from purchasing in a North
Indian shop . Tanjore district Residents brought to Madras by
lorry by picketing committee of political organisation -
Dravida Kazhgam
• Held: Picketing a North Indian shop and dissuading intending
customers from purchasing in the shop was held to be not
warranted by article 19(1)(a)
• Article 15 (1) prohibits discrimination on the ground of place
of birth, and if the state legislature where to pass an Act
forbiding south Indians to purchase from North Indian shop,
such an Act would be unconstitutional
• The conduct of the petitioner might undermine the security of
the state by creating disaffection and ultimately strife and
hatred between state and North Indian residing and doing
business in the south.
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KAMESHWAR PRASAD VS STATE OF

BIHAR, AIR 1962 SC 1166
• As regards government servants, the judicial view appears

to be that while banning demonstration by then is not
valid, a strike by them can be validly prohibited.
• Fact: a rule made by the Bihar government prohibited

government servants from participating in any
demonstration or strike in connection with any matter
pertaining to their conditions of service.
• The rule was challenged
• Held : Supreme Court -
• A government servant does not, by accepting government
service, lose his fundamental right under article 19
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O.K GHOSH V. E.X. JOSEPH, AIR 1963

SC 812
•A disciplinary rule prohibited

government servants from
participating in any demonstration
•The court held the rule to be invalid
•The court emphasized that the rule
could be valid if it imposed a
reasonable restriction in the interest of
public order
•
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RADHEY SHYAM V. P.M.G. NAGPUR,

AIR 1965 SC 311
• Section 3 of the Essential Services

Maintenance Ordinance 1960 authorised the
Central Government to prohibit any strike in
any essential service in the public interest
• Going on prohibited strike became illegal and
punishable with imprisonment
• Held: the provision was declared valid as it
did not curtail freedom of speech and
• there was no fundamental right to go on
strike.
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BANDH
• In a Landmark decision, the full bench of
Kerala High Court has declared “Bandhs”
organised by political parties from time to
time as unconstitutional
• being violative of the fundamental rights of
the people - in the case of- Bharat Kumar v.
State of Kerala, AIR 1997 Ker 291
• The High court refused to accept BANDH as
an exercise of freedom of speech and
expression
35
… COMMUNIST PARTY OF INDIA

•HELD: A call for bandh by any

association, organisation or political
party and enforcing of call by it, is
illegal and unconstitutional
• the court directed state and all its law
enforcement agencies to do all that
may be necessary to give effect to the
court order
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COMMUNIST PARTY OF INDIA V.

BHARAT KUMAR, AIR 1998 SC184
• The supreme court dismissed the appeal

against the High Court decision
• the court accepted the distinction drawn by
High court between bandh and a strike
• A bandh interferes with the exercise of the
fundamental freedom of other citizens, In
addition to causing National loss in many
ways
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AMIT SAHNI V. COMMISSIONER OF POLICE,

AIR 2020 SC 4704
Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari, JJ.
Facts:
• Agitation in form of Public protest organised in
Delhi which led to closure of the Kalindi Kunj-
Shaheen Bagh stretch, including the Okhla
underpass.
• Petition challenging such closure was also
filed before the Delhi High Court, which
however was disposed on the same day by
directing authorities to take appropriate
action.
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…AMIT SAHNI
Held, while disposing the Petition:

• Public ways and spaces cannot be occupied in such a
manner and that too indefinitely.
• Democracy and dissent go hand in hand, but then the
demonstrations expressing dissent have to be in designated
places alone.
• In what manner the administration should act is their
responsibility and they should not hide behind the court
orders or seek support therefrom for carrying out their
administrative functions.
• The courts adjudicate the legality of the actions and are not
meant to give shoulder to the administration to fire their
guns from.
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SHREYA SINGHAL V. UNION OF INDIA, AIR 2015 SC 1523

• The Supreme Court struck down section 66-A of the Information

Technology Act, 2000, (- P unis hment up to 3 years for providing
offens ive mes s age through any communication medium or
device)
• on the ground that the provision covered all information disseminated
through internet and, therefore, violative of freedom of speech and
expression guaranteed to the citizens under article 19(1)(a) of the
Constitution and
• it was not covered within the protective umbrella of clause (2) to that
article.
• It was held that section 66-A directly curbed the freedom of speech
and expression of the citizens at large as it had created an offence
against persons who use internet and annoy or cause inconvenience
to others.
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ANURADHA BHASIN V. UNION OF INDIA, AIR 2020 SC 1308

• HON'BLE JUDGE(S): N. V. RAMANA, R. SUBHASH REDDY, B. R. GAVAI , JJ
Fact:
The genesis of the issue starts with the Security Advisory issued by Government of
Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their
stay and make arrangements for their return in the interest of safety and security.
• Subsequently, educational institutions and offices were ordered to remain shut
until further orders.
• On 04.08.2019, mobile phone networks, internet services, landline connectivity
were all discontinued in the valley, with restrictions on movement also being
imposed in some areas.
• On 05.08.2019, Constitutional Order 272 was issued by the President, applying
all provisions of the Constitution of India to the State of Jammu and Kashmir,
• Same day DM imposed restrictions on movement and public gatherings by
virtue of powers vested Under Section 144, Code of Criminal Procedure
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…ANURADHA BHASIN
Held: the freedom of speech and expression and the freedom to practice
any profession or carry on any trade, business or occupation over the
medium of Internet enjoys constitutional protection Under Article 19(1)(a)
and Article 19(1)(g).
• The restriction upon such fundamental rights should be in consonance
with the mandate Under Article 19(2) and (6) of the Constitution,
inclusive of the test of proportionality.
● An order suspending internet services indefinitely is impermissible
under the Temporary Suspension of Telecom Services (Public Emergency
or Public Service) Rules, 2017.
● Suspension can be utilized for temporary duration only.
● the State/concerned authorities were directed to consider forthwith
allowing government websites, localized/limited e-banking facilities,
hospitals services and other essential services, in those regions, wherein
the internet services are not likely to be restored immediately.
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REASONABLE RESTRICTIONS UNDER

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ARTICLE 19 (2)
Clause 2 of article 19 specifies the grounds on which the freedom of

speech and expression may be restricted. It enables the legislature
to impose reasonable restrictions on the right to free speech “in the
interest of” or “in relation to” the following:
• Sovereignty and integrity of India
• security of the state
• friendly relations with foreign States
• public order
• decency or morality
• contempt of court
• defamation and
• incitement to an offence
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1. SOVEREIGNTY AND INTEGRITY OF

INDIA
-This ground has been added by the

Constitution (16th Amendment Act), 1963
-Thus, it will be legitimate for Parliament under
this clause to restrict the right of free speech if it
preaches secession of any part of the territory of
India from the union
-Restriction is with respect to the territorial
integrity of India and not about the preservation
of the territorial integrity of the constituent
States
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2. SECURITY OF THE STATE
The security of the state will be endangered by

-crimes of violence intended to overthrow the
government
-Waging of War and rebellion against the government
- external aggression or war etc.
• All utterances intended or calculated to have the
above effects may properly be restrained in the
interest of the security of the state
• Serious and aggravated forms of public disorder are
within the expression “security of the state”
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3. FRIENDLY RELATIONS WITH

FOREIGN STATES
-This ground was added by the Constitution( First

Amendment) Act, 1951.
-The state can impose reasonable restrictions on the

freedom of speech in the interest of friendly relations
with foreign States.
The justification is obvious:

• unrestrained malicious propaganda against a foreign
friendly state may jeopardize the maintenance of
good relations between India and that state.
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4 . P U B L I C O R D ER
• This ground was added by the Constitution (First Amendment)

Act 1951.
• The supreme court in Romesh Thapar case had refused to
permit the imposition of restriction on the right to free speech in
the interests of public order because it was not a permissible
ground for restraint.
“Public order”- synonymous -Public peace, safety, and tranquillity.
It signifies absence of dis-order involving breaches of local
significance in contradistinction to national upheavals such as
.
revolution, civil strife, or war, affecting the security of the state
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19(2) USES “IN THE INTEREST OF PUBLIC

ORDER ” AND NOT “FOR THE
MAINTENANCE OF PUBLIC ORDER”

.
• A law may not be designed to directly “maintain the public

order” and yet it may be enacted “in the interest of public
order”, if it assists or is conducive to the maintenance of public
order.
-Thus a law punishing utterances made with deliberate intention to
hurt the religious feelings of any class of person is valid, because it
imposes a restriction on the right to free speech in the interest of
public order,
-Since such speech or writing has the tendency to create public
disorder even if in some cases those activities may not actually lead
to a breach of the peace.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY SUPERINTENDENT, CENTRAL PRISON V.
RAM MANOHAR LOHIYA, AIR 19 60 SC 633)
• The Supreme Court invalidated section 3, Uttar Pradesh Special

Powers Act, 1932
• which punished a person, even if he incited a single person not
to pay or defer the payment of government dues
• because there was no proximate Nexus between the speech
and “public order”.
SC >> “We cannot accept that instigation of a single individual not

to pay tax or dues is a spark which may in long run ignite
revolutionary movement, destroying the “public order”.
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BABULAL PARATE V. STATE OF

MAHARASHTRA, AIR 1961 SC 884
• Section 144 CRPC, 1973 was impugned on the ground of its

placing unreasonable restrictions on the right of freedom of
speech and expression.
• Under section 144 a magistrate, if he is of the opinion that there
is sufficient ground for immediate prevention,
• can by a written order direct a person or persons to abstain from
certain acts,
• if he considers that such direction is likely to prevent or tends to
prevent a disturbance of public tranquillity, or a riot or an affray
The Supreme Court upheld the section 144>>> it did not confer
an arbitrary power on the magistrate--- Magistrate had to state the
material facts and also because the order could be challenged
before the magistrate who had passed it.
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5 . D E C E N C Y AN D M O R A L I TY
“Decency is the same as lack of obscenity”.

-Obscenity becomes a subject of interest since it
illustrates well the clash between the right of the
individual to freely express his opinion and the duty of
the state to safeguard the morals.
-Freedom of speech cannot be permitted to deprave and
corrupt the community
- writing or object, if obscene, may be suppressed and
punished because such action would be to promote
“public decency and morality”.
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RANJIT D. UDESHI VS STATE OF

MAHARASHTRA, AIR 1965 SC 881
• A Bombay book seller was prosecuted under section 292, Indian Penal
Code for selling and for keeping for sale the well-known book “Lady
chatterley's lover” (unexpurgated edition) written by D.H. Lawrence
- The magistrate held that the book was obscene - sentenced the appellant
-Appellant put 3 defence before Supreme Court
1. Section 292 is void - it imposed an impermissible and obscure
restriction upon the freedom of speech
2. The novel did not offend public morals because, read as a whole, it was a
work of art.
3. Under the general doctrine in criminal law, actus non facit reum nisi
mens sit rea,
>>>All the three pleas were rejected and the conviction of the appellant was
upheld. Supreme Court held the sec 292 and valid.
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52
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY … R A N JI T D . U D E S H I
As to the second question - when can an object be said to be

obscene?
• In spite of the protest of the counsel of the appellant that the test
was outmoded and need modification, the court agreed with the
Hicklin test which is as followed: (R. v. Hicklin, (1868) QB 360)
• “Whether the tendency of the matter charged as obscene is to
deprave and corrupt those whose minds are open to such
Immoral influences, and into whose hands a publication of this
short made fall”.
-An exception could be made only if some prepondering social
purpose or profit was served by the obscene object
-Court held the novel in question as obscene
53
… R A N JI T D . U D E S H I
Court:
• The test given by Cockburn C.J., in Queen v. Hicklin, (1868) L.R.
3 Q.B. 360, to the effect that
• the tendency of the matter charged as obscene must be to
deprave and corrupt those, whose minds are open to such
immoral influences and into whose hands a publication of the sort
may fall,
• so far followed in India, is the right test. The test does not offend
Art. 19(1) (a) of the Constitution.
54
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY …TEST
>>>If the word Obscenity is given as wide a meaning as was given

in R. v. Hicklin, there is a danger that many a literary work will not
be available to the public
>>> when section 292 Indian Penal Code was enacted, Indian
citizens enjoyed no fundamental rights but after the constitution,
• if section 292 is allowed to stand as it is, the meaning
of “obscenity” has to be narrowed down.
# In subsequent cases, the court has moved away from Udeshi
-If its overall effect is not corruption of Mind or invocation of prurient
interest, it cannot be called obscene
55
S. KHUSHBOO V. KANNIAMMAL,
AIR 2010 SC 3196
The supreme court held

• “that obscenity should be gouged with respect to the
contemporary community standards that reflect the
sensibilities as well as the tolerance level of an
average reasonable person”
• The Court did not find obscene the statement of the
appellant in a magazine to the effect that women
indulge in premarital sex and
• while it may not always be improper, they must
observe precautions against disease and pregnancy
56
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24-09-2022
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY MORALITY
Clause (2) used the expression “decency or morality”

-Scope of “morality” is not very clear
- the conception of morality differs from place to place
and from time to time
- thus birth control and contraceptives were considered
immoral at one time and there have been convictions for
publishing literature dealing with contraception
# Now the view has changed and it is no offence to
discuss such matters
# use of contraceptives is widely publicized, encouraged
and subsidized by the state
57
6. CONTEMPT OF COURT
• Article 129 and 215 of the Constitution provide that the

Supreme Court and High Courts shall respectively be courts of
records and shall have the power to punish for their own
contempt.
• - Parliament has passed the Contempt of Courts Act, 1971
• - apart from personal imputations against particular judges,
• -adverse comments on Judiciary generally and
• -scurrilous (abusive, vulgar obscure) comments on particular
judgement or
• - judicial measures can also give rise to the charges of
scandalizing the court and can lead to criminal contempt
proceedings
58
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E.M. SANKARAN NAMBOODARIPAD

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY V. T. NARAYANAN NAMBIAR, AIR
1970 SC 2015
• Nambudaripad, who was the Chief Minister of Kerala

during the period - spoke at a Press Conference that -
Judiciary was a part of the state machinery and that
• judges suffered as much from their class character as any
other person in the ruling hierarchy.
• Since they came from the upper strata of the society they
were actuated by class hatred toward the vast masses of
have-nots.
• - contempt proceedings were initiated in the Kerala High
Court
59
. . .N AM BOOD A RIP A D
• -the High Court convicted him by a majority and

imposed a fine of Rs.1000/- only.
• -On appeal, the Supreme Court upheld the
conviction, though the fine was reduced to a sum
of Rs. 50/- only.
• -Chief justice Hidayatullah- emphasized that the
fundamental right to speech and expression did
not abolish the law of contempt of court, which
was specifically saved by article 19 (2)
60
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24-09-2022
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY 7. DEFAMATION
Defamation under our law is both a “tort” and a

“crime”
- its scope as a “crime” is defined in section

499 of the Indian penal code read with
section 500.
- defamation as a “tort” is largely what has been

inherited from the common law
61
R. RAJGOPAL V. STATE OF TAMIL

NADU, AIR 1995 SC 264
Fact: One Gaurishankar alias Auto Shankar had been convicted on

multiple charges of Murder and had been sentenced to death.
• His Mercy petition was pending before the president for
consideration.
• There is a Tamil magazine named Nakkheeran which is
published from Chennai
• The contention of the Publishers of this magazine was that Auto
Shankar, while in jail, had written his autobiography which he had
sent to them for serialisation in the magazine.
• It was further contended that the autobiography when published
would bring to light the close nexus that existed between Auto
Shankar and important IAS and IPS officers in the state.
62
31
24-09-2022
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY . . .R. R A J G O PA L
• it was contended that the so-called autobiography was not authentic and a
fake story had been prepared in the name of Auto Shankar only to blackmail
the government officers.
• It was further contended that the Nakkeeran people were only being asked to
desist from publishing that which was defamatory of the officials and which
also encroached on the privacy of Auto Shankar and his family.
• The prayer of the petitioners that the magazine should not be prevented from
publishing the writing, which they claimed to be the autobiography of Auto
Shankar, was allowed
• Precisely because prior restraint against Publication was impermissible even if
the so-called autobiography was fake.
• and for the reason that aggrieved person had a remedy for damages which
they could resort to.
63
8 . I N C I T E ME N T T O A N O F F E N C E
• This is also a ground added in

1951. Obviously, the freedom of
speech cannot confirm a licence to
incite people to commit offence.
64
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Art 19 (1) (A) and 19 (2) PPT For Students

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24-09-2022

ATUL KUMAR TIWARI’S CLASS

ATUL KUMAR TIWARI’S CLASS

ATUL KUMAR TIWARI’S CLASS

FREEDOM OF SPEECH AND EXPRESSION

Article 19 of the Constitution guarantees six fundamental rights to

the citizens of India, exercisable throughout India

*Clause (f) : Right to acquire, hold and dispose of property was

Natural rights inherent in the status of a citizen.

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Rights under Article 19 are available only

ATUL KUMAR TIWARI’S CLASS

R.C. COOPER V. UNION OF INDIA,

• The petitioner, share holder, director and

ATUL KUMAR TIWARI’S CLASS

BENNETT COLEMAN AND COMPANY V.

Approving Cooper case the court said that the fundamental

ATUL KUMAR TIWARI’S CLASS

• Unlike the United State Constitution, Article 19

• Lord Mansfield, as early as 1784 had defined

• An order issued under section 7(1)(c), East Punjab Safety Act,

ATUL KUMAR TIWARI’S CLASS

MADRAS, AIR 1950 SC 124

• The notification banning the entry into or

ATUL KUMAR TIWARI’S CLASS

SAKAL PAPERS (P) LTD. V. UNION OF

• The Daily Newspaper (Price and Page) Order 1960 - fixed

ATUL KUMAR TIWARI’S CLASS

• State- the law was justified as a reasonable restriction on

ATUL KUMAR TIWARI’S CLASS

FREEDOM OF EMPLOYMENT AND NON

ATUL KUMAR TIWARI’S CLASS

BENNETT COLEMAN AND COMPANY V.

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Union’s plea got rejected:

justice Mathew dissented:

ATUL KUMAR TIWARI’S CLASS

Not protected as free speech?

•- were at one stage considered

•- they were considered having an

HAMDARD DAWAKHANA VS UNION OF

• -- The object of the Drug and Magic

ATUL KUMAR TIWARI’S CLASS

TATA PRESS LIMITED VS MTNL,

• Tata press yellow pages comprising paid

ATUL KUMAR TIWARI’S CLASS

• Is a form of speech and expression

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Unable to get ’U’ certificate for his film “ tale of four

ATUL KUMAR TIWARI’S CLASS

S RANGARAJAN V. P. JAGJIVAN RAM,

• FACT: The appellant, S. Rangarajan is a film producer. He

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• - the Madras High Court revoked the ‘U’ certificate issued

ATUL KUMAR TIWARI’S CLASS

VIACON 18 MEDIA PVT. LTD. V. UNION OF INDIA (2018) 1 SCC

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ATUL KUMAR TIWARI’S CLASS

ATUL KUMAR TIWARI’S CLASS