Constitutional Law

Q.1. Considering freedom of speech as embodied under Article 19. Can freedom of speech
be used to push a controversy to meet commercial ends. For instance, does this
provision include a right to publish a historical fiction book which refers to certain
non-provable parts of history but takes one side over the other? You can refer to
factual scenarios when books have been banned in India.
Ans.
Article 19(1)(a) of the constitution of India guarantees the right to freedom of speech and
expression however, it is not without reasonable restrictions. While it is not an absolute right
the restrictions imposed are in practice to obtain what article 19 was made to obtain with
peaceful existence of the all. So, question arises on how to strike a balance between the
publications and the restrictions imposed so as to not restrict the free flow of ideas that the
article was set to achieve. Furthermore, an author can publish matters which would otherwise
be perceived as controversial as long as it doesn’t invoke public disorder, hurt sentiments of
the larger public or incite any violence towards a community etc.

It was in the case of Devidas Ramachandran Tuljapurkar v. State of Maharashtra & Others in
which this question of law was discussed and sparked immense media attention. The writing
of the poet in the book “Meesha” showed temple going women in a bad light and was
contended that it was defamatory and degrading towards the same and that this publication
has the potential to disturb the public order, decency and morality. However, it was only after
further scrutiny that the court came to the conclusion that as article 19 goes, India is a nation
which permits free exchange of ideas and liberty of thought and expression and this is the
judgement which gave us the famous words, "I may disapprove of what you say but I will
defend to the death your right to say it".

A literary work which sparks controversy among public is against morality without question
but morality differs from person to person and it changes with time hence, the court explained
that fundamental freedoms would be impacted if morals were measured by statutes and courts
and that it would be a risky operation to do so. Furthermore, it was also held that there is no
authority who gives license to a poet.

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Freedom of speech and expression is a fundamental right of all, whose chief function is to
promote free flow of ideas and opinions. That the people can have a dissenting opinion, that
they still preserve the right to be opined against or for one even when the majority dissents.
The court in this case criticised the practise of banning books as it affects free flow of ideas.
However, the court also said that while deciding whether a prohibition on a book is justified,
it must balance free speech with public interest.

There have been situations however, where books have been banned where religious
sentiments of a community are outraged. Taslima Nasreen’s book, Dwikhondito was banned
by the west Bengal government on the ground that the book would outrage the religious
sentiments of the Muslim community. However, The Calcutta High Court later lifted the ban
in September 2005 observing that the book was not intended to outrage the feelings of any
religious community and that it was published on an autobiographical account.

Article 19(1)(g) of the constitution of India confers on citizens the right to practise any
profession, to carry out any occupation, trade or business. However, reasonable restrictions
are in place to maintain public order.

In State of Bombay vs R.M.D. Chamarbaugwalla, 1957, it was ruled that gambling is an

immoral activity when it comes to public order and hence, it would incur restrictions to
maintain the same. When it comes to the purview of trade as defined in article 19(6), the
court held that any activity which is carried out for the purposes of earning profits could be
considered a trade.

Although both these are important to maintain democracy and respect its fundamental values,
they also attract certain restrictions as to maintain public order, to protect sentiments of the
larger public.

When taken into accord the publication of a fictitious book that has the potential to disrupt
public order. It is liable to reasonable restrictions. Although, the court in Meesha case
dissented over banning of books because it disrupts free flow of ideas it is also important to
maintain public order. Although a fictitious book, there can be massive outrage sparked in
public due to their sentiments towards history. Such as the banning of Shivaji: Hindu king in
Islamic India which caused law and order problems. Books have misrepresented facts and
publishers have been made to withdraw the publications. Moreover, even when the work is
intended in a fictitious manner, and capable of invoking public dissent, the right to freedom
of speech and expression also includes the right to offend as there will be dissent opinions

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among the larger public. Any publications are free from restrictions as long as they obey the
conditions laid down, they are however allowed to publish dissenting opinion or present them
in a fictitious manner especially when it is clearly labelled as one, as long as peace isn’t
disrupted.

Q.2. Does Article 19 contain a right to contest elections? Address the importance of such a
right in a democracy and the limitations that can be imposed upon the same. How far
such a right comes in conflict with the principles of fairness?
Ans.
In Jamuna Prasad vs. Lacchi Ram it was held that the right to contest elections was not a
common law right but it is a right created by statute, which can only be exercised on the
conditions imposed by the statute. The representation of peoples Act, 1951, was laid down to
make rules for contesting elections and criteria for contesting one.

It was in Sakhwat Ali vs Orissa, where this question of law was further contested. A paid
legal practitioner wasn’t allowed to contest in elections to the seat in such municipality
because of certain restrictions. The municipality had a condition that, for contesting for a seat
in the municipality elections, the contestant mustn’t be involved in a case against the
municipality. The condition was that for contesting in the elections the legal practitioner
shouldn’t have been involved in a case against them in the first place hence, facing
disqualification. It was contested under, Article 19(1)(g) of the Indian constitution but the
court held that the right to contest elections wasn’t a fundamental right and that it was open to
the petitioner to practise as a legal practitioner and hence, the municipality didn’t violate any
of his rights.

Hence, it becomes clear that right to contest election isn’t a fundamental right but a statutory
right and hence subject to statutory limitations.

As the right to contest elections stands, it plays a crucial role to uplift the pillars of
democracy and upvote “free and fair elections”. Democracy is the basic feature of a
constitution. While in a democratic setup, it becomes of vital importance that the people are

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represented in the parliament and that they have a voice in the making of the constitution. If
the elections were to be held on a nomination basis it would transgress constitutional limits
because representation of people is of vital importance in a democracy. And further it would
curtail democracy and free and fair elections. Right to election allows people to voice their
representative, for marginalised groups to have a say in the parliament and work for the
upliftment of their community. In a situation where these people aren’t represented well
enough to provide upliftment to them and allow representation to the level that they could
voice their problems, it would be against principles of democracy. The right to contest
elections also makes sure that the best representatives are to be seated, to the best of its
capability. The representatives have to be well versed with the problems and situations to
make an impact, so for example a representative from a Dalit community would be well
equipped to voice their concerns than a nominated representative whose life wasn’t lived as
one.

While being of essence to the democratic principles, it is however, important to note that to
maintain the best outcome from the electoral process, elections are faced with certain
conditions as to qualifications and process of their conduct to maintain fairness. While there
are limitation like age limit for lower house that is 25 years of age and upper house being 30
years of age it is to make the best possible outcome as to experience and maturity of the
representatives to assure efficient functioning. Furthermore, candidates cannot be convicted
of a heinous crime or be of an unsound mind to assure that the candidates have the best moral
spirit. Certain educational qualifications are also placed to ensure that the candidates.

The qualifications placed on a candidate ensure that the best of the candidates would be
seated to represent the community. It has been made evident from previous scenarios that the
candidate with most representation from the public at large wouldn’t necessarily be the best
candidate to be elected. It in the end the result of public opinion and public opinion can be
wrong. However, such qualifications not only ensure that the candidate is well equipped with
the requirements to be a member of legislature but in cases also promote certain candidates to
obtain such qualifications in absence if one, so that they can contest in elections. Candidates
should have good morale and public sense and unsound mind or corrupted minds are to be
preferably avoided to limit dirty politics and work in consonance with people and for
betterment of the same.

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Q.3. Diffrenatiate between the test of ‘clear and present danger’ and ‘in the interest of
public order’. Argue which is a better test in a democratic setup and which one should
be used in India giving reasons for the same.
Ans.
In the case of ‘clear and present danger’ it was adopted in consonance with the evaluation of
a speech as per the first amendment. However, this test was later overridden by the lawless
action test.

The test of clear and present danger was first used in schench vs. united states. In this case the
accused were said to be influencing soldiers over their recruitment in the army. That the
mandatory enrolment that they were faced against was forced labour. The case was
adjudicated by Justice J. Holmes, where he said that the communication would be determined
by the circumstances in which it was done. So, while determining the protection under the
first amendment, if the speech is of the nature that it is causing clear and imminent danger to
the functions that the congress has the right to prevent, such speech would enjoy any
protection under the first amendment. It was further clarified that it is a question of proximity
and degree, that the threat posed must be of substantial nature.

On the other hand, “in interest of public order” includes restrictions imposed by the
legislature towards the protection of the functions of the government for the safety of the
people in the state, while maintaining public peace and order. While clear and present danger
only looks at imminent danger that could digress from the speech, the test of “in interest of
public order” looks both at speeches which cause an imminent danger and the speeches which
have the potential to do so. "In the interest of public order" refers to a restriction on freedom
of speech and expression levied in order to maintain public order. In other words, anything
which will hold potential to disrupt public order at large, or intends to do so indirectly, would
be controlled to the extent of such disruption, hence a preventive action comes into play. The
Indian constitution thus, entitles the parliament to limit freedoms in a reasonably.

In Romesh Thappar, the state of madras publication limited the publication of a journal in this
case so as to maintain public order. It was contended that the word “public order” was placed

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in the article to include a broader meaning and include public safety. While clear and
imminent danger would include direct and imminent harm to carrying out function of the
government, “in interest of public order” takes into account direct as well as indirect harm as
to maintain public order. The purposes of madras maintenance of public order, levied
restrictions to ensure public safety and had a wider meaning that threat to state and its
functions by including “public disorder”.

The test of “in presence of public order” is predominant in India as it should be. The test of
“clear and present danger” only takes into account threats that are imminent and which are
substantial in nature. Moreover, the test ignores speeches which would disrupt public order in
future, which doesn’t allow scope for preventive action. Additionally, the test of “in interest
of public order” is in consonance with Article 19(2) as to restrictions levied on freedom of
speech and expressions, and takes into account the values and principles that were taken into
account while framing of this article. Moreover, it maintains public order to a greater extent
and preventive measures stop an act at its helm.