DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION: 2016-17

SOCIOLOGY

FREEDOM OF SPEECH AND EXPRESSION

Submitted To: Submitted By:

Dr. Sanjay Singh Monish Nagar

Asst. Professor (Law) B.A. L.L.B. (Hons.)

Dr. Ram Manohar Lohiya National 3rd Semester

Law University, Lucknow Roll No: 84

Section- B
ACKNOWLEDGEMENT

I would like to extend my sincere thanks to My teacher Dr. Sanjay Singh for giving me this
wonderful opportunity to work on this project and for his able guidance and advice, Vice
Chancellor, Mr. Gurdeep Singh Sir and Dean (Academics), Professor C.M. Jariwala for their
encouragement and Enthusiasm; My seniors for sharing their valuable tips; And my
classmates for their constant support.

2
TABLE OF CONTENTS

1. LIST OF CASES..4
2. INTRODUCTION5
3. FREEDOM OF SPEECH AND EXPRESSION6
4. RIGHT TO RECEIVE INFORMATION7
5. FREEDOM OF PRESS IN THE DEMOCRACY..8
Freedom of Circulation
Pre- Censorship Valid
6. REASONALBE RESTICTIONS MENTIONED UNDER ARTICLE 19...11
7. CONCLUSION.15
8. BIBLIOGRAPHY.15

3
 LIST OF CASES

CASES

Benett Coleman v Union of India AIR 1973 SC 106. ........................................................................... 11

Brij Bhusen v State of Delhi AIR 1950 SC 129. ................................................................................... 11
Chief Information Commissioner v State of Manipur AIR 2012 SC 864. ............................................ 10
Devi Saran v State AIR 1954 Pat 254. .................................................................................................. 16
Indian Express Newspaper v Union of India AIR 1962 SC 305........................................................... 10
Indian Express Newspapers pvt ltd Vs union of India AIR 1962 SC 305............................................................... 11
Indirect Tax Practitioners Assn. v R..K Jain (2010) 8 SCC 191. .................................................................. 15
KA Abbas v Union of India AIR 1971 SC 456. .................................................................................... 12
Maneka Gandhi v. Union of India, AIR 1978 SC 567. ........................................................................... 7
New York Time v Sullivan 376 US 254........................................................................................................... 10
PV Narsimha Rao v State AIR 1998 SC 2120. ....................................................................................... 8
Radha Mohan LaL V Rajasthan High Court (2003) 1 SCC 712. ........................................................... 7
Raj Kapoor and Others v State and Others AIR 1980 SC 258 ............................................................. 12
Raj Narain v State of UP AIR 1975 SC 865. .......................................................................................... 8
Ranjit Desai v State of Maharashtra AIR 1965 SC 881 ....................................................................... 15
Romesh Thappar v State of Madras AIR 1950 SC 124,128. ............................................................ 6, 13
Sadho Samsher v State of Pepsu AIR 1954 SC 276.............................................................................. 14
Sakal Papers Ltd v Union of India AIR 1992 SC 305. ........................................................................... 7
Sakal Ppaer v Union of India AIR 1986 C 367. ................................................................................... 10
Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal AIR 1995 SC
1236. ................................................................................................................................................... 9
State o f Bihar v Shailaba Devi AIR 1952 SC 339 ............................................................................... 13
Superintendent Central Prison v Ram Manohar Lohia AIR 1960 SC 633........................................... 14
Tata Press v Mahanagar Telephone AIR 1995 SC 2438. ...................................................................... 7
Union of India v Assn. for Democratic Reforms JT 2002(4) SC 501...................................................... 9
Union of India v. Assn. for Democratic ReformsJT 2002(4) SC 501...................................................... 9
Usha Uthup v State of West Bengal AIR 19784 Cal 268. ....................................................................... 8

BOOKS

Pandey JN The Constituional Law of India ( Central Law Agency, Allahabad 46th edn, 2009) p. 174. 7

4
 INTRODUCTION

Fundamental Rights is a charter of rights contained in the Constitution of India. It

guarantees civil liberties such that all Indians can lead their lives in peace and harmony
as citizens of India.

Violation of these rights result in punishments as prescribed in the Indian Penal Code or other
special laws, subject to discretion of the judiciary. The Fundamental Rights are defined as
basic human freedoms that every Indian citizen has the right to enjoy for a proper and
harmonious development of personality. These rights universally apply to all citizens,
irrespective of race, place of birth, religion, caste or gender. They are enforceable by
the courts, subject to certain restrictions.

The Constitution of India contains the right to freedom, given in articles 19, 20, 21, 21A and
22, with the view of guaranteeing individual rights that were considered vital by the framers
of the constitution. It is a cluster of four main laws. The right to freedom in Article 19
guarantees the following six freedoms:

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) to practise any profession, or to carry on any occupation, trade or business

The constitution also imposes restrictions on these rights. The government restricts these
freedoms in the interest of the independence, sovereignty and integrity of India. In the interest
of morality and public order, the government can also impose restrictions. However, the right
to life and personal liberty cannot be suspended. The six freedoms are also automatically
suspended or have restrictions imposed on them during a state of emergency.

5
 FREEDOM OF SPEECH AND EXPRESSION

The freedom of speech and expression means the right to express ones convictions and
opinions freely by word of mouth, writing, printing or any other mode., a democratic
government attaches great freedom to this right because without this right no democracy can
be made. It has been variously described as a basic human right and natural right.

In Romesh Thappar v State of Madras1, entry and circulation of the English journal "Cross
Road", printed and published in Bombay, was banned by the Government of Madras. The
same was held to be violative of the freedom of speech and expression, as without liberty of
circulation, publication would be of little value and Patanjali Sastri, CJ observed as follows:

Freedom of speech and of the press laid at the foundation of all democratic organisations,
for without free political discussion no public education, so essential for the proper
functioning of the processes of popular government, is possible.

Freedom of speech would amount to nothing if it were not possible to propagate the ideas.
Thus, the freedom of publication and press is also covered under freedom of speech. The
freedom of speech and expression includes liberty to propagate not one's views only. Free
propagation of ideas is the necessary objective and this may be done on the platform or
through the press.2

The four broad specific purposes to serve are : 1) Self- fulfilment 2) discovery of truth 3) It
strengthens the capacity of an individual in participating in decision making 4) Reasonable
balance between stability and social change.3

Freedom guaranteed under this article is available to all citizens, you cannot handpick some
people it would be discriminatory.4

Unlike the American Constitution, Article 19(1) (a) doesnt mention the liberty of press. But
it is settled law that the right to freedom of speech and expression involves freedom of press. 5

In Maneka Gandhi v. Union of India6 Bhagwati, J. has emphasized on Freedom of speech

and expression in these words:

1
Romesh Thappar v State of Madras AIR 1950 SC 124,128.
2
Pandey JN The Constituional Law of India ( Central Law Agency, Allahabad 46th edn, 2009) p. 174.
3
Ib\id.
4
Tata Press v Mahanagar Telephone AIR 1995 SC 2438.
5
Sakal Papers Ltd v Union of India AIR 1992 SC 305.

6
Democracy is based essentially on free debate and open discussion, for that is the only way
for a corrective government action in a democratic set up. If democracy means government of
people it basically means that every citizen is entitled to participate in the democratic process,
be free to discussion of public matters.

In case of a conflict between Article 19(1) (a) and the privileges of parliament or state
legislature under article 105 and 194, the freedoms of speech will give way to accommodate
the parliamentary privilege. It has been held that the power under 105 and 194 Articles is
wider in amplitude than the right under article 19 (1) (a).7

RIGHT TO RECIEVE INFORMATION

The phrase speech and expression is held to include the right to acquaint oneself with
information and disseminate the same. It includes the right to communicate it through media,
article or speech.

RTI stands for Right to Information. Right to Information is a part of fundamental rights
under Article 19(1) of the Constitution. Article 19(1) says that every citizen has freedom of
speech and expression.

As early as in 1976, the Supreme Court said in the case of Raj Narain v State of UP,8 that
people cannot speak or express themselves unless they know. Therefore, right to information
is embedded in article 19. In the same case, Supreme Court further said that India is a
democracy. People are the masters. Therefore, the masters have a right to know how the
governments, meant to serve them, are functioning.

Further, every citizen pays taxes. Even a beggar on the street pays tax (in the form of sales
tax, excise duty etc.) when he buys a piece of soap from the market. The citizens therefore,
have a right to know how their money was being spent. These three principals were laid
down by the Supreme Court while saying that RTI is a part of our fundamental right.

6
Maneka Gandhi v. Union of India, AIR 1978 SC 567.
7
PV Narsimha Rao v State AIR 1998 SC 2120.
8
Raj Narain v State of UP AIR 1975 SC 865.

7
In PUCL v Union of India9 the SC of the citizens to obtain dealt with the concept of this
freedom elaborately. The right of the citizens to obtain information relating to public acts
flows from the Fundamental Right enshrined under Article 19. Securing information on the
basic details concerning the candidates contesting for elections to Parliament promotes
freedom of expression and therefore the right to receive information.

In Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal 10

it was held that every citizen has a fundamental right to impart as well as receive information
through the electronic media. It ruled that frequencies or airwaves are public property, and
that the government enjoys no monopoly over broadcasting. Court ordered the government to
take immediate steps to set up an independent and autonomous public authority to regulate
frequencies. Freedom of speech and expression (Article 19 .1 & 19.2) played an important
role in this decision.

In Union of India v. Assn. for Democratic Reforms11 it was held that one-sided information,
disinformation, misinformation and non-information, all equally create an uninformed
citizenry which makes democracy a farce. Freedom of speech and expression includes right
to impart and receive information which includes freedom to hold opinions.

In National Anthem case12 the court held that, no person can be compelled to sing the
National Anthem if he has genuine objections based on his religious faith.

The SC has given a broad dimension this Article by laying down the proposition that
freedom of speech involves not only communication, but also receipt of information.
Communication and receipt are the two sides of the same coin. Right to know is a basic right
and article 19(1) (a) protects this right.13

FREEDOM OF PRESS

Freedom of the press is the freedom of communication and expression through vehicles
including electronic media and published materials. While such freedom mostly implies the

9
PUCL v Union of India (2003) 5 SCC 733.
10
Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal AIR 1995 SC 1236.
11 Union of India v Assn. for Democratic Reforms JT 2002(4) SC 501.
12
Bijoe Immanuel v State of Kerala (1986) 3 SCC 615.
13
Chief Information Commissioner v State of Manipur AIR 2012 SC 864.

8
absence of interference from an overreaching state, its preservation may be sought through
constitutional or other protection.

It is the primary duty of all the national courts to uphold the freedom of the press and
invalidate all laws and administrative actions which interfere with such freedoms against
constitutional mandate, observed the Supreme court in Indian Express Newspaper v Union
of India14.
While highlighting the importance of the freedom of the press in a democracy. To arrest the
malpractices of interfering with the free flow of information, the democratic constitution all
over the world provided guarantee of freedom of speech and expression underlying the
circumstances under which restrictions are imposed.

In Sakal paper v Union of India15 in accordance with the Newspaper Act of 1956, and the Daily
Newspaper Order of 1960, the government sought to regulate the number of pages a
newspaper could contain by making it a direct function of newspapers price (i.e., in order to
bring out more pages, the newspaper would have to be priced higher); it also prescribed the
number of supplements that could be published, as well as the relative area that could be
occupied by advertisements.
The Court struck down the order and said that the right of freedom of speech and expression
cannot be taken away with the object of placing restrictions on the business activity of the
citizen, freedom of speech can be only restricted on the ground mentioned in article 19(2). It
cannot like the freedom to carry business be curtailed in the interests of general public.

In Benett Coleman v Union of India, it was stated that freedom of speech and expression is
not only in the volume of circulation but also in the volume of news and views.16

Freedom of Circulation - The Indian Constitution does not use the expression freedom of press
in Article 19 but it is included in one of guarantees in art 19(1)(a) of the constitution. Justice Venkataramiah
in Indian Express Newspapers Pvt ltd v Union of India 17 observed that the freedom of press is one
of the items around which the greatest and better of constitutional struggles have been waged
an all countries where liberal constitution prevails.

14
Indian Express Newspaper v Union of India AIR 1962 SC 305.
15
Sakal Ppaer v Union of India AIR 1986 C 367.
16
Benett Coleman v Union of India AIR 1973 SC 106.
17
Indian Express Newspapers pvt ltd Vs union of India AIR 1962 SC 305.

9
The effect of Article 29 on the freedom of press was analysed by the apex court in Indian Express
Newspapers Pvt ltd v Union of India18 (where two earlier decisions of the court in Romesh Thaper
v State of Madras 19 and Brij Bhusan vs State of Delhi 20) where the government tried to put a ban
on the circulation of newspaper, . The court while interpreting the scope of art 19(1)(a)of the
constitution held that the freedom of speech and expression includes freedom of propagation
of ideas which freedom was ensured by the freedom of circulation and that the liberty of
press consisted in allowing to previous restraint upon the publication. It was further observed
that the fundamental freedom of speech and expression enshrined in our constitution was
based on the provision to the First Amendment of the constitution of USA. Also there would be
violation of the liberty of press not only when there is a direct ban on the circulation of a
publication, but also when some action on the part of the government adversely affects the
publication.

The freedom of press has always been a cherished right on all the democratic countries. The
newspapers are supposed to guard the public interest by bringing to fore the misdeeds,
failings and lapses of the Government. It has been described as the Fourth Estate.

Pre Censorship valid- In K.A. Abbas v. Union of India21 is the leading Supreme Court
decision on film censorship. It gave the Court its first opportunity to discuss constitutional
protection for free speech in the media outside the traditional context of newspapers and
magazines. Abbas, the petitioner, was an award-winning film producer. The Film Board
refused unrestricted screening of his documentary, A Tale of Four Cities, because it included
scenes from a Bombay red-light district. The board asked Abbas to edit certain scenes if the
documentary was to qualify for a screening certificate. Abbas refused and complained to the
Supreme Court that the board was violating his freedom of expression.

The Chief Justice noted, censorship existed all over the world in some form or the other and
the classifying of movies as A rated and U rated was a reasonable one, hence the petition
failed.

18
ibid.
19 Romesh Thappar v State of Madras AIR 1950 SC 124.
20
Brij Bhusen v State of Delhi AIR 1950 SC 129.
21
KA Abbas v Union of India AIR 1971 SC 456.

10
In Raj Kapoor and Others v State and Others22, a complaint was filed by the respondent, a
private complainant claiming to be the president of a youth organisation devoted to defending
Indian cultural standards, alleging that the movie, Satyam Shivam Sundaram, was obscene
and indecent and rendered the producers liable for an act constituting an offence under
Section 292, IPC.
It was stated by Justice Krishna Iyer, An act of recognition of moral worthiness by a
statutory agency is not opinion evidence but an instance or transaction where the fact in issue
has been asserted, recognized or affirmed. The Court will examine the film and judge
whether its public policy, in the given time and clime, so breaches public morals or depraves
basic decency as to offend the penal provisions.
Thus, the Court allowed the appeal and sent back the case to the High Court for fresh
disposal.

RESTRICTIONS UNDER ARTICLE 19(2)

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some restrictions on this freedom for the maintenance of social
order, because no freedom can be absolute or completely unrestricted.
Accordingly, under Article 19(2) of the Constitution of India, the State may make a law
imposing reasonable restrictions on the exercise of the right to freedom of speech and
expression in the interest of the public.

1. SECURITY OF STATE: Under Article 19(2) reasonable restrictions can be imposed on

freedom of speech and expression in the interest of security of State. The term "security of
state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war
against the State, insurrection and not ordinary breaches of public order and public safety,
e.g. unlawful assembly, riot, affray.
Thus speeches or expression on the part of an individual, which incite to or encourage the
commission of violent crimes, such as, murder are matters, which would undermine the
security of State.23

22
Raj Kapoor and Others v State and Others AIR 1980 SC 258.
23
State o f Bihar v Shailaba Devi AIR 1952 SC 339.

11
The court said there are different grades of public order.24 Every public disorder cant be
regarded as threatening to the State.

2. FRIENDLY RELATIONS WITH FOREIGN STATE: This ground was added by the
constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit
unrestrained malicious propaganda against a foreign friendly state, which may jeopardise the
maintenance of good relations between India, and that state. No similar provision is present in
any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932)
provides punishment for libel by Indian citizens against foreign dignitaries.

Interest of friendly relations with foreign States, would not justify the suppression of fair
criticism of foreign policy of the Government. It is to be noted that member of the
commonwealth including Pakistan is not a "foreign state" for the purposes of this
Constitution. The result is that freedom of speech and expression cannot be restricted on the
ground that the matter is adverse to Pakistan.

3. PUBLIC ORDER: This ground was added by the Constitution (First Amendment) Act. 'Public
order' is an expression of wide connotation and signifies "that state of tranquillity which prevails among the
members of political society as a result of internal regulations enforced by the Government
which they have established.

Public order is something more than ordinary maintenance of law and order. 'Public order' is
synonymous with public peace, safety and tranquillity. The test for determining whether an act
affects law and order or public order is to see whether the act leads to the disturbances of the
current of life of the community so as to amount to a disturbance of the public order or
whether it affects merely an individual being the tranquillity of the society undisturbed.

Thus creating internal disorder or rebellion would affect public order and public safety. But
mere criticism of government does not necessarily disturb public order. In its external aspect
'public safety' means protection of the country from foreign aggression.
The words 'in the interest of public order' includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a
law punishing utterances made with the deliberate intention to hurt the religious feelings of

24 Romesh Thappar v State of Madras AIR 1950 SC 124,128.

12
any class of persons is valid because it imposes a restriction on the right of free speech in the
interest of public order since such speech or writing has the tendency to create public disorder
even if in some case those activities may not actually lead to a breach of peace.
25
In Superintendent Central Prison v Ram Manohar Lohia Section 3 of UP. Special
Powers Act, 1932 punished a person if he incited a single person not to pay the payment of
Government dues was held to be invalid because there was no proximate nexus between
speech and public order.
In Sadho Samsher v State of Pepsu 26 a vitriolic attack upon the character and integrity of CJ
of a HC was held to have no rational connection with the maintenance of law and order.

4. DECENCY OR MORALITY: The words 'morality or decency' are words of wide

meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on
the freedom of speech and expression in the interest of decency or morality. These sections
prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix
standard is laid down till now as to what is moral and indecent. The standard of morality
varies from time to time and from place to place.

In Ranjit Desai v State of Maharashtra27 the SC upheld the conviction of the appellant, a
book seller, who was prosecuted for keeping the book, The lady Chatterleys Lover.
But it is rightly submitted that no fixed standard can be laid down to what is moral and
obscene.

5. CONTEMPT OF COURT: Restriction on the freedom of speech and expression can be

imposed if it exceeds the reasonable and fair limit and amounts to contempt of court.
According to the Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' In a
democratic country Judiciary plays very important role. In such situation it becomes essential
to respect such institution and its order. Thus, restriction on the freedom of speech and
expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt
of court.
But now, Indian contempt law was amended in 2006 to make truth a defence.

25
Superintendent Central Prison v Ram Manohar Lohia AIR 1960 SC 633.
26
Sadho Samsher v State of Pepsu AIR 1954 SC 276.
27 Ranjit Desai v State of Maharashtra AIR 1965 SC 881.

13
However, even after such amendment a person can be punished for the statement unless they
were made in public interest.
Again in Indirect Tax Practitioners Assn. v R..K Jain28, it was held by court that, Truth based
on the facts should be allowed as a valid defence if courts are asked to decide contempt
proceedings relating to contempt proceeding relating to a speech or an editorial or article.
The qualification is that such defence should not cover-up to escape from the consequences
of a deliberate effort to scandalize the court.

6. DEFAMATION: Ones freedom, be it of any type, must not affect the reputation nor status
another person.
A person is known by his reputation more than his wealth or anything else. Constitution considers it as
ground to put restriction on freedom of speech. Basically, a statement, which injures a man's
reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule
or contempt. In Section 499 of IPC the criminal law relating to defamation is mentioned. The
civil law relating to defamation is still uncodified in India.

7. INCITEMENT TO AN OFFENCE: This ground was added by the (First Amendment) Act,
1951. The word offence used here is not defined in the Constitution. It however means
something that is made punishable by law for the time being in force (General Clauses Act).

8. INTEGRITY AND SOVERIGNTY OF INDIA: This was also added by clause (2) of
article 19 by 16th Amendment Act, 1963.

SEDITION
Section 124A of the Indian Penal Code deals with the offence of sedition. It lays down that,
Whoever by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards, the Government established by law in India, shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend
to three years, to which fine may be added, or with fine.

28
Indirect Tax Practitioners Assn. v R..K Jain (2010) 8 SCC 191.

14
 But Explanation 3 says Comments expressing disapprobation of the administrative or other
action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.

In Devi Saran v/s State29 the Court has held that Section 124A imposes reasonable restriction
on the interest of public order & therefore it is protected under Article 19 (2) of
the Constitution.

CONCLUSION

The freedom provided in the Article 19 is one which needs to be used properly. No one can
misuse this freedom and get away with it.
It has been sixty years since India became Republic & commencement of
the Constitution there is been a lot of ups & down in our democracy & the Constitution also
has come across age.
Thus, we can conclude that the time has come for the India to be largest democracy of the
world to work with hand-in-hand with judiciary for the welfare of its subjects. The day is not
far away when there will be no eclipse of injustice & the sun of justice will shine brightly
forever.

BIBLIOGRAPHY

Basu, Dr Durga Das, Case Book on Indian Constitutional Law, 2nd ed. (2007), Kamal
Law House, Kolkata.
Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency,
Allahabad..
Shukla VN, Constituion of India, 10th ed. (2001), Eastern Book Company.
HM Seervai, Constitutional law of India, Universal Law Publishing Co. Pvt. Ltd.,
Lucknow, fourth edition, 2005

Websites
http://www.importantindia.com/2011/freedom-of-press-in-indian-constitution/
http://www.lawnotes.in/Article_19_of_Constitution_of_India

29
Devi Saran v State AIR 1954 Pat 254.

15
16