Freedom of Speech and Expression 19(1)(a)
“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
― George Washington
Introduction to Freedom of Speech and Expression
Freedom of Speech and Expression is defined under article 19(1)(a) of the Indian Constitution which refers to the fundamental right, given to the Indian Citizen, of Freedom of Speech and Expression.
Right to Freedom secure Right to Right to lead a dignified life. It is these existences of freedom that brings meaning to Democracy. It is only by free speech people could come together to raise voice and achieve political influence. Freedom of speech and expression is also regarded as the first condition of Liberty.
Freedom of speech and expression means right to express one’s own mind, believes and opinions, freely by the words of mouth, pictures, paintings or any other way. Right to freedom of speech and expression is the crux of free society and it must be safeguarded at all time.
Many Constitution and Statutes of various states guarantee freedom of speech and expression. Right of freedom of speech can be traced long back to England’s Bills of Rights, 1689, which adopted freedom of speech as a Constitutional Right.
In 1789, French Revolution adopted the declaration of Rights of Man and Citizen, which further affirmed that the freedom of speech is an irrefutable right.
The Universal Declaration of Human Rights, which was adopted in 1948, also states that every person should have the “Freedom to express their thoughts and opinions”. Freedom of speech and expression is accepted as a Human Right under Article 19 and now is an integral part of international and regional Human Rights. In International human rights the freedom of speech and expression is recognized in International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that-
“Everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of speech and expression ; the right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers either orally or the form of writing or print, in the form of art, or through any other media of their choice”.
Later in the Article we will look at its Main elements, Reasonable Restrictions
Main elements of freedom of Speech and Expression
- Right to freedom of speech and expression is only given to a citizen of India and not to a person with foreign nationality.
- Right to freedom of speech and expression is not an absolute right and the government can put certain reasonable restrictions on it.
- The Rights guaranteed under article 19(1)(a), also includes an individual expressing his/her opinions and thoughts through any medium, that can be spoken words, written, painting, movie etc.
- Restriction can be imposed on citizenry of the state by its action as by its inaction, which means , if the state fails to guarantee the freedom of speech and expression to its citizenry, then it’s a violation of article 19(1)(a).
- Right to Freedom of speech and expression uses the phrase “ speech and expression” which has a broader implication. It includes the, Rights to communication, Right to print and Right to advertise the information, which we will be putting light on, later in the article.
Reasonable Restriction to Freedom of Speech and Expression
There are some grounds on which Indian Constitution puts restriction on Right to freedom of speech and expression, under article 19(2).
National Security
Reasonable restriction can be imposed on the Right to freedom of speech and expression in the context of state security, Security of state refers to serious and aggravated forms of public order, like waging war against the state, rebellion, insurrection etc.
People’s Union for Civil Liberty vs Union of India[1]
A PIL (Public Interest Litigation) was filled under article 32 of Indian Constitution against the frequent cases of Phone Tapping. The section 5(2) of The Indian Telegraph Act, 1885[2], was challenged.
It was held that the Occurrence of Public Emergency and in the Interest of Public Safety are the SINE QUA NON for the application of the provisions of section 5(2). If any of these two conditions are not present, the govt has no right to exercise its power under the given section. Therefore, Phone tapping violates Article 19(1)(a) unless it comes with reasonable restriction provided under Article 19(2).
Sovereignty and Integrity of India
The ground was annexed to the Article 19(2) by the Constitution ( 16th Amendment), Act 1963, as it is first and foremost duty to maintain the sovereignty and integrity of India.
Friendly Relations
It can impose reasonable restriction, if it affects the friendly relations with other states. It was added to the constitution by the (1st Amendment), Act 1951.[3]
Public Order
This ground was added by the (1st Amendment), Act 1951. In Romesh Thappar vs State of Madras,[4] it was held that the Public Order is different from the Security of state.
Contempt of Court
The expression “Contempt of Court” is defines under section 2 of the Contempt of Courts, Act 1971[5]. Right to freedom of speech and expression does not allow and permit any person to contempt of Court. It was amended in Contempt law in year 2006, that added Truth as a defence
Defamation
19(2) of Indian Constitution impose restrictions on a person to prevent him to defame the other person reputation.
Defamation is a crime under section section 449 and 500 IPC. Right to freedom of speech and expression doesn’t give a right to a person to hurt any other person’s reputation.
Decency and Morality
The phrase “Decency and Morality” has a wider meaning. Section 292 to 294 of IPC provide us with the instances of restrictions on freedom of speech and expression in the interest of decency and morality. This includes the prohibition of the sale or distribution or sale or exhibition of obscene words, Paintings etc in public places.
No standard is fixed as to what is moral and indecent. Standard of morality varies from place to place and from time to time.
Incitement to an Offence
This ground was added by the constitution (16th Amendment), Act 1963. It prohibits anyone from making statements that incites anyone to commit any offence.
Significance and Scope
Freedom of Speech and Expression is very vital for Democracy, it opens up the possibilities and channels of free discussions on issues. It also opens up the forum for public opinion on social, economic and political matter throughout the state.
Justice P.N Bhagwati in Maneka Gandhi vs Union of India[6] , emphasized on the vitality of Freedom of speech and expression, his words verbatim were, “Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.”
Under Article 19(1)(a), Right to Freedom of Speech and Expression, includes the right to express one’s own opinions and views on any matter and issue by any means of medium like writing, words of mouth, picture, printing, movie or films. Phrase “Speech and Expression” has a broad connotation. So, by its very own nature it includes right to publish or propagate opinions and freedom to communication, right to print, advertise the information, which is also subjected to Reasonable Restrictions under Article 19(2).
Under the Provision of Indian Constitution, an Individual, as well as a corporation can file a Write Petition, to invoke freedom of speech under Article 32 and 226 of Indian Constitution.
Freedom of Press
In Indian Express vs Union of India[7], it has been decided that press plays a very vital role in Democratic State. Courts are bound to uphold the freedom of press annul all laws and administrative actions that curtail those freedom.
Freedom of speech will include freedom of publication and freedom against pre-censorship. In the case of Brij Bhushan vs State of Delhi[8]. The validity of order imposing Pre-censorship on an English weekly from Delhi, which directed the publisher and editor of weekly to submit the duplicate for examination before publication, about all religious matter and matters relating to Pakistan including cartoons and Photographs. This order was struck down by the court, on the ground that it was a restriction on the freedom of press.
In Romesh Thappar vs State of Madras[9], it was stated that freedom of speech and expression includes freedom to propogate ideas, which is to be ensured by freedom of circulation of publication. M Patanjali Shastri, the second Chief Justice of India, observed that ‘Freedom of Speech and of Press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible’.
Right to Information
Freedom of speech and expression not only includes right to Publish, Propagate or Express information but also provide us with right to receive information. The Apex Court observed in Union of India v. Assn. for Democratic Reforms[10], “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”.
Right to Broadcast
As there has been advancement of technology, concept of Freedom of speech and expression is also evolved in a way that, it includes all available means of communication and expression. This includes broadcast and electronic media.
Supreme Court in Odyssey Communications (P) Ltd vs Lokvidayan Sanghatana[11] held that it is the right of a citizen to exhibit films on national channel like doordarshan. In this case petitioner challenged the exhibition of a serial called “Honi Anhoni” on the grounds that it encourages blind faith and superstition in the viewers.
Right to Criticize
In Democracy, it is very normal to have different opinions and one is free to express and share their thoughts. State policies and government operation are open to criticism for all. Which the very essence of Democracy.
In S Rangarajan vs P. Jagjivan Ram[12], it was held that every person has a right to express and form their opinion on any issues of general concern.
Right to Silence and to Not Speak
In Bijoe Emmanuel vs State of Kerala[13], three students were expelled from the school on the ground of refusal to sing national anthem. However, students stood up in respect when national anthem was playing in the school. The validity of the expulsion was challenged before Kerala High Court. High Court uphold the expulsion on the ground that it was there Fundamental Duty to sing national anthem. Petition was filed in the Apex Court against the order for High Court, it was held by the Apex Court that students did not commit any offence under the Prevention of Insults to National Honour Act, 1971.
[1] AIR 1997 SC 568
[2]https://indiankanoon.org/doc/1445510/#:~:text=(2)%20On%20the%20occurrence%20of,in%20the%20interests%20of%20the
[3]http://legislative.gov.in/constitution-first-amendment-act-1951#:~:text=The%20main%20objects%20of%20this,specified%20State%20Acts%20in%20particular
[4] 1950 SCR 594, 607; AIR 1950 SC 124
[5] https://indiankanoon.org/doc/1737746/
[6] 1978 AIR 597, 1978 SCR (2) 621
[7] 1986 AIR 515, 1985 SCR (2) 287
[8] 1950 AIR 129, 1950 SCR 605
[9] 1950 AIR 124, 1950 SCR 594
[10] https://globalfreedomofexpression.columbia.edu/cases/union-india-uoi-v-respondent-association-democratic-reforms-another-peoples-union-civil-liberties-pucl-another-v-union-india-uoi-another/
[11] 1988 AIR 1642, 1988 SCR Supl. (1) 486
[12] 1989 SCR (2) 204, 1989 SCC (2) 574
[13] 1987 AIR 748, 1986 SCR (3) 518
Author: sarthbodhi wankhade,
Symbiosis Law School and 5th Year (BA LLB)
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