Freedom of expression in India

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The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22,
with the view of guaranteeing individual rights that were considered vital by the framers of
the constitution. The right to freedom in Article 19 guarantees the Freedom of speech and
expression, as one of following six freedoms:[1]

Contents
[hide]

 1 Constitutional law
o 1.1 Restrictions
 2 Practical Constraints and Curtailments
 3 Sedition
 4 Bibliography
 5 References

[edit] Constitutional law

Main Article Fundamental Rights in India

In a landmark judgment of the case Maneka Gandhi v. Union of India,[2] the Supreme Court
held that the freedom of speech and expression has no geographical limitation and it carries
with it the right of a citizen to gather information and to exchange thought with others not
only in India but abroad also.

The constitution of India does not specifically mention the freedom of press. Freedom of
press is implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the
restrictions that are provide under the Article 19(2) of the Constitution. Before Independence,
there was no constitutional or statutory provision to protect the freedom of press. As observed
by the Privy Council in Channing Arnold v. King Emperor:[3] “The freedom of the journalist
is an ordinary part of the freedom of the subject and to whatever length, the subject in general
may go, so also may the journalist, but apart from statute law his privilege is no other and no
higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider
than that of any other subject”. The Preamble of the Indian Constitution ensures to all its
citizens the liberty of expression. Freedom of the press has been included as part of freedom
of speech and expression under the Article 19 of the UDHR. The heart of the Article 19 says:
“Everyone has the right to freedom of opinion and expression, this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.”

In Romesh Thapar v. State of Madras,[4] Patanjali Shastri, CJ observed: “ Freedom of speech

and of the press lay at the foundation of all democratic organisations, for without free
political discussion no public education, so essential for the proper functioning of the process
of popular government, is possible.”

The Supreme Court observed in Union of India v. Assn. for Democratic Reforms:[5]
“Onesided 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 Indian Express v. Union of India,[6] it has been held that the press plays a very significant
role in the democratic machinery. The courts have duty to uphold the freedom of press and
invalidate all laws and administrative actions that abridge that freedom. Freedom of press has
three essential elements. They are:1. freedom of access to all sources of information,[7] 2.
freedom of publication, and 3. freedom of circulation.[4]

In India, the press has not been able to exercise its freedom to express the popular views. In
Sakal Papers Ltd. v. Union of India,[8] the Daily Newspapers (Price and Page) Order, 1960,
which fixed the number of pages and size which a newspaper could publish at a price was
held to be violative of freedom of press and not a reasonable restriction under the Article
19(2). Similarly, in Bennet Coleman and Co. v. Union of India,[9] the validity of the
Newsprint Control Order, which fixed the maximum number of pages, was struck down by
the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable
restriction under Article 19(2). The Court struck down the plea of the Government that it
would help small newspapers to grow.

In Romesh Thapar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC 124), 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”. In Prabha Dutt v. Union of India ((1982) 1 SCC 1; AIR 1982 SC 6.), the Supreme
Court directed the Superintendent of Tihar Jail to allow representatives of a few newspapers
to interview Ranga and Billa, the death sentence convicts, as they wanted to be interviewed.

There are instances when the freedom of press has been suppressed by the legislature. The
authority of the government, in such circumstances, has been under the scanner of judiciary.
In the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship
previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The
court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the
editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the
publication, till the further orders , all communal matters all the matters and news and views
about Pakistan, including photographs, and cartoons”, on the ground that it was a restriction
on the liberty of the press. Similarly, prohibiting newspaper from publishing its own views or
views of correspondents about a topic has been held to be a serious encroachment on the
freedom of speech and expression.[10]

[edit] Restrictions

The freedom of speech and of the press does not confer an absolute right to express without
any responsibility. Lord Denning, in his famous book Road to Justice, observed that press is
the watchdog to see that every trial is conducted fairly, openly and above board, but the
watchdog may sometimes break loose and has to be punished for misbehaviour.[11] With the
same token Clause (2) of Article 19 of the Indian constitution enables the legislature to
impose reasonable restrictions on free speech under following heads:

 I. security of the State,

 II. friendly relations with foreign States,
 III. public order,
 IV. decency and morality,
 V. contempt of court,
 VI. defamation,
 VII. incitement to an offence, and
 VIII. sovereignty and integrity of India.

Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not
by executive action.[12]

Security of the State: Reasonable restrictions can be imposed on the freedom of speech and
expression, in the interest of the security of the State. All the utterances intended to endanger
the security of the State by crimes of violence intended to overthrow the government, waging
of war and rebellion against the government, external aggression or war, etc., may be
restrained in the interest of the security of the State.[13] It does not refer to the ordinary
breaches of public order which do not involve any danger to the State.[4]

Friendly relations with foreign States: This ground was added by the Constitution (First
Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of
speech and expression, if it tends to jeopardise the friendly relations of India with other State.

Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in
order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar, s
case (AIR 1950 SC 124). The expression ‘public order’ connotes the sense of public peace,
safety and tranquillity.

In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences
between three concepts: law and order, public order, security of State. Anything that disturbs
public peace or public tranquillity disturbs public order.[14] But mere criticism of the
government does not necessarily disturb public order.[15] A law punishing the utterances
deliberately tending to hurt the religious feelings of any class has been held to be valid as it is
a reasonable restriction aimed to maintaining the public order.[16]

It is also necessary that there must be a reasonable nexus between the restriction imposed and
the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya
(AIR 1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which
punished a person if he incited a single person not to pay or defer the payment of
Government dues, as there was no reasonable nexus between the speech and public order.
Similarly, the court upheld the validity of the provision empowering a Magistrate to issue
directions to protect the public order or tranquillity.[17]

Decency and morality: The word ‘obscenity’ is identical with the word ‘indecency’ of the
Indian Constitution. In an English case of R. v. Hicklin,[18] the test was laid down according to
which it is seen ‘whether the tendency of the matter charged as obscene tend to deprave and
corrupt the minds which are open to such immoral influences’. This test was upheld by the
Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case
the Court upheld the conviction of a book seller who was prosecuted under Section 292 ,
I.P.C., for selling and keeping the book The Lady Chatterley’s Lover. The standard of
morality varies from time to time and from place to place.

Contempt of court: The constitutional right to freedom of speech would not allow a person to
contempt the courts. The expression Contempt of Court has been defined Section 2 of the
Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or
criminal contempt under the Act. But judges do not have any general immunity from
criticism of their judicial conduct, provided that it is made in good faith and is genuine
criticism, and not any attempt to impair the administration of justice. In In re Arundhati Roy
((2002) 3 SCC 343), the Supreme Court of India followed the view taken in the American
Supreme Court (Frankfurter, J.) in Pennekamp v. Florida (328 US 331 : 90 L Ed 1295
(1946)) in which the United States Supreme Court observed: “If men, including judges and
journalists, were angels, there would be no problem of contempt of court. Angelic judges
would be undisturbed by extraneous influences and angelic journalists would not seek to
influence them. The power to punish for contempt, as a means of safeguarding judges in
deciding on behalf of the community as impartially as is given to the lot of men to decide, is
not a privilege accorded to judges. The power to punish for contempt of court is a safeguard
not for judges as persons but for the function which they exercise”. In E.M.S. Namboodripad
v. T.N. Nambiar ((1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court confirmed the
decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R.
Parashar v. Farooq Abdullah ((1984) 2 SCC 343; AIR 1984 SC 615.), contempt proceedings
were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the
petition for want of proof.

Defamation: The clause (2) of Article 19 prevents any person from making any statement that
injures the reputation of another. With the same view, defamation has been criminalised in
India by inserting it into Section 499 of the I.P.C.

Incitement to an offence: This ground was also added by the Constitution (First Amendment)
Act, 1951. The Constitution also prohibits a person from making any statement that incites
people to commit offence.

Sovereignty and integrity of India: This ground was also added subsequently by the
Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from
making the statements that challenge the integrity and sovereignty of India.

[edit] Practical Constraints and Curtailments

  Freedom of speech and expression, which enable an individual to participate in public
activities. The phrase, "freedom of press" has not been used in Article 19, but freedom
of expression includes freedom of press. Reasonable restrictions can be imposed in
the interest of public order, security of State, decency or morality.

According to the estimates of Reporters Without Borders, India ranks 120th worldwide in
press freedom index (press freedom index for India is 39.33 for 2007).[19] The Indian
Constitution, while not mentioning the word "press", provides for "the right to freedom of
speech and expression" (Article 19(1) a). However this right is subject to restrictions under
subclause (2), whereby this freedom can be restricted for reasons of "sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
preserving decency, preserving morality, in relation to contempt of court, defamation, or
incitement to an offence". Laws such as the Official Secrets Act and Prevention of Terrorism
Act [20] (POTA) have been used to limit press freedom. Under POTA, person could be
detained for up to six months before the police were required to bring charges on allegations
for terrorism-related offenses. POTA was repealed in 2004, but was replaced by amendments
to UAPA.[21] The Official Secrets Act 1923 remains in effect.

For the first half-century of independence, media control by the state was the major constraint
on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a
Government organ, it is going to remain a Government organ..." [22] With the liberalization
starting in the 1990s, private control of media has burgeoned, leading to increasing
independence and greater scrutiny of government. Organizations like Tehelka and NDTV
have been particularly influential, e.g. in bringing about the resignation of powerful Haryana
minister Venod Sharma. In addition, laws like Prasar Bharati act passed in recent years
contribute significantly to reducing the control of the press by the government

[edit] Sedition
According to the English Law, Sedition embraces all the practices whether by word or
writing which are calculated to disturb the tranquillity of the State and lead an ignorant
person to subvert the Government.[23] Mere criticism of the government does not amount to
sedition, if it was not calculated to undermine the respect for the government in such a way so
as to make people cease to obey it and so that only anarchy follows.[24] Section 124A of the
Indian Penal Code defines the offence of sedition as follows: “Sedition. 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”. 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”.[25] In Kedar Nath v. State of Bihar (AIR 1952 SC 955), the court upheld the
constitutional validity of the Section 124A of I.P.C and also upheld the view taken in
Niharendu’s case.

[edit] Bibliography
  Callamard, Dr. Agnes, Freedom of Speech and Offence: Why Blasphemy Laws Are
not the Appropriate Response, (18 June 2006), www.google.com (as a pdf)
 Cohen, Henry, C.R.S. Report for Congress: Freedom of Speech and Press: Exceptions
to the First Amendment, (27 August 2003), www.google.com ( as a pdf ).
 Liang, Lawrence, Reasonable Restrictions and Unreasonable Speech, (2004),
www.google.com ( as a pdf ).
 Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency,
Allahabad.
 Singh, M. P., Constitution of India, 10th ed. (2001), Eastern Book Co., Lko.
 Tiwari, Dr. Mahendra, Freedom of press in India: Constitutional Perspectives, (2006),
www.supremecourtcases.com.

[edit] References
1. ^ Constitution of India-Part III Article 19 Fundamental Rights.
2. ^ AIR 1978 SC 597.
3. ^ AIR 1914 PC 116, 117.
4. ^ a b c Romesh Thapar v. State of Madras, AIR 1950 SC 124.
5. ^ Union of India v. Assn. for Democratic Reforms,(2002) 5 SCC 294.
6. ^ Indian Express v. Union of India,(1985) 1 SCC 641.
7. ^ M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395.
8. ^ Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305.
9. ^ AIR 1973 SC 106; (1972) 2 SCC 788.
10. ^ Virendra v. State of Punjab, AIR 1957 SC 896; Express Newspapers v. Union of India, AIR
1958SC 578, 617.
11. ^ See Dr. Mahendra Tiwari “Freedom of press in India : Constitutional Perspectives”
available on internet.
12. ^ Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.
13. ^ State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
14. ^ Om Prakash v. Emperor, AIR 1948 Nag, 199.
15. ^ Raj Bahadur Gond v. State of Hyderabad, AIR 1953 Hyd 277.
16. ^ Ramjilal Modi v. State of Uttar Pradesh, AIR 1957 SC 622; 1957 SCR 860.
17. ^ Babulal Parate v. State of Maharashtra, AIR 1961 SC 884.
18. ^ LR 3 QB 360.
19. ^ Worldwide press freedom index 2007 Reporters Without Borders
20. ^ "The Prevention of Terrorism Act 2002".
http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.htm.
21. ^ Kalhan, Anil et al. (2006). Coloni