Aligarh Muslim University

Malappuram Centre
Kerala

Constitutional Law - II
4th semester

Project Work
Freedom of Speech and Expression under
Constitution of India (Article 19)

Submitted to; - Submitted by;-

Prof Shakeel Ahmed Sir MOHD MATEEN KOUSER

ASST. PROFESSOR (AMU-MC) 18BALLB61/GL0746

1
TABLE OF CONTENT
 INTRODUCTION
 MEANING AND SCOPE
 HISTORICAL BACKGROUND OF FREEDOM OF SPEECH &
EXPRESSION
 NEW DIMENSIONS OF FREEDOM OF SPEECH AND EXPRESSION
 FREEDOM OF PRESS
 RIGHT TO INFORMATION
 GROUNDS OF RESTRICTIONS
 CONCLUSION
 BIBLIOGRAPHY

2
INTRODUCTION
Speech is God’s gift to mankind. Through speech a human being conveys his
thoughts, sentiments and feeling to others. Freedom of speech and expression is
thus a natural right, which a human being acquires on birth. It is, therefore, a
basic right. “Everyone has the right to freedom of opinion and expression; the
right includes freedom to hold opinions without interference and to seek and
receive and impart information and ideas through any media and regardless of
frontiers” proclaims the Universal Declaration Of Human Rights (1948). The
people of India declared in the Preamble of the Constitution, which they gave
unto themselves their resolve to secure to all the citizens liberty of thought and
expression. This resolve is reflected in Article 19(1) (a) which is one of the
Articles found in Part III of the Constitution, which enumerates the
Fundamental Rights.

Man as rational being desires to do many things, but in a civil society his desires
have to be controlled, regulated and reconciled with the exercise of similar
desires by other individuals. The guarantee of each of the above right is,
therefore, restricted by the Constitution in the larger interest of the community.
The right to freedom of speech and expression is subject to limitations imposed
under Article 19(2).

Public order as a ground of imposing restrictions was added by the Constitution

(First Amendment) Act, 1951. Public order is something more than ordinary
maintenance of law and order. Public order in the present context is
synonymous with public peace, safety and tranquility.

MEANING AND SCOPE

Article 19(1)(a) of Indian Constitution says that all citizens have the right to
freedom of speech and expression. Freedom of Speech and expression means
the right to express one’s own convictions and opinions freely by words of
mouth, writing, printing, pictures or any other mode. It thus includes the
expression of one’s idea through any communicable medium or visible
representation, such as gesture, signs, and the like. This expression connotes
also publication and thus the freedom of press is included in this category. Free
propagation of ideas is the necessary objective and this may be done on the
platform or through the press. This propagation of ideas is secured by freedom

3
of circulation. Liberty of circulation is essential to that freedom as the liberty of
publication. Indeed, without circulation the publication would be of little value.
The freedom of speech and expression includes liberty to propagate not one’s
views only. It also includes the right to propagate or publish the views of other
people; otherwise this freedom would not include the freedom of press.

Freedom of expression has four broad special purposes to serve:

1) It helps an individual to attain self-fulfillment.

2) It assists in the discovery of truth.

3) It strengthens the capacity of an individual in participating in decision-

making.

4) It provides a mechanism by which it would be possible to establish a

reasonable balance between stability and social change.

5) All members of society would be able to form their own beliefs and
communicate them freely to others

In sum, the fundamental principle involved here is the people’s right to know.
Freedom of speech and expression should, therefore, receive generous support
from all those who believe in the participation of people in the administration. It
is on account of this special interest which society has in the freedom of speech
and expression that the approach of the Government should be more cautious
while levying taxes on matters of concerning newspaper industry than while
levying taxes on other matters.

Explaining the scope of freedom of speech and expression Supreme Court has
said that the words “freedom of speech and expression” must be broadly
constructed to include the freedom to circulate one’s views by words of mouth
or in writing or through audiovisual instrumentalities. It therefore includes the
right to propagate one’s views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this
country therefore has the right to air his or their views through the printing and
or the electronic media subject of course to permissible restrictions imposed
under Article 19(2) of the Constitution.

Freedom to air one’s view is the lifeline of any democratic institution and any
attempt to stifle, suffocate or gag this right would sound a death knell to

4
democracy and would help usher in autocracy or dictatorship. The modern
communication mediums advance public interest by informing the public of the
events and development that have taken place and thereby educating the voters,
a role considered significant for the vivacious functioning of a democracy.
Therefore, in any setup more so in a democratic setup like ours, broadcasting of
news and views for popular consumption is a must and any attempt to deny the
same must be frowned upon unless it falls within the mischief of Article 19(2)
of the Constitution.

The various communication channels are great spreaders of news and views and
make considerable impact on the minds of readers and viewers and our known
to mould public opinion on vitals issues of national importance. The freedom of
speech and expression includes freedom of circulation and propagation of ideas
and therefore the right extends to the citizen to use the media to answer the
criticism leveled against the views propagated by him. Every free citizen has
undoubted right to lay what sentiments he pleases. This freedom must, however,
be exercised with circumspection and care must be taken not to trench on the
rights of other citizens or to jeopardise public interest.

The Constitution of India guarantees various fundamental rights to its citizens.

One such important right is right to freedoms under Article 19. This includes
right to freedom of speech and expression, right to assemble peacefully and
without arm, freedom to form associations and unions, right to move freely
throughout the territory of India, right to reside and settle in any part of the
territory of India and right to practice any profession or to carry on any
occupation, trade or business. Before 44th amendment, there was also a right to
acquire, hold and dispose off property under Article 19(f), but the same was
omitted by this amendment in 1978. In 44th Amendment, an Article was added
as Article 300A to the effect that no person shall be deprived off his property
saved by Authority of Law. The effect of this amendment is that now the right
to property is no longer a fundamental right under the Indian Constitution.

HISTORICAL BACKGROUND OF FREEDOM OF SPEECH &

EXPRESSION
Freedom to express and disseminate one’s opinion is a demand of the European
enlightenment on the State which took its root initially in England within the
framework of common law precedents.7 At the end of the 18th century,
freedom of expression of opinion expanded through the first basic rights

5
proclamations. In the context of English legal position, section 12 of the
Virginia Bill of Rights, 1776, declared that the freedom of the press is one of
the great bulwarks of liberty and can never be restrained by despotic
Governments. Contrary to the English tradition of Parliamentary supremacy the
1st Amendment of the Constitution of United States binds Parliament also. The
Congress shall make no law abridging the freedom of speech or of the press. in
Article II of the French Declaration of the Rights of Man and of the Citizen,
1789, in the sense of enlightenment, the freedom of opinion was proclamed as a
human right “the unrestrained communication of thoughts or opinions being one
of the most precious right of man. Every citizen may speak, write and publish
freely, provided he be responsible for the abuse of this liberty, in the cases
determined by law. In the 19th century, the German States guaranteed freeom of
opinion in their constitutions within the framework of general criminal laws
mostly by express prohibition of subjecting the press to censor.8 The Federal
Constitutional Court has held that for a free democratic State the basic right to
freedom of expression of opinion is an “essential constituent because only it
enables permanent intellectual discussion, i.e. combat of opinions which are its
life breath.” 9 According to Abraham Lincoln,10 the democracy is Government
by the people, for the people and of the people. But there can be no Government
by the people if they are ignorant of the issues to be resolved, the arguments for
and against different solutions and the facts underlying those arguments. Thus,
it is the people who are the sovereign in a democracy. The United Nations
convened a Conference at Geneva in 1948 on the subject matter of Freedom of
Information which was attended by 54 countries. It passed a series of
resolutions for further consideration by the United Nations which ultimately led
the General Assembly of the United Nations to declare Freedom of Information
a fundamental human right.11 The Universal Declaration of Human Rights
particularly in its Article 19 states that “everyone has right to freedom of
opinion and expression; this right includes freedom to hold opinion without
interference and to seek, receive and import information and ideas through
media and regardless of frontiers.” 12 The plenary words of these proclamations
signify both democratic and people oriented right in one hand and also signify
the right to information on the other. In 1960, the Economic & Social council of
the United Nations adopted a derivative from Article 19 of the Universal
Declaration of Human Rights in 1948. Sweden became the first country in the
world to enact a provision for access to official information for the citizens.13
The Rome Convention for the Protection of Human Rights and Fundamental

6
Freedoms, 1950,14 and came into force on 3rd September, 1953; and
particularly Article 10, which spells the freedom of expression states that (i)
everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart informations and ideas
without interference by public authority and regardless of frontiers. This Article
shall not prevent states from requiring the licensing of broadcasting, television
or cinema enterprises, and (ii) the exercise of these freedoms since it carries
with its duties and responsibilities may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are necessary
in a democratic society, in the interest of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or right of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of judiciary.

NEW DIMENSIONS OF FREEDOM OF SPEECH AND

EXPRESSION
Government has no monopoly on electronic media: The Supreme Court
widened the scope and extent of the right to freedom of speech and expression
and held that the government has no monopoly on electronic media and a
citizen has under Art. 19(1)(a) a right to telecast and broadcast to the
viewers/listeners through electronic media television and radio any important
event. The government can impose restrictions on such a right only on grounds
specified in clause (2) of Art. 19 and not on any other ground. A citizen has
fundamental right to use the best means of imparting and receiving
communication and as such have an access to telecasting for the purpose.

Commercial Advertisements: The court held that commercial speech

(advertisement) is a part of the freedom of speech and expression. The court
however made it clear that the government could regulate the commercial
advertisements, which are deceptive, unfair, misleading and untruthful.
Examined from another angle the Court said that the public at large has a right
to receive the “Commercial Speech”. Art. 19(1)(a) of the constitution not only
guaranteed freedom of speech and expression, it also protects the right of an
individual to listen, read, and receive the said speech.

Telephone Tapping: Invasion on right to privacy : Telephone tapping violates

Art. 19(1)(a) unless it comes within grounds of restriction under Art. 19(2).

7
Under the guidelines laid down by the Court, the Home Secretary of the center
and state governments can only issue an order for telephone tapping. The order
is subject to review by a higher power review committee and the period for
telephone tapping cannot exceed two months unless approved by the review
authority.

FREEDOM OF PRESS
The fundamental right of the freedom of press implicit in the right the freedom
of speech and expression, is essential for the political liberty and proper
functioning of democracy. The Indian Press Commission says that “Democracy
can thrive not only under the vigilant eye of legislature, but also under the care
and guidance of public opinion and the press is par excellence, the vehicle
through which opinion can become articulate.” Unlike the American
Constitution, Art. 19(1)(a) of the Indian Constitution does not expressly
mention the liberty of the press but it has been held that liberty of the press is
included in the freedom of speech and expression. The editor of a press for the
manager is merely exercising the right of the expression, and therefore, no
special mention is necessary of the freedom of the press. Freedom of press is the
heart of social and political intercourse. It is the primary duty of the courts to
uphold the freedom of press and invalidate all laws or administrative actions,
which interfere with it contrary to the constitutional mandate.

RIGHT TO INFORMATION
The right to know, ‘receive and impart information has been recognized within
the right to freedom of speech and expression. A citizen has a fundamental right
to use the best means of imparting and receiving information and as such to
have an access to telecasting for the purpose. The right to know has, however,
not yet extended to the extent of invalidating Section 5 of the Official Secrets
Act, 1923 which prohibits disclosure of certain official documents. One can
conclude that ‘right to information is nothing but one small limb of right of
speech and expression.

GROUNDS OF RESTRICTIONS
Clause (2) of Article 19 contains the grounds on which restrictions on the
freedom of speech and expression can be imposed-

8
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.

2) Friendly relations with foreign states: 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 maintainance 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 tranquility 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 tranquility. 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 tranquility of the society undisturbed.

Anything that disturbs public tranquility or public peace disturbs public order.
Thus communal disturbances and strikes promoted with the sole object of
acausing unrest among workmen are offences against public order. Public order
9
thus implies absence of violence and an orderly state of affairs in which citizens
can peacefully pursue their normal avocation of life. Public order also includes
public safety. 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. Under public order the State would be
entitled to prevent propaganda for a state of war with India.

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 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. But there
must be reasonable and proper nexus or relationship between the restrictions
and the achievements of public 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.

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.’

6) Defamation: A statement, which injures a man’s reputation, amounts to

defamation. Defamation consists in exposing a man to hatred, ridicule, or
contempt. The civil law in relating to defamation is still uncodified in India and
subject to certain exceptions.

7) Incitement to an offence: This ground was also added by the constitution

(First Amendment) Act, 1951. Obviously, freedom of speech and expression
cannot confer a right to incite people to commit offence. The word ‘offence’ is

10
defined as any act or omission made punishable by law for the time being in
force.

8) Sedition: As understood by English law, sedition embraces all those practices

whether by words, or writing which are calculated to disturb the tranquility of
the State and lead ignorant person to subvert the government. It should be noted
that the sedition is not mentioned in clause (2) of Art. 19 as one of the grounds
on which restrictions on freedom of speech and expression may be imposed.

11
CONCLUSION
From this article it can be easily concluded that right to freedom of speech and
expression is one of the most important fundamental right. It includes
circulating one’s views by words or in writing or through audiovisual
instrumentalities, through advertisements and through any other communication
channel. It also comprises of right to information, freedom of press etc. Thus
this fundamental right has a vast scope.

From the above case law analysis it is evident that the Court has always placed
a broad interpretation on the value and content of Article 19(1)(a), making it
subjective only to the restrictions permissible under Article 19(2). Efforts by
intolerant authorities to curb or suffocate this freedom have always been firmly
repelled, more so when public authorities have betrayed autocratic tendencies.

It can also be comprehended that public order holds a lot of significance as a

ground of restriction on this fundamental right. But there should be reasonable
and proper nexus or relationship between the restriction and achievement of
public order. The words ‘in the interest of public order’ include not only
utterances as are directly intended to lead to disorder but also those that have the
tendency to lead to disorder.

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.

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,] 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 Bennett

12
Coleman and Co. v. Union of India, 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.

13
BIBLIOGRAPHY
 www.shodhagana.ac.in
 www.lawteacher.net
 www.ipleader.com
 www.shodhgana.com
 www.knowledge.com
 J.N. Pandey, Constitutional law of India, CLA, Allahabad
 P.M. Bakshi, Constitution of India, ALA, New delhi
 P.M. Bakshi, The Constitution of India, Universal Publication, New delhi

14