KES’ Shri. Jayantilal H.

Patel Law College, Mumbai

RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IN A DEMOCRATIC
STATICS

CONSTITUTIONAL LAW -1

A partial fulfillment of project submitted for Third Year BALLB Couse in

Semester 6

By
Ragini Gupta
ROLL NO- 46
Third Year BA.LLB
Division A

Under the Supervision of

(Asst.Professor Namrata Shetty)

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 INDEX
S.NO. TOPIC PAGE NO.

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 INTRODUCTION

Freedom of Speech and Expression Article 19(1)(A).

Freedom of speech and expression means the right to speak, and the right to express oneself
through any medium-by words of mouth, writing, pictures, signs, internet etc.
Every citizen has a right to hold an opinion and to be able to express it, including the right to
receive and impart information.
The expression ‘freedom of speech and expression’ has a wide connotation. It includes the freedom
of the propagation of ideas, their publication and circulation.
Article 19 (1) of the Indian Constitution says that:
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;
f) to practice any profession, or to carry on any occupation, trade or business
The exercise of this right is, however, subject to reasonable restrictions for certain purposes being
imposed under Article 19(2) of the Constitution of India.
The Grounds on Which This Freedom Could Be Restricted
Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under
following heads:

1. Security of the State,

2. Friendly relations with foreign States

3. Public order,

4. Decency and morality,

5. Contempt of court,

6. Defamation,

7. Incitement to an offence, and

8. Sovereignty and integrity of India.

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Object of Freedom of Speech and Expression
Freedom of speech not only allows people to communicate their feelings, ideas, and opinions to
others, rather it serves a broader purpose as well.
1. It helps individuals in self- realization.
2. It help in the discovery of truth.
3. It helps in the decision-making process.
4. It provides a mechanism by which it would be possible to establish a reasonable balance between
stability and social change.
5. People have the right to express their opinions about the government and criticise it if needed.
6. The voice of the people must be heard and their grievances are satisfied. Not just in the political
sphere, even in other spheres like social, cultural and economic, the people must have their
voices heard in a true democracy.

1. Freedom of Press
“ Our liberty depends on the freedom of the press, and that cannot be limited without being
lost” is stated by Thomas Jefferson to define the importance of freedom of the press.
Freedom of the press is not mentioned in Article 19 of the Indian Constitution, yet it has been a
part of freedom of speech and expression as considered by judges of the Supreme Court through
decided cases.
CASE LAWS
Indian Express Newspaper v. Union of India.
The Supreme Court held that the press plays an important role in the democracy machinery. The
courts have a duty to uphold the freedom of the press and invalidate all laws and administrative
actions that would take that freedom.
Three elements of freedom of the press are as follows:
1)Freedom of access to all types of source of information
2)Publication freedom, and
3)Circulation freedom.

2. Freedom of Commercial Speech

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The current judicial position of commercial speech in India is that it can be seen as a part of
freedom of speech and expression with reasonable restrictions given or guaranteed under Article
19(2) of the Indian Constitution.

CASE LAWS
Tata Press Limited v. Mahanagar Telephone Nagar Limited
The Supreme Court held that commercial speech or commercial advertisement was also a part of
freedom of speech, which could be restricted only within the limits of Article 19(2) of the Indian
Constitution.

3. Right to Broadcast

The concept of freedom of speech and expression has evolved to include in its ambit all available
means of expression and communication because of the advancements in technology. This includes
broadcast media, electronic media and many other types of media.
Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana
The Supreme court held that the right of the citizens to display films on state channels such as
Doordarshan came under the purview of fundamental rights guaranteed under Article 19 of the
Indian Constitution.

4. Right to Criticize
In a monarchy, we know that the king is supreme and people are his subjects. This system of
relationship gets reversed in a democratic form of government. The people are supreme and the
state authority is a servant of the people.
Kedar Nath Singh v. The State of Bihar
The Supreme court held that mere criticism of the government is not sedition unless this criticism
leads to incitement of violence or breach of public order.
S. Rangarajan v. P. Jagjivan Ram
It was held that everyone has got the right through the Indian constitution to form his/her opinion
on any issue of general concern.

5. Right not to Speak

This right has also been included in freedom of speech and Expression.

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Bijoe Emmanuel v. The State of Kerala
This case is also known as the National Anthem case.
In this case, three students were expelled by the school authority on refusal to sing the National
Anthem. However, these children stood from their seats in respect, when the national anthem was
playing. The validity of the expulsion of children was challenged before the Kerala High Court.
The court held that the expulsion of students on the ground that it was their fundamental duty to
sing the national anthem was upheld.
However, on a further appeal by the students before the Supreme Court, it held that the students
had not committed any offence under the Prevention of Insult to National Honor Act, 1971. Also,
there was no law through which their fundamental rights under Article 19(1)(a) of the Indian
Constitution could be curtailed. And also it was held that expulsion of children from school
violated the right of freedom not to speak under Article 19(1)(a).

Grounds of Restriction for Freedom of Speech and Expression

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 1. Security of the state
Article 19(2) imposes reasonable restrictions on the freedom of speech and expression in the
interest of the state. The term ‘security of the state’ should be distinguished from ‘public order’ as
security of the state includes an aggravated form of public order. For e.g., waging war against the
state, rebellion, insurrection, etc.
The term ‘security of the state’ in Article 19(2) does not only mean danger to the security of the
entire country but it also implies danger to the security of a part of states or threat to a part of states.
2. Public order
The word ‘public order’ depicts the sense of public safety, public peace, and peace of the
community.
Om Prakash v. Emperor
The judge states that anything that disturbs public peace can be said to disturb public order
automatically. There is also a test that determines whether an act affects law and order or public
order.
3. Contempt of court
There is a limitation in a judicial proceeding and anything that curtails its freedom leads to
hampering of the administrative law and also anything can interfere with the decision of justice.
Contempt of court can be defined in two categories i.e., civil contempt and criminal contempt.
Contempt of court has been defined in section 2(a) of the contempt of court act, 1971.
4. Decency and Morality
The word to express or say something should be a decent one that it should win the heart of the
opposite person and it should not affect the morals of the society. So our Constitution has
considered this view and added this ground in our Constitution.
On the ground of decency and morality, Sections 292 to 294 of the Indian Penal Code, 1860
provides an example of a restriction on the freedom of speech and expression.The word morality
and decency is not confined to sexual morality only; it has a broader scope.
5. Incitement to an offence
This ground was also added by the Constitutional First Amendment act, 1951. It is obvious that
freedom of speech and expression does not include the right to incite people to commit an offence.
The word ‘offence’ has been described under section 40 of the Indian Penal Code, 1860. Any type
of offence takes place in two ways:
By the commission of an act
By the omission of an act.

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Union of India v Naveen Jindal and Anr.
Facts: The respondent Naveen Jindal was not allowed to hoist the national flag at the office premise
of his factory by government officials on the ground that it was not permissible under the Flag
Code of India.

Judgment : In this case, the high court held that the restrictions that the Flag Code imposed on
citizens on hoisting the National Flag were not permissible under clause (2) of Article 19 of the
Indian Constitution. The court has also stated that displaying a flag is an expression of pride as
well as an expression of genuine enthusiasm and it can only be restricted in accordance with what
has been prescribed in the Constitution, otherwise, the restriction would discourage the citizens or
Indian nationals from identifying with the flag of the country.

Virendra v. The State of Punjab and Anr.

Facts: Serious communal tension had arisen in the state of Punjab between the Hindus and the
Akali Sikhs because of the question of partition of the state on a linguistic and communal basis.
There were two petitioners and both were from different newspapers. Their newspapers’ policy
was to support the ‘Save Hindi agitation’.
A notification was passed by the home ministry office under the impugned Act prohibiting the
publication and printing of any material relating to the ‘Save Hindi agitation’.
Both the petitioners filed a complaint alleging that the Punjab Special Powers (Press) Act, 1956
passed by the state legislature was unconstitutional.
Judgment : The court held that Section 2 of the impugned Act did not merely impose restrictions
but imposed a total prohibition against the exercise of the right of freedom of speech and
expression, making the same a violation of the right guaranteed by the Constitutional provision.
Kanhaiya Kumar v. State of NCT
Delhi students of Jawaharlal Nehru University organized an event on the Parliament attack convict
Afzal Guru, who was hanged in 2013. The event was a protest through poetry, art, and music
against the judicial killing of Afzal Guru. Allegations were made that the students in the protest
were heard shouting anti-Indian slogans. A case therefore filed against several students on charges
of offence under Sections 124- A. 120-B, and 34. The University's Students Union president
Kanhaiya Kumar was arrested after allegations of anti-national' sloganeering were made against
him. Kanhaiya Kumar was released on bail by the Delhi High Court as the police investigation
was still at nascent stage, and Kumar's exact role in the protest was not clear.

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Different Countries with respect to Freedom of speech and
Expression
Freedom of Speech and Expression in United States.
Freedom of speech and the press are two of the most fundamental values of a free society. The
First Amendment of the US Constitution protects both rights. Historically, the United States has
respected these freedoms, which were among the principles it was founded upon. Most nations
throughout history, and many countries today, have not done the same.
The freedom of speech and expression in the United States has been shaped by several landmark
case laws. Here are a few notable examples:
1. Schenck v. United States (1919): The Supreme Court established the "clear and present
danger" test, limiting speech that presents a clear and immediate danger to national security.
2. Brandenburg v. Ohio (1969): The Court refined the clear and present danger test, ruling
that speech advocating for violence or illegal actions is protected unless it incites imminent lawless
action.
3. Texas v. Johnson (1989): This case affirmed the right to burn the American flag as a form
of symbolic speech, emphasizing the protection of expressive conduct.
These cases, among others, have contributed to the evolving interpretation of freedom of speech
and expression in the United States.

Freedom of Speech and Expression in Canada.

Freedom of expression in Canada is guaranteed by section 2(b) of the Canadian Charter of Rights
and Freedoms:
Freedom of thought, belief, opinion and expression, including freedom of the press and other media
of communication
Section 1 of the Charter establishes that the guarantee of freedom of expression and other rights
under the Charter are not absolute and can be limited under certain situations:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
Other laws that protect freedom of speech in Canada, and did so, to a limited extent, before the
Charter was enacted in 1982, include the Implied Bill of Rights, the Canadian Bill of Rights and
the Saskatchewan Bill of Rights.

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Freedom of Speech and Expression in United Kingdom
In the United Kingdom, freedom of speech and expression is a recognized right, although it is not
explicitly codified in a single written constitution like in some other countries. Instead, it is derived
from common law principles, statutes, and international treaties. Here are key aspects of freedom
of speech and expression in the UK:

1. Human Rights Act 1998: The Human Rights Act incorporates the European Convention
on Human Rights into UK law. Article 10 of the Convention protects the right to freedom of
expression, subject to certain limitations. The Act allows individuals to bring cases related to
freedom of expression before domestic courts.

2. Qualified Right: Freedom of expression is a qualified right, meaning that it can be subject
to restrictions that are prescribed by law and necessary in a democratic society for reasons such as
national security, public safety, the prevention of disorder or crime, protection of health or morals,
or protection of the rights and freedoms of others.

3. Defamation Laws: The UK has robust defamation laws that aim to balance the right to
freedom of expression with the protection of reputation. Defamation laws provide individuals with
the means to seek redress for false statements that harm their reputation.

4. Official Secrets Act: The Official Secrets Act allows the government to protect sensitive
information related to national security. While this is necessary for safeguarding state interests, it
can also be seen as a limitation on freedom of expression.

5. Hate Speech Laws: The UK has laws addressing hate speech, including the Public Order
Act 1986. These laws criminalize behavior intended or likely to stir up racial or religious hatred.
Balancing these laws with freedom of expression can be complex.

6. Media Regulation: The UK has media regulatory bodies, such as Ofcom, which oversee
broadcasting standards. This includes regulations to ensure impartiality and fairness in reporting.
However, these regulations are designed to balance freedom of expression with responsible
journalism.

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Freedom of Speech and Expression in Japan
FREEDOM of speech and expression is recognized as a constitutional right. The post-World War
II Constitution of Japan, enacted in 1947, includes provisions that protect these fundamental
freedoms. Here are key aspects of freedom of speech and expression in Japan:

1. Constitutional Protection: Article 21 of the Constitution of Japan guarantees freedom of

speech and expression. It states that "freedom of assembly and association as well as speech, press
and all other forms of expression are guaranteed."

2. Limitations: While the constitution guarantees freedom of speech, it also allows for
restrictions based on national security, public order, morality, and other considerations. Laws such
as the Public Safety Preservation Act and the Anti-Subversive Activities Law have been criticized
for their potential impact on freedom of expression.

3. Libel and Defamation Laws: Japan has libel and defamation laws that allow individuals
to seek legal remedies for harm to their reputation. However, the legal system has faced criticism
for being plaintiff-friendly and potentially inhibiting investigative journalism.

4. State Secrets Protection Law: Enacted in 2014, this law allows the Japanese government
to designate certain information as state secrets, raising concerns about potential limitations on
journalistic freedom and access to information.

5. Media Regulation: Japan has a system of media self-regulation, and there are press clubs
that provide access to government officials. Critics argue that this system may lead to self-
censorship and limited diversity of viewpoints in journalism.

6. Protests and Demonstrations: Japan generally allows peaceful protests and

demonstrations, and citizens often exercise their right to assembly. However, there have been
instances where legal restrictions on protests, particularly those near government buildings, have
raised concerns.

7. Political Speech: Political speech is a vital aspect of democratic processes in Japan.

Election campaigns and political debates are conducted, allowing candidates and citizens to
express their views freely.

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 CONCLUSION
Freedom of speech and expression in India is a fundamental right guaranteed by Article 19(1)(a)
of the Constitution.
This right allows citizens the liberty to express their thoughts, opinions, and ideas freely. However,
it is not an absolute right, and reasonable restrictions can be imposed on grounds such as public
order, defamation, morality, and security.
The judiciary in India has played a significant role in upholding and interpreting the nuances of
this fundamental right. Landmark decisions have reinforced the importance of free speech as a
cornerstone of democracy.
India has a diverse media landscape, and citizens actively engage in expressing their views through
various platforms.
Despite the constitutional protection, there have been instances of controversies and challenges to
freedom of expression. Concerns arise when laws intended to regulate speech are perceived to be
misused, leading to debates about the balance between individual freedoms and societal interests.
In recent years, the rise of social media has brought new dimensions to freedom of speech,
presenting challenges in regulating online content while ensuring the protection of fundamental
rights. Striking a delicate balance between preserving the democratic ethos and addressing
potential abuses of free expression remains an ongoing task for India's legal and societal
frameworks.

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 References

Union Of India vs Naveen Jindal & Anr (1996).

Virendra v. The State of Punjab, (SC 1957 AIR 896).
Sakal Papers v. Union of India,(SC 1962 AIR 305).
Romesh Thapar v. State of Madras, (SC 1950 AIR 124).
Indian Express Newspaper v. Union of India, 1986 AIR 515.
Maneka Gandhi v. Union of India, 1978 AIR 597.
Bijoe Emmanuel v. State of Kerala, 1987 AIR 748.
People’s Union for Civil Liberties v. Union of India, 490 of 2002.
Hamdard Dawakhana v. Union of India,1960 AIR 554. A.
Abbas v. Union of India, 1971 AIR 481.
Article 19(2), Constitution of India, 1950.

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