Freedom of Expression Notes 4thunit
Freedom of Expression Notes 4thunit
Freedom of Expression Notes 4thunit
Every democratic civilization on the planet is built on the foundation of free speech. The freedom to talk freely
and obtain information from others is at the heart of free speech. It is considered the primary criterion for
autonomy. It is considered the "mother" of all other freedoms and is regarded as one of the most crucial civil
freedoms that are protected from state repression or limitation 1. Article 19(1)(a) of the Constitution of India
guarantees this basic right to free speech and expression. As per the International Covenant on Civil and
Political Rights (ICCPR), the right to free speech is recognized under the international human rights law, while
Article 19 of the Universal Declaration of Human Rights (UDHR) recognizes freedom of expression as a
human right. As free expression is not an unqualified right, hence certain limits are in place upon this right
under Article 19(2). However, the only way to limit freedom of speech is through legislation. The right to
disseminate material, publish it, and market the same also falls under the ambit of this freedom.
The privilege of free expression is guaranteed under Article 19(1)(a) solely to Indian citizens, and not to anyone
who is a foreigner and not an Indian citizen 2. The right to freely express one's views and opinions by words,
literature, publishing, illustrations, or any other method is known as freedom of speech and expression. As a
result, it encompasses the representation of one's ideas, feelings, opinions, and thoughts through any
communicative media or visual presentation, such as signs, gestures, symbols, and the like 3. The rights granted
by Article 19 of the Indian Constitution are those of a free person. These are not statutory rights, but rather
natural law or common law rights. Hence, every citizen has the right to exercise such rights, subject to
limitations established by the state as needed4.
Everyone in the Indian societal structure is allowed to create their own opinions and openly express them to
others. The basic concept at play in the implementation of the concerned right is the entitlement of the people to
obtain information. As a result, every individual who deems that citizen engagement in governmental activities
is necessary should enthusiastically promote freedom of speech. Because of our community's significant
interest in free expression, the government must be more cautious when imposing taxes on items linked to the
newspaper and media business than when imposing taxes on other items 6. However, public demonstrations,
whether religious, political, social or a manifestation of some other issue, that cause public disturbances, act as
nuisances or result in some concrete private or public harm do not fall in the ambit of Article 19(1)(a) 7.
Commercial and creative speech is not specifically included in the Indian set of laws. However, the Indian law
has significantly evolved and improved, and in the lines of the same, the Supreme Court has opined that
'commercial speech' cannot be deprived of the shield of Article 19(1)(a). It was decided by the Court that the
aspect of 'commercial speech' is well protected under the Constitution-provided right to free speech. The
freedom to access, consume, and attend commercial speech is guaranteed to all Indian citizens. Artistic
expressions, such as the rights to paint, mime, dance, compose, to create poetry and literary pieces, falls under
the umbrella of freedom of speech and expression.
It's worth noting that the scope of the right to free speech as per Article 19(1)(a) has been broadened to
encompass the right to receive and transmit information. In State of Uttar Pradesh v. Raj Narain 8, the Supreme
Court concluded that Article 19(1)(a) of the Constitution bestows upon every citizen the right to indulge in free
speech, as well as the right to receive and spread information on topics of public importance. The freedom to
collect and communicate information is included in Article 19(1)(a) of the Constitution of India, according
to Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal 9. For
each person, the print media is a strong instrument for disseminating and receiving information.
In India, the right to free speech is given great consideration. Its significance is readily apparent when one
considers that the constitution's preamble guarantees all people, among other things, the freedom of opinion,
speech, faith, worship, and religion. The constitutional importance of freedom of speech is established in the
Preamble, which translates it into a basic civil right under Article 19(1)(a). The right to free speech has a rich
and extensive history. It may be found in today's international conventions on human rights. The notion of free
speech is said to have begun in the late fifth or early sixth centuries BC. Freedom of speech and religion were
two of the Roman Republic's core ideals10.
Early human rights documents contain the concepts of free speech and freedom of expression. England's Bill of
Rights 1689 guaranteed the constitutional right to freedom of speech and expression. The French Revolution of
1789 established freedom of expression as an inalienable right. Over a century ago, in Abrams v. United
States11, one of the earliest instances to interpret and develop the thesis that would come to occupy a near-holy
place in America's legal character, Justice Oliver Wendell Holmes expressed his dissent, claiming that free
speech has always been a never-ending endeavor. It is closely linked to democracy. Freedom of expression is a
fundamental characteristic of the United States Constitution, according to the First Amendment.
A constitutional provision's adoption is a major event, and it holds essential importance in determining the
upcoming legal environment of a country12. Adoption, according to some experts, crystallizes a principle 13. The
right to freely express and propagate one's opinion is a claim against the state policies that began in England
under common law precedents14. The freedom of the press is one of the great embankments of sovereignty and
autonomy, and it can on no account be curtailed at the hands of dictatorial governments, according to Section
12 of the Virginia Bill of Rights, 1776. As per Article 19 of the UDHR, everyone is endowed with the right to
free expression, and this right includes freedom to hold opinions without restriction and to access, acquire, and
import knowledge and opinions through channels of media and regardless of boundaries15.
Justice Bhagwati, in Maneka Gandhi v. Union of India16, underlined the importance of free speech, saying that
a democratic society stands fundamentally upon unfettered debate, discussion, and open dialogue, as it acts as
the sole "corrective of government action" keeping in view the democratic setting. Considering that democracy
is the rule "of the people, by the people, and for the people", it is self-evident that each and every citizen is
authorized to have the right to partake in the processes concerning democratic functioning, and that unfettered
and open debate of issues concerning the general public is vitally essential to allow him to exercise his right to
vote wisely.
It is evident that the freedom to express one's views is the most important. The bedrock of democratic
government is the allowance and propagation of free speech. This liberty is necessary for the democratic
process to work properly. The fundamental condition of autonomy is the right to free speech and that to freely
express oneself. It holds a prominent place in the hierarchy of freedoms, providing support and protection to all
others. It is true to say that it is the source of all other freedoms17.
Freedom of speech and expression offer avenues for free conversation in a democracy. Free speech is critical in
shaping public opinion on social, political, and economic issues. Since the 1950s, the Supreme Court has
interpreted free expression, as well as the equality clause and the protection of life and liberty, with sufficient
volition. It has been referred to as a "fundamental human right," "a natural right," and other terms. The capacity
to propagate ideas apart from one's own is part of the right to free speech. It also includes the right to broadcast
or publish other people's views; otherwise, the press would end up being excluded from this freedom.
The Supreme Court decided in Mahesh Bhatt v. Union of India & Anr. 18 that free speech is one of the
foundations of the Indian Constitution and that it upholds it. The right to free speech and expression is a crucial
component of a democratic framework. In order to maintain a functioning democracy, citizens must be
informed and educated. Any incursions against free speech, as well as opposing and divergent views of
expression, as well as any laws enacted in the manner of putting restrictions, will lead to curbing on free
speech.
A strong democracy and a healthy society have long valued the right to freedom of speech and expression. For
a democratic polity, it has been regarded to be fundamental and indivisible. It is democracy's fourth pillar.
Democracy refers to a governmental system that is of, run by, and is for the people. As a result, democracy lies
in the hands of the general public, and the right to free and open expression is critical to the state's healthy
functioning. The right to free speech is a tool that allows humans to live in dignity rather than as mere animals.
It has been said that without access to free and unfettered speech and expression, democracy is meaningless.
There is also a need to preserve balance since some individuals are corrupted and do not exercise their
privileges properly. The First Amendment safeguards for free and unhindered speech and expression in the
United States are closely linked to democracy. Free speech is a fundamental natural civil right assured by the
European Convention on Human Rights. It is said to be the core principle and a crucial element of democracy
since it allows individuals to express themselves fearlessly.
Chief Justice Patanjali Shastri, in Romesh Thappar v. State of Madras19, expressed his views, that without
open political deliberation and public education, the appropriate functioning of the popular governmental
institutions will not be possible. Issues of misuse of these rights might arise from the bestowal of such
enormous freedom. However, the framers of the Constitution may well have agreed with Madison, who was the
driving force behind the First Amendment's drafting, who believed that it is better to leave in some demerits in
the concept than take away all of the merits of the same only to ensure that the demerits don't reflect.
As free speech about civic matters is critical to the functioning of our intricate system of democracy, it is an
obligatory outcome of the constitutional provisions creating it, Justice K.K. Mathew has observed 20. The right
to free expression is a crucial and indispensable component of a nation having adopted democracy. The
majority of people believe that democracy is simply about a vote-based election system, but that is not the case,
though. Democracy entails far more than just voting. Citizens have a right to participate in the country's
functioning even after elections and after administrations are created 21. Citizens are allowed to express their
opinions about the democratic processes well after the elections as well. It does not only mean that a citizen can
express his views only in an eloquent, logical, or courteous manner. It can very well include discourteous,
insulting, illogical, and even puzzling expressions. This has therefore required the constitution to put reasonable
restrictions on this right so that it can be regulated by the state in proper manner.
The right to freely communicate one's thoughts and ideas is regarded as a fundamental component of
international law. The right to free speech is today considered to be a rule of conventional international law,
since it is resolutely safeguarded by international conventions, regional legislation on human rights, and lately
developed domestic legislations on human rights. All have the right to free expression, according to Article 19
of the UDHR, and this includes the right to freedom of opinions, ideas, and beliefs without obstruction and to
access, collect, and disseminate thoughts and data through any means and regardless of any boundaries.
Right of speech is also specified under the ICCPR as the freedom to seek, receive, and transmit thoughts and
knowledge of all kinds, independent of frontiers, verbally, in writing, in print, as an art piece, or via any other
media of one's choosing22. This safeguards all kinds of communication, including various means, be it written,
spoken, or sign language, as well as non-verbal expressions such as artworks 23. Additional rights cannot be
exercised in society if free speech is not available. The right to free speech is also recognized by international,
national, and regional rules. Article 13 of the American Convention on Human Rights, Article 19 of the
International Covenant on Civil and Political Rights, Article 9 of the African Charter on Human and People's
Rights, and Article 10 of the European Convention on Human Rights recognize the existence of this right.
Free speech allows people to express their beliefs and political opinions for the betterment of society and the
state. As a result, it offers a system through which a suitable balance between permanence and social reform
may be achieved. It is of crucial importance in a democratic setup as it improves a person's ability to participate
in the decision-making process. Individuals' rights to self-development and satisfaction include the right to free
expression, and therefore safeguarding freedom of expression is critical.
Freed speech is truly vital in a democratic setup, especially accompanied by a free press. Great thinkers like
Voltaire, George Orwell, Thomas Jefferson, and Calvin Coolidge have aptly expressed their views in favor of
the freedom of the press. The press's right to freedom, which is implied in the right to free speech, is critical for
political autonomy and democracy's efficient operation. The freedom of the press is a subpart of the bigger
domain of freedom of speech and expression.
Justice Patanjali Shastri expressed in Romesh Thapar v. State of Madras24 that the freedom of the press,
imbibed within the right to free speech, acts as the groundwork for every democratic organization, and that in
absence of unrestricted political dialogue and instruction the democratic structures will wither away. Lord
Mansfield also commented on the press's liberty consisting of printing of texts without any permission subject
to the penalties of the law of the land. As a result, press freedom entails the ability to print and disseminate
whatever one wants without seeking permission beforehand. The freedom of the press is not restricted only to
newspapers and magazines. It extends to the inclusion of booklets, circulars, and any other type of publication
that serves as a vehicle for information and opinion.
Freedom of the press is extremely vital to democracy, and there is no freedom when a man cannot openly
communicate his opinions to one another, even though the right of free speech subsists from the outset of a free
and liberated society, and tools for every aim of actualizing autonomy are already existent. As a result, among
the rights, free expression is unique according to the American Press Commission 25. The Indian Press
Commission has taken a similar stance, stating that democracy requires not only the supervision and direction
of the legislature, but also the supervision and direction of public opinion to subsist and that the press is,
without a doubt, the medium through which public opinion can be publicized26.
Unlike the United States of America's Constitution, India's Constitution does not directly mention press
freedom in Article 19(1)(a); nonetheless, it has been held that press freedom is included in the freedom of
speech and expression. There are no special rights granted to the press that are not also granted to or asserted by
an individual in his private capacity. This is because the editor or the management of a media channel are
simply utilizing their right to free speech when publicizing their opinion, and for the same, no special rights are
required just for the sake of it coming under a press publication27.
The term "expression" also refers to "publishing," hence press freedom is covered under this category. The goal
must be the free dissemination of ideas, which can be performed on any platform or through media channels.
The freedom of circulation guarantees the unfettered and mass dissemination of thoughts, ideas, and beliefs.
The liberty of circulation, similar to the liberty of publishing, is important to uphold the freedom of speech.
Indeed, the journal would be highly insignificant if there were restrictions imposed on its distribution regardless
of allowing its publication28. The right to free speech entails the right to disseminate other people's views and
ideas as well. It includes within its ambit the right to spread or publish the opinions and thoughts of others 29;
otherwise, the press would be excluded from this freedom.
The Supreme Court decided in Prabha Dutt v. Union of India30 that the right to access and acquire news and
information on government management falls within the ambit of the freedom of the press. However, this said
right is not unlimited, and in the interests of individuals and society from whom the press acquires information,
limits can be imposed. Justice Blackstone has also made essential observations discussing the freedom of the
press in England in his Commentary on the Laws of England, highlighting its need for a free state yet subject to
restrictions.
The Apex Court observed in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India 31 that dialogue
needs in a democratic country should be met by the extension of specific rights such as the right to privacy, the
right to inform, the right to be informed, the right to communicate, the right to partake in civic interactions, and
so on. The press has now begun the process of acting as a public instructor, enabling large-scale education, both
formal and informal, primarily in developing countries where not all members of the society enjoy equitable
access to broadcast television and other means of contemporary communications technology.
The press's goal is to preserve the public good by disseminating information and viewpoints that might
otherwise prevent a democratic electorate from making well-informed decisions. Newspapers regularly print
information that is distasteful to governments and other subsidiary organizations holding power, as assessors of
news and ideas having an influence on government administration. In order to reveal the government's flaws,
the authors of articles published in newspapers must be skeptical of the government's actions. Such publications
might become a source of annoyance or even a danger to authority. There is no specific protection of
journalistic freedom provided under the "Freedom of Speech and Expression Act", and this freedom is
incorporated within the freedom of expression itself that has been granted to all citizens 32. This decision also
established that the freedom of ordinary citizens surpasses the freedom of the press as per India's Constitution.
There are recent controversies that emerged regarding the right to free speech by media personnel. The media is
accountable for spreading relevant and essential information to citizens and guaranteeing governmental
answerability, hence freedom of the press is a crucial democratic ideal. The Supreme Court made a connection
between the freedom of the press and the right to privacy, emphasizing the importance of the press in protecting
constitutional ideals33. The Court further emphasized the importance of the right to freedom of speech and
expression in guaranteeing this freedom.
In the case of Union of India v. Manohar Lal Sharma34, the Court issued an interim order for establishing a
Technical Committee to oversee the Pegasus investigation which had revealed that many journalists,
politicians, and activists had fallen prey to such intrusive activities. The Court stressed that even a legal
infringement on one's right to privacy must be commensurate to the law's objective. The Central Government
cannot use national security as an excuse to avoid responsibility. The Court acknowledged the connection
between the right to free speech and the right to privacy, emphasizing that an intrusion upon private information
may end up causing "self-censorship". They said that freedom of the press and private rights were closely
associated, and that apprehension of monitoring constituted an "assault" on the press, which they defined as
"democracy's fourth pillar".
In the case of Vinod Dua vs. Union of India & Ors. 35, The petitioner, a late journalist, was prosecuted with
sedition in 2021 due to a video he had uploaded on YouTube video criticizing the government policies. He
disputed the FIR, claiming that he was just exercising his fundamental right of speech and expression under
Article 19(1)(a) and that any act of sedition had not been proven. In June 2021, a two-judge panel of the
Supreme Court annulled the FIR citing the decision in Indian Express Newspapers (Bombay) Private Ltd v
Union of India36, declared that press freedom was at the "heart of social and political interaction."
As a result, Article 19 (1(a) covers the right to broadcast. "The right to knowledge is a crucial part of freedom
of expression. The right to receive, know, and transmit information has been recognized as a component of the
right to free speech. A citizen is authorized of the basic right to utilize the most effective method of transmitting
as well as intercepting information, including access to telecasting for that purpose. Section 8 of the Right to
Information Act, 2005, which specifies the people's right to seek government officials for information, restricts
the disclosure of certain materials. These exclusions are typically used to justify reasonable limitations on free
speech under Article 19(1) of the Constitution.
RTI is an acronym that stands for Right to Information. "Right to Information" is a component of the right of
"speech and expression" as included in article 19(1)(a) of the Indian constitution, according to People's Union
for Civil Liberties v. Union of India 37. As a result, the right to information is unquestionably a fundamental
right." The Supreme Court said in Govt. of India v. The Cricket Association of Bengal 38 that free speech
includes the right to acquire and share knowledge. It enables people to take part in debates on cultural and
ethical issues. The right to free speech includes the right to education, information, and entertainment, as well
as the right to be educated, informed, and entertained.
"Information" is defined in Section 2(f) of the RTI Act as any material existing in any medium, including
records, documents, memorandums, e-mails, comments, words of advice, press releases, bulletins,
authorizations, logbooks, agreements, reports, paper works, specimens, information held in any electronic form,
and data relating to any private body that can be utilized by a governmental entity under any other law currently
in force."
The right to information (RTI) is defined in Section 2(j) as follows: "Right to Information" means the right to
inspect work, documents, and records possessed by or under the command of any public organization and
includes the right to:
Since the right to information acts as a crucial constituent of free expression, the right to know, to intercept, and
to transmit information has also been acknowledged as constituent of the right to free expression. Each citizen
enjoys the basic right of utilizing the most effective method of transmission of information and for retrieval of
the same, including usage of broadcasting. Section 8 of the Right to Information Act, 2005, which talks about
people's right to seek government officials for information, restricts the disclosure of certain materials. These
exclusions are specified in Article 19(2) of India's Constitution, which provides the areas for placing reasonable
limits on free expression.
Only a 'Law,' not operative or departmental directives, can impose restrictions on rights under Article 19(1) 40.
There can be no total or unrestrained freedom. 34 Article 19(2) of the Constitution limits freedom of speech and
expression by allowing the State to impose "reasonable" restrictions on the below-mentioned grounds:
1. "Sovereignty and integrity of India"- The Constitution (Sixteenth Amendment) Act, 1963 added
India's sovereignty and integrity to clause (2) of Article 19. Freedom of speech can be limited so that no
one can question India's integrity or sovereignty, or promote the secession of any section of the country
from the Union. It's worth noting that sedition is a legal basis for restricting freedom of speech and
expression, yet it's not addressed in clause (2). It was ruled in Debi Soron v. State of Bihar41 that
Sections 124A and 153A of the IPC impose legitimate restrictions for the sake of public order and are
preserved by Article 19(2) of the Constitution.
2. "Security of the State"- For the sake of state security, the imposition of reasonable restrictions on free
speech is permissible. The Supreme Court had to examine the meaning of the words' security of the
state' in Romesh Thappar v. State of Madras42. The Apex court observed that there are multiple levels
of 'public order' offenses. Every public disturbance cannot be considered a danger to the state's security.
Only noteworthy and aggravated forms of public disturbances, such as rebellion, waging war against the
state, and insurrection, are referred to as 'security of the state,' and it does not include the ordinary
violations of public order and public safety, such as illegal assembly, riot, and affray. As a result,
individual comments or expressions that instigates or promotes the performance of serious criminal acts,
such as rape or murder, are concerns that would jeopardize the state's security43.
3. "Friendly relations with foreign states"- In 1951, the Constitution (First Amendment) Act inserted
this clause. The purpose of this article is to curb unrestricted hostile propaganda which is not in favor of
a foreign friendly state that might jeopardize India's fine ties with it. It is important to highlight that
member nations of the Commonwealth, including Pakistan, are not considered "foreign states" under
this constitution. As a result, restrictions on freedom of speech and expression cannot be imposed on the
basis that the issue is harmful to Pakistan.
4. "Public order"- Public order is an expansive expression that mentions the condition of calm that
persists among affiliates of political society. Consequent to internal restrictions imposed by the
government that this state of tranquility has formed. The phrase 'public order' was absent from Article
19(2). It was decided that only the grounds stated in that article may be used to impose limits. The term
'public order' was introduced in Article 19(2) as one of the legitimate criteria for restricting free speech
as a result of this ruling. Public order is disturbed by anything that upsets public serenity or harmony 44.
Thus, community disturbances45 and strikes organized solely for the purpose of generating
dissatisfaction among workers46 are violations of public order. Public order is not always disrupted by
simple criticism of the government47. The Union Government would be able to ban the propaganda
being spread by a country that is at war with India under 'public order.'48
5. "Morality or decency"- The terms "morality" and "decency" have a wide range of meanings. In the
sake of decency and morality, Sections 292-294 of the Indian Penal Code offer examples of limits on
freedom of speech and expression. Obscenity is described as "against modesty or decency; vulgar, dirty,
and disgusting" in India. It said that the "test of obscenity" is whether a publication, when examined in
its entirety, has the ability to debase and morally corrupt those whose brains are vulnerable to such
immoral consequences, and that each piece must be evaluated independently.
6. "Contempt of court"- If a certain expression guised under freedom of speech goes beyond a logical
and rational extent of free speech and is tantamount to contempt of court, it may be curbed. The term
"contempt of court" is defined as follows under the Contempt of Courts Act of 1971: 'Contempt of court'
might be either 'civil contempt' or 'criminal contempt,' as per Section 2 of the said Act. Deliberate
disobedience to any judge's decree, judgment, order, directive, writ, or some other process adopted, or
deliberate breach of any direction provided to a court, is referred to as "civil contempt." 'Criminal
contempt' refers to the dissemination of any matter or the performance of any other conduct, whether by
words spoken or written, signs or visible representations, or otherwise. It includes any act that:
i. Lowers or tries to lower the authority of any Court,
ii. Prejudices, impedes or tends to hamper the due process of justice administration; or
iii. Impedes or obstructs or tends to hamper the administration of justice in any other way. Honest
publication and dissemination of any matter; publication of a full and impartial report of court
proceedings; legitimate criticism of judicial act; grievance against presiding judicial officers
formed in good faith; publication of reasonable information relating to court hearings in camera
or in chambers are not considered acts of contempt of court.
7. "Defamation"- Defamation is defined as a remark that damages a person's reputation. Exposing a guy
to hatred, mockery, or contempt is what it is all about. The criminal legislation governing defamation in
India is found in Section 499 of the Indian Penal Code (IPC). It does not distinguish between
defamatory statements directed at the ears or eyes, or between slander and libel. These portions have
been kept as legitimate limitations on freedom of expression49.
8. "Incitement to an offence"- In 1952, the Constitution (First Amendment) Act was made to include this
ground as well. The right to free speech doesn't imply the right to urge people to indulge in criminal
activity. The constitutional term 'offence' is not defined. As per the General Clauses Act, an "offence" is
"any act or omission made penal by any legislation in force at the time." The Court must evaluate
whether or not there was incitement based on the evidence and context of each instance.
CONCLUSION
It is reasonable to argue that the value of free expression is defined by the magnitude to which citizens may
exercise it. The right to free speech is a fundamental civil right. It acts like the rock on which democratic
governance is built. It is also necessary for the democratic process to work properly. Every person has the right
to freely express themselves and put forward their views. Speech is necessary because it allows a person to
communicate his or her ideas, feelings, and sentiments to others. It is a natural right that a human being receives
at birth. As a result, no individual must be deprived of this fundamental right to free speech.