UNIT III

ARTICLE 19: RIGHT TO FREEDOM

PROVISIONS OF ARTICLE 19
19 . PROTECTION CERTAIN RIGHTS REGARDING FREEDOM —
● (1) All citizens shall have the right—
➔ (a) to freedom of speech and expression;
➔ (b) to assemble peaceably and without arms;
➔ (c) to form associations or unions [or co-operative societies];
➔ (d) to move freely throughout the territory of India;
➔ (e) to reside and settle in any part of the territory of India; 2 [and] 3
➔ (g) to practise any profession, or to carry on any occupation, trade or business.

● (2)Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interests of
6 [the sovereignty and integrity of India,] the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.]
● (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of 5 [the sovereignty and integrity of India or] public order, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
● (4)Nothing in sub-clause (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
● (5) Nothing in 6 [sub-clauses (d) and (e)] of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any law
imposing, reasonable restrictions on the exercise of any of the rights conferred by the said
sub-clauses either in the interests of the general public or for the protection of the
interests of any Scheduled Tribe.
● (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub-clause, and, in particular, [nothing in the said sub-clause shall
affect the operation of any existing law in so far as it relates to, or prevent the State from
making any law relating to,—
➔ (i) the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
 ➔ (ii) the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise].

ARTICLE 19(1)

Article 19(1) of the Constitution guarantees six fundamental rights to the citizens of India,
exercisable throughout India:
● (a) Freedom of speech and expression
● (b) Assembly
● (c) Association
● (d) Movement
● (e) Residence and settlement; and
● Clause (f): Right to acquire, hold and dispose of property was omitted by the Constitution
44th Amendment Act, 1978 with effect from June 20,1979
● (g) Profession, occupation, trade or business

FREEDOM OF SPEECH AND EXPRESSION

● The English Bill of Rights, 1689 adopted freedom of speech as a constitutional right and
it is still in effect. Similarly, at the time of the French revolution in 1789, the French had
adopted the Declaration of the Rights of Man and of Citizens.
● The UN General Assembly adopted the Universal Declaration of Human Rights on 10
December 1948 under Article 19 which recognized the freedom of speech and expression
as one of the human rights.
● Meaning of freedom of speech and expression: The right to express one’s own ideas,
thoughts and opinions freely through writing, printing, picture, gestures, spoken words or
any other means is the essence of freedom of speech and expression. It includes the
expression of one’s ideas through visible representations such as gestures, signs and other
means of the communicable medium. It also includes the right to propagate one’s views
through print media or through any other communication channel.
● The right that is mentioned above, guaranteed by our constitution, is regarded as one of
the most basic elements of a healthy democracy because it allows citizens to participate
in the social and political process of a country very actively.
● Article 19(1) (a) grants two freedoms:
1. of Speech: - The freedoms to express one’s own or others views in verbal
(spoken) form.
2. of Expression: - The freedoms to express one’s own or other’s views in any of the
forms other than speech, viz. pictures, movies, posters, pamphlets, signs etc.
Thus the framers of the Constitution recognised the existence and efficacy of other forms (other
than speech) in which one can express one’s views. Also, the freedom envisaged by Article 19(1)
(a) extends to individuals as well as groups of individuals.
The fundamental principle involved is the people’s right to know and their right to express their
own views and also the views of the others. The right has four broad, special purposes to serve:
1. Helps an individual to attain self-fulfilment
2. Assist 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.

NATURE OF RIGHT
● Natural rights inherent in the status of a citizen.
● None of these rights is absolute or uncontrolled, Each is liable to be curtailed by laws
made or to be made by the State to the extent mentioned in clause (2)-(6) of Article 19
● The difference in content of clauses (2)-(6) indicates that the rights in clause (1) do not
stand on a common pedestal but have varying dimensions and underlying philosophies

CITIZENS
● Rights under Article 19 are available only to citizens.
● A foreigner has no rights under this article.
● Juristic persons such as companies are not citizens within the meaning of Article 19.
● Citizen means only natural persons who have status of citizenship under the law
● Registered companies and societies are not treated as citizens

R. C. COOPER V. UNION OF INDIA, AIR 1970 SC 564

● The petitioner, share holder, director and shareholder of deposit of current accounts in the
bank, challenged the nationalisation of the bank, which was a company.
● The Court held- when by State action the rights of the individual shareholder are
impaired, even if that action Impairs the rights of the company as well- jurisdiction of the
court to grant relief cannot be denied.
● If the state action has negative consequences for both individual shareholders and the
company as a whole, it does not deny the jurisdiction (authority) of the court to provide
relief to the affected shareholders. In other words, the court can still address and remedy
the individual shareholder's grievances, even if the company is also adversely affected by
the state action.
● It was held, “Freedom of speech and of the press laid 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.”
BENNETT COLEMAN AND COMPANY V. UNION OF INDIA, AIR 1973 SC 106

● Approving Cooper case the court said that the fundamental rights of citizens are not lost
when they are associated to form a company.
● Citizens Do not lose their rights under article 19 (1) merely because they have formed a
company and the State action affecting their rights refers to the company and not to
citizens as individuals.
● In the application of the rights- the nature of the right should be relevant.
● Right to trade or business cannot claim the same consideration as the right to freedom of
speech and expression.

FREEDOM OF THE PRESS

● Unlike the United State Constitution, Article 19 (1)(a) does not expressly mention the
liberty of the press
● But the right to express one’s own ideas, thoughts and opinions freely through writing,
printing, picture, gestures, spoken words or any other means is the essence of freedom of
speech and expression. It includes the expression of one’s ideas through visible
representations such as gestures, signs and other means of the communicable medium. It
also includes the right to propagate one’s views through print media or through any other
communication channel.
● This implies that freedom of the press is also included in this category. The Constitution
does not make any special / specific reference to the Freedom of Press. The protagonists
of the “free Press” called it a serious lapse of the Drafting committee.
● However, the freedom of expression includes freedom of press. Dr. Ambedkar in this
context had said on speaking behalf of the Drafting Committee that the press had no
special rights which are not to be given to an individual or a citizen. Dr. Ambedkar
further said that the “editors or managers of press are all citizens of the country and when
they choose to write in newspapers they are merely expressing their right of expression”.
● So, the word expression covers the Press. In modern times it covers blogs and websites.
● Lord Mansfield, as early as 1784 had defined the "Liberty of the Press" as consisting in
"printing without previous licence, subject to the consequences of law". (R v. Dean of
Asaph, (1784) 3TR428)
● It is in this sense that freedom has existed in England since the end of the seventeenth
century.

PRE CENSORSHIP

Brij Bhushan v State of Delhi, AIR 1950 SC 129

An order issued under section 7(1)(c), East Punjab Safety Act, 1950 directing the editor and
publisher of a newspaper
● "to submit for scrutiny in duplicate before publication, till further orders, all communal
matters and news and views about Pakistan, including photographs and cartoons".

It was struck down by the Supreme Court observing:

● "there can be little doubt that the imposition of pre-censorship on a journal is a restriction
on the liberty of the press which is an essential part of the freedom of speech and
expression declared by article 19 (1) (a)".

FREEDOM OF CIRCULATION

INDIAN EXPRESS NEWSPAPERS v. UNION OF INDIA (1985) 1 SCC 641

● Import duty and auxiliary duty was imposed on newsprint.

● The petitioners contended this to be infringement of the freedom of press as it imposed a
burden also affected the circulation of the newspaper and periodicals.
● It was held by the Supreme Court that: Taxation on the print industry was a valid exercise
in view of the public services, amenities and facilities enjoyed by the said industry, the
maintenance of which was a government job. But when the taxes transgress to the
domain of freedom of speech and expression and stifle that freedom, it becomes
unconstitutional.
● There has to be a different approach by the court while determining the validity of a
statute taxing newsprint and the validity of ordinary taxing statutes.
● In the present case, the taxes on newsprint had resulted in the increase in price of the
newspapers’ circulation which was held to be unconstitutional.

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.
1. Freedom of access to all sources of information,
2. Freedom of publication, and
3. Freedom of circulation.

ROMESH THAPAR V. STATE OF MADRAS, AIR 1950 SC 124

The notification banning the entry into or circulation, sale, or distribution in the state of Madras
or any part of it of the newspaper entitled Crossroads published at Bombay was held invalid
because, "without Liberty of circulation the publication would be of little value"
SAKAL PAPERS (P) LTD. V. UNION OF INDIA, AIR 1962 SC 305

The Daily Newspaper (Price and Page) Order 1960- fixed number of pages and size which
newspaper could published at a price was challenged by the petitioners on the ground that it
infringed the liberty of the press implicit in Article 19(1)(a)

Adoption of the order would mean:

● either the reduction in the existing number of pages or
● raising of the price

➔ In either case, there would be reduction in the volume or circulation of the paper and
therefore, a direct violation of the Liberty of the press
➔ State’s argument was that the law was justified as a reasonable restriction on the business
activity of a newspaper in the interests of the general public.
➔ Court held and accepted that the order affected the circulation and so restrained the
dissemination of news and views which newspapers had the freedom to do.
➔ The govt. order was struck down and held to be inoperative -The only restrictions which
could be imposed on the press were those which clause (2) of Article 19 permits and no
other

FREEDOM OF EMPLOYMENT AND NON-EMPLOYMENT OF NECESSARY MEANS

Example of the above:
● freedom of employment in the editorial force of newspaper;
● freedom from a measure intended or calculated to undermine the independence of the
press by driving it to seek government aid.

➔ It would not be legitimate to subject the press to Laws which take away or abridge the
freedom of speech and expression or
➔ adopt measures calculated or intended to curtail circulation and thereby narrow the scope
of dissemination of opinion.

BENNETT COLEMAN AND COMPANY V. UNION OF INDIA, AIR 1973 SC 106

The import policy for newsprint for 1972-73, along with the Newsprint Control Order, 1962
(issued under section 3 Essential Commodities Act, 1955) Which provided for:
● Bar on starting newspaper or edition by common ownership unitrigid limitation of 10
pages
● Bar on interchangeability within common ownership unit and
● allowance of 20% page increase only to newspapers having below 10 pages
The court struck down the policy as being violative of article 19(1)(a) as provisions were directly
in conflict with the freedom of press which did not fall under any of the exceptions in Article 19
(2)

Union's plea got rejected:

● that the purpose of the Policy was regulation of news print and not newspapers
● held, not the purpose but the effect of Policy was decisive

Justice Mathew dissented:

If the scheme of distribution of news print was calculated to protect dominance of a few
companies ruling the market and thus check the tendency of monopoly in the market, that could
not be open to any objection on the ground that the scheme involved a regulation of the press
which would amount to an abridgment of the freedom of speech.

COMMERCIAL ADVERTISEMENTS
Article 19(1) (a) guarantees the freedom of speech and expression to every citizen of India, right
to receive information is also a facet of this freedom. The publishers have a right to publish
advertisements, which the people have a right to receive. Advertisement is of two kinds: -
1. Non-commercial ads viz. – Railway time table, weather report etc.
2. Commercial advertisement
There has been no controversy as to the first kind. It is with respect to the second kind of ads,
that there has been some controversy. It has been ruled by the SC that the trade and business
aspect can be regulated by the state until it infringes upon the speech aspect. Commercial ads are
a business aspect in the sense that they are published for earning money. At the same time their
curtailment might result in an infringement of the speech aspect as less commercial ads would
mean less income and therefore difficulty in running the number of papers/magazines. This
would ultimately restrict one’s right to freedom of speech and expression.

Can it be protected as free speech?

● They were at one stage considered outside the protection of freedom of speech and
expression
● As they were considered having an element of trade and Commerce

HAMDARD DAWAKHANA VS UNION OF INDIA, AIR 1960 SC 554

● The object of the Drug and Magic Remedies (Objectionable Advertisement) Act, 1954
was the prevention of self medication and self treatment by prohibiting instruments which
may be used to advocate the same or which tended to spread the Evil.
 ● The object was not merely the stopping of advertisement, offending against morality and
decency

HELD
Act which prohibited advertisements commending the efficacy, value and importance in the
treatment of particular disease of certain drugs and medicines, did not fall under article 19 (1) (a)
as:
● advertisement is no doubt a form of speech, but its true character is reflected by the
object for the promotion of which it is employed.
● it is only when an advertisement is concerned with the expression or propagation of ideas
that it can be said to be related to freedom of speech.
● The ads in the present case deal with commerce or trade and not with propagating ideas.
Thus the ads of prohibited drugs would not fall within the purview of Article 19(1) (a).

TATA PRESS LIMITED VS MTNL, AIR 1995 SC 2438

● In the present case, the MTNL, a government Co. had been printing and publishing
telephone directory (white pages), from 1987, however, the Nigam started entrusting
outside contractors to publish the directories and raise revenue for themselves through
commercial ads (Yellow Pages).
● The Tata Press Ltd. had been publishing yellow pages. The Nigam and the government of
India filed a suit for a declaration that they only had the right to publish the Yellow
Pages.
● The Court Held:
1. Commercial ads are a facet of freedom of speech and expression and therefore the
government could not prevent the Tata Press from publishing the Yellow Pages.
2. ii) Partly overruling the Hamdard case, the SC held that the said case applied only
to obnoxious and misleading ads and not all ads under Article 19(1) (a).
● SC held that commercial speech (i.e. advertisement) is -
1. A part of the freedom of speech and expression under Article 19(1)(a).
2. It can be curtailed only on the grounds specified in Article 19(2). However,
misleading, false, unfair and deceptive advertisements could be regulated by the
government. The court held that in a democratic economy, free flow of
commercial speech is indispensable without which there could not be honest and
economical marketing by the public.
3. The public have a right to receive commercial information. Only this would
render them make wise choices in marketing. Therefore, the people also have a
right freely to disseminate commercial speech (i.e. advertisement).

FILM CENSORSHIP
DRAMATIC PERFORMANCE is a form of speech and expression

The constitutionality of film as a medium of expression and its prior censorship came up in the
case of KA ABBAS v. UNION OF INDIA, AIR 1971 SC 481

FACTS
● KA Abbas made a film "A Tale of Four Cities"
● The film attempted to portray the contrast between the life of the rich and the poor in the
four principal cities of the country.
● The film included certain shots of the red light district in Bombay.
● The film was unable to get 'U' certificate.

➔ K.A. Abbas questioned the validity of the Cinematograph Act, 1952 along with the rules
made under it.
➔ The government decided to grant the certificate while the petition was pending in the
supreme court
➔ The court observed that censorship of films including pre censorship was constitutionally
valid in India as it was a reasonable restriction within the ambit of article 19 sub clause
(2)
➔ Justice Hidaytullah has delivered a unanimous verdict in the 1970s in the Abbas Case and
has upheld the validity of the Cinematograph Act, 1952. The Supreme Court had held
that pre censorship for films was constitutionally valid and well within the ambit of
Article 19 (2). However, the censorship should not be exercised to lay unreasonable
restriction on freedom of speech and expression.

S RANGARAJAN V. P. JAGJIVAN RAM, (1989) 2 SCC 574

FACTS
● The appellant, S. Rangarajan is a film producer. He produced a Tamil film "Ore Oru
Gramathile and applied for certificate for exhibition of the film.
● 'U' certificate was granted which was challenged in the High Court by means of writ
petitions.
● It was contended before the High Court that the film is treated in an Irresponsible
manner:
➔ the reservation policy of the Govt. has been projected in a biased manner and
➔ the so-called appeal in the film that "India is one" is a hollow appeal which
touches caste sensitivity of the Brahmin forward caste.
 ➔ It was also asserted that the film would create law and order problem in Tamil
Nadu.
● The Writ Petitions were dismissed by the Single Judge but upon appeal they were
allowed and the 'U' certificate issued to the appellant- producer was revoked.
● The Madras High Court revoked the 'U' certificate issued to a film on the ground that the
exhibition of film was likely to cause public disorder and violence.
● But on appeal the Supreme Court reversed the order of the High Court
● Supreme Court also held, that if Exhibition of the film cannot be validly restricted under
article 19 sub clause (2)
➔ "it cannot be suppressed on account of threat of demonstration and procession or
threat of violence".
➔ "It is the duty of the state to protect the freedom of expression since it is a liberty
guaranteed against the state.
➔ the state cannot plead its inability to handle the hostile audience problem. It is its
obligatory duty to prevent it and protect the freedom of expression".

VIACON 18 MEDIA PVT. LTD. V. UNION OF INDIA (2018) 1 SCC 76

● Petition was filed for staying the orders passed by the States of Gujarat and Rajasthan
prohibiting the exhibition of the film "Padmavat" in their states.
● The court noted that the CBFC had given approval for exhibition of the film after certain
cuts made on the recommendations of an expert committee and two disclaimers by the
producers.
● The court, issuing a stay order against the prohibitory orders of the two states, held:

➔ Once the parliamentary legislation confers the responsibility and the power on a
statutory Board and the Board grants certification, non-exhibition of the film by
the States would be contrary to the statutory provisions and infringe the
fundamental right of the petitioners

CASTING VOTE IS A FORM OF SPEECH

For the exercise of that right the voter also has the right to know the antecedents of the persons
who he has to vote for, so that he can make an informed choice: UNION OF INDIA vs.
ASSOCIATION FOR DEMOCRATIC REFORMS, AIR 2002 SC 2112

● The decision of Court was influenced by the allegation of widespread criminalization of

politics
● In pursuance of court's decision Parliament changed the election law, that is the
Representative of the People Act, 1951
 ● The amended law did not provide for all the information that the court had directed to
provide.
● Moreover, it clearly prohibited demand for further information from any candidate
irrespective of any Court decision.

In a fresh petition, PEOPLE’S UNION FOR CIVIL LIBERTIES vs UNION OF INDIA AIR
2003 SC 2363
● The court invalidated the law in so far as it did not comply with the court decision
reiterating that the voter has a fundamental right under article 19(1)(a) to know the
antecedents of the candidate.
● The court clarified that the right to vote is not a fundamental right
● It is basically a statutory or at the most a constitutional right

KULIP NAYAR vs. UNION OF INDIA, AIR 2006 SC 3127

• The court held that a right to elect, fundamental though it is to democracy, is neither a
fundamental right nor a common law right, but pure and simple, a statutory right

DEMONSTRATION/BANDH/ HARTAL

DEMONSTRATION
● Within certain limits picketing or demonstration may be regarded as a manifestation of
one's freedom of speech and expression.
● Peaceful picketing is free speech
● Non violent acts are like words
● Picketing or demonstration is a non-violent act of persuasion

IN RE: V. VENGAN, AIR 1952 MAD 95 (REVISION PETITION)

FACTS
● Petitioners went to the shop of Krishan Chand Chellaram with black cards and Black Flag
and shouted to dissuade intending customers from purchasing in a North Indian shop.
● Tanjore district Residents brought to Madras by lorry by picketing committee of political
organisation - Dravida Kazhgam

➔ It was held by the court that: Picketing a North Indian shop and dissuading intending
customers from purchasing in the shop was held to be not warranted by article 19(1)(a). It
was a clear violation of freedom of speech and expression and could be reasonably
restricted.
 ➔ Article 15 (1) prohibits discrimination on the ground of place of birth, and if the state
legislature where to pass an Act forbidding south Indians to purchase from North Indian
shop, such an Act would be unconstitutional
➔ The conduct of the petitioner might undermine the security of the state by creating
disaffection and ultimately strife and hatred between state and North Indian residing and
doing business in the south.

GOVERNMENT SERVANTS’ RIGHT TO DEMONSTRATION AND STRIKE

As regards government servants, the judicial view appears to be that while banning
demonstration by then is not valid, a strike by them can be validly prohibited.

KAMESHWAR PRASAD VS STATE OF BIHAR, AIR 1962 SC 1166

FACTS
● A rule made by the Bihar government prohibited government servants from participating
in any demonstration or strike in connection with any matter pertaining to their
conditions of service. The rule was challenged.

➔ It was held by the Supreme Court: A government servant does not, by accepting
government service, lose his fundamental right under article 19

O.K GHOSH V. E.X. JOSEPH, AIR 1963 SC 812

● A disciplinary rule prohibited government servants from participating demonstration in
any.
● The court held the rule to be invalid
● The court emphasised that the rule could be valid if it imposed a reasonable restriction in
the interest of public order

RADHEY SHYAM V. P.M.G. NAGPUR, AIR 1965 SC 311

● Section 3 of the Essential Services Maintenance Ordinance 1960 authorised the Central
Government to prohibit any strike in any essential service in the public interest
● Going on prohibited strike became illegal and punishable with imprisonment
➔ It was held: the provision was declared valid as it did not curtail freedom of
speech and there was no fundamental right to go on strike.

BANDH
● In a Landmark decision, the full bench of Kerala High Court has declared "Bandhs"
organised by political parties from time to time as unconstitutional.
● It was considered to be violative of the fundamental rights of the people in the case of-
BHARAT KUMAR v. STATE OF KERELA, AIR 1997 Ker 291
 ● The High court refused to accept BANDH as an exercise of freedom of speech and
expression

COMMUNIST PARTY OF INDIA V. BHARAT KUMAR, AIR 1998 SC184

It was HELD:
● A call for bandh by any association, organisation or political party and enforcing of call
by it, is illegal and unconstitutional
● The court directed state and all its law enforcement agencies to do all that may be
necessary to give effect to the court order

➔ The supreme court dismissed the appeal against the High Court decision.
➔ The court accepted the distinction drawn by High court between bandh and a strike
➔ A bandh interferes with the exercise of the fundamental freedom of other citizens, In
addition to causing National loss in many ways

AMIT SAHNI V. COMMISSIONER OF POLICE, AIR 2020 SC 4704

FACTS:
● Agitation in the form of Public protest organised in Delhi which led to closure of the
Kalindi Kunj- Shaheen Bagh stretch, including the Okhla underpass.
● Petition challenging such closure was also filed before the Delhi High Court, which
however was disposed on the same day by directing authorities to take appropriate action.
● Court held, while disposing the Petition:

➔ Public ways and spaces cannot be occupied in such a manner and that too
indefinitely.
➔ Democracy and dissent go hand in hand, but then the demonstrations expressing
dissent have to be in designated places alone.
➔ what manner the administration should act is their responsibility and they should
not hide behind the court. orders or seek support therefrom for carrying out their
administrative functions.
➔ The courts adjudicate the legality of the actions and are not meant to give
shoulder to the administration to fire their guns from.

RIGHT TO INTERNET

SHREYA SINGHAL V. UNION OF INDIA, AIR 2015 SC 1523

● The Supreme Court struck down section 66-A of the Information Technology Act, 2000,
(- Punishment up to 3 years for providing offensive message through any communication
medium or device)
 ➔ on the ground that the provision covered all information disseminated through
internet and, therefore, violative of freedom of speech and expression guaranteed
to the citizens under article 19(1)(a) of the Constitution and
➔ it was not covered within the protective umbrella of clause (2) to that article.

It was held that section 66-A directly curbed the freedom of speech and expression of the citizens
at large as it had created an offence against persons who use the internet and annoy or causé
inconvenience to others.

ANURADHA BHASIN V. UNION OF INDIA, AIR 2020 SC 1308

FACTS
● The genesis of the issue starts with the Security Advisory issued by Government of
Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay
and make arrangements for their return in the interest of safety and security.
● Subsequently, educational institutions and offices were ordered to remain shut until
further orders.
● On 04.08.2019, mobile phone networks, internet services, landline connectivity were all
discontinued in the valley, with restrictions on movement also being imposed in some
areas.
● On 05.08.2019, Constitutional Order 272 was issued by the President, applying all
provisions of the Constitution of India to the State of Jammu and Kashmir,
● Same day DM imposed restrictions on movement and public gatherings by virtue of
powers vested Under Section 144, Code of Criminal Procedure

➔ Held: The freedom of speech and expression and the freedom to practise any
profession or carry on any trade, business or occupation over the medium of
Internet enjoys constitutional protection Under Article 19(1)(a) and Article
19(1)(g).
➔ The restriction upon such fundamental rights should be in consonance with the
mandate Under Article 19(2) and (6) of the Constitution, inclusive of the test of
proportionality.
➔ An order suspending internet services indefinitely is impermissible under the
Temporary Suspension of Telecom Services (Public Emergency or Public
Service) Rules, 2017.
➔ Suspension can be utilized for temporary duration only
➔ The State/concerned authorities were directed to consider forthwith allowing
government websites, localized/limited e-banking facilities, hospitals services and
other essential services, in those regions, wherein the internet services are not
likely to be restored immediately.
FAHEEMA SHIRIN RK vs. STATE OF KERELA & ORS. WP (C) No. 19716 of 2019 (L)
● Hon'ble High Court stated that Right to access the internet is a part of Right to education
and Right to Privacy under Article 21A and Article 21 of the Constitution of Indian
respectively.
● Internet Access not only enhances the opportunities of students to acquire knowledge but
also enhances the quality of education

FOUNDATION OF MEDIA PROFESSIONALS V.S. UNION OF INDIA 2020 SCC online SC

453
● Appeal was made to restore the 4G internet in the area of Jammu and Kashmir which was
imposed on connectivity black out in August 2019 by the central government this ban on
3G and 4G services was challenged.
● The court held that the right to freedom of speech and expression, health, education and
Entrepreneurship must be balanced against national security concerns.

RIGHT TO TELECAST/ BROADCAST

SECRETARY MINISTRY OF I&B VS CRICKET ASSOCIATION OF BENGAL 1995 AIR

1236

Supreme court held that government has no Monopoly on electronic media and a citizen has
come under article 19 1 (a) right to telecast and broadcast through electronic media

ODYSSEY COMMUNICATIONS(P) Ltd. VS LOKVIDAYAN SANGHATANA 1988 AIR

1642

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.

FREEDOM OF SILENCE

BIJOE EMMANUEL V.S. STATE OF KERELA 1987 AIR 748

The freedom of speech and expression also includes the freedom of silence, as has been held
in this case (The National Anthem case)

FACTS
● Therein, 3 children belonging to Jehovah’s witnesses were expelled from school for
refusing to sing the National Anthem. It was obligatory for the students to do so.
 ● However, the children stood up respectfully when the National Anthem was being sung.
They refused to sing the National Anthem, as it was against their religious faith.
The SC held:
1. The right under Article 19(1) (a) could be curtailed on grounds mentioned in Article
19(2) only by law and not by executive instructions.
2. The prevention of insults to National Honour Act, 1971 (a law of legislative and not
executive order) was not violated as the students (Jehovah’s) showed respect by standing
up.
3. The Fundamental Rights under Article 19(1) (a) also includes the freedom of silence.

RIGHT TO CRITICISE
KEDAR NATH SINGH V.S. THE STATE OF BIHAR 1962 AIR 955
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.

RIGHT TO EXPRESSION BEYOND BOUNDARIES

MANEKA GANDHI V.S. UNION OF INDIA AIR 1978 SC 597

The Supreme Court analyzed whether Article 19(1)(a) of the Indian Constitution was confined to
the Indian territory and finally held that the freedom of speech and expression was not confined
to the national boundaries.

STATE V. DISHA A. RAVI W.P. (C) 2297/2021

● While granting bail order the court held the freedom of speech and expression includes
the right to seek a global audience.
● There are no geographical barriers on communication.
● A Citizen has the fundamental rights to use the best means of imparting and receiving
communication, as long as the same is permissible under the four corners of law and as
such have access to an audience abroad".
● Creation of a WhatsApp group or being editor of an innocuous Toolkit is not an offence

TELEPHONE TAPPING
As per Article 19(1) (a), a citizen of India has a right to freedom of speech and expression. The
freedom includes the right to express one’s views and conviction through mouth, print, writing,
picture, etc. Talking on the telephone is one aspect of this freedom of speech and expression. The
freedom can be curtailed only on one of the grounds mentioned in Article 19(2).

R. RAJAGOPAL V. STATE OF TAMIL NADU1995 AIR 264 (Autoshankar case)

 ● SC held that right to privacy is a Fundamental Right guaranteed under Article 21 of the
constitution.
● On the one hand are the above two constitutionally guaranteed rights and on the other are
the provisions of the Indian Telegraph Act, Section 5(2) of the Telegraph Act provides
for the interception of telegraphic (including telephonic) message.
● The issue is how to establish a balance between the above two.

PEOPLE’S UNION FOR CIVIL LIBERTIES V. UNION OF INDIA AIR 1997 SC 568
● The petitioner challenged the validity of section 5(2) of the Indian Telegraph Act, 1885,
Section 5(2) permits the interception of messages.
● In accordance with the provisions of the said Section. “Occurrence of any public
emergency “or '' in the interest of public safety” are the sine quo non of the application of
the provisions of Section 5(2) unless these two tests are satisfied the government cannot
exercise its power under the said Section.
● The court has laid down exhaustive guidelines to regulate the discretion vested in the
state under Section 5(2) of the Indian Telegraph Act for the purpose of phone tapping and
interception of other messages so as to safeguard public interest against arbitrary and
unlawful exercises of power by the government.

REASONABLE RESTRICTIONS UNDER ARTICLE 19 (2)

● The constitution nowhere defines the expression “reasonable restriction”.
● No general and universal test of reasonableness can be laid down and, as has been
observed in State of Madras v. G. Row 1952 SC 196 the meaning would vary according
to which of the 6 rights is being restricted by the impugned law.
● In Golak Nath v. State of Punjab (1967 SC), as also in Olga Tellis v. Bombay, it has been
held that the municipal standard is an elastic one that varies with time, space and
condition and from place to place.
● The restrictions can be imposed only by law (as per Article 13) and not by an executive
or departmental instruction.
● The following are the principles laid down by the S.C. in various decided cases w.r.t. the
requirement of reasonableness:
1. Dwarka Pd. Lakshmi Narain v. State of U.P. (SC 1982), The restrictions should balance
between the individual freedoms and the social control permitted by Article 19(1) and
19(2) to (6) respectively. No arbitrary invasion on the freedom under Article 19(1) is
permitted.
2. In Kishan Chand Arora v. Commissioner of Police AIR 1961 SC 705, the requirement of
reasonableness applies both to substantive and procedural provisions.
3. Narottam Das v. State of M.P. AIR 1964 SC 1667 and Empire Industries Ltd. v. U.O.I.
SC, 1985 – The principle of natural justice should also be satisfied by the procedure.
 4. Hanif Quareshi v. State of Bihar AIR 1958 SC, the reasonableness should be tested
objectively from the point of view of the general public (Also in V. G. Row case, 1952
SC).
5. In Maneka Gandhi v. U.O.I. AIR 1976 SC 597 the reasonableness of the restrictions and
not of the law, has to be tested. However under the expanding concept of reasonableness,
the courts have held that the reasonableness, of the law should be tested.
6. Reasonableness includes total prohibition: K. K. Kochnni v. State of Madras AIR 1960
SC
7. State of Bombay v. F. N. Balsara AIR 1951 SC 318 328 – If a restriction is imposed in
order to carry out the DPSP, it is generally supposed to be reasonable.
8. Reasonableness and the American due process of law: - the requirement of
reasonableness should not be construed in the light of American “due-process” clause, as
that concept is more comprehensive, vague and misleading. Our framers deliberately
avoided the use of the word “Due-process” in place of “reasonable”. Each case should be
decided on its own facts like the evil sought to be remedied, the purpose, the time, etc.:
Collector of Customs v. Nathu Lal, AIR, 1962 SC
9. The Burden of proving the reasonableness falls upon the state.
10. These rights are available only to Indian citizens and that too, to natural persons.

Clause 2 of article 19 specifies the grounds on which the freedom of speech and expression may
be restricted. It enables the legislature to impose reasonable restrictions on the right to free
speech "in the interest of" or "in relation to" the following:
1. Sovereignty and integrity of India
2. Security of the state
3. Friendly relations with foreign States
4. Public order
5. Decency or morality
6. Contempt of court
7. Defamation
8. Incitement to an offence

1. SOVEREIGNTY AND INTEGRITY OF INDIA

● This ground has been added by the Constitution (16th Amendment Act), 1963
● Thus, it will be legitimate for Parliament under this clause to restrict the right of free
speech if it preaches secession of any part of the territory of India from the union
● Restriction is with respect to the territorial integrity of India and not about the
preservation of the territorial integrity of the constituent States

2. SECURITY OF THE STATE

The security of the state will be endangered by
 ● crimes of violence intended to overthrow the government
● Waging of War and rebellion against the government external aggression or war etc.
● All utterances intended or calculated to have the above effects may properly be restrained
in the interest of the security of the state

➔ Serious and aggravated forms of public disorder are within the expression "security of the
state". This is the difference between ‘public disorder’ and ‘security of the state’
➔ 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.

3. FRIENDLY RELATIONS WITH FOREIGN STATES

● This ground was added by the Constitution( First Amendment) Act, 1951.
● The state can impose reasonable restrictions on the freedom of speech in the interest of
friendly relations with foreign States.
● The justification is that unrestrained malicious propaganda against a foreign friendly state
may jeopardise the maintenance of good relations between India and that state.
● If the freedom of speech and expression disturbs or hampers the friendly relations of
India with foreign states, the government has the right to impose a reasonable restriction.

4. PUBLIC ORDER
● This ground was added by the Constitution (First Amendment) Act 1951.
● The supreme court in Romesh Thapar v State of Madras had refused to permit the
imposition of restriction on the right to free speech in the interests of public order
because it was not a permissible ground for restraint.
● "Public order"- synonymous -Public peace, safety, and tranquillity.
● It signifies absence of dis-order involving breaches of local significance in
contradistinction to national upheavals such as revolution, civil strife, or war, affecting
the security of the state.
● 19(2) USES “IN THE INTEREST OF PUBLIC ORDER” AND NOT “FOR THE
MAINTENANCE OF PUBLIC ORDER”
● A law may not be designed to directly "maintain the public order" and yet it may be
enacted "in the interest of public order", if it assists or is conducive to the maintenance of
public order.
● Thus a law punishing utterances made with deliberate intention to hurt the religious
feelings of any class of person is valid, because it imposes a restriction on the right to free
speech in the interest of public order,
● Since such speech or writing has the tendency to create public disorder even if in some
cases those activities may not actually lead to a breach of the peace.
SUPERINTENDENT, CENTRAL PRISON V. RAM MANOHAR LOHIYA, AIR 1960 SC 633
● The Supreme Court invalidated section 3, Uttar Pradesh Special Powers Act, 1932 which
punished a person, even if he incited a single person not to pay or defer the payment of
government dues because there was no proximate Nexus between the speech and "public
order".
● SC held that "We cannot accept that instigation of a single individual not to pay tax or
dues is a spark which may in long run ignite revolutionary movement, destroying the
"public order".

BABULAL PARATE V. STATE OF MAHARASHTRA, AIR 1961 SC 884

● Section 144 CRPC, 1973 was impugned on the ground of placing unreasonable
restrictions on the right of freedom of speech and expression.
● Under section 144 a magistrate, if he is of the opinion that there is sufficient ground for
immediate prevention, can by a written order direct a person or persons to abstain from
certain acts
● If he considers that such direction is likely to prevent or tends to prevent a disturbance of
public tranquillity, or a riot or an affray
● The Supreme Court upheld the section 144 as it did not confer an arbitrary power on the
magistrate
● Magistrate had to state the material facts and also because the order could be challenged
before the magistrate who had passed it.

OM PRAKASH V. EMPEROR AIR 1948 Nag, 199

It has been said by the judge 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.

5. DECENCY AND MORALITY

DECENCY
"Decency is the same as lack of obscenity".
● Obscenity becomes a subject of interest since it illustrates well the clash between the
right of the individual to freely express his opinion and the duty of the state to safeguard
the morals.
● Freedom of speech cannot be permitted to deprave and corrupt the community
● writing or object, if obscene, may be suppressed and punished because such action would
be to promote "public decency and morality".

RANJIT D. UDESHI VS STATE OF MAHARASHTRA, AIR 1965 SC 881

● A Bombay book seller was prosecuted under section 292, Indian Penal Code for selling
and for keeping for sale the well-known book "Lady chatterley's lover (unexpurgated
edition) written by D.H. Lawrence
● The magistrate held that the book was obscene - sentenced the appellant
● Appellant put 3 defence before Supreme Court:
1. Section 292 is void it imposed an impermissible and obscure restriction upon the
freedom of speech
2. The novel did not offend public morals because, read as a whole, it was a work of
art.
3. Under the general doctrine in criminal law, actus non facit reum nisi mens sit rea,

● All the three pleas were rejected and the conviction of the appellant was upheld.
1. The Supreme Court held the sec 292 valid.
2. As to the second question - when can an object be said to be obscene?
● In spite of the protest of the counsel of the appellant that the test was
outmoded and needed modification, the court agreed with the Hicklin test
which is as followed: R. v. Hicklin, (1868) QB 360
● "Whether the tendency of the matter charged as obscene is to deprave and
corrupt those whose minds are open to such Immoral influences, and into
whose hands a publication of this short made fall".
● An exception could be made only if some prepondering social purpose or
profit was served by the obscene object
● Court held the novel in question as obscene

● Court held:
➔ The test given by Cockburn C.J., in Queen v. Hicklin, (1868) L.R. 3 Q.B. 360, to
the effect that the tendency of the matter charged as obscene must be to deprave
and corrupt those, whose minds are open to such immoral influences and into
whose hands a publication of the sort may fall, so far followed in India, is the
right test. The test does not offend Art. 19(1) (a) of the Constitution.
➔ If the word Obscenity is given as wide a meaning as was given in R. v. Hicklin,
there is a danger that many a literary work will not be available to the public
➔ When section 292 Indian Penal Code was enacted, Indian citizens enjoyed no
fundamental rights but after the constitution,
➔ If section 292 is allowed to stand as it is, the meaning of "obscenity has to be
narrowed down.
● In subsequent cases, the court has moved away from Udeshi
● If its overall effect is not corruption of Mind or invocation of prurient interest, it cannot
be called obscene.
MILLER V. CALIFORNIA (1973) (MILLER TEST)
● There are three parts of the Miller test. They are:
1. The average person, enforcing the contemporary community standards, would
find that work, taken as a whole, appeals to the prurient interest.
2. Whether the work depicts or describes, in a patently offensive way, sexual
conduct specially defined by the applicable state law.
3. The work "lacks serious literary, artistic, political, or scientific value."

● All three provisions must be met to find a work obscene and undeserving of First
Amendment protections.

S. KHUSHBOO V. KANNIAMMAL, AIR 2010 SC 3196

The supreme court held
● "that obscenity should be gouged with respect to the contemporary community standards
that reflect the sensibilities as well as the tolerance level of an "average reasonable
person"
● The Court did not find obscene the statement of the appellant in a magazine to the effect
that women. indulge in premarital sex and while it may not always be improper, they
must observe precautions against disease and pregnancy

MORALITY
● Clause (2) used the expression "decency or morality"
● Scope of "morality" is not very clear
● the conception of morality differs from place to place and from time to time
● Thus birth control and contraceptives were considered immoral at one time and there
have been convictions for publishing literature dealing with contraception
● Now the view has changed and it is no offence to discuss such matters and use of
contraceptives is widely publicised, encouraged and subsidised by the state
● The word morality and decency is not confined to sexual morality only; it has a broader
scope.

6. CONTEMPT OF COURT
● In a democratic country, we know that the judiciary plays an important role in governing
a country in a peaceful manner so in such types of situation it is important to respect the
institution and its order.
● Article 129 and 215 of the Constitution provide that the Supreme Court and High Courts
shall respectively be courts of records and shall have the power to punish for their own
contempt.
 ● 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.
● Parliament has passed the Contempt of Courts Act, 1971 which includes the
circumstances that can give rise to the charges of scandalising the court and can lead to
criminal contempt proceedings:
➔ apart from personal imputations against particular judges,
➔ adverse comments on Judiciary generally and
➔ scurrilous (abusive, vulgar obscure) comments on particular judgement or judicial
measures
● Initially ‘truth’ was not a defence under contempt of court but in 2006 an amendment was
made to add ‘truth’ as a defence. In the Indirect Tax Practitioner Assn. v. R.K. Jain case,
the court has held that truth which is based on the facts should be allowed as a valid
defence.

E.M. SANKARAN NAMBOODARIPAD V. T. NARAYANAN NAMBIAR, AIR 1970 SC

2015
● Nambudaripad, who was the Chief Minister of Kerala during the period - spoke at a Press
Conference that -- Judiciary was a part of the state machinery and that=judges suffered as
much from their class character as any other person in the ruling hierarchy.
● Since they came from the upper strata of the society they were actuated by class hatred
toward the vast masses of have-nots.
● contempt proceedings were initiated in the Kerala High Court
● The High Court convicted him by a majority and imposed a fine of Rs.1000/- only.
● On appeal, the Supreme Court upheld the conviction, though the fine was reduced to a
sum of Rs. 50/- only.
● Chief justice Hidayatullah- emphasized that the fundamental right to speech and
expression did not abolish the law of contempt of court, which was specifically saved by
article 19 (2)

7. DEFAMATION
● Article 19(2) prevents any person from making any statement that defames the reputation
of another person.
● One who gets the freedom of any type should not misuse that freedom to hurt or affect
the reputation or status of another person.
● Generally, a statement that injures the reputation of a man results in defamation.
● Defamation under the Indian law is both a "tort" and a "crime"
➔ Its scope as a "crime" is defined in section 499 of the Indian penal code read with
section 500.
➔ Defamation as a "tort" is largely what has been inherited from the common law
R. RAJGOPAL V. STATE OF TAMIL NADU, AIR 1995 SC 264
FACTS
● One Gaurishankar alias Auto Shankar had been convicted on multiple charges of Murder
and had been sentenced to death.
● His Mercy petition was pending before the president for consideration.
● There is a Tamil magazine named Nakkheeran which is published from Chennai
● The contention of the Publishers of this magazine was that Auto Shankar, while in jail,
had written his autobiography which he had sent to them for serialisation in the
magazine.
● It was further contended that the autobiography when published would bring to light the
close nexus that existed between Auto Shankar and important IAS and IPS officers in the
state.
● It was contended that the so-called autobiography was not authentic and a fake story had
been prepared in the name of Auto Shankar only to blackmail the government officers.
● It was further contended that the Nakkeeran people were only being asked to desist from
publishing that which was defamatory of the officials and which also encroached on the
privacy of Auto Shankar and his family.
● The prayer of the petitioners that the magazine should not be prevented from publishing
the writing, which they claimed to be the autobiography of Auto Shankar, was allowed
● Precisely because prior restraint against Publication was impermissible even if the so-
called autobiography was fake. and for the reason that aggrieved person had a remedy for
damages which they could resort to.

8. 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:
1. By the commission of an act
2. By the omission of an act

RECENT CASE ON 19(2)

KAUSHAL KISHOR V. STATE OF UTTAR PRADESH (2023)4SCC1
V. Ramasubramanian for himself and S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, and B.V.
Nagarathna, JJ. (partly concurring and partly dissenting)

The Constitution Bench decided on the following questions:

 1. Can restrictions on the right to free speech be imposed on grounds not found in Article
19(2) by invoking other fundamental rights?
Ans:
● The grounds lined up in Article 19(2) for restricting the right to free speech are
exhaustive.
● Under the guise of invoking other fundamental rights, additional restrictions not
found in Article 19(2), cannot be imposed
● The law imposing any restriction in terms of Clause (2) of Article 19 can only be
made by the State and not by the Court.

2. Can a fundamental right Under Article 19 or 21 of the Constitution of India be claimed

other than against the 'State' or its instrumentalities? FUNDAMENTAL RIGHTS
AGAINST PRIVATE COMPANIES/CORPORATIONS/ENTITIES
Ans:
● The original thinking of this Court that these rights can be enforced only against
the State, changed over a period of time.
● The transformation was from "State" to "Authorities" to "instrumentalities of
State" to "agency of the Government" to "impregnation with Governmental
character" to "enjoyment of monopoly status conferred by State" to "deep and
pervasive control"6 to the "nature of the duties/functions performed".
● Therefore, we would answer Question No. 2 as follows: A fundamental right
Under Article 19/21 can be enforced even against persons other than the State or
its instrumentalities.

PAST YEAR QUESTIONS

1. The freedom of speech and expression does not confer an absolute right to speak or
publish without responsibility’. Specify the grounds on which the freedom of speech and
expression may be restricted and explain the meaning and content of the phrase ‘decency
and morality’ in this context with the help of case law. (ANSWER: REASONABLE
RESTRICTIONS- SPECIFIC: MORALITY AND DECENCY)
2. Write a note on test of reasonable classification and examine the constitutional validity of
Exception 2 to Section 375 of Indian Penal Code, 1860. (ANSWER Exception II of
Section 375 of IPC decriminalises rape by a husband on his wife. YOUR OWN
OPINION)

3. ‘The right to freedom of speech and expression does not confer an absolute right to speak
or publish without responsibility’. Comment on the above statement and discuss the
following grounds on which the aforesaid right may be restricted. (REASONABLE
RESTRICTIONS)
 ● Public Order
● Decency and Morality
4. Discuss freedom of speech and expression with special reference to ‘dramatic
performance’. Also explain the meaning of ‘decency and morality’ under Article 19(2).
(ANSWER: REASONABLE RESTRICTIONS)

5. What is the status of freedom of press in India? Discuss. (ANSWER WITH HELP OF
CASE LAWS)

6. Discuss the scope and limits of the „right to protest‟ under Article 19 of the Constitution
by explaining different forms of protest such as „demonstration‟, „hartal‟, and
„bandh‟.Support your answer with the help of suitable case law

7. Do you agree that following are protected under Article 19(1) (a)? Explain by giving
reasons and case law.

● demonstration, bandh and hartal

● Commercial speech

SHORT QUESTIONS

● Freedom of Press
● Decency and morality under Article 19(2).
● Corporations and Article 19 Rights (ANSWER: CITIZEN WALI HEADING KE
UNDER KE CASES KAUSHAL KISHORE CASE)
● Whether the rights guaranteed u/a 19 are available to juristic persons.
(ANSWER:CITIZEN WALA PART- right not available but case laws, an evolving field-
also include kaushal kishore case)
● Reasonable restrictions