Freedom of speech and expression under Article 19(1)(a)

Introduction: In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizens liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart information. The Indian state is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy aforesaid rights. In Romesh Thappar v State of Madras, the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by the freedom of circulation of a publication is of little value without circulation.

The Constitution of India guarantees freedom of speech and expression to all citizens.  It is a natural or common law right but not to harm others. The Right to freedom of speech and expression as per the Indian Constitution mean the right to express one’s own convictions and opinions freely including by way of word of mouth, writing, printing, banners, signs, and even by way of silence. It is enshrined in Article 19(1)(a). 

The Right to freedom of speech and expression as per as Indian Constitution mean the right to express one’s own convictions and opinions freely. The word “freely” means including by words of mouth, writing, printing, banners, signs, and even by way of silence.

Article 19(1)(a)

According to Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.

• This implies that all citizens have the right to express their views and opinions freely.
• This includes not only word of mouth but also expression by way of writings, pictures, movies, banners, etc.
• The right to speech also includes the right not to speak.
• The Supreme Court of India has held that participation in sports is an expression of one’s self and hence, is a form of freedom of speech.
• In 2004, the SC held that hoisting the national flag is also a form of this freedom.
• Freedom of the press is an inferred freedom under this Article.
• This right also includes the right to access information because this right is meaningless when others are prevented from knowing/listening. Due to this interpretation Right to Information (RTI) is a fundamental right.
• The SC has also ruled that freedom of speech is an inalienable right adjunct to the right to life (Article 21). These two rights namely (1) the right to life and personal liberty and (2) the right to freedom of speech and expression are not separate but related.
• Restrictions on the freedom of speech of any citizen may be placed as much by an action of the state as by its inaction. This means that the failure of the State to guarantee this freedom to all classes of citizens will be a violation of their fundamental rights.
• The right to freedom of speech and expression also includes the right to communicate, print and advertise information.
• This right also includes commercial as well as artistic speech and expression.

Importance of Freedom of Speech and Expression

John Milton argued that without human freedom there can be no progress in science, law or politics, which according to him required free discussion of opinion. He also argued that free discussion is necessary to prevent the “deep slumber of a decided opinion”. The discussion would drive the onward March of Truth and by considering false views the basis of true views could be re-affirmed.

“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means government of the people by the people and for the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential”. A basic element of a functional democracy is to allow all citizens to participate in the political and social processes of the country. There is ample freedom of speech, thought and expression in all forms (verbal, written, broadcast, etc.) in a healthy democracy.

Origin of Freedom of Speech And Expression

The concept of freedom of speech originated long back. England’s Bill of Rights of 1689 adopted freedom of speech as a constitutional right and is still in effect. The French Revolution of  1789 adopted the Declaration of Rights of Man and Citizen. This further affirmed the Freedom of Speech as an undeniable right. The Declaration of Freedom of Speech in Article 11 states: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may accordingly speak, write and print with freedom, but shall be responsible for such abuses of this freedom as defined by law”.

Freedom of speech is guaranteed not only by the Indian Constitution but also by international statutes such as the Universal Declaration of Human Rights (declared on 10th December 1948), which also states that everyone should have the freedom to express their ideas and opinions. freedom of speech and expression is recognized as a human right under Article 19 and has now formed a part of the international and regional human rights law. 

the International Covenant on Civil and Political Rights (ICCPR) , Article 19 of the ICCPR states that- “Everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of speech and expression; the right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers either orally or the form of writing or print, in the form of art, or through any other media of their choice”.

And also in the European Convention on Human Rights and Fundamental Freedoms, etc.

Reasons for such rights: 

• To discover the truth:
• For the development of personality, freedom of speech and expression is highly essential.
• Democratic value: This is important because democracy works well only if the people have the right to express their opinions about the government and criticize it if needed. It is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succor and protection to all other liberties. It has been truly said that it is the mother of all other liberties.
• To ensure pluralism: Freedom of speech reflects and re in force pluralism, ensuring that different types of lives are validated and promote the self-esteem of those who follow a particular life- style.
• The voice of the people must be heard and their grievances are satisfied.
• Not just in the political sphere, but even in other spheres like social, cultural and economic, the people must have their voices heard in a true democracy.
• In the absence of freedoms of speech and expression democracy is threatened. The person in government may become too powerful and may not work in the larger public interests and may work for a few people rather than the general public. 
• Heavy clampdown on the right to free speech and free press will create a fear factor under which people would endure tyranny silently. In such a scenario, people would feel stifled and would rather suffer than express their opinions.
• Freedom of the press is also an important factor in the freedom of speech and expression because it is the voice of people for development and for the larger public interest.
• The second Chief Justice of India, M Patanjali Sastri has observed, “Freedom of Speech and freedom  of the Press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible.”
• In the Indian context, the significance of this freedom can be understood from the fact that the Preamble itself ensures to all citizens the liberty of thought, expression, belief, faith and worship.
• Liberal democracies, especially in the West, have a very wide interpretation of the freedom of speech and expression. There are plenty of leeway for people to express dissent freely.
• However, most countries (including liberal democracies) have some sort of censorship in place, most of which are related to defamation, hate speech, etc.
• The idea behind censorship is generally to prevent law and order issues in the country.

The Need to Protect Freedom of Speech

There are four justifications for freedom of speech. They are:

1. For the discovery of truth by open discussion.
2. It is an aspect of self-fulfillment and development.
3. To express beliefs and political attitudes.
4. To actively participate in a democracy.
5. Protection of public interest 
6. Protection of national interest 
7. Important for development so that any wrong activity or plan or thinking can be pointed out to the attention of the public. 

Hosting the National Flag: The Supreme Court of India has held that hosting the National Flag freely with respect and dignity  by citizens is a form of freedom of speech and expression in Union of India v. Naveen Jindal and Anr. (2004) (SC)

voters right to know the bio data and antecedents of candidate

people’s union for civil liberties Vs. UOI (2003) (SC)

voters’ right to know the bio data and antecedents of candidate is the foundation of democracy, it would be the basis of free and fair election which is the basic  Structure of the constitution. freedom of speech and expression include right to impart and receive information, restriction to said right Could only be provided in A-19 (2). 

In the case of UOI Vs. Association for Democratic reforms (2002)(SC), hon’ble court observed that people of country have a right to know every Public act, everything done in a Public way by MP, MLA being Public functionaries. peoples have right to know educational Qualification, assets held by them and antecedents of their life including their Past Criminal records.

Freedom of Speech on Social Media

The High Court of Tripura has held that posting on social media was virtually the same as a fundamental right applicable to all citizens, including government employees. It also asserted that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under the Tripura Civil Services (Conduct) Rules, 1988.

In another significant judgment, the HC of Tripura ordered the police to refrain from prosecuting the activist who was arrested over a social media post where he criticized an online campaign in support of the Citizenship Amendment Act (CAA), 2019 and warned people against it. The High Court held that these orders are in line with the very essence of the Indian Constitution.

Hate Speech

The Supreme Court of India had asked the Law Commission to make recommendations to the Parliament to empower the Election Commission to restrict the problem of “hate speeches” irrespective of, whenever made. However, the Law Commission recommended that several factors need to be taken into account before restricting a speech, such as the context of the speech, the status of the maker of the speech, the status of the victim and the potential of the speech to create discriminatory and disruptive circumstances.

Freedom of Speech in Art

In relation to art, the court has held that “the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.” 

There are restrictions in what can be shown in cinema halls and this is governed by the Cinematograph Act, of 1952. There is a Central Board of Film Certification (CBFC), commonly known as the Censor Board in India to look into the matter. It is a statutory body under the Information and Broadcasting Ministry to regulate the public exhibition of films under the provisions of the Cinematograph Act 1952. Films can be exhibited to the public only after they have been certified by the CBFC. The Central Government enacted the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 in February 2021. The Rules largely cover OTT platforms and social media. The new Rules have been made under Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, of 2000. These new rules supersede the previously enacted Information Technology (Intermediary Guidelines) Rules 2011.

censorship and Exhibition of films

LIC Vs. Mannubhai D. Shah (1992) (SC) Prior restraint is a threat to freedom of speech & expression but in the case of films, censorship by prior restraint is Justified for the protection of the Society from all ill effects that film may produce, if unrestricted exhibition is allowed. censorship is permitted to protect Social interests enumerated in A-19 (2). The burden would, therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law.

Bobby Art international Vs. Om pal Singh Hoon (1996) ( SC) 

it is a well known case to restrain the exhibition of film Bandit  queen in India altogether. This is the story of Phoolan Devi exposed from an early stage of life to brutality and lust of man. the film was granted A Certificate by the Censor board and appellate Tribunal but the high court held the film obscene and Quashed the order of the Tribunal and thus restraining the exhibition of film altogether, finally matter reached the supreme Court. Respondents and its community had been depicted in most depraved (moral corruption, morally bad or evil ) way especially in the rape scene. The supreme court restored the certificate and held it valid Subject to conditions imposed by the Tribunal. The court held that the film must be judged  in entirety from the point of View of its overall impact. The story of the film is a serious and sad Story of a village born formal child who later on became a dreaded dacoit. film carny massage of Social evil and can’t be impermissible on the ground of depicting Social evil.

Mahesh Bhatt VS UOI  (2009) (SC)

case related to scenes of tobacco consumption in film. The Cigarettes & Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade & Commerce, Production, Supply & Distribution) Act, 2003.it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution. The concept of censorship itself is a deviation and due care has been taken to incorporate the discouragement of any propagation or advertisement of smoking by incorporating the relevant provisions in the guidelines of the Censor Board. Nothing more is required or permissible in law under the Act or the Constitution. In view of the aforesaid, Rule 4(6), 4(6A), 4(6B) & 4(8) are held to be ultra vires the parent Act as well as violative of Article 19(1)(a) of the Constitution and are accordingly struck down being unconstitutional.

Freedom of the press: there is no separate guarantee of freedom of press and the same is included in the freedom of expression, which is conferred on all the citizens in Virender v. State of Punjab and Sakal Papers v. Union of India. It has also been Said in this judgment that freedom of press under the Indian Constitution is not higher than the freedom of an ordinary citizen. In the USA freedom of press is specifically mentioned, but in the Constitution of India it is not specifically mentioned in the A-19 (1)(a). 

Institutions are Responsible for Protecting Press Freedom in India?

• Press Council of India (PCI): The Press Council of India is a statutory body established under the Press Council Act, 1978. It acts as a watchdog to safeguard and promote press freedom and the ethical standards of journalism.
• Ministry of Information and Broadcasting: The Ministry of Information and Broadcasting is a government body responsible for formulating policies and guidelines related to the media sector in India.
• News Broadcasters Association (NBA): NBA is a self-regulatory body representing the private television news and current affairs broadcasters in India. It formulates and enforces a code of ethics and standards for television news channels.
• Editors Guild of India: This is a voluntary association of editors of leading newspapers and news magazines in India. It plays a crucial role in defending press freedom and addressing issues related to the rights and responsibilities of journalists.
• Legal System: India’s legal system, including the judiciary, plays a significant role in upholding press freedom. Courts have the authority to address violations of press freedom, protect journalists, and interpret laws related to media.

In the case of Romesh Thappar v. The State of Madras (1950)(SC) the petitioner, Romesh Thappar, a notable communist figure, faced government-imposed restrictions on his magazine, Crossroads, due to its critical stance on Prime Minister Jawaharlal Nehru’s foreign policy. The Madras government invoked Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which banned the entry and circulation of the magazine in specific areas, citing concerns about public safety and order amidst a burning communist movement. The Court discerned ( notice Something With difficulties, differentiate, distinguish, discriminate , figure out )  the nuanced ( nuance means very Small difference, feeling ) distinction between maintaining public order and safeguarding the security of the State. It emphasized that restrictions on fundamental rights, such as freedom of speech and expression, should be proportionate to the severity of the threat posed to public safety or the State’s security. The court held that restrictions must only apply to activities posing a genuine threat to national security or the government’s stability, rather than mere criticisms or dissent. Consequently, the Court held that Section 9(1-A) overstepped the permissible scope of restrictions outlined in Article 19(2) and was therefore unconstitutional.

Prabha Dutt Vs UOI & Ors. (1982) (SC) press was seeking to interview the prisoners in Jail. Court held that the press does not have absolute or unrestricted right to information and an interview may be Conducted only if the prisoners give their Consent. The press is entitled to exercise its freedom of speech and expression by publishing which does not violate or invade the rights of other citizens. The press want to interview the Convicts under Sentence of death but  convicts have the right not to express any view.

State Vs. charita (1999) (SC) Press does not have the unfettered right to interview undertrial prisoners in a Jail. the Court while granting Permission will have to weigh the Competing interest between the right of press and right of authorities prohibiting such interview in the interest administration of Justice. Permission guaranteed by the Court would be subject to relevant rules or regulations of Jail Manual.

1. Rajagopal Vs state of TN (1994) (SC)

Tamil Nadu magazine Nakkheran wants to Publish autobiography of Autoshankhar convicted for Several murder and awarded death Sentences. in the autobiography dipicted close relation between the prisoner and several IAS,IPS and other officer, some of whom were Partners in several crimes. government official restraining the Publication against which writ before SC by Editor of the magazine. Hon’ble court held that an autobiography based on Public record can be Published even without his consent or authorisation because once a matter became Public record , right to Privacy no longer subsisted and  became legitimate subject for Comments by Press and media . It is enough for the press to prove that he acted for a reasonable verification of facts, it is not necessary for the Press to prove that what was Published was true. But Publishing other life history not Part of the public record is invading the right of Privacy. in the interest of decency under A-19(2), in the case of victim of sexual harassment, assault, Kidnapping, rape etc name of female should not be Published. in democratic Society Public officials must always be open to criticism. Before Publication of defamatory matters, state or its officials have no authority to impose prior restraint. Only after Publication, action Could be taken by officials if a matter Published found false. 

Indian Express newspaper  (Bombay) (P) Ltd Vs Union of India (1984) ( SC )

in this case fact was import duty enhanced on Newsprint. in writ petition it was contended that imposition of import duty has direct effects of Crippling the freedom of Speech and expression guaranteed by the Constitution as it would led to increase in price of newspaper and may have consequences of reduction of their circulation. Allowing Writ, it was said that Purpose of Press is to advance the Public interests by Publishing facts and opinion without which a democratic electorate cannot make responsible Judgments. Accordingly, the court directed to reconsider the tax policy related to import duty imposed on newsprint. Government measures including taxation do not limit or hinder the media ability to fulfill their important duty in democratic Structure. 

Bennett Coleman & co Vs. Union of India (1973) (SC): in this case, import policy for newsprint and newsprint control order 1962 was questioned wherein there was a bar on starting a newspaper or new edition by existing ownership units, restriction on no of pages upto 10 etc., The increase in the number of pages may not be more than 20% for newspapers that are under ten pages; Court found that because the freedom of the press involved both qualitative and quantitative dimensions, the Newsprint Policy was unconstitutional as its quantitative restrictions were not justified by a shortage of newsprint; the Newsprint Order and Import Control Order were not struck down. Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. State action in relation to fundamental rights, The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. These restrictions are clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions.

Sakal paper (P) Ltd Vs. Union of India ( 1962)(SC)

Here Newspaper ( Price and control) order 1960 was fixed minimum Price and no page restriction on Newspaper. increase in Price without any increase in no of Pages would reduce circulation and decrease in no of Pages world reduce the Column, space for news, therefore such order acted as double edge Knife. It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions.

Sushil Chaudhary Vs. State of Tripura (1998) (Gau HC)

State government Policy was to allot 30% of government advertisement to a category of newspaper . A Memorandum dated 14-12-1993, however allotted 24%. of ads to only one daily and remaining 6% allotted to other dailies belonging to the same class. It was held that the memorandum was violative of freedom of speech guaranteed under Article 19(1) (a) because Such policy affects formation of healthy Public opinion necessary for good democracy and also violating the equality clause. Hon’ble High court observed that freedom of press is not for the benefit of press but for the benefits of the general Community and community has the right to be supplied with information and Government has duty to educate people within the limits of resources.  Test would be whether community in general will Suffer by the Government Policy Memorandum and not how it affects profit or gains of the different media houses.

Ajay Goswami Vs. Union of India (2007) (SC) in this case issue was blanket ban on Publication of obscene material to Shield Juvenile innocence can’t be imposed. Court Considered applicability of American test of clear and present danger. the Standard for Judging obscenity Should be that of an ordinary man of common Sense and prudence and not thab of a hypersensitive man. A Publication whether obscene Should be Viewed as a whole. A culture of responsible readers Should be inculcated among the readers of news articles.

Vinod Dua Vs. Union of India (2021) (SC) 

Petitioner a Padam sri awardee has Published a video on YouTube channel “the vinod Dra show” in which he stated that PM has used death and terror attacks to garner votes. He also added that the government did not have Sufficient testing facilities and an FIR registered against him in Shimla for sedition which was Quashed and court held that freedom refused for Journalism to Perform his duty as fourth Pillar of democracy. 

Electronic media films, ads, commercial advertisement

Tata Press Vs MTNL (1995) (S C)  Right to advertisement elevated to the status of fundamental rights and it could be restricted only on the ground of A-19 (2). commercial speech now enjoy as much Protection as any Other speech.

Right To commercial speech or advertisements is part of the fundamental right to freedom of speech and expression. The Public at Large has the right to receive the commercial speech because A -19 (1) (a) not only guarantees freedom of Speech and expression but also protects the rights of individuals to listen, read and receive said Commercial speech. Tata Press is entitled to bring out Yellow Pages comprising advertisements. 

Government could regulate commercial advertisements which are deceptive, unfair, misleading and untruthful. Referring to the  judgment  of Hamdard Dawakhana  Vs. UOI (1960) (SC) case, obnoxious advertisement would not Come within A-19 (1)(a).

compelled speech 

Union of India Vs. motion Picture Association (1999) (SC): Here compulsion for cinema halls to show scientific or Educational film, whether infringe right of freedom of speech & expression. Compelled speech means must Carry provisions due to Provisions of statute, rules or regulations such as declaration on tobacco products, weight, MRP on products etc. these have Purpose of imparting relevant information which will enable users to make correct decisions. such compelled speech can’t be viewed as restraints on freedom of speech and expression. When a significantly Significant population is illiterate or uneducated and does not have easy access to idea or information it is important that available means such as audio Visual means must be used for education, information.

Trial by Press/ Media nor covered by Art 19 (1)(a) &19(2).

State of Maharashtra  Vs. Rajendra J. Gandhi  (1997) (SC) relating to rape of girl, unnecessary Publicized and taking out morcha by the Public. while not denying A-19(1)(a) and A-19(2) SC Cautioned that there is procedure established by law governing the conduct of trial of accused of an offence. A trial by Press, Electronic media or Public agitation is a very antithesis of rule of law, and may lead to miscarriage of Justice. A Judges has to guard himself against any such Pressure and must be strictly guided by rules of law. Press or electronic media in  name of freedom of speech and expression intrude into the private life of people and causes undue harm by way of media trial. Public opinion or sentiments Created by media trials may influence the Court Judgement. 

International Organizations: International organizations such as Reporters Without Borders (RSF) and the Committee to Protect Journalists (CPJ) monitor press freedom in India and raise awareness about violations on the global stage.

Right To Reply

LIC Vs Manubhai D Shah (1992) (SC) : respondent was executive trustee of the Consumer and research center published a study Paper entitled “fraud on the Policyholder” a discriminatory practice adopted by LIC which adversely affected the interest of large number of Policyholders. A member of the LIC Published a counter in the magazine called ‘yogakshma’ Published by LIC. Respondent requested the LIC to Publish his rejoinder to said article in the Said magazine but his request was not accepted on the ground that magazine is an in -house magazine meant for informing to members, staff etc and not Put in marker for sale to general Public. respondent Contended that refusal to Publish this rejoinder Violated his fundamental rights under A-19 (1)(a) and also A-14. High court directed LIC to Publish the rejoinder in next issue and Supreme court also held that it is respondent fundamental right of speech and expression entitled him to insist his views Should reach to those who read the magazine. The Supreme Court while explaining the scope of freedom  Said that  words freedom of speech & expression must be broadly construed to include the freedom to circulate One’s Views by words of month or in writing or through Audio visual media. A right to reply by a Dissenting note is implied in the System of freedom of expression.

Safeguards/restriction on Freedom of Speech and Expression under Article 19(2)

The Constitution of India guarantees freedom of speech and expression to all its citizens, however, these freedom are not absolute because Article 19 (2) of the constitution provides a safeguard to this freedom under which reasonable restrictions can be imposed on the exercise of this right for certain purposes. The safeguards outlined are discussed below-

Grounds For Restriction: Article 19(2) of the Indian constitution allows the state to make laws that restrict freedom of speech and expression so long as they impose any restriction on the –

1. 1. Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The expression ‘security of the state’ in Article 19(2) does not merely mean as danger to the security of the entire country, but endangering the security of a part of the State would also involve a threat to the security of the State. The state’s Security such as rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety. e.g. unlawful assembly, riot, affray.
   2. In the Interest of the Integrity and Sovereignty of India – this was added by the 16th Constitutional Amendment Act in 1963 under the tense situation prevailing in different parts of the country. Its objective is to give appropriate powers to impose restrictions against those individuals or organizations who want to make secession from India or disintegration of India for political purposes for fighting elections.
   3. Contempt of court: It cannot be held as a law that in view of the constitutional protection of freedom of speech and expression, no one can be proceeded with the contempt of court on the allegation of scandalizing or intending to scandalise ( shock/outrage/disgust/offend) the authority of any Court. Section 2(a) of the Contempt of Courts Act, 1971, provides that ‘contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt’. Restriction can be imposed if the speech and expression exceed the reasonable and fair limit and amounts to contempt of court.
   4. Friendly relations with foreign states: It was added by the First Amendment Act, of 1951 to prohibit unrestrained malicious propaganda against a foreign-friendly state. This is because it may jeopardise the maintenance of good relations between India and that state.

• Public order: Public order’ is synonymous with public peace, safety and tranquility. The words ‘in the interest of public order’ include not only such utterances as are directly intended to lead to disorder but also those that tend to lead to disorder. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus, communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus, implies an absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Thus, creating internal disorder or rebellion would affect public order. However, mere criticism of the Government does not necessarily disturb public order. Thus, a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some cases those activities may not actually lead to a breach of peace. But there must be a reasonable and proper nexus or relationship between the restrictions and the achievements of public order.

1. Decency or Morality – Article 19(2) inserts decency or morality as grounds for restricting the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code gives instances of restrictions on this freedom in the interest of decency or morality. These sections do not permit the sale or distribution or exhibition of obscene words, etc. in public places. However, the words decency or morality are very subjective and there is no strict definition for them. Also, it varies with time and place. The Apex Court ruled that the words ‘decency and morality’ are not confined to sexual morality alone. The ordinary meaning of ‘decency’ indicates that the action must be in conformity with the current standards of behaviour or propriety.
2. Defamation or incitement( stimulation/encouragement/provocation/boost) to an offence: A statement, which injures the reputation of a man, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions. Section 499 of the Indian Penal Code, 1860, defines the offence of defamation. It recognizes both slander and libel.
3. incitement(stimulation/encouragement/provocation/boost) to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offences. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force. The incitement to an offence does not refer to incitement to break a law. Thus, an incitement to a breach of every civil law is not necessarily contemplated by Article 19(2).
4. Hate speech, as such speech can harm a large group of people and their rights

The Constitution provides people the freedom of expression without fear of reprisal( revenge), but it must be used with caution, and responsibly.

LIC v. Manubhai D. Shah (Prof.)  (1992)(SC) observed as 

Sedition: It should be noted that the sedition is not mentioned in clause (2) of Article 19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed. As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquillity of the State and lead an ignorant person to subvert ( scratch off, unload, throw down) the government. The Supreme Court held that section 124-A of the Indian Penal Code, 1860 was limited to acts involving an intention or a tendency to create disorder or disturbance of law and order or incitement to violence and was not violative of Article 19(1)(a) read with Article 19(2) of the Constitution.

Right to Information

As mentioned before, the right to information is a fundamental right under Article 19(1). The right to receive information has been inferred from the right to free speech. However, the RTI has not been extended to the Official Secrets Act. 

Secretary, Ministry of I&B Vs. Cricket Association Bengal (1995) (SC): Hero cup matches organized by cricket Association of Bengal (CAB) and Sought license  to telecast match and also to import telecasting equipment as a matter of right following article 19(1) (a).  award of exclusive right to an international broadcasting company (TWI) to cover matches of Hero cup, the ministry directed VSNL to deny up linking facilities, against his CAB approached High court and High court permitted the telecast. Later on, the ministry approached the Supreme court by way of appeal Contending that they had monopoly over it under the Telegraph Act 1885. The word telegraph includes a telecast. The Supreme Court Set aside the appeal and held that citizens have the fundamental right to use the best means of imparting and receiving information and as such have access to the telecasting for the Purpose. In other words the government has no exclusive right to use broadcast media or deny the use by others.  further freedom of speech applied not Just to the point media but also to the electronic media. the airwaves are Public resources and must therefore be regulated in the Public interest by an independent autonomous Public authority having representatives of all sections and interest in Society. The court ruled that freedom, speech and expression include the right to educate, inform and entertain, sport is an expression of self. Telecast right q sporting events include the right to educate and inform sportsmen and also inform and entertain sport lovers. freedom of speech and expression include the right to communicate effectively. Government can impose reasonable restrictions listed in A-19 (2) and State monopoly on electronic media is not mentioned in A-19 (2). court also hold that the Telegraph Act 1885 is inadequate and unsuited to radio and television, Parliament should enact law soon. 

Freedom of speech and expression in USA: In 1927, in Whitney v. California, Louis Brandies J, made a classic statement on the freedom of speech in the context of the U.S Constitution:

“Those who won our independence believed that the final end of the state was to make men free to develop their faculties. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that the freedom to think as you will and to speak and assembly discussion would be futile… that public discussion is a political duty; and that this should be a fundamental principle of the American government.”

The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws respecting an establishment of religion; prohibiting the free exercise of religion; or abridging the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

The Bill of Rights was proposed to assuage (to reduce unpleasant feelings)  Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.

In Everson v. Board of Education (1947), the Court drew on Thomas Jefferson‘s correspondence to call for “a wall of separation between church and State”, though the precise boundary of this separation remains in dispute and the terms “church” and “State” do not appear in the Amendment. Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign finance, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). 

Protection of Commercial speech: Commercial speech, however, is less protected by the First Amendment than political speech and is therefore subject to greater regulation.

Freedom of press: The Free Press Clause protects the publication of information and opinions and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.

Although the First Amendment applies only to state actors, there is a common misconception that it prohibits anyone from limiting free speech, including private, non-governmental entities. Moreover, the Supreme Court has determined that the protection of speech is not absolute.

Scheck Vs. United States (1919) (US supreme court)

During World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft (draft is a practice of ordering people to serve in the armed forces usually for a limited period)  violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Espionage means gathering confidential or secret  information.  On Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the First Amendment.

Held: The Court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress’ wartime authority. Writing for a unanimous Court, Justice Oliver Wendell Holmes concluded that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. Articulating for the first time the “clear and present danger test,” Holmes concluded that the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has the power to prevent. Holmes reasoned that the widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process. Famously, he compared the leaflets to falsely shouting “Fire!” in a crowded theatre, which is not permitted under the First Amendment.

Conclusion

It can be easily concluded that the right to freedom of speech and expression is one of the most important fundamental rights. It includes circulating one’s views in words or in writing or through audio-visual instrumentality, advertisements or any other communication channel. It also comprises of right to information, freedom of the press etc. Thus, this fundamental right has a vast scope. From the above case law analysis, it is evident that the Court has always placed a broad interpretation of the value and contents of Article 19(1)(a), making it subjective only to the restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or choke this freedom have always been firmly repelled, more so when public authorities have betrayed tyrannical tendencies.