Essay on the Freedom of Speech and Expression Under the Indian Constitution

Freedom of speech and expression means the right to express one’s own conviction and opinions freely by means of words of mouth, writing, printing, picture or any other mode.

It thus includes the expression of one’s ideas through any communicable medium or visible representations such as gesture, signs and the like. The expression connotes also publication and thus the freedom of the press is included in the category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press.

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No freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed without circulation, the publication would be of little value.

Freedom of speech and expression carries with it the right to gather information as also to speak and express oneself at home, and abroad and to exchange thoughts and ideas with others not only in India but also outside India. Freedom of press

The Constitution does not contain any specific provision ensuring freedom of the press which has therefore to depend on Article 19 (1) (a). In Ramesh Thapar vs. State of Madras, AIR 1950 S.C. 124, the Supreme Court held that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation of a publication, for without circulation, the publication would be of little value.

The Supreme Court, therefore, held in this case that a ban authorising the Government to impose a ban upon entry and circulation of a journal in a State, is restrictive of freedom of speech and expression and it can be valid only If it falls within Article 19 (2).

Unlike the American Constitution, Article 19(l) (a) does not expressly mention the liberty of the press, Le. The freedom to print and to publish what one pleases without previous permission. But it is a settled law that right to freedom of speech and expression includes the liberty of the press.

The freedom of press is not confined to newspapers and periodicals but also includes pamphlets and circulars, etc. Explaining the concept of freedom of press, the Supreme Court stated in Express Newspaper v. Union of India, AIR 1958 S.C. 578, that no law could be enacted having the effect of imposing a pre-censorship, curtailing the circulation, restricting the choice of employment or unemployment in the editorial force, preventing newspapers from being stated or undermining its independence by driving the press to seek government aid to survive.

In this case Supreme Court was called upon to adjudge the validity of the Working Journalist Act, 1955, enacted by Parliament to regulate certain conditions of service of persons employed in newspaper establishments, Le., the payment of gratuity, hours of work, leave, fixation of wages, etc. The ground of challenge before the Court was that it would adversely affect the financial position of the marginally situated newspaper which might be forced to go out of circulation and thus the tendency of the Act was to curtail circulation and thereby to narrow the scope of dissemination of information. The Court held the Act valid as it did not take away the right of freedom of speech and expression enjoyed by the petitioners under Article 19 (1) (a).

In Indian Express Newspapers vs. Union of India, (1985) 1 S.C.C. 641, speaking about the utility of freedom of press, the Supreme Court observed,

“The expression freedom of press, has not been used in Article 19 but it is comprehended within Article 19 (1) (a). The expression means freedom from interference from authority which would have the effect of interference with the contents and circulation of newspapers. There cannot be any interference in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.”

Imposition of Pre-censorship on Press

Imposition of pre-censorship on a journal previous to its publication would amount to an infringement of Article 19(l) (a). This question regarding the validity of censorship came for consideration in the case of Bri/ Bhushan v. State of Delhi for the first time.

In Bry Bhushan v. State of Delhi, AIR 1950 S.C. 129, the Supreme Court has held that the imposition of pre-censorship on a journal is a restriction on the liberty of the press. Prohibiting a newspaper from publication of its own views or the views of its correspondents concerning what may be the burning topic of the day, is a serious encroachment on the valuable right of the freedom of speech and expression.

The liberty of the press is thus implicit in the concept of the freedom of speech and expression. It may be noted that Article 19 (1) (a) applies to citizens only and so a non-citizen running a newspaper is not entitled to the right of freedom of speech and expression.

In Bennet Coleman and Co. v. Union of India, AIR 1973 S.C. 106, the Supreme Court had to Judge the validity of the Newsprint Control Order, 1960, which fixed the minimum number of pages (10 pages) which a newspaper could publish.

It was challenged that this order was volatile of fundamental rights guaranteed under Article 19 (1) (a) and Article 14 of the Constitution. The Government defended the measure on the ground that it would help small newspapers to grow and prevent a monopolistic combination of big newspapers.

The Court held that the newsprint policy was not reasonable restriction within the ambit of Article 19 (2). Thus, the newsprint policy abridges petitioner’s right of the freedom of speech and expression.

In K.A. Abbas v. Union of India, AIR 1971 S.C. 481, the Supreme Court held that pre-censorship of films was Justified under Article 19 (2) on the ground that films have to be so treated separately from other forms of art and expression because a motion picture was able to stir up emotions more deeply than any other product of art. Hence, classification of films between two categories, Le., “A” for adults only, and “U” for all, was held to be valid.

Grounds of Restrictions:

The following are the grounds of restrictions on the freedom of speech and expression as has been mentioned In Article 19 (2) of the Constitution.

(a) Security of the State, (b) Friendly relations with foreign States, (c) Public order, (d) Decency or morality, (e) Contempt of Court, (0 Defamation, (g) Incitement to an offence, (h) Integrity and sovereignty of India.

In Ramesh Thaper v. State of Madras, AIR 1950 S.C. 124, the Supreme Court held that every public order cannot be regarded as threatening the security of the State. The term, “Security of State” refers only to serious and aggravated form of public disorder, Le., rebellion, waging war against the State, insurrection, and not ordinary breaches of public order and public safety, e.g., unlawful assembly, not affray. The speech or expressions on the part of the individual which incite or encourage the commission of violent crimes, such as, murder are matters which would undermine the security of the State.

(a) Security of the State:

In the interest of the security of State, reasonable restriction under Article 19 (2) can be imposed on the freedom of speech and expression of a citizen.

In State of Bihar v. Shashibala Devi, AIR 1952 S.C. 329, the Supreme Court has held that the term, security of State means only to serious and aggravated forms of public disorder like rebellion or waging war against the Indian Government.

(b) Friendly Relations with foreign States:

The object behind this provision is to prohibit unrestrained malicious propaganda against a foreign friendly country, which may jeopardize the maintenance of good relations between India and that State. In India, the Foreign Relations’ Act (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. But the interest of friendly relations with foreign States, would not justify the suppression of fair comment of foreign Government.

(c) Public Order:

Public Order means and includes absence of direct intention to lead disorder as well as the absence of tendency to lead disorder. A law punishing these disorderly acts is valid as it restricts the right relating to free speech in the interest of public order.

In Kishori Mohan v. State of West Bengal, AIR 1972 S.C. 1749, the Supreme Court has held that every infraction of laws must necessarily affect order but not necessarily public order, and an act may affect public order, but not necessarily security of State.

(d) Decency or Morality:

Sections 292 to 294 of Indian Penal Code, 1860, proved instances of restrictions on the freedom of speech and expression in the Interest of decency or morality. But it has not laid down any test for determining the obscenity.

In Ranjit Udehi v. State of Maharashtra, AIR 1965 S.C. 881, the Supreme Court followed the test laid down in English cases of R. v. Hicklin, L.R. 3 Q.B. 360 and held the novel “Lady Chatterly’s Lover” was an obscene book as It had tendency to corrupt the minds of those who read it.

(e) Contempt of Court:

According to Articles 125 and 215 of the Constitution, the Supreme Court and High Courts respectively, have the right to punish persons for their contempt. In C.K. Daphtariv. O.P. Gupta, AIR 1971 S.C. 1132. The Supreme Court ruled that a law relating to contempt imposes reasonable restrictions on the right guaranteed by Article 19 (1) (a).

(f) Incitement to an offence:

The right to freedom of speech and expression does not give permission to citizens to incite a person to commit an offence. The freedom will be curtailed on this ground and incitement to an offence is punishable by law.

(g) Defamation:

Sections 499 and 500 of Indian Penal Code define definition which means exposing a man to hatred, contempt or ridicule. These sections are constitutional as they impose reasonable restrictions on the freedom of speech and expression.

(h) Integrity and Sovereignty of India:

This reasonable restriction was added to clause (2) of Article 19 by the Constitution (Amendment) Act, 1963. The right to freedom of speech and expression can be restricted so as not to permit anyone to challenge the integrity and sovereignty of India or to preach cession of any part of India from the Indian Union.

Section 124-A of Indian Penal Code makes provision for punishment for the crime of waging war against the State. It has been held constitutional by the Supreme Court.