Freedom of Speech and Expression under Article 19(1)(a)

“I disapprove of what you say, but I will defend to the death your right to say it”

–  Voltaire 

Introduction

Speech is God’s gift to mankind. Through speech, a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, that a human being acquires at birth. It is, therefore, a basic right.

Everyone has the right to freedom of opinion and expression; the right includes the freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers. [1]It can be either orally or in the form of writing, print, art or through any other media of their choice are included in the right to freedom of speech and expression[2].

“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 the government of the people by 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 rights of making a choice, free & general discussion of public matters is absolutely essential.” [3]

Freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the hierarchy of liberty, it is truly said about the freedom of speech that it is the mother of all other liberties. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode.

In modern times it is widely accepted that the right to freedom of speech is the essence of a free society and it must be safeguarded at all times. The first principle of a free society is an untrammeled flow of words in an open forum.

Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays a significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like the Universal Declaration of Human Rights, European Convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about the protection of freedom of speech and expression.[4]

Article 19 (1)(A) of the Indian Constitution

In India, the freedom of speech and expression is granted by Article19(1)(a) of the Indian Constitution, which is available only to the citizens of India and not to foreign nationals. Freedom of speech under Article 19(1)(a) includes the right to express one’s views through any medium, which can be by way of writing, speaking, gesture or in any other form. It also includes the right of communication and the right to propagate or publish one’s opinion.[5]

The essence of Freedom of Speech in the Preamble

The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizens, liberty of thought and expression.[6] The preamble of the Constitution of India states that India is Sovereign, Democratic, Socialistic, Secular and Republic.

In our democratic society, liberty of speech and expression is considered the mother of all other liberties. One of the main objectives as laid down in the preamble is to secure the liberty of thought and expression for all the citizens.

This right is very crucial for the development and preservation of a free and fair society where the government is formed upon the consent and will of the informed citizens and is devoted to protecting the rights of all, even the most despised minorities The Right of freedom of Speech and Expression implies that every citizen has the right to express his views, opinions, belief, and convictions freely by mouth, writing, printing or through any other methods.[7]

Freedom of Speech & Expression: A Multifaceted Right

Judicial creativity, judicial wisdom and judicial craftsmanship have widened the scope of freedom of speech & expression by including in it the following aspects

1. Freedom of Press,
2. Right to Circulate
3. Right to receive information
4. Right to the advertisement (commercial speech)
5. Right to criticize
6. Right to expression beyond national boundaries
7. The right not to speak or the Right to silence is also included in the Right to speech and expression.

Freedom of Press

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost” –Thomas Jefferson

Over the last few decades, press and electronic media have emerged as major factors in our nation’s life[8].In today’s free world freedom of press is the heart of social and political intercourse.

The press has now assumed the role of the public educator. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments.[9]

the press plays an important role in the democracy machinery. The courts have a duty to uphold the freedom of the press and invalidate all laws and administrative actions that would take that freedom.

Freedom of Speech and 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’.

Although freedom of the press is not mentioned in Article 19 of the Indian Constitution, yet it has been a part of freedom of speech and expression as considered by judges of the Supreme Court through decided cases. [10]

In Benet Coleman and Co. vs. Union of India, [11]according to the Supreme Court of India, the constraint of the permissible number of pages in the newspaper was found to be in violation of Article 19(1)(a) and is not a reasonable restriction under Article 19(2).

In the case of Prabhu Dutt vs. Union of India, [12]it was claimed that the right to know about the news and details related to the government’s administration is included in the freedom of the press.

Right to Circulate

The right to freedom of speech and expression has been held to include the right to circulate information and opinion.

In Sakal Papers v. Union of India[13], the Hon’ble Supreme Court held that no laws can be made by the State which directly affect the circulation of a newspaper as it will result in infringement of the freedom of speech and expression.

The right under Article 19(1) (a) protects not only the contents which the citizen is entitled to circulate but also the quantity and volume of the circulation. This case arose when the newspaper agency challenged the newsprint policy made by the government which restricted the agency to print more no. pages of newspaper then what was allowed.

Right to receive Information

The freedom of Speech and expression includes not only the right to circulate and publish information but also include the right to receive information. The Hon’ble Supreme Court gave a broad dimension to Article 19(1) (a) as it said that this right not only includes circulation and communication but also receiving the information as they are two sides of the same coin, it ensures the right of the citizens to know the information related to matters concerning the public.[14]

Right to the advertisement (commercial speech)

The right to advertise a product or any service through various methods such as signboards, banners, circulars, handbills, direct mail, loudspeakers, newspapers, radio, television, on the Internet, etc is included under Article 19(1) (a).In the case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd[15],  the Hon’ble Supreme Court held that commercial speech is protected under Article 19(1) (a) and cannot be denied merely because it is issued by businessmen, the public has the right to receive commercial speech, to listen and to read it. Article 19(1) (a) provides protection to both speakers as well as the recipient of the commercial speech.

Right to criticize

In S. Rangarajan v.P. Jagjivan Ram[16], everyone has a fundamental right to form his opinion on any issues of general concern. Open criticism of government policies and operations is not a ground for restricting expression. Intolerance is as much dangerous to democracy as to the person himself. In democracy, it is not necessary that everyone should sing the same song.

Right to expression beyond national boundaries

In Maneka Gandhi vs Union of India[17], the Supreme Court considered whether Article 19(1)(a) of Indian Constitution was confined to Indian territory and held that the freedom of speech and expression is not confined to National boundaries.

Right not to speak or Right to silence is also included in the Right to speech and expression

In the case of National Anthem, three students were expelled from the school for refusal to sing the national anthem. However, the children stood up in respect when the national anthem was playing. The validity of the expulsion of the students was challenged before the Kerala High Court and they upheld the expulsion of the students on the ground that it was their fundamental duty to sing the national anthem.

However, on an appeal being filed against the order of the Kerala High Court before the Supreme Court, it was held by the Supreme Court that the students did not commit any offence under the Prevention of Insults to National Honour Act, 1971. Also, there was no law under which their fundamental right under Article 19(1) (a) could be curtailed. [18]

Purpose Of Freedom Of Speech

Freedom of expression has four broad special purposes to serve:

(i) It helps an individual, to attain self-fulfilment;

(ii) It assists in the discovery of truth;

(iii)It strengthens the capacity of and individual in participating in decision making; and

(iv) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own belief and communicate them freely to others.[19]

Reasonable Restrictions

It is necessary to preserve freedom of speech and expression in a democratic country. And it is also necessary to restrict this freedom to maintain social order otherwise some people might misuse this freedom. There are some restrictions imposed through Clause (2) of Article 19 on freedom of speech and expression on certain grounds. By enforcing Article 19(2) of the Constitution, the State can enforce reasonable restrictions on the exercise of the right to freedom of speech and expression based on eight grounds. These are:

1. Defamation:  Refers to statements which injures a man’s reputation.
2. Contempt of court: Restriction may be instituted on the freedom of speech and expression if it surpasses the reasonable limit and amounts to contempt of court. In E.M.S. Namboodripad v. T.N. Nambiar[20], the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court.
3. Decency or morality: Sections 292 to 294 of the Indian Penal Code provide for situations where freedom of speech and expression is limited in the interests of dignity or morality.Supreme Court in Ranjit D. Udeshi v. State of Maharashtra[21] upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book Lady Chatterley’s Lover.
4. Security of the state: Under Article 19(2), fair limitations on the freedom of speech and expression can be placed in the context of State’s security.
5. Friendly relations with other states: The intention behind the provision is to prevent unrestricted malicious publicity against a foreign friendly state that can disrupt India’s good ties with that state.
6. Incitement to an offence: Added through the 1951 Constitution (First Amendment) Act. Freedom of speech and expression cannot provide citizens with a privilege to incite people in committing offence.
7. Sedition: Sedition supports all those activities, whether through words or writing, determined to disrupt the State’s tranquility and drive misguided individuals to subvert the government.
8. Public Order: Introduced by the Constitution Act (first amendment). That which perturbs public peace or tranquility perturbs public order. In Om Prakash v. Emperor, [22]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.

Conclusion

The freedom of press is also crucial to the functioning of participative democracy. In the absence of a free press, citizens lose their ability to make informed decisions in a free and fair electoral process.

Freedom of expression is a fundamental human right that needs to be upheld in democratic societies. Yet there is a worrying global trend among governments that unjustifiably restricts freedom of speech by targeting journalists, protesters and other people who are considered to be dissenting from government views. In conclusion,

“Intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for centuries. But it is precisely in the ready acceptance of the right to dissent, as distinct from its mere tolerance, that a free society distinguishes itself.”

—A G Noorani, 1999

This article has been contributed by Jaspreet Kaur Taldar.

End Notes

[1] Universal Declaration of Human Rights, art. 19

[2]  The International Covenant on Civil and Political Rights, art. 19

[3] Maneka Gandhi v. Union of India and Anr., AIR 1978 SC 597

[4] Dheerendra Patanjali, Freedom Of Speech And Expression India V America, Indian Law Journal, https://www.indialawjournal.org/archives/volume3/issue_4/article_by_dheerajendra.html

[5]Subodh Asthana, Freedom Of Speech And Expression (july 29,2019), https://blog.ipleaders.in/freedom-speech-expression/

[6] Apeksha Chaudhary, Freedom Of Speech And Expression Under Indian Constitution, https://www.ccsuniversity.ac.in/ccsu/Departmentnews/2020-08-07_122.pdf

[7] Muskan Sharma and Pushkar Bhandarkar, Freedom of speech and expression on Internet: An Emerging Right, 3 I.J.L.M.H 381 ,382(2020)

[8] R. Rajagopal  v. State of Tamil  Nadu,1995 AIR 264.

[9] Express Newspapers (Bombay) (P) Ltd. v. Union of India, 1986 AIR 872

[10] Romesh Thappar v. State of Madras,1950 SCR 594, 607; AIR 1950 SC 124.

[11] 1973 AIR 106

[12] 6 1982 SCR (1)1184

[13] 1962 AIR 305, 1962 SCR (3) 842

[14] State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865.

[15] 1995 AIR 2438, 1995 SCC (5) 139

[16] 1989 SCR (2) 204, 1989 SCC (2) 574

[17] Supra note 3.

[18] Bijoe Emmanuel v. State of Kerala,1986 3 SC 615.

[19] J. N. Pandey, The Constitutional Law of India, Central Law Agency, 47th edn., 2010, p. 183.

[20] AIR 1970 SC 2015

[21] AIR 1965 SC 881.

[22] AIR 1956 All 241