Topic: Freedom of Speech

and Expression

Submitted to: Submitted by:

Prof. Samraggi Chakraborty Jatin Bakshi
BALLB 3rd Year
URN No:-2016-B-27051998

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 TABLE OF CONTENTS
1. INTRODUCTION………………………………………………………….03
2. OBJECTIVE……………………………………………………………….05
3. Freedom of Speech and Expression- Meaning & Scope…………………..05
4. ARTICLE 19(1)(a) OF INDIAN CONSTITUTION……………………….07
a. Right to receive information…………………………………………….08
b. Right to Silence………………………………………………………….09
c. Freedom of Press…………………………………………………………09
d. Some other aspects of Freedom of Press…………………………………10
5. PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH……..11
6. Constitutional Regulation of Freedom of Expression……………………….14
i. During Normal Times: Reasonable Restrictions .……………………14
ii. During Emergency……………………………………………………17
7. Conclusion…………………………………………………………………..19

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Freedom of Speech and Expression as a Fundamental Right in India: The
Constitutional Perspective
INTRODUCTION

“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the
slaughter.”
― George Washington

Freedom of speech is the bulwark of democratic government. This freedom is essential for the
proper functioning of democratic process. The freedom of speech and speech and expression is
regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of
liberties giving succour and protection to all other liberties. It has been truly said that it is the
mother of all liberties. 1
In a democracy, freedom of speech and expression opens up channels of free discussion of issues.
Freedom of speech plays a crucial role in formation of public opinion on social, political and
economic matters. Freedom of speech and expression, just as equality clause and guarantee of life
and liberty has been very broadly construed by the Supreme Court right from 1950s. It has been
variously described as a “basic human right”, “a natural right”.
Freedom of Speech and expression means the right to express one’s own convictions and opinions
freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is
widely accepted that the right to freedom of speech is the essence of free society and it must be
safeguarded at all time. 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 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 Universal Declaration of Human Rights, European
convention on Human Rights and fundamental freedoms, International Covenant on Civil and

1
Report of the Second Press Comm, Vol 1, 34-35

3
political rights etc. These declarations expressly talk about protection of freedom of speech and
expression.

In Maneka Gandhi v UOI2, Bhagwati J, has emphasized on the significance of the freedom of
speech and expression in these words:

Democracy is based essentially on free debate and open discussion, for that is the only
corrective of government action in a democracy set up. If democracy means government of
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 to absolutely essential.

In 1927, Whiteny v California3, Louis Brandeis J, made a classic statement of freedom of speech
in the context of US 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 as you
think are indispensible to the discovery and spread of political truth- that without free speech
and assembly and discussion would be futile… that public discussion is a political duty and i.e.
should be a fundamental principle of the American government.

Talking about the first amendment to the US Constitution which guarantees freedom of speech in
USA. The US Supreme Court has observed:

“it is the purpose of the first amendment to preserve an uninhibited market place of ideas in
which truth which ultimately prevail rather than to countenance monopolization of that market
whether it be by the government itself or a private licensee.”4

2
AIR 1978 SC 597: (1978) 1 SCC 248
3
247 US 214
4
Associated Press v US, 326 US 1

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 OBJECTIVE

1. To understand the concept of freedom of speech and expression in India under Indian
Constitution.
2. Restrictions on freedom of freedom of speech and expression.
3. Parliamentary privileges and freedom of speech.

Freedom of Speech and Expression- Meaning & Scope

Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right to freedom of
speech and expression. The law states that, “all citizens shall have the right to freedom of speech
and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the exercise of
this right for certain purposes. Any limitation on the exercise of the right under Article 19(1) (a)
not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1) (a) includes the right to express one’s views and
opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film,
movie etc. It thus includes the freedom of communication and the right to propagate or publish
opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2). Free
expression cannot be equated or confused with a license to make unfounded and irresponsible
allegations against the judiciary.5

It is important to note that a restriction on the freedom of speech of any citizen may be placed as
much by an action of the State as by its inaction. Thus, failure on the part of the State to guarantee
to all its citizens irrespective of their circumstances and the class to which they belong, the
fundamental right to freedom of speech and expression would constitute a violation of Article
19(1) (a).

The fundamental right to freedom of speech and expression is regarded as one of the most basic
elements of a healthy democracy for it allows its citizens to participate fully and effectively in the
social and political process of the country. In fact, the freedom of speech and expression gives

5
Radha Mohan Lal v. Rajasthan High Court,(2003) 3 SCC 427

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greater scope and meaning to the citizenship of a person extending the concept from the level of
basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is, however,
not absolute and it allows Government to frame laws to impose reasonable restrictions in the
interest of sovereignty and integrity of India, security of the state, friendly relations with foreign
states, public order, decency and morality and contempt of court, defamation and incitement to an
offence.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve to
secure to all its citizen 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 the 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 freedom of circulation of a publication, as publication is of little value without
circulation. Patanjali Sastri, J., rightly observed that-

“Freedom of Speech and of Press lat 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.”

However Article 19(2) of the Constitution provides that this right is not absolute and ‘reasonable
restrictions’ may be imposed on the exercise of this right for certain purposes. The right to
freedom of expression includes the right to express ones views and opinions on any issue and
through any medium whether it is in writing or by word of mouth.

The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation. This right
includes the right to communicate, print and advertise the information. In India, freedom of the
press is implied from the freedom of speech and expression guaranteed by Article 19(1) (a). The
freedom of the press is regarded as a “species of which freedom of expression is a genus”. On the
issue of whether ‘advertising’ would fall under the scope of the Article, the Supreme Court pointed

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out that the right of a citizen to exhibit films is a part of the fundamental right of speech and
expression guaranteed by Article 19(1)(a) of the Constitution.6 Freedom of Speech and Expression
also includes artistic speech as it includes the right to paint, sign, dance, write poetry, literature and
is covered by Article 19(1) (a) because the common basic characteristic of all these activities is
freedom of speech and expression.

Under the provisions of the Constitution of India, an individual as well as a corporation can invoke
freedom of speech arguments and other fundamental rights against the State by way of a Writ
Petition under Articles 32 and 226 of the Constitution of India subject to the State imposing some
permissible restrictions in the interests of social control.

ARTICLE 19(1)(a) OF INDIAN CONSTITUTION

Out of the several rights enumerated in clause (1) of Article 19, the right in sub clause (a) is not
merely a freedom of speech and expression but a right of freedom and expression. The
enumeration of other rights is not by reference to freedom.7

Article 19(1)(a) guarantees to all citizens ‘freedom of speech and expression’. Under article 19(2),
‘reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any
limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of
Article 19(2) cannot be valid.

The freedom of speech in Article 19(1)(a) includes the right to express one’s views and opinions at
any medium, eg, by words of mouth, writing, printing, picture, movies, etc. It thus includes the
freedom of communication and right to propagate or publish opinion. But this right is subject to
reasonable restrictions being imposed under Article 19(2). Freedom of expression cannot be
equated or confused with a license to make unfounded and irresponsible allegations against the
judiciary.8

6
Odyssey Communications Pvt.Ltd. V. Lok Vidyayan Sanghatana AIR 1988 SC 1642
7
Dharam Dutt v UOI, (2004) 1 SCC : AIR 2004 SC 1295
8
Radha Mohan Lal v Rajasthan High Court, (2003) 3 SCC 427: AIR 2003 Sc 1467

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Right to receive information:

The expression “freedom of speech and expression” in Article 19(1) (a) has been held to include
the right to acquire information and disseminate the same. This freedom of includes the freedom to
communicate or circulate one’s opinion without interference to as large population in the country
as well as abroad as is possible to reach.

In PUCL v UOI9, the Supreme Court dealt with this aspect of freedom elaborately. The right of
citizens to obtain information on matters relating to public acts flows from the Fundamental Right
enshrined in Article 19(1)(a). Securing information on the basis details concerned the candidates
contesting for elections to Parliament or State legislature promotes freedom of expression and
therefore the right to information forms an integral part of Article 19(1) (a).

Right to information is not absolute and is restricted to certain restrictions under Article 19(2) and
is further limited by right to privacy under Article 21(though right to privacy is not so absolute).10

But the right does not carry unrestricted rights to gather information. A reasonable restriction on
the exercise of the right to know or right to information is always permissible in the interest of the
security of the State. Generally, the exemptions/exemption under the laws referred to in Article 19
(2) entitled the government to withhold information relating to the following matters:

i. International relations;
ii. National security (including defense) and public safety;
iii. Investigation, detection and prevention of crime;
iv. Internal deliberations of the government;
v. Information received in confidence from a source outside the government;
vi. Information, which is disclosed, would violate the privacy of the individual;
vii. Information of an economic nature, (including trade secrets) which, if disclosed, would
confer an unfair advantage on some persons or concern, or, subject some person or
government to an unfair disadvantage;
viii. Information about scientific discoveries;11

9
(2003) 4 SCC 399 : AIR 2003 SC 2363
10
Thalappalam Ser Cooperative BanK Limited v State of Kerala, (2013) 16 SCC 82 : 2013 (12) SCALE 527
11
Peoples’ Union for Civil Liberties v UOI, (2004) 2 SCC 476 : AIR 2004 SC 1442

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Right to Silence:
The right to speech implies the right to silence. It implies freedom, not to listen and not to be
forced to listen. The right comprehends the freedom to be free from what one desires to be free
from. A loudspeaker forces a person to hear what he wishes not hear. The use of speaker may be
incidental to the exercise of the right but, its use is not a matter of right, or part of the rights
guaranteed by Article (1).12

Freedom of Press:
Although Article 19 does not express provision for freedom of press but the fundamental right of
the freedom of press implicit in the right the freedom of speech and expression. In the famous
case Express Newspapers (Bombay) (P) Ltd. v. Union of India13 court observed the importance
of press very aptly. Court held in this case that “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 making formal and non-formal education possible in a large scale particularly in the
developing world, where television and other kinds of modern communication are not still
available for all sections of society. 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. Newspapers being purveyors of news and views having a bearing on
public administration very often carry material which would not be palatable to Governments and
other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is essential for the
proper functioning of the democratic process. 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. This explains the
constitutional viewpoint of the freedom of press in India.

12
Re Noise Pollution(V), (2005) 5 SCC 733 : AIR 2005 SC 3136
13
(1985) 1 SCC 641

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The imposition of censorship on a journal previous to its publication would amount to an
infringement of Article 19(1)(a). The question of validity of censorship came up for
consideration in the case of Brij Bhushan v. State of Delhi,14 the court observed,

“…the imposition of pre-censorship of a journal is a restriction on the liberty of the press which
is an essential part of the freedom of the speech and expression declared by Article 19(1)(a).”

In Sakal Papers Ltd. v. Union of India15, the Daily Newspapers (Price and Control) Order, 1960,
which fixed a minimum price and number of pages which a newspaper was entitled to publish was
challenged as unconstitutional by the petitioner on the ground that it infringed the liberty of the
press. The Court said, the right of freedom of speech and expression cannot be taken away with the
object of placing restrictions on the business activity of a citizen. Freedom of speech can only be
restricted on the grounds mentioned in clause (2) of Article19. It cannot, like the freedom to carry
on business, be curtailed in the interests of the general public.

Some other aspects of Freedom of Press:

In M Hasan v State of Andra Pradesh,16 the Andhra Pradesh High Court has held that denial of
permission to a press reporter to interview a willing condemned prisoner on a ground not falling
within Article 19(2) is not valid. “Any such denial is deprivation of a citizen’s Fundamental
Right of freedom of speech and expression.”

In a landmark judgment in Bharat Kumar K Palicha v State of Kerala17 a full Bench of the Kerala
High Court has declared “Bandhs” organized by political parties from to time as unconstitutional
being violative of the Fundamental Rights of the people. The Court refused to accept it is an
exercise of the freedom of speech and expression by the concerned party calling for bandh. When
a bandh is called people are expected not to travel, not to attend their work. A threat is held out
either expressly or impliedly that any attempt to go against the call for bandh may result in
physical injury.

14
AIR 1950 SC 129
15
AIR 1962 SC 305
16
AIR 1998 AP 35
17
AIR 1965 SC 311 : (1964) 7 SCR 403

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Voting at an election is a form of expression.18 A citizen as a voter is the master of his vote. He
must have necessary information so that he can intelligently decide in favor of a candidate who
satisfies his criterion of being elected as an MP or MLA.

PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

The essence of parliamentary democracy is a free, frank and fearless discussion in Parliament. For
a deliberative body like House of Parliament, freedom of speech within the House is of utmost
significance. To enable members to express themselves freely in the House, it is essential to
immunize them from any fear that they can be penalised for anything said by them within the
House. The rule of freedom of speech and debate in Parliament became established in Britain in
the 17th century in famous case of Sir John Eliot.19

In India, the freedom of speech in Parliament has been expressly safeguarded by articles 105(1)
and (2). Article 105(1) says “subject to provisions of this Constitution and to the rules and
standing orders regulating the procedure of Parliament, there shall be freedom of speech in
Parliament.” The Rajya Sabha held in its XII report that a parliament member cannot be
questioned in any court or any place outside the parliament for any disclosure he made since it will
amount to interference with the freedom of speech. Subsequently Lok Sabha has also held that it
will amount to contempt of court or breach of privilege if any suit is filed in court for what is said
on the floor of the house.

The Supreme Court in the case of Tej Kiran Jain v Sanjeeva Reddy20 held that “once it is proved
that parliament was sitting and its business was being transacted, anything said during the course
of that business was immune from proceeding in any court”.

Article 105, clause(1), expressly safeguards freedom of speech in parliament. It says: there shall be
freedom of speech in parliament. Clause (2) further provides that no member of Parliament shall
be liable to any proceedings in any court in respect of anything said or any vote given by him in
parliament or any committee thereof. No action, civil or criminal, will therefore lie against a
member for defamation or the like in respect of things said in parliament or its committees. The

18
PUCL v UOI, (2003) 4 SCC 399 : AIR 2003 SC 2363
19
3 State Trials, 294
20
1970 AIR 1573

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immunity is not limited to mere spoken words; it extends to votes, as clause (2) specifically
declares, viz. any vote given by him in parliament or any committee thereof. Though not expressly
stated, the freedom of speech would extend to other acts also done in connection with the
proceedings of each House, such as, for notices of motions, questions, reports of the committee, or

the resolutions. It may be noted that clause (1) of Article 105 is made Subject to the provisions of
this constitution and to the rules and standing orders regulating the procedures of Parliament. The
words regulating the procedures of Parliament occurring in clause (1) should be read as covering
both the provisions of the Constitution and the rules and standing orders. So read, freedom of
speech in Parliament becomes subject to the provisions of Constitution relating to the procedures
of Parliament, i.e., subject to the articles relating to procedures in Part V including Articles 107
and 121. Thus for example, freedom of speech in Parliament would not permit a member to
discuss the conduct of any judge of the Supreme Court or of a High Court. Likewise, the freedom
of speech is subject to the rules of procedures of a House, such as use of unparliamentarily
language or unparliamentarily conducts. The freedom of speech guaranteed under clause (1) is
different from that which a citizen enjoys as a fundamental right under Article 19 (1) (a). The
freedom of speech as a fundamental right does not protect an individual absolutely for what he
says. The right is subject to reasonable restrictions under clause (2) of Article 19. The term
freedom of speech as used in this article means that no Member of Parliament shall be liable to any
proceedings, civil and criminal, in any court for the statements made in debates in the Parliament
or any committee thereof. The freedom of speech conferred under this article cannot therefore be
restricted under Article 19 (2). Clauses (1) and (2) of Article 105 protect what is said within the
house and not what a member of Parliament may say outside. Accordingly, if a member publishes
his speech outside Parliament, he will be held liable if the speech is defamatory. Besides, the
freedom of speech to which Article 105 (1) and (2) refer, would be available to a member of
Parliament when he attends the session of Parliament. Therefore, if an order of detention validly
prevents a member from attending a session of parliament, no occasion arises for the exercise of
the right of freedom of speech, and no complaint can be made that the said right has been invalidly
invaded. Article 105 (2) confers immunity, inter alia, in respect of anything said in Parliament the
word anything is of the widest import and is equivalent to everything. The only limitation arises
from the words in Parliament, which means during the sitting of Parliament and in the course of
business of Parliament. Once it was proved that Parliament was sitting and its business was
transacted, anything said during the course of that business was immune from proceedings in any
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court. This immunity is not only complete but it is as it should be. It is one of the essence of
parliamentary system of government that people’s representative should be free to express
themselves without fear of legal expenses. What they say is only subject to the discipline of the
rules of Parliament, the good sense of the members and the control of proceedings by the speaker.

The courts have no say in the matter and should really have none. In a much publicized matter
involving former Prime Minister, several ministers, Members of Parliament and others a divided
Court, in P.V. Narsimha Rao v. State (JMM Bribery Case)21 has held that “the privilege of
immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the Members
of Parliament for the purpose of voting in a particular manner in Parliament”. The majority (3
judges) of the Apex Court did not agree with the minority (2 judges) and explained that expression
“in respect of” in Article 105(2) must be given a wide meaning so as to comprehend an act having
a nexus or connection with the speech made or a vote given by a member in parliament or any
committee thereof. So interpreted, it would include within its ambit, acceptance of bribe by a
member in order to make a speech or to cast his vote in parliament or any committee thereof in a
particular manner. Therefore, the bribe taker MPs, who had voted in parliament against no-
confidence motion was held entitled to protection of Article 105(2) and was not answerable in a
court of law for alleged conspiracy and agreement. The court further held that the bribe taker MP,
who did not vote on the no- confidence motion, was not entitled to protection under Article 105(2).
To the bribe giver MPs it was held, the protection under Article 105(2) was not available. The
court further ruled that the Lok Sabha could take action for breach of privileges or contempt
against the alleged bribe givers and against the alleged bribe takers, whether or not they were
members of parliament. The court was however unanimous that the members of Parliament who
gave bribes, or who took bribes but did not participate in the voting could not claim immunity
from court proceeding’s under Article 105(2). The decision has invoked so much controversy and
dissatisfaction that a review petition is pending in the court.

21
AIR 1998 SC 2120

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 Constitutional Regulation of Freedom of Expression
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also
it is necessary to place some curbs on this freedom for the maintenance of social order. No
freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) 358 and 359,
the state may make a law imposing restrictions on the exercise of the right to freedom of speech
and expression „in the interest of‟ the security of state.
(i) During Normal Times: Reasonable Restrictions
During normal times freedom of expression con be restricted, under Article 19(2), only in the
interest of security of the Stare, friendly relations with foreign States, public order, decency or
morality, in relation to contempt of court defamation or incitement as an offence. These
restrictions intend to strike a proper balance between the liberty guaranteed under Article 19(1) (a)
and the social interest specified under Article 19(2). The court’s commitment to the freedom of
expression demands that it cannot be suppressed unless the situations created by allowing the
freedom are pressing and the community interest is endangered. It is settled law that the
anticipated danger should not be remote, conjectural or far-fetched. It should have a direct nexus
with expression. It should be intrinsically dangerous to the public interest. There is a heavy burden
in the State to prove that the restriction is reasonable. Of these restrictions, the one most habitually
used by the State to justify curtailing the liberty of its citizens is the ground of decency or
morality.22Very often, artistic depictions of the human body or sexuality, showing two men kissing
each such art to be indecent or obscene other or M. F. Hussain‟s paintings, have come under the
frenzied hand of the State claiming. Similarly, the State has also justified legislating on banning
dances in bars, as in the opinion of the State they are obscene, vulgar, and indecent.
The hypocrisy of the State is exposed when they allow dances in movies that are viewed by a huge
audience, but shun same dances in bars performed in front of a restricted adult audience, and
when the State allows movie posters or fashion shows with women wearing skimpy clothes
but shuns paintings of art that depict nudity or sexuality on the grounds or religion, morality and
obscenity. The pertinent question is that how and who decides what is vulgar indecent, lewd,
obscene and not acceptable by society, thereby justifying a „reasonable democracy? 23

22
Dr. D.D. Basu, Constitutional Law of India, 8th ed. 2009, Lexisnexis Butterworth Wadhwa, p.92
23
Ibid p.93

14
The eight grounds of restriction which are mentioned in clause (2) of Article 19 are:
a. Security of the State
b. Friendly Relations with Foreign State.
c. Public Order.
d. Decency or Morality.
e. Contempt of Court.
f. Defamation.
g. Incitement of an offence.
h. Sovereignty and integrity of India.

“Security of the State” means ‘the absence of serious and aggravated forms of public disorder’,
as distinguished from ordinary breach of ‘public safety’ or ‘public order’ which may not involve
any danger to the State itself. Thus, security of the state is endangered by crime of violence
intended to overthrow the government.24
“Friendly relations with foreign states” the object of this expression to the freedom of speech
and expression is to prevent libels against foreign states in the interest of maintaining friendly
relations with them.
“Public order” this ground was added by the Constitution (1st Amendment) Act, 1951, in order to
meet the situation arising from the Supreme Court’s decision in Romesh Thapper’s case. 25 In this
case, it was held that ordinary or local branches of public order were no grounds for imposing
restriction on the freedom of speech and expression guaranteed by the Constitution. The
Supreme Court said that ‘public order’ is an expression of wide connation and signifies “that state
of tranquility which prevails among the members of political society as a result of internal
regulations enforced by the Government which they have established.”
Law and order, public order and security of State are different and could not be understood
synonymous. In Kishori Mohan v. State of W.B.26 the Supreme Court explained the differences
between three concepts and Court said, it can be explained by three functional concentric circles,
the largest representing law and order, the next public order, and the smallest, the security of State.
Every infraction of law and order but not necessarily public order and an act may affect public

24
Santosh Singh v. Delhi Administration, AIR 1973 SC 1093
25
AIR 1950 SC 124
26
AIR 1973 SC 1794

15
order but not necessarily security of State and an act may fall under two concepts at the same time
affection public order and security of State.
“Decency and morality” the words “morality and decency” are words of wide meaning. The word
“obscenity” of English law is identical with the word “indecency” under the Indian Constitution.
The test of obscenity is “whether the tendency of matter charged as obscene is to deprave and
corrupt those whose minds are open to such immoral influences” and into those hands a
publication of this sort is likely to fall. Thus a publication is obscene if it tends to produce
lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that public
into whose hands the book is likely to fall. This test was laid down in an English case of R. v.
Hicklin.27
Section 292 to 294 of Indian Penal Code provides instances of restrictions on the freedom of
speech and expression in the interest of decency and morality. These sections prohibit the sale or
distribution or exhibition of obscene words, etc. in public places. But the Indian Penal Code does
not lay down any test to determine obscenity. In Ranjit D. Udeshi v. State of Maharashtra,28
accepted the test laid down in English case of R. v. Hicklim to judge he obscenity of a matter. In
P.K. Somnath v. State of Kerala it was held that even a nude body, whether male or female,
cannot be regarded as an object of obscenity without something more. That ‘something more’ is in
facial expression or the pose in which it is photographed. It is to the subjective tastes of the viewer
and does not base it on an objective criteria or an artful depiction or just as an expression.
The word ‘morality’ too has not been defined. The conception or morality differs from places to
places and time to time. Therefore, it is imperative that the freedom of speech and liberty should
not be curtailed unless it causes harm to others only that should be prevented by law. The law
should aim to establish minimum and not maximum standards of behavior, showing respect for
tolerance and privacy.
‘Contempt of Court’ in the exercise of his rights of freedom of speech and expression, nobody can
be allowed to interfere with the due course of justice or to lower the prestige or authority of the
court, even in the grab of criticizing a judgment.
‘Defamation’ just as every person possesses the freedom of speech and expression, every person
also possesses a right to his reputation which is regarded as property. Hence, nobody can so use

27
LR 3 QB 360
28
AIR 1965 SC 881

16
his freedom of speech or expression as to injure another’s reputation. Laws penalizing defamation
do not, therefore, constitute infringement of freedom of speech.
‘Incitement to an offence’ this ground will permit legislation not only to punish or prevent
incitement to commit serious offences like murder which lead to breech of public order, but also to
commit an ‘offence’, which according to the General Clauses Act, means ‘ any act or omission
made punishable by any law for the time being in force.’ Hence, it is not permissible to instigate
another to do any act that which is prohibited and penalizing by any law.
‘Sovereignty and Integrity of India’ this ground has been added as a ground of restriction on the
freedom of expression by the 16th Amendment of the Constitution. The object was to enable the
State to combat cries for secession and the like from organizations such as the Dravida Kazhagam
in the South and the Plebiscite Front in Kashmir, and activities in pursuance thereof which might
not possibility be brought within the fold of expression ‘security of State’. It is to be noted that
sedition is not mentioned in Article 19(2) as one of the grounds on which restriction on freedom of
speech and expression may be imposed. But it has been held in Devi Saren v. State29 those
Sections 124-A and 153-A of Indian Penal Code impose reasonable restriction in the interest of
public order and is saved by Article 19(2). In Kedarnath v. State of Bihar30 the constitutional
validity of Section 124-A I.P.C. was considered by the Supreme Court. The Court held that the gist
of the offence of sedition is that the words written or spoken have tendency or intention of
criterion public disorder and held the section constitutionally valid.

(ii). During Emergency

Article 358 and 359 make provision for the suspension of fundamental right during declaration of
emergency. Marginal note of Article 358 is “suspension of provision Article 19 during
emergencies”. As soon as a Proclamation of Emergency has been issued under Article 352 and so
long as it lasts, Article 19 is suspended [subject to new clause (2)] and the power to the legislatures
as well as the executive is to that extent made wider. The suspension of article 19 during the
pendency of proclamation of emergency removes the fetters created on the legislative and
executive powers by article 19 and if the legislature enactments passed and the executive actions
taken during the course of the said emergency shall be inoperative to the extent to which they
conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted,

29
AIR 1954 Pat. 254
30
AIR 1962 SC 955

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article 19 which was suspended by the emergency is automatically revived and begins to operate.
In other words, the suspension of article 19 is complete during the period in question and
legislative and executive actions which contravene Article 19 cannot be questioned after the
emergency is over.

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 CONCLUSION

Over the decades there have been many more amendments to the Constitution, not all of which
have great historical significance. However, one thing is certain that every period of conflict in the
history of India can almost be mapped alongside a history of moves to amend the Constitution, the
constitutional history during the Emergency being a classic case. The first amendment, however,
retains a significant space in this history, not merely because it was the first amendment but
because in many ways it also signaled the kinds of battles that would take place between the
projects of nation building and the sphere of the media. Marked the rather premature end of the
vision of a seamless web, with the promotion of national security and sovereignty being
prioritized over the promotion of democratic institutions.
As with any project of state imagination, the impact of the first amendment is also fraught with
contradictions and internal conflicts. While introducing the discourse of public order into
constitutional restrictions on freedom of speech and expression, it also introduced the idea of
reasonable restriction, and, as Nehru rightly predicted, “it proved to be the basis for future
conflicts over the media, the Constitution and state formative practices.” The contradictions
that arose between the three strands of the seamless web of the Constitution were seen as the
disintegration of the whole, rather than as the inevitable process through which fragments work
their way into monumentalist imaginations. It is also perhaps well worth looking at the crisis
that precipitated the first amendment to understand our contemporary situation. In 1950, you
had a situation where Nehru had to contend with speech and expression that were ideologically
opposed to his liberal values, from that of the far left to that of the far right. Nehru’s response was
a classical case of deferring of an exercise of a democratic right, or democratic practice in favor of
the larger interest or abstract norm of a democratic state. Having assumed the greater common
good, he could then determine, what was desirable and undesirable speech, and proceed to act with
a democratic conscience. Rather than understanding the media as a perpetual site of politics and
contestation over the form of the nation over what constitutes the public sphere, the media was
seen to be an instrument/medium for the promotion of an assumed public interest. This perhaps
also speaks to some contemporary debates where progressive intellectuals, media
practitioners, etc, demand greater regulation against the „hate speech‟ of the right. We need
to be a little cautious in our responses to forms of speech that offend our liberal sentiments.

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