FREEDOM
OF SPEECH AND EXPRESSIONUNDER ARTICLE 19(1)(a):SCOPE AND RESTRICTIONS
Author- Layba Rana, B.A.LLB(Hons), Faculty of Law, Jamia Millia Islamia University New Delhi
ABSTRACT
Can
you imagine a democracy where people donot have right to freedom of speech and
expression and even fear from criticising government’s tyrant actions? How a
democracy even can survive without exercising this right on the part of citizens
of the country.Freedom of speech and expression acts as a cornerstone of a
vibrant democracy – an essential pillar that encourages people to think, speak
and act freely. The right enshrined in article 19 of the Constitution fuels the
intellectual and political discourse, yet it has been subjected to various
debates and discussions. Though the right not absolute in nature and article
19(2) carves out specific reasonable restrictions that ensures the liberty of
the individuals with the societal harmony and public order. This research paper
will analyse the intricate scope of the freedom of speech and expressions with
its various judicial interpretations in contemporary world.
INTRODUCTION
Every
democratic society is characterised by the right to talk freely and to express
themselves in any manner they likeandreceive information from other people. Freedom
of speech is at the heart of a democracy and considered as the mother of all freedoms.
International Covenant On Civil and Political Rights recognizes Right to speech
as human right law. On the other hand Article 19 of the Universal Declaration
of Human rights consider right to expression as human right. Though these
rights are considered as of utmost importance under international as well as
domestic laws but these are not absolute in nature. There are certain
limitations imposed on their exercise. It is very contentious and debatable
question to what extent the exercise of right is within the limit and what extent
is beyond the limit? The question onextent of right to freedom of speech and
expressionhas come into picture in the case of Mohammad Amir Ahmad @
Ali Khan Mahmudabad Versus State of Haryana 2025 . The instant case has sparked
a hot debate among citizenry and government, where government has limited the
free speech a citizen on certain grounds.
Article
19 (1) (a) of the Indian Constitution deals with the freedom of speech
and expression and article 19 (2) deals with the restrictions imposed on the
instant right.
In
this paper we will explore what is article 19(1) (a) and what are the grounds
on which it can be restricted? We will also explore the scope of this article
which has evolved from time to time through various case laws.
CONSTITUTIONAL
PROVISION EMBODYING FREE SPEECH AND EXPRESSION
Article
19(1) (a) of the Indian constitution states that every citizen shall have the
right to freedom of speech and expression. The essence of this right is to
enable people to think and speak freely and fearlessly without any interruption
by the governmental authorities. The philosophical idea behind the Article lies
in the Preamble of the Indian Constitution where the citizens of Indian have
solemnly resolved to secure liberty of thought and expression. The right to
free speech is crucial in a functional democracy strictly speaking one can say
that right to freedom of speech is the hallmark of a functional democrarcy. It
implies that every citizen should have a right to express their views, thoughts
and opinions freely without any fear. Although there have been a lot of kinds
of freedom evolved from time to time through various judicial pronouncements,
there are certain restrictions imposed on freedom of speech andexpression.
Article 19(2) of the Constitution lays down certain restriction, listed below:-
·
The sovereignty and integrity of India,
·
The security of the State, friendly relations with foreign States and
·
Public order,
·
Decency or morality,
·
Contempt of court,
·
Defamation and incitement to an offense
However it is the constitutional obligation of
the judiciary to make sure that the restrictions imposed by the constitutional
law on the right are reasonable and serve the purposes specified in Article
19(2).Because reasonable restrictions contemplated under the Indian
Constitution brings the matter in the domain of the court as the question of
reasonableness is a question primarily for the Court to decide. Freedom of
speech and expression is a crucial right which is recognized by Article
19(l)(a), It has been held to be a basic and indivisible right for a democratic
society.
The right is very debatable and attract great
deal of debates and discussions in the nation. The said has evolved from time
to time and inculcated a lot of freedoms in its scope, analysed below.
ANALYZING THE SCOPE OF FREEDOM OF SPEECH AND
EXPRESSIONS AND COURT’S STANCE
The freedom of speech and expressions is not
exhaustive in nature. It has evolved from time to time. The right of freedom of
speech is intrinsic to any democracy that forms the foundation of the fourth
pillar of the democracy. The right can be exercised in any way including
writing, speaking artistic expressions like advertisement, right to have information
also comes under right to free speech. Freedom of expression can be manifested
and can include any kind of appreciation, suggestions and criticism. Criticism
by the public to the government and its policies is the symbol of a healthy and
active democracy. Prime Minister Narendra Modi has also emphasized the
importance of right to free speech and to ritzier government freely, so that
policies framed by government may fulfil the people’s aspirations and their grievances
can be soothed down. The Courts has widened the scope of free speech through
various judicial pronouncements.
Romesh Thappar v. State of Madras (1950)-Right to
Press- In the instant case the SC dealt with the critical issue of freedom of speech and
expression and highlighted the importance of balance between the individual
right and stateinterest.In this case the government banned the magazine, Crossroad,
of a communist leader, Romesh, calling it a threat to national security. The SC
held that freedom of speech and expression also include the right to express
views and opinions freely and any restrictions imposed on the right should be
within the limits of reasonable restrictions contained in article 19(2). This
case has widened the scope of right to free speech and included right to
press under the ambit of right to free speech.
Freedom of Commercial Speech- Tata Press Ltd vs. Mahanagar Telephone Nigam Limited- The SC held that the
freedom of speech also includes the freedom of Commercial Speech including
advertisement.
Right to remain silence. InBijioe Emmanuel v. State of Kerala 1986- It was held that right to free speech also
includes right not to speak and remain silent.
Right to Information- In State of U.P. V Raj Narayanait was held by the Apex court that every citizen
have a right to know every public act done in a public way by the government
functionaries.
Internet freedom and Social Media Expression-
Shreya Singhal Case- The case struck
down the section 66A of Information Technology Act 2000 claiming it restricted
and infringed the right to freedom of speech and expression granted under
article 19 (1)(a) of the Constitution.
Artistic expression and Cinematic Freedom is a
fundamental right-In K.A Abbas v UOI the SC reaffirmed the importance ofbalance between protecting artistic freedom and
maintaining public order and morality. The pre censorship was held
constitutional and recognized it as a reasonable limit on free speech.Overall the
case recognized the artistic freedom as a fundamental right under article
19(1)(a) of the Constitution.
The right is very debatable and attracts a great
deal of debates and discussions in the nation. To protect the right to free
speech of individuals from government arbitrary actions as well as to safeguard
the right of other people from people’s acts, the Constitution has imposed
certain restrictions on the right to freedom of speech and expression,
discussed below.
UNDERSTANDING THE REASONABLE RESTRICTIONS IMPOSED
ON THE FREEDOM OF SPEECH AND EXPRESSIOIN.
A person posted something on social media saying
that it is completely justified. I have been granted the right to free speech
and expression by the highest law of the land, The Constitution. The police officer
comes and says your post is seditious and you will be detained for that.
because right to free speech and expression is not absolute in nature. It is
subjected to some reasonable restrictions
given by the constitution itself, to safeguard the national security and
maintain law and order and ensure unity and integrityin the nation. The
reasonable restrictions have been mentioned under article 19 (2) of the
Constitution. Below is a brief description of all the restrictions;-
1. Sovereignty and Integrity of India- India earned and achieved sovereignty after 200
years approximately from the British Colonial rule. This hard earned and most
important value can not be lost or put in danger just because of people’s right
to speak. Therefore law has recognised it as a reasonable ground to curtail the
right to freedom of speech and expression. The ground has been added to the
article 19(2) via 16th Constitution Amendment Act 1963 so as to
prevent the secessionist movement in India which jeopardize the unity and
integrity of the nation.
2. Security of the State-The government has a right to deny the freedom of
speech to its citizen to protect the interest of the state. Section 124A of IPC
lays down the provision of offense against state. The said section has been
subjected to controversy and challenged from time to time. This section has
also been amended various times, latest being in 1951. The amendment added two
phrases to article 19(2) which allowed state to restrict the free speech. Two
phrases are security of the State and Public Order.
Despite too many amendments the section has
always been challenged because of its unconstitutional nature. The article was
said to be inconsistent with the article 19(1)(a) of the Constitution. The SC
held in the case of Kedar Nath v State of Bihar that right to freedom of
speech is not absolute one and therefore there has to be a balance between
right of individual and security of a nation. Section
124A of IPC now can be found in 152 Section of BNS dealing with the
restrictions of free speech.
3. Friendly Relations with Foreign States- This ground of restriction has been added to
the article through 1stConstitution Amendment Act 1951 sp as to
prevent makingof any such statement by the people that can spoil Indian ties
with its friendly States. Freedom can be taken in respect of foreign States
which are friends and close to India. Pakistan does not come under the
definition of friendly states and person making any such statement in respect
of Pakistan cannot be punished.
4. Public Order –Public order is one of grounds for restricting
the freedomof speech. If any statement is causing disturbance, ill will,
annoyance in the society, then the freedom of speech can be curtailed. This was
added in 1951 to the Constitution as a legitimate ground so as to ensure peace
harmony or tranquillity in the society. Not only criticism of government
disrupts public order but it can also be caused by enemy country during war. In
such a scenario the Union Government would be able to ban the propaganda being
spread by a country that is at war with India to uphold public order. Hate
speeches are also not allowed to be delivered under the scope of freedom.
5. Decency or Morality-Section 292-94 of IPC deal with the obscenity and
offers it as a limit to the freedom of speech and expression. Obscenity is
defined as anything against modesty or decency; vulgar, dirty,
and disgusting" in India.
6. Contempt of Court- Contempt of court is defined under section 2 of
Contempt of Court Act 1971. It can be civil or criminal, deliberate
disobedience to the judge’s order, decree,order, directive, writsetc. is civil
contempt and dissemination of any information that can lowers court’s
reputation is criminal contempt. The right of free speech should not go beyond
the rationality and logics that can be prejudice to interest of court therefore
freedom of speech can be curtailed on this ground.It is punishable under
article 129 and 215 of the Constitution by Supreme Court and High
Courts respectively.
7. Defamation- “No
doubt, Article 19(1)(a) of the Constitution of India guarantees freedom of
speech and expression, this freedom is subject to the reasonable restrictions
and it does not include the freedom to make statements which are defamatory to
any person or defamatory to the Indian Army,” stated by one judge I the
case of Rahul
Gandhi vs. State of U.P. Thru. Addl. Chief Secy. Home Distt. Lko. and Another 2025 Live Law. The defematory statement is
one which lowers the reputation of a person n the estimation of the right
thinking members of society generally and causes him to the feeling of hatred,
ridicule, contempt etc. The defamation is all about the injury to the
reputation of a person in the estimation of a reasonable person. The freedom of
speech and expression can be curtailed on this ground. The courts are of the
view that freedom to speech does not include freedom to defame someone.
8. Incitement to an Offence-The Constitution (First Amendment) Act of 1952
laid down this ground as well as a restriction on free speech. No one is
allowed to be accomplice in the criminal activity with someone. The right to
free speech does not include the freedom to instigate individuals to engage in
criminal acts. The phrase 'offence' is not defined. The General Clauses Act
defines a "offence" as "any act or omission made penal by any
legislation in force at the time." The Court must determine whether or not
there was incitement of an offense based on the evidence and circumstances of
each and every case.
CONCLUSION
“To suppress
free speech is a double wrong. It violated right of speaker as well as those of
the hearer”
- Fredrick Douglass
The right to
free speech and expression has been recognised all over the world. Section 19
of International Covenant on Civil and Political Rights has recognised it as a
human right. Though this right gives autonomy to individuals and works as a
watchdog for a democracy. It is considered as a voice of the Constitution and
fourth pillar of democracy. Though this right is very pertinent to the
contemporary world for healthy and democratic governance, it cannot be absolute
and unqualified. It has a wide scope and evolved over time. Only reasonable
restrictions should be imposed on this right and no individual can be deprived
of it without any reason. People should exercise and use it for betterment of
the country and criticise governmental actions just to maintain checks and
balances, and prevent abuse of power by the governmental agencies.
REFERENCES
1.
Shrushti Taori and Tatva
Damania, “Balancing Free Speech and National Security: A Critical Analysis of
Section 152 of the Bhartiya Nyaya Sanhita and Section 124-A Of” Live
Law (2024) available at https://www.livelaw.in/lawschool/articles/balancing-free-speech-national-security-critical-analysis-section-152-bhartiya-nyaya-sanhita-section-124-a-ipc-259465
2.
https://indiankanoon.org/doc/111867/ Kedar Nath vs. State of Bihar
3.
https://lawbhoomi.com/tata-press-ltd-vs-mahanagar-telephone-nigam-limited/
4.
https://indiankanoon.org/doc/1218090/ Article 19 of the Constitution
5.
Sparsh Upadhyaye, “No Freedom
to Make Statements Defamatory to Indian Army': Allahabad HC Denies Relief to
Rahul Gandhi in Defamation Case” Live Law (2025) available at https://www.livelaw.in/lawschool/articles/balancing-free-speech-national-security-critical-analysis-section-152-bhartiya-nyaya-sanhita-section-124-a-ipc-259465
6.
https://lawbhoomi.com/tata-press-ltd-vs-mahanagar-telephone-nigam-limited/
7.
https://blog.ipleaders.in/draw-line-respect-freedom-speech-expression/
- Freedom of speech and expression
- Article 19(1) of Indian Constitution
- Fundamental Rights India
- Right to freedom of speech
- Limitations on freedom of expression
- Article 19(2) restrictions
- Indian Constitution speech rights
- Landmark cases on Article 19
- Freedom of press in India
- Constitutional rights in India
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