DR RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY LUCKNOW

CONSTITUTIONAL LAW- 1

FREEDOM WITH SPECIAL REFRENCE TO RIGHT TO

SPEECH AND EXPRESSION

SUBMITTED TO: SUBMITTED BY:

Mrs. Samreen Hussain Faizan Khan
Assistant Professor (Law) B.A.LLB. (Hons.)
DRMLNLU III Semester
Lucknow Roll No. 49

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 Acknowledgement
I take this opportunity to my guide express my profound gratitude and deep regards to all
those who supported me to complete this project. I would also like to thank proff. Mahendra
singh paswan for giving me this really interesting topic. I would like thank him for his
guidance and help throughout the research and preparation of this project. I want to thank the
well-resourced library of our university for providing exhaustive research material on the
topic and my family for timely help and suggestions.

-Faizan khan

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Contents

Introduction……………………………………………………...Page 4
Right to information; receive and disseminate……………….….Page6
Freedom of press…………………………….. …………….…...Page7
Right to travel abroad……………………………………............Page 8
Right to know……………………….……………………………Page 9
Right to remain silent………………………………………….....Page 10
Right to education………………....……………………..……....Page 11
Telephone tapping, National flag issue…………………………...Page12
Conclusion ……………………………………………………….Page 13
Literature survey…………………………………………………page 14

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INTRODUCTION

The Fundamental Rights are defined as the basic human rights of all citizens. The Constitution of
India declares certain Fundamental Rights for individuals under Part III, Articles 12 to 35. Some of
these rights are only for the citizens where as others are available equally to the non-citizens also.
These fundamental rights are inviolable subject to the qualification defined in the constitution itself.
It establishes that no law, ordinance, custom, usage or administration order can abridge or take away
a fundamental right. These rights are binding upon both legislative and the executive and any law,
which violates the fundamental right, is void. A fundamental right cannot be taken away even by a
constitutional amendment, if it forms the basic structure of the constitution. The rights to freedom are
one of the most important fundamental rights guaranteed by the Constitution of India. It is the
prevalence of these freedoms that makes a democracy meaningful. Article 19-22 deal with the
different aspects of right to freedom.
Article 19, which is one of the most important and key articles which ensures the protection of
certain rights regarding freedom of speech, etc.
Article 19 of the constitution now provides six freedoms, namely:

 right to freedom of speech and expression

 right to assemble peaceably and without arms;
 right to form associations or unions
 right to move freely throughout the territory of India ;
 right to reside and settle in any part of the territory of India ;
 right to practice any profession or to carry on any occupation trade or business.

Article 19(1)(a) secures to every citizen the freedom of speech and expression. The freedom of
speech and expression means the right to express one’s conviction and opinions freely by word of
mouth, writing, printing, pictures or any other mode. Freedom of speech is the bulwark of a
democratic government and it attaches great importance to this freedom, because without the
freedom of speech appeal to reason, which is the basis of democracy, cannot be made. Freedoms of
speech opens up channels of free discussions of issues and play a crucial role in public opinion on
social, political and economic matters. The Hon’ble Supreme Court has interpreted the phrase,

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‘speech and expression’ of having a wide connotation and thus many a rights not expressly found
under the article’s plain words has been recognized. In this project an attempt is made to explore the
depths of Article 19(1)(a) and further understand right to speech and expression in detail.

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RIGHT TO INFORMATION; RECEIVE AND DISSEMINATE

The right to ‘freedom of speech and expression’ in Article 19(1) (a) has been held to include the right
to acquire information and disseminate the same. It includes the right to communicate it through any
available media whether print or electronic or audio-visual, such as ads, movie, articles or speech etc.
This freedom includes the freedom to communicate or circulate one’s opinion without interference to
as large a population in the country, as well as abroad, as it is possible to reach. The Supreme Court
giving a broad dimension to Article 19(1)(a) said that freedom of speech not only includes
communication but also receipt of information as they are the two sides of the same coin.

In State of Uttar Pradesh v. Raj Narain 1 the Supreme Court held that Article 19(1)(a) not only
guarantees freedom of speech and expression, it also ensures and comprehends the right of the citizen
to know, the right to receive information regarding matters of public concern.

The government is not the owner, but timely trusted with rights of the real beneficiary on the estate of
the state. Similar views were expressed, while upholding that “right to know is implicit in right of
free speech and expression, and disclosure of information regarding functioning of the Government
must be the rule.”2

Further in Secretary, Ministry of I&B, Government of India v. Cricket Association of Bengal,3 the
Supreme Court reiterated the proposition that the freedom of speech and expression includes the right
to acquire information and to disseminate the same.

In the Tata Press Case4 the Supreme Court concluded that the “commercial speech” cannot be denied
the protection of Article 19(1) (a) merely because the same is issued by businessmen.“Commercial
speech” is a part of freedom of speech guaranteed under the Article 19(1) (a). The public at large has
a right to receive the “commercial speech” and the article protects the right of an individual “to listen,
read and receive” the “commercial speech”. The protection of the article is available both to the
speakers as well as the recipient of the speech.

1
AIR 1975 SC 865,884:(1975) 4 SCC 428
2
S.P.Gupta v. Union of India, (1981) Suppl. SCC 87 at 273
3
AIR 1995 SC 1236; infra, 1177-78
4
AIR 1995 SC 2438, 2446: (1995) 5 SCC 139

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FREEDOM OF PRESS

In India, freedom of the press is implied from the freedom of speech & expression guaranteed by
article 19(1)(a). There is no specific provision ensuring freedom of the press as such. The freedom of
the press is regarded as a “species of which freedom of expression is a genus.”5 Thus, being only a
right flowing from the freedom of speech, the freedom of the press in India stands on no higher
footing than the freedom of a citizen, and the press enjoys no privilege as such distinct from the
freedom of the citizen.

The Supreme Court has led emphasis in several cases on the importance of maintaining freedom of
press in a democratic society. The press seeks to advance public interest by publishing facts and
opinions without which a democratic electorate cannot make responsible judgments. Articles and
news are published in the press from time to time to expose the weaknesses of the government. This
leads at times to suppression of the freedom of the press by the government.

It is, therefore the primary duty of the courts to uphold the said freedom and invalidate all laws or
administrative actions which interfere with the freedom of press contrary to the constitutional
mandate.

In Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, the supereme court has reiterated that
though freedom the press is not expressly guaranteed as a fundamental right, it is implicit in the
freedom of speech and expression. Freedom of the press has always been a cherished right in all
democratic countries and the press has rightly been described as the fourth estate. The democratic
credentials of a state are judged by the extent of freedom the press has righly been described as the
fourth estate. The democratic credentials of a state are judged by the extent of freedom enjoys in that
state.

The Supreme Court has emphasized that the freedom of the press is not so much for the benefit of the
press as for the benefit of the general community because the community has a right to be supplied
with information and the government owes a duty to educate the people within the limits of its
resources.

Article 19(1)(a) applies to citizen only and so a non citizen running a newspaper cannot seek the
guarantee of this constitutional provision.

5
Sakal Papers v. Union of India, AIR 1962 SC 305

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RIGHT TO TRAVEL ABROAD

An interesting question considered in Maneka Gandhi v. Union of India was whether the right to
travel abroad could be regarded as a part of article 19(1)(a) and (g). the right to freedom of speech
and expression guaranteed by article 19(1)(a) is exercisable not only in India but outside as well.
According to BHAGWATI, J., state action taken in India may impair or restrict the exercise of this
right elsewhere. For example, a journalist may be prevented from sending his dispatches abroad. The
same applies by parity to article 19(1)(g). but the court refused to accept the argument, that the right
to travel abroad was an ‘essential part’ of the freedoms guaranteed by article 19(1)(a) and (g) so that
whenever the former was violated, the latter would also be impaired.

The right to travel abroad is not specifically named as a fundamental right in article 19(1). But a right
not named expressly may still be covered by some clause in article 19, if it “is an integral part of a
named fundamental right or partakes of the same basic nature and character as the named
fundamental right so that exercise of such a right is in reality and substance nothing but an instance
of the exercise of the named fundamental right”. Judged by this test, the right to travel abroad is not
a integral part of the rights undr article 19(1)/(a) or (g), but only a concomitant or peripheral right to
these rights.

When a right under article 19(1)(A) or (g) is infringed. Impounding of the passport would have to be
justified under article 19(2) or (6). In that case, the expression ‘in the interests of the genral public in
section 10(3)(c) will have to be read down to mean ‘public order, decency or morality’ [words used
in article 19(2)], if there is a violation of the right under article 19(1)(a). then impounding of a
passport for an indefinite length of time would amount to an unreasonable restriction under article
19(2) and (6). BHAGWATI. J., however cautioned the passport authority that the power to refuse or
impound a passport should not be exercised lightly as it is a basic human right recognized under
article 13 of the universal declaration of human rights: it is a valuable right, a part of personal liberty
with which the authority seeks to interfere.

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RIGHT TO KNOW

The Hon’ble Supreme Court in Dinesh Trivedi, M.P and Others v. Union of India,6 observed “in
modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs
of the government which, having been elected by them, seek to formulate sound policies of
governance aimed at their welfare”. The Court further observed “democracy expects openness and
openness is concomitant of a free society and the sunlight is a best disinfectant.” The Delhi High
Court emphasised that the right to receive information acquires great significance in the context of
elections 7 and ruled that the Election Commission shall secure the antecedents of the candidates
including assets, education etc. for the perusal of the voters. This is not an extra qualification
imposed by the High Court but what the Hon’ble High Court was seeking to achieve is that a voter
after knowing the background of the candidate will vote properly. On appeal the Hon’ble Supreme
Court agreed with the Delhi High Court and upheld the right of a voter to know about the antecedents
of a candidate as a part of his fundamental right under Article 19(1) (a). Democracy cannot survive
without free and fairly informed voters. Subsequently the Central Government amended the
Representation of the People Act, 1951 by passing the Representation of the People (Third
Amendment) Act, 2002.

The Bombay High Court in its unreported judgment in Bombay Environmental Action Group v. Pune
Cantonment Board, A.S. Writ Petition No.2733 of 1986 granted a recognized environmental group
has a right to examine municipal permissions granted to private builders. In a different case between
the same parties, Bombay Environmental Action Group v. Pune Cantonment Board, SLP (Civil) No.
11291 of 1986. The Supreme Court extended the right to know to all environment groups, whether
recognized or not. The Brundtland Report on the World Commission on Environment and
Development in 1987 recognized free access to relevant information and the availability of
alternative sources of technical expertise to provide an informed basis for public discussion.

Buoyed by recent development wherein legal vibrancy is evident in the drafting of nearly half a
dozen drafts on the Right to Information, any environmentalist should be hopeful of a statutory
recognition of his right to be informed and to be allowed to inspect documents. It is perhaps
unfortunate that none of the drafts have detailed laid down any guideline as regards this issue.
However, given the extent to which the right to environment is deep rooted in the Indian milieu, it is

6
(1997) 4 SCC 306: (1997) 1 SCJ 697
7
Association for democratic reforms v. Union of India, AIR 2001 Del.126,137

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only axiomatic that a guarantee of the right to information in environment and related matters has to
follow.

The Bombay High Court distinguished between the ordinary citizen looking for information and
groups of social activists thus: ‘In this writ petition we are not dealing with any Tom, Dick and
Harry, but we are dealing with an action group which is interested in protecting the environmental
and ecological balance of the city. People’s participation in the movement for the protection of the
environment cannot be over-emphasized... The apprehension expressed by the Respondent that if
such a right is given to a citizen, then the working of the Cantonment Board will not only be affected
but will come to a stand-still is also without any substance. To say the least, in this writ petition we
are not dealing with the right of each and every citizen generally. We would like to confine ourselves
to the rights of recognized social action groups whose activities deserve to be appreciated.’ The court
appeared to be creating a new form of elite – social activists participating in groups.

RIGHT TO REMAIN SILENT

The emerging judicial view is that the freedom of speech can be exercised by a person subject to
keeping the level of noise pollution within bearable limits. Although noise pollution has not been
mentioned in Article 19(2) as a ground for which reasonable restrictions can be imposed on the
freedom of speech, the courts have implied this limitation from Article 19(1)(a) itself. The courts
have argued that freedom of speech includes the freedom to remain silent. The courts raised the
question: can a person exercise his right, so as to interfere with the freedom of others? The courts
have answered this question as follows: when a person enjoys his rights under Article 19(1)(a), he
must do so causing very minimum inconvenience to others. A person cannot claim his freedom of
speech so as to interfere with the human rights and Fundamental Rights of others.8

In K. Venu v. Director General of Police9, a single Judge of the Kerala High Court expressed the
view that he was not inclined to hold that the right to use loudspeakers was Fundamental Right in
itself on the ground the ground that sound pollution was an accepted danger and indiscriminate use of
loudspeakers could not be permitted. Further in P.A. Jacob v. Superintend of Police, Kottayam,10 the
Kerala High Court has taken noise pollution into account saying, “exposure to high noise is a known
risk.” The Court has observed: “if an absolute right is conceded in this behalf, it will be an unlimited
charter for aural aggression”. “However wide a right is, it cannot be as wide as to destroy similar or
8
New Road Brothers v. Commissioner of Police, Ernakulam, AIR 1999 Ker 262
9
AIR 1990, Ker 344
10
AIR 1993 Ker 1

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other rights in others”. And, further the High Court has said: “The right to speech implies the right to
silence. It implies freedom, not to listen, and not be forced to listen” The Calcutta High Court has
imposed restrictions on the use of loudspeakers at the time of azan on the ground of noise pollution.
The Court has stated that excessive noise certainly causes pollution in society. Under Article 19(1)
(a), read with Article 21, the citizens have a right of a decent environment and have a right to live
peacefully, right to sleep at night and a right to leisure which are all necessary ingredients of the right
to life guaranteed. The Hon’ble Supreme Court has ruled in Church of God v. K.K.R.M. Welfare
Association10 that the question of religious freedom does not arise as no religion requires that
prayers be performed through voice amplifiers. The Court directed the guidelines framed by the
Government under the relevant rules framed under Environment Protection Act, 1986, must be
followed by the concerned authorities.11

In Bijoe Emanuel v. State of Kerala,12 the Hon’ble Supreme Court said, “We may at once say that
there is no provision of law which obliges anyone to sing the National Anthem nor do we think that it
is disrespectful to the National Anthem if a person who stands up respectfully when the National
Anthem is sung does not join the signing. It is true Art.51-A (a) of the Constitution enjoins a duty on
every citizen of India “to abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem.” Proper respect is shown to the National Anthem by standing up
when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining
in the singing”

RIGHT TO EDUCATION

The Hon’ble Supreme observed, “We are in a democratic polity where dissemination of information
is the foundation of the system. Keeping the citizens informed is an obligation of the Government. It
is equally the responsibility of society to adequately educate every component of it so that the social
level is kept up.”13 The Hon’ble Supreme Court thus felt the necessity of environment education and
directed the concerned authorities to make it mandatory for the cinema halls to show slides upon
environment education before the exhibition of movies. Further the apex court directed the
government media, the Doordarshan and the All India Radio to ensure environment related programs
to educate the masses. In a wider interpretation to the phrase ‘speech and expression’ the apex court
held that it is a fundamental right to be educated in the matters of environment conservation and

11
Om Biranguna Religious Society v. State of West Bengal, (1996)100 Cal WN 617
12
12 (1986) 3 SCC 615 : AIR 1987 SC 748
13
13 M.C. Mehta v. Union of India, 1992 SCC 382

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directed the Universities and the education boards to make ‘environment education’ as a compulsory
subject in their courses.

TELEPHONE TAPPING

The freedom of speech and expression means the right to express one’s convictions and opinions
freely by word of mouth, writing, printing, picture or in any other manner. When a person is talking
on telephone, he is exercising his right to freedom of speech and expression. Telephone tapping,
accordingly, infracts Article 19(1)(A) unless it falls within the grounds of restrictions falling under
article 19(1)(2).14

THE NATIONAL FLAG ISSUE

The Hon’ble Supreme Court in Union of India v. Naveen Jindal,15 held that right to fly the National
Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article
19(1) (a) of the constitution, being an expression and manifestation of his allegiance and feelings and
sentiments of pride for the nation. But the same is not an absolute right but a qualified one, subject to
reasonable restrictions under clause (2) of Article 19 of the constitution. The Emblems and Names
(Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971
regulate the use of the National Flag.

14
People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568 at 574-574 : (1977) 1 SCC 301
15
14 (2004) 2 SCC476

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CONCLUSION

The Hon’ble Supreme Court, over the years has given a very broad and liberal meaning to the Article
19(1) (a) of the Constitution of India. These interpretations have led to recognise various rights like,
right to receive and disseminate information, right to know, right to remain silent, right to receive
education and as well right to fly the National Flag freely with respect and dignity as expressions of
one’s feeling of pride for the nation. These emerging rights are derived from the broad meaning
which the Hon’ble Supreme Court has given to the phrase ‘speech and expression’ under Article
19(1)(a) of the Constitution. The Hon’ble Supreme Court by attributing these connotations to the
liberal interpretation of Article 19(1)(a) is doing a great service to the nation by rendering the
meaning to the fundamental rights which the framers of the Constitution would ever desire of.

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LITERATURE SURVEY:

Various books, articles and web sources have been an inspiration in making the project. The books
referred as a part of research have been taken from Dr. madhu limaye library, RMLNLU luck now.
The content was also derived from various law researches and outsourcing websites present which
were helpful in providing various articles for clarifying the concept.

MP JAIN, Indian Constitutional Law ( 7th edn, lexis nexis 2014)

V.N. SHUKLA, Constitution of India ( 12th edn, eastern book comapny2013)

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