CHAPTER-III

REASONABLE
RESTRICTIONS ON
FREEDOM OF SPEECH
AND EXPRESSION
IN INDIA
 CHAPTER-III

REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH

AND EXPRESSION IN INDIA

Freedom of speech and expression guaranteed by Article

19(l)(a) is not absolute. There is no such thing as a absolute or

unrestricted freedom of speech and expression wholly free from

restraint for that would amount to uncontrolled licence which would

tend to lead to disorder and anarchy. Our Constitution has rightly

attempted to strike a proper balance between the various competing

social interests1.

The Constitution must be interpreted in a broad way and

not in a narrow and pedantic sense. The Court must not be too astute

to interpret the language of the Constitution in so literal a sense as to

whittle down fundamental rights. On the other hand the Court must

interpret the Constitution in a manner which would enable the citizen

to enjoy the fundamental rights in the fullest measure2.

The legislature cannot disregard or override constitutional

provisions by employing indirect methods of achieving exactly the

1 Santokh Singh v. Delhi Administration, AIR 1973 SC 1094.

2 Sakai Papers Ltd., AIR 1962 SC 315.
 100

same results. The legislature cannot do indirectly what it cannot be

■j

directly .

The Court is not overpersuaded by the mere appearance of

the legislation. The Court has to look behind the names, forms and

appearances to discover the true character and name of the

legislation34.

It is the substance and the practical result of the act of the

State that should be considered rather than its pure legal aspect. The

correct approach should be to enquire what in substance is the loss or

injury caused to the citizen and not merely what manner and method

has been adopted by the State in placing the restrictions.

No law or action would state in words that rights of

freedom of speech and expression are abridged. Nevertheless, it is the

duty of the Court to strike down the legislation or the executive action

if it causes direct interference with the freedom of speech and

expression notwithstanding that it does not appear to do so on its

face5. In the garb of distribution of newsprint the growth and

circulation of newspapers cannot be controlled6. In dealing with the

complex strands in the web of freedoms which make up free speech,

3 In re: Kerala Education Bill, 1957, AIR 1958 SC 956 at 983.

4 Dwarakadas v. Sholapur Spinning and Weaving Co. Ltd. AIR 1954 SC 119 at 123. Express
Newspapers Ltd., AIR 1958 SC 578 at 619.
5 Sakai papers, AIR 1962 SC 315, Bennett Coleman, AIR 1973 SC 106 at 120.
6 Bennett Coleman. AIR 1973 SC 106 at 130.
 101

the operation and effect of the methods by which speech is sought to

be restrained must be subjected to close analysis and critical judgment

in the light of the particular circumstances to which it is applied7. 8

Where fundamental rights and freedoms of the individual

are being considered, a Court should be cautious before accepting the

Q

views that some particular disregard of them is of minimal account .

In protecting fundamental rights Courts should always

remember that “it is from petty tyrannies that large ones take root and

grow”. This fact can be more plain than when they are imposed on the

most basic rights of all. Seedlings planted in that soil grow great and,

growing, breakdown the foundations of liberty9.

Clause (2) of Article 19 specifies the purposes or grounds

in the interest of which or in relation to which the reasonable

restrictions can be imposed on the freedom of speech and expression.

It may be noticed that reasonable restrictions under Clause (2) of

Article 19 can be imposed only by a duly enacted law and not by

executive action unsupported by law10. Article 19 clause (2) says that

“Nothing in sub-clause (a) of clause (1) shall affect the operation of

any existing law, or prevent the State from making any law, in so far

7 Speiser vs. Randal!, 2 L.Ed 2d. 1460.

8 Oliver vs. Buttigieg, 1966(2) All. E.R. (P.C.) 459 at 466.
9 Thomas vs. Collins, 323 US 516 at 543, Quoted with approval by Privy Council to Oliver’s case.
10 Romesh Thaper vs. State of Madras, AIR 1950 SC 124.
 102

as such law imposes reasonable restrictions on the exercise of the

right conferred by the said sub-clause in the interests of the

sovereignty and integrity of India, the security of the State, friendly

relations with foreign States, public order, decency or morality, or in

relation to contempt of Court, defamation or incitement to an offence.

The right to freedom of speech and expression is

precious, and therefore, inalienable. It is the cherished right, and as

such inviolable. The scope of the free exercise of the citizen’s right

of free speech and expression must be wide, and must not be unduly

curtailed. However, this freedom of the citizen like the other

freedoms is not absolute. It is unrestricted, and not restricted by pre­

censorship. Nonetheless, a citizen should exercise his freedom in

such manner, and to such an extent that he does not deprive any fellow

citizen of an equal right to enjoy the like freedom. He can be

restrained in the enjoyment of his right only to ensure a separate and

equal right of every other citizen to enjoy the same: and for reasons of

unavoidably minimal social control, the well being of the society, and

for the security of the state. His freedom is subjected to the sanctioned

limits of law. Neither his right of free speech and free expression can
 103

be permitted to impair a similar right of other fellow members of the

community...... 11.

(a) Areas of Restrictions and Constitutional Prerequisites for

Imposition of Restrictions

The first pre-requisite for curtailment of the freedom of

speech and expression is that the restriction imposed must have the

authority of some law12 to support itlj. Law means a valid law - be it a

statute, a statutory rule or a statutory notification or regulation14. It is

only thereafter that the question arises whether the restrictions

imposed are reasonable and permissible. Fundamental rights cannot

be restricted by a mere executive order or an administrative

instruction or a circular or a resolution which is without any statutory

basis. Orders or regulations or instructions which purport to restrict

any fundamental right must have been made in the exercise of the

legislative power of the State and not in the exercise of its executive

power15. Furthermore, not only the law restricting the freedom should

'' AIR 1993 Ker. 1.

12 Art. 13(a) of the Constitution defines ‘law’ as under: “Law” includes any ordinance, order, bye-iaw.
regulation, notification, custom or usage having in the territory of India the force of Law”.
13 Bennett Coleman, AIR 1973 SC 106 at 152.
14 Kharak Singh vs. State of UP, AIR 1963 SC 1295 at 1299.
15 Edwar Mills Co. Ltd. Beawar vs. State of Ajmer, AIR 1955 SC 25 at 31.(Case under Art. 372 -
‘law includes an ‘order’ but it must be alegislative and not an executive order, Narsing Pratap Singh
Deo vs. State of Orissa, AIR 1964 SC 1793, at 1796 = (1964)7 SCR 112.
 104

be reasonable but rules or orders made on the basis of that law should
i /.

also be reasonable .

Article 19(2) of our Constitution permits imposition of

reasonable restrictions on the heads specified in Article 19(2).

Therefore, unless a law enacted by the Legislature comes squarel

within the provisions of Article 19(2) it would not be saved and would

be struck down as unconstitutional on the score of its violating the

fundamental right of the citizen under Article 19(l)(a)17. It is not

open to the State to curtail the freedom of speech of one for promoting

the general welfare of a section or a group of people unless its action

can be justified by a law falling under clause 2 of Article 19. The

freedom of the press cannot be curtailed, like the freedom to carry on

business, in the interest of the general public. If the law is challenged

it is no answer that the restrictions enacted are justifiable under

clauses 3 to 6 of Article 19. The only restrictions which may be

imposed on the rights guaranteed under Article 19(l)(a) are those

which clause (2) of Article 19 permits and no other .

The right of freedom of speech cannot be taken away with

the object of placing restrictions on the business activities of a citizen.

If the legislation or executive action interferes with freedom of

16 Oudh Sugar Mills Ltd. Vs. Union of India AIR 1970 SC 1070 at 1072.
17 Express Newspapers vs. Union of India, AIR 1958 SC 578 at 617.
18 Sakai Papers Ltd. AIR 1962 SC 305; Bennett Coleman & Co., AIR 1973 SC 106.
 105

speech, it is no answer that it is a regulation of the business aspect of

a newspaper19. The object of giving some kind of protection to small

or newly started newspapers may be good and desirable, but Article

19(2) does not permit the State on that ground to make inroads on the

freedom guaranteed to other newspapers. Again carrying on unfair

practices may be a matter for condemnation and monopolies may be

assumed to be abnoxious and against public interest. Even so

restriction for the above purposes are beyond the scope of Article

19(2) and are unconstitutional20.

The word “reasonable” implies intelligent care and

deliberation, that is the choice of course which reason dictates.

Legislation which arbitrarily or excessively invades the right cannot

be said to contain the quality of reasonableness. The procedure and

the manner of imposition of the restriction must also be fair and just21.

No abstract standard or general pattern, of reasonableness

can be laid down as applicable to all cases. The nature of the right

alleged to have been infringed, the underlying purpose of the

restrictions imposed, the extent and urgency of the evil sought to be

19 Ibid.
20 Ibid.
21 Chintaman Rao vs. Stateof MP. AIR 1951 SC 118 at 119; Dwaraka Prasad vs. State of U.P., AIR
1954 SC 224 at 227.
 106

remedied thereby, the disproportion of the imposition, the prevailing

conditions at the time, should all enter into judicial verdict22.

Permissible restrictions on any fundamental right, even

where they are imposed by duly enacted law, must not be excessive,

or, in other words, they must not go beyond what is necessary to

achieve the object of the law under which they are sought to be

imposed. The power to impose restriction on fundamental rights is

essentially a power to "regulate” the exercise of these rights. In fact,

“regulation” and not extinction of that which is to be regulated is.

generally speaking, the extent to which permissible restrictions may

go in order to satisfy the test of reasonableness23.

Laws which take away or abridge the freedom of speech

and expression or which would curtail circulation and thereby narrow

the scope of dissemination of information, or letter their freedom of

the press to choose its means of exercising the right or would

undermine its independence by driving it to seek Government aid, or

which single out the press for laying upon it excessive and prohibitive

burdens which would restrict the circulation, impose a penalty on its

right to choose the instruments for its exercise or to seek an

alternative media, prevent newspapers from being started and

22 State of Madrs vs. V.G. Rao AIR 1952 SC 196 at 199, 200.
23 Bennett Coleman & Co. vs. Union of India, AIR 1973 SC 106 at 150.
 07

ultimately drive the press to seek Government and in order to survive,

would therefore be struck down as unconstitutional. Such laws would

not be saved by Article 19(2) of the Constitution24.

It is not for Government to determine which newspapers

should grow in page and circulation and which newspapers should

grow only in circulation and not in pages. Freedom of Press entitles

newspapers to achieve any volume of circulation . Freedom of

speech and expression is not only in the volume of ciculation but also
'Jft
in the volume of news and views . The question about the quantity of

newsprint to be imported is the matter of Government policy. Court

cannot adjudicate on such policy measures unless the policy is alleged

to be malafide .

Freedom lies both in circulation and in content. A

newsprint policy under the Import and Export Control Act under the

garb of distribution of newsprint cannot control the growth and

circulation of newspapers. A newsprint policy cannot impose

restrictions which constrict the newspapers in adjusting their page

number and circulation . Under the theory of the freedom of speech

which recognizes not only the right of the theory of the freedom of

24
Express Newspapers AIR 1958 SC 578 at 617.
Bennett Coleman, AIR 1973 SC 106 at 128.
26
Ibid.
' Ibid.
28
Ibid.
 108

speech which recognizes not only the right of the citizens to speak but

also the right of the community to hear, a policy in the distribution of

newsprint for maintenance of circulation at its highest possible level,

as it furthers the right of the community to hear, will only advance

and enrich that freedom29. If the space for advertisement is reduced

earnings would decline and if the price is raised that would affect

circulation and thereby impinge on freedom of speech and

expression30.

The press is, however, not immune from the ordinary

forms of taxation for support of the Government nor from the

application of the general laws relating to industrial relations0 A

statutory provision which prohibits the commending of any intoxicant

is violative of freedom of speech and expression and is not saved by

Clause 2 of Article 19°2.

Advertisement is undoubtedly a form of speech.

However, it cannot be said that every advertisement is a matter

dealing with freedom of speech nor can it be said that it is an

expression of ideas. When it takes a form of commercial

advertisement which has an element of study of commerce it no longer

29 Ibid.
30 Ibid.
31 Express Newspapers Ltd., AIR 1958 SC 578.
32 State of Bombay vs. F.N. Balsara, AIR 1951 SC 318 at 330.
 109

falls within the concept of freedom of speech for the object is not

propogation of ideas - social, political or economic or furtherance of

literature or human thought-53. A Trader has not fundamental right

under Article 19(1 )(a) to commend his wares especially when they are

“prohibited drugs” or commodities of which the sale is not in the

interest of general public. In as much as the commercial activity of

commendation of such goods is not within the guarantee of the Article

19(l)(a) at all34.

The main source of income for the newspapers is from

advertisement. Advertisements are not only a source of revenue but

also one of the factors for circulation. The loss of advertisements

affects the circulation of a newspaper and a restraint on

advertisements would affect the fundamental right under Article

19(l)(a) . If the area for advertisement is curtailed the price of the

newspaper will be forced up. If that happens the circulation will

inevitably go down and earnings would decline that would directly

interfere with the freedom of the Press .

The direct operation of legislation upon fundamental

rights forms the real test. It is not the object of the authority making

33 Hamdard Dawakhana vs. Union of India, AIR I960 SC 554 at 563.

34 Ibid.
35 Bennett Coleman, AIR 1973 SC 106 at 118, 125, 126.
36 Sakai Papers. AIR 1962 SC 305 at 313; Bennett Coleman, AIR 1973 SC 106 at 126.
 110

the law nor the form of action that determines the invasion of a

fundamental right. It is the effect of the law and of the action upon

the rights of a citizen which attract the jurisdiction of the Court to

grant relief37. The true test is whether the effect of the impugned

action is to take away or abridge fundamental rights .

The effect of the state action however must be direct and

inevitable and not remote or problematical and not dependent upon

various factors which may or may not come into playj9. The doctrine

of direct and inevitable effect has been described as the doctrine of

intended and real effect or as the test of proximate effect and

operation of the statute40. The tests of object of the legislation pith

and substance at the subject-matter and of direct or incidental effect of

legislation are irrelevant to the question of infringement of

fundamental rights41.

The restrictions on his fundamental freedom can be

placed in terms of Clause (2), of Article 19 which in the present form

was inserted in 1951, and was. subsequently, amended in 1963.

Originally, the constitutional limitation clause of Article 19(2) was

not so comprehensive. Merely it laid down that “nothing... shall

37 R.C. Cooper vs. Union of India, AIR 1970 SC 564.

38 Bennett Coleman & Co., AIR 1973 SC 106.
39 Express Newspapers Ltd. AIR 1958 SC 578 at 620.
40 Maneka Gandhi, AIR 1978 SC 597 at 635 pet Bhagwati J. and at 614 pr Chandrachud J.
41 Bennett Coleman & Co.. AIR 1973 SC 106 at 119.
 affect the operation of any existing law, or prevent the State from

making any law relating to libel, slander, defamation, sedition or any

other matter which offends against decency or morality, or undermines

the security of, or tends to overthrow the State.” This forbade any

limitation on the right of free speech and expression, except on the

grounds of inalienable minimal interest in social harmony, accepted

norms of morality, or state security. In the early decisions of the

Cross Roads42 and the Organiser43 the clause “matter which ...

undermines the security of, or tends to overthrow the State” was very

restrictively interests of the public safety and public order. The

Supreme Court, through Sastri J., held that the citizens freedom of

speech and expression could not be restricted for the purpose of

securing public security or the maintenance of public order. It could

be restricted only to avert the aggravated forms of public disorder

which were calculated to endanger the security of state or overthrow

the established order. Nothing less than an imminent threat to the

foundation? of the state and the established legal order could provide a

justification for regulation of the freedom of speech and expression.

42 Romesh Thapper vs. State of Madras, AIR 1950 SC 124.

43 Brij Bhushan vs. Slate of Delhi, AIR 1959 SC 129.
 In M.R.F. Ltd. Vs. Inspector Kerala Government44 the

following principles on the reasonableness of restrictions imposed

upon the Fundamental Rights available under Article 19 have been

laid down on a conspectus of various decisions of the Supreme Court:

(1) While considering the reasonableness of the

restrictions, the Court has to keep in mind the Directive Principles of

State Policy, (2)Restrictions must not be arbitrary or of an excessive

nature so as to go beyond the requirement of the interest of the general

public. (3) In order to judge the reasonableness of the restrictions, no

abstract or general pattern or a fixed principle can be laid down so as

to be of universal application and the same will vary from ease to case

as also with regard to changing conditions, values of human life,

social philosophy of the Constitution, prevailing conditions and the

surrounding circumstances. (4)A just balance has to be struck between

the restrictions imposed and the social control envisaged by Clause (6)

of Article 19 of the Constitution. (5) Prevailing social values as also

social needs which are intended to be satisfied45. (6) There must be a

direct and proximate nexus or a reasonable connection between the

restrictions and the object sought to be achieved. If there is a direct

nexus between the restrictions and the object of the Act, then a strong

44 (1998) 8 SCC 227.

45 See State of UP vs. Kaushailiya AIR 1964 SC 416; (1964)4 SCR 1002.
 113

presumption in favour of the constitutionality of the Act will naturally

arise 46 .
•

In the Narendra Kumar case47 the Court laid down. "In

applying the test of reasonableness, the Court has to consider the

question in the background of the facts and circumstances under which

the order was made, taking into account the nature of the evil sought

to be remedied by such law, the ratio of the harm caused to individual

citizens by the proposed remedy to the beneficial effect reasonably

expected to result to the general public. It will be necessary to

consider... whether the restraint caused by the law is more than

necessary in the interest of the general public". The Supreme Court

further explained the interpretation of the expression ‘reasonable

restriction’ in Shree Meenakshi Mills Ltd. Vs. Union of India •4S .

The expression ‘reasonable restrictions’ has introduced

the doctrine of judicial review. The Supreme Court laid down, “The

determination by the legislature of what constitutes a reasonable

restriction is not final or conclusive, it is subject to the supervision of

this Court. In the matter of fundamental rights, the Supreme Court

watches and guards the rights guaranteed by the Constitution and in

46 See Kavalappara Kottarathil Kochuni vs. States of Madras and Kerala, AIR 1960 SC 1080; O.K.
Ghosh vs. E.X. Joseph AIR 1963 SC 812.
47 AIR 1960 SC 430
48 (1974) 1 SCC 468.
 114

exercising its functions it has the power to set aside an Act of the

legislature if it is in violation of the freedoms guaranteed by the

Constitution”49. The Court also observed, "Legislation which

arbitrarily or excessively invades the right cannot be said to contain

the quality of reasonableness and unless it strikes a proper balance

between the freedom guaranteed in Article 19(1) (g) and the social

control permitted by Clause (6) of Article 19, it must be held to be

wanting in that quality”50.

If in a particular case, the petitioner claims more than one

fundamental rights guaranteed by Article 19, the validity of the

legislation must be considered from the point of view of restrictions

under all those rights. In determining the reasonableness, the Court

looked not only to the surrounding circumstances, but also to other

laws which were passed as a part of a single scheme. If the restriction

in one law was offset by countervailing advantage contained in

another law forming a part of the same legislative scheme the

restriction would be reasonable. The courts have taken into account

the directive principles of State Policy in determining reasonableness

of restrictions51. Reasonableness of restrictions is to be considered

49 Chintamanrao vs. State ofM.P., AIR 1951 SC 118-20: 1950 SCR 759.
50 Id., at 119.
51 State of Bombay vs. F.N. Balsara, AIR 1951 SC 318; M.II. Qureshi vs. State of Bihar, AIR 1958
SC 731.
 from the point of view of the general public and not from the point of

view of the person upon whom restrictions are imposed. The

restrictions must be reasonable both from the stand-point of

substantive as well as procedural law. The restrictions must not be

excessive. The Courts have adopted the principle of natural justice in

determining reasonableness or otherwise of restrictions. It is to be

noted that a decision dealing with the validity of restrictions imposed

on one of the rights conferred by Article 19(1) cannot have much

value as a precedent for adjudging the validity of the restrictions

imposed on another right, even when the constitutional criterion is the

same, namely reasonableness, as the conclusion must depend upon the

cumulative effect of the varying facts and circumstances of each

case52.

The power of the Government to limit human liberty must

itself be limited, as also the right of the individual to enjoy his liberty.

In absence of any such provisions, personal liberty might itself be put

in jeopardy. When the Government restricts individual liberty, no

doubt it results in the curtailment thereof. But. in the absence of such

an action on the part of Government, individual liberty itself might

come to an end by the actions of anti-social persons. Hence, a

reconciliation of the two is very necessary. In the United States of

52 State of Madras vs. V.G. Row, AIR 1952 SC 196.

 116

America, the Amendments guarantee Fundamental Rights. But, there

is no specific provision in the Constitution enabling the Government

to restrict these rights. Hence, the Supreme Court of the U.S.A.

invented the doctrine of ‘Police Power’ for bringing about the

essential reconciliation. The Supreme Court of America observed,

“The liberty of the individual to do as he pleases, even in innocent

matters, is not absolute. It must frequently yield to the common

good”53.

‘Police Power’ is the right of the legislature to pass such

legislation as in necessary in furtherance of security, morality and

general welfare of the community, except in cases where it is

expressly prohibited from exercising it, by the Constitution. The

American Supreme Court laid down, “It (Police Power) extends not

only to regulations which promote the public health, morals and

safety, but to those which promote the public convenience or the

general prosperity. It is the most essential of the power, at times most

insistent, and always one of the least limitable of the powers of the

government”54. Mr. Justice Holmes who described ‘Police Power’ as

one of the apologetic phrases of American constitutional law,

remarked, “It be said in a general way that the Police Power extends

53 Adkins vs. Children ’s Hospital, 261 US 525: 671L Ed 785 (1923).

54 Eubank vs. Richmund, 226 US 137.
 117

to all the great public needs”5S. The doctrine of ‘Police Power' is

based on the theory that the State is armed with an inherent authority

to protect public health, safety and morals. It is the power of the

people exercised through the State Governments to restrain an

individual in the interest of the public. The introduction of this

doctrine was necessitated, it is said, in U.S.A. on account of the very

liberal interpretation of the ‘due process’ clause, Justice Patanjali

Sastri of the Supreme Court of India said. “When that power

(legislative power) was threatened with prostration by the excesses of

due process, the equally vague and expansive doctrine of ‘Police

Powers’, i.e., the power of the Government to regulate private rights

in public interest, was evolved to counteract such excesses”36. Das, J.

(later C.J.) also remarked that the content of the ‘due process of law’

had to be narrowed down by the enunciation and application of the

new doctrine of ‘Police Power’ as an antidote or palliative to that

power. With great respect to their Lordships, it is submitted that the

doctrine of ‘Police Power’ was not evolved merely to counteract the

consequences of the ‘due process’ clause. The absence of any power

in the legislature to restrict the Fundamental Rights was the efficient

cause of the birth of this doctrine.

55 Noble State vs. Haskell, 219 US 104.

56 A.K. Gopalan vs. State of Madras, AIR 1950 SC 27.
 118

The framers of the Indian Constitution were standing on

the shoulders of the founding fathers of the American Constitution.

They were benefited to a great extent by the working of the

Constitution of the U.S.A. Hence, they did not frame fundamental

rights in absolute terms, leaving it to the judiciary to invent the

doctrine of ‘Police Power’ for bringing about social control. Dr.

Ambedkar explained the underlying principle in his speech made in

the Constituent Assembly on November 4, 1948, in these words:

“What the draft Constitution has done is that instead of formulating

fundamental rights in absolute terms and depending upon our Supreme

Court to come to the rescue of Parliament by inventing the doctrine of

Police Power, it promise that State directly to impose limitations upon

the Fundamental Rights. There is a greater element of certainty about

the Indian Constitution on account of the mention of the specific

heads in clauses (2) to (6) of Article 19, which delimit the scope and

extent of restrictions on the Fundamental Rights. Thus, the danger of

vagueness and variety of views that may be held by individual judges

in the field of restrictions on individual freedom is much minimized in

the Indian Constitution. The Constitution of U.S.A. suffers in this

respect from vagueness. This is a very important point of distinction

between the Constitution of the United States of America and that of

India. This gave Indian Constitution a far more certainty than the
 119

American Constitution. There is another point of distinction to be

noted in this behalf. The American Constitution is based on the

doctrine of ‘separation of powers’. But there is no rigid ‘separation of

powers’ in the Indian Constitution. These differences naturally lead

to the conclusion that the decisions of the American Supreme Court

should not be blindly followed in interpreting the Indian Constitution.

Moreover social conditions and habits of the people are different .

The first Amendment of the American Constitution

contains no exceptions like Article 19(1) and (2) of our Constitution.

Therefore, American decisions have evolved their own exceptions38.

The difference between the First Amendment and Article 19(1) (a)

was noted by the U.S. Supreme Court59.

In Express Newspapers60, it was observed that the

fundamental right to the freedom of speech and expression in Article

19(l)(a) is based on the provisions of the First Amendment of the

Constitution of the United States of America and it would be

therefore legitimate and proper to refer to the decisions of the

Supreme Court of U.S. in interpreting Article 19(l)(a). In the

subsequent decisions of the Supreme Court it has been held that

57 Pathumma vs. State of Kerala, (1978) 2 SCC 1.
58 Bennett Coleman & Co., AIR 1973 SC 106.
59 Kingsley International Pictures vs. Regents, 2L.E.D. 2d; 1512 at 1522. this decision has been
noticed in Abba’s case at p.494 of AIR 1971 SC 48, 1000, 17.
60 AIR 1958 SC 578 at 615. Similar view has been taken by Mathew J. in this discussing judgement
in Bennett Coleman, AIR 1973 SC 106 at 137.
 American decisions are inapplicable and are not useful for resolving

questions arising under Article 19(l)(a)61. Indeed, the decisions of the

U.S. Supreme Court would hardly be fruitful and it would be

misleading to construe Articles 19(l)(a) and 19(2) in the light of

American decisions given in a different context .

The American doctrine of clear and present danger has

not been accepted by the Supreme Court on the ground that the

framework of our Constitution is different from that of the

Constitution of the United States63.

Clause (2) of Article 19 contains the following grounds

on which restrictions on the freedom of speech and expression can be

imposed:-

(a) Security of the State.

(b) Friendly Relations with foreign States.

(c) Public Order.

(d) Decency or Morality.

(e) Contempt of Court.

(f) Defamation.
(g) Incitement of an offence

61 Kameshwar Prasad, AIR 1962 SC 1166 at 1170.

62 Santosh Singh, AIR 1973 SC 1094. It is strange that the decision in Express Newspapere was not
cited or referred to in this case in Kameshwar Prasad f.n. 31.
63 Babulal Parate vs. State of Maharashtra, AIR 1961 SC 884 at 890.
 121

(h) Sovereignty and integrity of India.

A look at the grounds contained in Article 19(2) goes to

show that they are all conceived in the national interest of the society.

The first set of grounds, viz., the sovereignty and integrity of India,

the security of the State, friendly relations with foreign States and

public order - are all grounds referable to national interest; whereas,

the second set of grounds, viz. decency, morality, contempt of Court,

defamation and incitement to offence are all conceived in the interest

of the society64.

(b) Security of the State

Under Clause (2) of Article treasonable restrictions can

be imposed on freedom of speech and expression in the interest of

security of the State. The Supreme Court has lucidly explained the

effect of the clause “in the interest of’ in O.K. Ghosh vs. E.X. Joseph

as follows:

“This clause again cannot be interpreted to mean that

even if the connection between the restriction and the public order is

remote and indirect, the restriction can be said to be in the interests of

public order. A restriction can be said to be in the interests of public

order only if the connection between the restriction and the public

M M.P. Jain, Indian Constitutional Law, Fifth Edition, 2004, p.1009.

 order is proximate and direct. Indirect or far-fetched or unreal

connection between the restriction and public order would not fail

within the purview of the expression ‘in the interests of public

order’65”.

In Ramesh Thapper vs. State of Madras66, the Supreme

Court has occasion to interpret the meaning of the words ‘security of

the State’. The Court said that there are different grades of offences

against ‘public order’. Every public disorder cannot amount to be

regarded as threatening the security of the State. The term ‘security

of the State’ refers only to serious and aggravated forms of public

disorder, e.g., rebellion, waging war against the State, insurrection

and not ordinary breaches of public order and public safety, e.g.,

unlawful assembly, riot, affray. Thus speeches or expression on the

part of an individual which incite to or encourage the commission of

violent crimes, such as, murder are matters which would undermine

the security of the State67.

The words “in the interests of’ before the words “security

of the State” clearly imply that the actual result of the act is

immaterial. Thus acts which may indirectly bring about an overthrow

of the State would come within the expression. An incitement to an

65 AIR 1962 SC 814: 1962 Supp (2) SCR 571.

66 AIR 1950 SC 124.
67 Siate of Bihar vs. Shailbala Devi, AIR 1952 SC 329.
 123

armed revolution, though infructuous. ultimately, is enough to attract

the term “security of the State”

(c) Friendly Relation with Foreign States

This ground was added by the Constitution (1st

Amendment) Act, 1951. The object behind imposing restrictions on

the freedom of speech in the interests of friendly relations with a

foreign country is that persistent and malicious propaganda against a

foreign power having friendly relations with India may cause

considerable embarrassment to India, and, accordingly, indulging in

such a propaganda may be prohibited. The ground, however, is of

broad import and is susceptible of supporting legislation wl^

even restrict legitimate criticism of the foreign pp

Government of India.

Under Article 367(3), a foreign State mean^K4Kf3^te

other than India. The President, however, may, subject to any law

made by Parliament, by order declare any State not to be a foreign

State for such purposes as may be specified in order. The

Constitution (Declaration as to Foreign State) Order, 1950, directs that

a Commonwealth country is not to be a foreign State for the purposes

of the Constitution.
 124

The question, therefore, arises whether a restriction can

be imposed on the freedom of speech on the ground of its being

prejudicial to a Commonwealth country. The Supreme Court has

stated in Jagan Nath vs. Union of India68 that a country may not be

regarded as a foreign State for the purpose of the Constitution, but

may be regarded as a foreign power for other purposes. The affairs

amongst the Commonwealth countries are foreign affairs and they are

foreign powers in relation to each other. Therefore, a Commonwealth

country is a foreign country for purposes of Article 19(2).

(d) Public Order

The expression “public order” is synonymous with public

safety and tranquility. It is the absence of disorder or internal

disturbance, but not disruptive in dimensions. Instigation to civil law

break; non-violent disobedience; satyagraha is not breaking public

order69. It does not have a wider connotation. It means the orderly

state or society or community in which citizen can peacefully pursue

their normal activities. It is equated with public peace and safety. In

its comprehensive sense it includes public safety, public security and

maintenance of law and order. It is descriptive of absence of disorder

involving breaches of peace, safety and tranquility. However, the

68 AIR I960 SC 675 (1960) 2 SCR 942.

69 The Superintendent Central Prison vs. Ram Manohar Lohia, AIR 1960 SC 633.
 125

expression has been taken to bear a narrower connotation. In the

Cross Roads Sastri J. distinguished it from breaches of peace,

tranquility and public security. It was held to signify a state of

tranquility prevailing among members of the political society as a

result of the internal regulations enforced by the Government which

the society had instituted. Any ordinary, or local disorder, or

disturbance or stray breach of law and order was not an immediate

threat to the public order. Public safety simpliciter could be said to be

a head of public order. But, public order could not be equated with

public security either. Therefore, it was observed fhat in the absence

of the expression ‘public order’ in Clause (2) as originally enacted the

freedom of speech and expression could not be restricted in the

interests of public order. This view led to the amendment of Clause

(2) which inserted the expression in it. The amendment seems to have

settled that the concept of “public order” is different form, and

exclusive of public security. It can be postulated that “public order”

is not synonymous with public peace, safety and tranquility70. It is not

the same as law and order either. The difference lies not merely in the

nature and quality of the speech act, but in its degree and extent. A

speech made at a given time and place to an indifferent audience may

70 See O.K. Ghosh vs. Joseph. AIR 1963 SC 612: Superintendent Central Prison vs. Ram Manohar
Lohia, AIR 1960 SC 633: Nek Mohammed vs. Province of Bihar, AIR 1961Patna (5).
 126

cause a slight tremor, the wave length of which does not out reach the

parameters of law and order. But, a similar oration in different

context and circumstances may unleash a tidal wave of such intensity,

gravity and magnitude that its impact throws out of gear the even flow

of public order71.

In Kishori Mohan vs. State of W.B.72, the Supreme Court

explained the differences between three concepts: law and order,

public order, security of State. The difference between these

concepts, the Court said, can be explained by three functional

concentric circles, the largest representing law and order, the next

public order, and the smallest, the security of the State. Every

infraction of law must necessarily affect law and order but not

necessarily public order and an act may effect public order but not

necessarily security of the State and an act may fall under two

concepts at the same time affecting public order and security of the

State. One act may affect individual in which case it would affect law

and order while another act though of a similar kind may have such an

impact that it would disturb even the tempo of the life of the

community in which case it would be said to affect public order, the

test being the potentiality of the act in question.

71 Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740.

7: AIR 1973 SC 1749; Dr. Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740.
 127

The words ‘in the interest of public order' include not

only such utterances as are directly intended to lead to disorder but

also that have the tendency to lead to disorder. Thus a law punishing

utterances made with deliberate intention to hurt the religious feelings

of any class of persons is valid because it imposes a restriction on the

right of free speech in the interest of public order since such speech or

writing has the tendency to create public disorder even if in some case

those activities may not actually lead to a breach of peace J. But there

must be reasonable and proper nexus or relationship between the

restriction and the achievement of public order. In Superintendent,

Central Prison vs. Ram Manohar Lohia , Section 3 of U.P. Special

Powers Act, 1932, which punished a person if he incited a single

person not to pay or defer the payment of Government dues was held

to be invalid because there was no proximate nexus between the

speech and public order. The Court said that fundamental right cannot

be controlled on such ‘hypothetical and imaginary considerations'.

The Court rejected the argument that instigation of a single individual

not to pay tax would itself destroy public order.

73 Ramjilal Modi vs. State of U.P., AIR 1957 SC 622. See also Ramjilal Modi vs. State of U.P., AIR
1959 SC 620.
74 AIR 1960 SC 633.
 128

(e) Decency and Morality

Clause (2) of Article 19 expressly authorizes the

legislature to impose reasonable restrictions on the ground of

“decency” or “morality”. The word ‘obscenity’ of English law is

identical with the word ‘indecency’ under the Indian Constitution.

The words ‘indecent’ and ‘obscenity’ are used in the English statutes

in the same sense, such as Obscene Publications Act, 1959; Indecent

Advertisements Act. Though both the words are used synonymously,

there is a difference in degree between the two expressions75. The

English Court says “indecent is at the lower end of the scale and

obscene at the upper end of the scale.... an indecent article is not

necessarily obscene, whereas an obscene article must almost certainly

be indecent” . The correct interpretation, according to the legal

meaning of the two words, is that obscenity is a graver form of

indecency.

According to the Oxford Dictionary obscenity means

“offensive to modesty or decency; expressing or suggesting unchaste

or lustful ideas, impure, indecent lewd”, etc.

75
R. V Stanley^ (1965) 1 All ER 1035 (1038).
76
Ibid.
 129

In Sukanta Haider vs. The State77, Mr. Justice R.P.

Mookherjee says: The idea as to what is to be deemed to be

obscene has varied from age to age, from region to region, dependent

upon particular social conditions. There cannot be an immutable

standard of moral values”. There is hardly a country in the world that

has succeeded in defining obscenity.

The concept of obscenity would not only vary from

individual to individual but it would also vary from community to

community and in the same community from one place to another.

What is obscene to a community would ultimately be determined by

the attitude of the society, in a particular period. What has been

condemned as obscene by one community has been appreciated as a

masterpiece of literary work by the same community in a later period

or by another community at the same time. The classic illustration of

this could be found in the reaction of English and French communities

to Emile Zola’s La Terre. Just at the time Vizetelly, the publisher of

La Terre, was convicted and sentenced by an English Court for having

publishing the novel, Zola was awarded membership of the Legion of

Honour by the French Government. Seven years later, Zola was

honoured by Literacy London.

77 AIR 1952 Cal. 214.

 130

Coke’s justice works of the early seventeenth century do

not contain any mention of law relating to obscenity. “It appears that

the offence was not known to common law. Until 1727, all obscene

offences were treated as being under the jurisdiction of the

Ecclesiastical Courts. It was only at the end of the eighteenth century

that the Common Law Courts took over the jurisdiction of the

Ecclesiastical Courts and the new offence of ‘obscene libel’ was

created at Common Law”78.

In India, the scope of indecency or obscenity under the

existing law is illustrated in Section 292 to 294 of the Indian Penal

Code. These sections prohibit the sale or distribute or exhibition of

obscene matter or the doing or obscene acts or singing of obscene

songs or uttering obscene words, etc., in public places. Books,

pamphlets, writings or paintings used for bonafide religious purposes

or paintings in any temple are exceptions to Section 292. Although

the Indian penal Code prohibits and punishes the test to determine

obscenity. In Ranjit D. Udeshi vs. State of Maharashtra 9 the

Supreme Court accepted the test laid down in the English case R. V.
Qf\

Hicklin to judge the obscenity matter. That test runs as follows:

“The test of obscenity is this, whether the tendency of the matter

78 Ibid., p.iii.
79 AIR. 1965 SC SSI.
80 (1868) L.R. 3 Q. 13,360.
 131

charged as obscenity is to deprive and corrupt those whose minds are

open to such immoral influences, and into whose hands a publication

of this sort may fall”81. The question whether Section 292 of I.P.C. is

consistent with Article 19(1) (a) of the Constitution and what is

obscene were discussed in detail by the Supreme Court in the Udeshi

case. Inthis the book Lady Chatterley’s Lover written by D.H.

Lawrence was held to be obscene. It was argued by the publisher that

Section 292 violated the right to free speech guaranteed under Article

19(1) (a) of the Constitution. This argument was rejected by the

Court.

The Supreme Court in Udeshi case has followed Hiclin's

test and modified the test in certain respects. Mr. Justice

Hidayatullah, who wrote the judgment, found Lady Chatterley’s Lover

obscene “ass it treated sex in a manner offensive to public decency

and morality judged of by our national standards and considered likely

to pander to lascivious prunient or sexually precocious minds”. He

emphasized first the need to take into account the book charged as a

whole and not certain pages in isolation with a view to gather the

central theme and over all effect of the book. Secondly, he asserted

that if the book charged has some redeeming feature such as

outstanding literary or social value may escape the judicial

81
Ibid., p.378.
 132

censorship. Third aspect he took into account was the contemporary

community standards which should be taken into account in order to

judge the value and character of a book.

In Samaresh Bose vs. Amal Mitra,32 the Supreme Court

considered and rejected the charge of obscenity against a novel titled

Prajapati written by a well known writer. The Court held that, the

book which was intended to expose various evils and ills pervading

society cannot be said to be obscene only because slang and

unconventional words have been used, in which there is an emphasis

on sex and description of the female body. The Court explained that,

“Some portions of the book may appear to be vulgar and readers of

cultured and refined taste may feel shocked and disgusted”, but that

was not the test of obscenity. The Court distinguished between vulgar

and the obscene and said that what is vulgar does not necessarily

corrupt the morals but the obscenity does. The Court says, “in our

opinion, in judging the question of obscenity', the judge in the first

place should try to place himself in the position of the author and from

the view point of the author the judge should try to understand what is

it that the author seeks to convey and what the author conveys has

literary and artistic value”83.

82 AIR. 1986 SC 967.

83 Ibid., p.98'1.
 133

Kakodkar84, and Samaresh Bose%s show that “Indian Law

is liberalizing itself and liberating free speech from the coils of

elderly allergy to sex scenaros”86. In spite of liberal interpretation,

the Supreme Court was unable to give a clear and precise definition of

obscenity. The Court is the best judge of what is obscene and what is

not. Application of Hicklin’s test is left to the whims and prejudices

of a judge.

Samaresh Bose case illustrates how different judges can

form different opinions on the same subject. While the High Court

Judge thought that the description of the female anatomy offered as

literature for the general public remained obscene, the Supreme Court

Judge did not think so. What the High Court considered obscene the

Supreme Court found merely vulgar and in bad taste, but not obscene.

Therefore, there is a need to formulate some new criteria in the light

of which obscenity of a book may be ascertained. A balance should

be maintained between freedom of speech and expression and public

decency and morality but when the latter is substantially transgressed

DO

the former must give way .

84 AIR 1970 SC 1390; (1970) 2 SCJ 217.

85 AIR 1986 SC 967.
86 Krishna Iyer, V.R., “The Jurisprudence of Obscenity”, The Lawyers, October 89, p.27.
87 AIR 1986 SC 967.
88 Udeshi vs. State of Maharashtra, AIR 1965 SC 88.
 134

In Ramesh Prabhoo,89 the Supreme Court has given

somewhat wider meaning to the term ‘decency’ and ‘morality’. The

Court has maintained that ‘decency’ or ‘morality’ is not confined to

sexual morality alone. The ordinary dictionary meaning of ‘decency’

indicates that the action must be in conformity with the current

standards of behaviour or propriety. The Court has cited with

approval the following observation from an English case90:

“..... Indecency is not confined to sexual

indecency; indeed it is difficult to find any
limit short of saying that it includes anything
which an ordinary decent man or woman
would fine to be shocking, disgusting and
revolting....”

Accordingly, the Court has ruled that in a secular society .,

the requirement of correct behaviour or propriety is that a candidate at

an election should not make an appeal for votes in the name of his

religion. Seeking of votes at an election on the ground of the

candidate’s religion in a secular state is against the norms of decency

and propriety of the society and a statutory provision declaring this as

a corrupt practice is constitutionally valid.

89 Dr. Ramesh Yeshwant Prabhoo vs. Prabhakar Kashinath Kunte, AIR 1996 SC 1113: (1996) SCC
130.
90 Knuller (Publishing, Printing and Promotions) Ltd Vs. Director of Public Prosecutions, (1972) 2
All ER 898.

**>
 135

(f) Contempt of Court

‘Contempt of Court’ is another category that entitles the

State to restrict the right to freedom of speech and expression. Such a

provision is necessary in order to enable the judiciary to function

effectively without fear or favour. However, it does not mean that a

fair and reasonable criticism of the judgments of Courts will not be

permissible. Lord Russell or Killowen, C.J. said in one case, ’’Judges

and Courts are alike open to criticism and if reasonable argument or

expostulation is offered against any judicial act as contrary to law or

public good, no Court would treat this as contempt of Court”91.

The Supreme Court of India in Barada Kanta case

explained the concept of the contempt of Court as follows, “Contempt

of Court is disobedience to the Court, by acting in opposition to the

authority, justice and dignity thereof. It signifies a willful disregard

to disobedience of the Court’s order, it also signifies such conduct as

tends to bring the authority of the Court and administration of justice

into disrepute”92. Warren, C.J. of the American Supreme Court

observed in the Wood case that “The right of Courts to conduct their

business in an untrammeled way lies at the foundation of our system

91 R. V Gray (1900) 2 QB 36,40.
92 Barada Kanta Mishra vs. Bhimsen Dixit, (1973) 1 SCC 446. for the law a contempt of Court in
United States of America see Bridges vs. California, 314 US 252 (1941) 86 L Ed 192, Times Mirror
Co. vs. Superior Court, 15 Cal (2“*) 99; Wood v. Georgia, 370 US 375 (1962): 8 L ed 2d 569; Craig v.
Harney, 331 US 367: 91 L Ed 1546 (1947); Pennekamp vs. Florida, 328 US 331; 90 L Ed 1295
(1946).
 136

of government and Courts necessarily must posses the means for

punishing for contempt to discharge their functions”. But in another

case the Court also observed that the law of contempt is not made for

the protection of judges who may be sensitive to the winds of public

opinion. Judges are supposed to be men of fortitude, able to thrive in

a hardy climate. Frankfurter, J. observed that judges are supposed to

be made of sterner stuff than to be influenced by irresponsible

statements made regarding pending cases.

The Supreme Court also laid down93 that “viliflcatory

criticism of a judge functioning as a judge even in purely

administrative or non-adjudicatory matters amounts to criminal

contempt. There is no warrant for the narrow view that the offence of

scandalisation of the Court takes place only when the imputation has

reference to the adjudicatory functions of a judge in the seat of

justice”. The Court also observed that “the right of appeal does not

give the right to commit contempt of Court, nor can it be used to bring

the authority of the High Court into disrepute and disregard. If the

language used amounts to contempt of Court it will become

punishable as criminal contempt”. The Supreme Court made a

93 Barada Kanta Mishra vs. Registrar of Orissa High Court, (1974) 1 SCC 374. See also Brahma
Prakash vs. State of U.P., AIR 1954 SC 10; Times of India vs.Aswini Kumar Ghose, AIR 1953 SC 75;
1953 SCR 215; Hira Lai Dixit vs. State ofU.P., AIR 1954 SC 743; E.M.S. Namboodripadvs. T.N.
Nambiar, (1970) 2 SCC 325; AIR 1970 SC 2015.
 137

distinction between a mere libel or defamation of a judge and a

contempt of Court and laid down a test. The test would be whether

the impugned publication is a mere defamatory attack on the judge or

whether it is calculated to interfere with the due course of justice or

proper administration of law by the Court... Alternatively the test will

be whether the wrong is done to the judge personally or it is done to

the public”94.

The Contempt of Court Act, 1971, defines the expression

‘Contempt of Court’ as follows: According to Section 2, ‘Contempt of

Court’ may be either ‘civil contempt’ or ‘criminal contempt’. ‘Civil

contempt’ means of a Court or willful breach of an undertaking given

to a Court. ‘Criminal contempt’ means the publication (whether by

words spoken or written, or by signs or by visible representations or

otherwise) or any matter or the doing of any other act whatsoever,

which -

(i) scandalizes or tends to scandalize, or lowers or tends to lower

the authority of any Court;

(ii) prejudices, or interferes or tends to interfere with the due

course of any judicial proceedings; or

94 Perspective Publications^) Ltd. Fs. State of Maharashtra, (1969) 2 SCR 799 as quoted in Gobind
Ram vs. State of Maharashtra, (WIT) t SCC 740; 1972 SCC (Cri) 446; AIR 1957 SC 989.
 138

(iii) interferes or tends to interfere with, or obstructs or tends to

obstruct, the administration of justice in any other manner.

The following acts are, however, not contempt of Courts:-

(a) Innocent publication and distribution of any matter;

(b) Publication of fair and accurate report of judicial proceedings;

(c) Fair criticism of judicial act;

(d) Complaint against Presiding Officers made in good faith;

(e) Publication of fair information relating to proceedings in

chambers or in camera.

Under the Act, contempt of Court is punishable with

simple imprisonment for a term of 6 months, or with fine which may

extend to Rs.2,000, or with both.

A judge, magistrate or any person acting judicially shall

also be liable for contempt of his Court in the same manner as any

other individual is liable under this Act. This, judges have no general

immunity from criticism of their judicial conduct provided it is made

in good faith and is a fair criticism of his judicial act.

The terminology used in the definition is borrowed from

the English law of contempt and embodies concepts which are familiar

to that law which by and large, was applied in India. The expressions
 139

“scandalize”, “lowering the authority of the Court”, “interference”,

“obstruction” and “administration of justice” are therefore to be

understood by our Courts with the aid of English law.

The Supreme Court has observed recently on the question

of contempt of Court:

“We wish to emphasise that under the cover of freedom of

speech and expression no party can be given a licence to misrepresent

the proceedings and orders of the Court and deliberately paint an

absolutely wrong and incomplete picture which has the tendency to

scandalize the Court and bring it into dispute or ridicule....Indeed,

freedom of speech and expression is “life blood of democracy” but

this freedom is subject to certain qualifications. An offence of

scandalizing the Court per se is one such qualification”95.

(g) Defamation

The Freedom of Speech and expression can not be used to

transgress the law relating to defamation. The word “defamation”

covers both the crime and the tort and in Article 19(2) it means the

entire law of defamation, civil and criminal. Every person possesses a

right to his reputation and therefore no body can so use his freedom of

speech and expression as to injure another’s reputation. Section 499

,s .Yarmada Bachao Andolcm vs Union of India, AIR 1999 SC 3345, 3347: (1999) 8 SCC 308. Also
see. In re: D.C. Saxena, AIR 1996 SC 2481: (1996) 5 SCC 216.
 140

of the Indian penal Code, 1860 defines the offence of defamation. It

recognizes no distinction between defamatory statement addressed to

the ear or eyes and thus includes both slander and libel. Defamatory

matter put in writing is a libel while in spoken words or gestures, it

amounts to slander.

Law regards man’s reputation as his property.

Defamation is a wrong done by a person to another’s reputation. The

law of defamation consists of two aspects: (i) Civil, and (ii) Criminal.

The civil aspect is abased on the English Common Law, while the

criminal aspect is covered by Sections 499 and 500 of the Indian Penal

Code. The Constitution has rightly saved the law of defamation. For,

every one must have the security of enjoying his reputation and fair

name, it may be noted here that the two words ‘slander and libel’

were replaced by the single word ‘defamation’ by the first

amendment.

Defamation is to be considered under two heads,

defamation of a public servant and of a private citizen. When a

private person is defamed, following rules are to be followed in

awarding damages according to the Supreme Court of the U.S.A. (1)

The first amendment frees the press from liability to other persons

when there is neither negligence nor more serious fault. (2) The
 141

States are free to impose liability for defamation of a private person if

the publisher or the broadcaster is at fault. (3) Damages may be

awarded to compensate for actual injury, but punitive damages will

not be allowed unless the statements were intentionally or recklessly

false. Actual injury includes, impairment of standing in the

community, personal humiliation and mental suffering. Injury must

be proved96. In a case of defamation of a public official, the Supreme

Court laid down. ‘The State is barred from awarding a public official

damages for a defamatory falsehood, relating to official conduct

unless the falsehood is published with knowledge of its falsity or with

reckless disregard whether it is true or false97. But in subsequent

cases, the Court modified its stand and yielded to more cautious

weighing and balancing based chiefly upon concern for the individuals

interest in freedom from false exposure to public scandal98. The cause

of action for defamation does not survive the death of the person

alleged to be guilty of defamation99.

96 Gretz vs. Robert Welch Inc., 418 US 323 (1974). See also Hutchinson vs. Proximere, 443 US 111
(1979).
97 Xew York Time Co. vs. Sullivan, 379 US 254 (1964); Landmark Communication Inc. vs. Virginia.
435 US 829 (1978).
98 Sloniter Patriot Co. vs. Roy, 401 US 265 (1971); Rosenbloom vs. Metromedia Inc., 403 US 29
(1971).
99 Male Purath vs. Thakiuil, (1986) 1 SCC 118: AIR 1986 SC 411.
 142

(h) Incitement to an Offence

This ground was added by the Constitution (First

Amendment) Act, 1951. Obviously, freedom of speech and expression

cannot confer a licence to incite people to commit offence. The word

‘offence’ used here is not defined in the Constitution. It is, however,

defined in the General Clauses Act as meaning “Offence shall mean

any act or omission made punishable by any law for the time being in

force". What constitutes incitement will, however, have to be

determined by the Court with reference to the facts and circumstances

of each case.

What would amount to an incitement would be a question

of fact and will have to be decided in each and every case by the

Courts. The Courts, it is expected, will always take into consideration

the condition of the contemporary society. The following

observations of Lord Sumner are appropriate in this context: “The

words, as well as the acts which tend to endanger society differ from

time to time in proportion as society is stable or insecure in fact, or is

believed by its reasonable members to be open to assault. After all

the question whether a given opinion is a danger to society is a

question of times and is a question of fact”100. The Terrorist and

100 Bowman vs. Secular Society Ltd., (1917), AC 406,466-467.

 143

Disruptive Activities (Prevention) Act, 1987, provides punishment for

inciting any person(s) to commit terrorist and disruptive activities.

No citizen can advocate, incite or advise carrying on disruptive

activities, or any cessionist or secessionist activities. He can be

punished for giving any call inciting killings of persons engaged in

discharge of public duties or peaceful citizens in general. He cannot

be permitted to cause dissatisfaction in any section of population

against the State and the Central Governments, or to cause fear in any

section of population so or to cause fear and disruption. The National

Honour Act, 1971, provides punishment for inciting any person to do

dishonour to the Tri-colour (National Flag), the National Anthem, and

the Constitution.

If the liberty of a citizen is curtailed in respect of his

freedom of speech, it must be shown that the law under which this is

done falls within the four comers of any of the above heads of

restrictions. Where a citizen preached non-violent disobedience

asking the peasants not to pay an irrigation rate without in any way

committing any offence, the Court held that the citizen could not be

prevented from exercising his right of speech, and could not be

dissuaded from continuing with his campaign or non violent civil

disobedience. His detention ceukl apt operate as^a restriction for an

 144

ulterior purpose not recognized by Clause (2)101. A person convicted

and sentenced to death could not be prevented to write his autography,

hand it ever to his wife with instruction to pass it to his lawyer would

ensure that it was published. The authoritarian jail superintendent and

others could not be allowed to punish him simply because, they

apprehended their criticism and common electrography, to them1

The right secured by Article 19(1 )(a) must be taken to command the

broadest scope that the explicit language of the restrictive clause will

allow. Any indirect restriction of the right to freedom of speech under

a law otherwise valid cannot be permitted under a law not saved by

Clause(2) of Article 19.

(i) Integrity and Sovereignty of India

This ground was added to Clause (2) of Article 19 by the

Constitution (Sixteenth Amendment) Act, 1963. Under this clause

freedom of speech and expression can be restricted so as not to permit

to any one to challenge the integrity or sovereignty of India or to

preach cession of any part of India from the Union.

Sedition: As understood in English law, sedition embraces all those

practices whether by word, or writing which are calculated to disturb

the tranquility of the State and lead ignorant persons to subvert the

101 Ram Manohar Lohia vs. Superintendent, Central Jail, AIR 1960 SC 633.
102 R. Rajgopal vs. State ofT.N., AIR 1995 SC 264.
 145

Government103. Thus the gist to the offence of sedition is incitement

to violence. Mere criticism of the Government is no offence.

In India, Section 124-A of the Indian Penal Code, defines the offence

of sedition as follows: “Whoever by words either spoken or written, or

by signs, or by visible representation or otherwise brings or attempts

to bring into hatred or contempt or excite or attempts to excite

disaffection towards the Government established by law in India shall

be punished. “Explanation 3 to Section 124-A states that mere

comment expressing disappropriation of Government is no offence if

it does not excite or attempt to excite ‘disaffection towards

Government established by law’.

In Niharendra vs. Emperor,104 the Federal Court held that

mere criticism or even ridicule of the Government was no offence

unless it was calculated to undermine respect for the Government in

such a way as to make people cease to obey it an obey the law, so that

only anarchy can follow. Public disorder is the gist of the offence.

But the Privy Council overruled this decision and held that the offence

of sedition was not confined to only incitement to violence or

disorder.

IUJ R. vs. Salliven, (1868) 11 Cases 55.

104 AIR 1942 FC 22.
 146

It is to be noted that sedition is not mentioned in Clause

(2) of Article 19 as one of the grounds on which restriction on

freedom of speech and expression may be imposed. But it is has been

held in Devi Saren vs. State,105 that 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 Kedar Nath vs. State of

Bihar,106 the constitutional validity of Section 124-A, Indian Penal

Code was considered by the Supreme Court. The Court upheld the

view taken by the Federal Court in Niharendu ’s case, that the gist of

the offence of sedition is that the words written or spoken have

tendency or intention of creating public disorder and held the section

constitutionally valid.

(j) Freedom of Speech and Discipline in Civil Service

The Supreme Court has ruled in Devendrappa that

reasonable restrictions may have to be imposed on the freedom of

speech and expression in the interest of maintaining discipline in

public services, even though it may not have been mentioned as a

ground in Article 19(2).

105 AIR 1954 Pat. 254.

106 AIR 1952 SC 955.
107 AIR 1942 FC 22.
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The appellant, in the instant case, was the general

manager of the Karnataka Small Industries Development Corporation.

In a statement made to the press he made a direct attack on the head of

his organization. In a letter to the Governor, he made attacks on

several officials of the corporation. He was dismissed from service on

the ground that his conduct was clearly detrimental to the proper

functioning of the organization, or its internal discipline. He

challenged the service rules as well as his dismissal, but the Supreme

Court upheld both. He challenged his dismissal on the ground of

breach of his freedom of speech and expression, but the Court rejected

his plea.

The Court expressed the view that a service rule is made

to maintain discipline within the service and not to curtail the freedom

of speech. Rules of government service designed for proper discharge

of duties and obligations by government servants are not invalidated

under Article 19(l)(a) although such rules may, to some extent, curtail

or impose limitations on the Fundamental Rights of these persons.

Although freedom under Article 19(l)(a) applies to government

servants, it does not mean that the responsibility arising from official

position of government servants could not impose some limitations on

the exercise of their rights as citizens.

 148

The Court justified the service rules under Article 19(2).

These rules cannot be invalidated even if not justified under Article

19(2). On the question of interrelation of several freedoms guaranteed

by Article 19, the Court has observed that they “are not necessarily

and in all circumstances mutually supportive, although taken together

they weave a fabric of a free and equal democratic society”. Proper

exercise of rights may have, implicit in them, certain restrictions. The

rights must be harmoniously construed so that they are properly

promoted with the minimum of such implied and necessary

restrictions. Joining government service has, implicit in it, if not

explicitly so laid down, the observance of a certain code of conduct

necessary for the proper discharge of functions as a government

servant. This code cannot be flouted in the name of other freedoms.

Of course, the Courts have to be vigilant to ensure that the code is not

so widely framed as to unreasonably restrict fundamental freedoms.

“But a reasonable code designed to promote discipline and efficiency

can be enforced by the Government organization in the sense that

those who flout it can be subjected to disciplinary action”*08.

Though the power of the state in respect of the freedom of

speech and expression is limited in definitive terms of Clause (2), yet

its reach is long enough. Restriction can be placed not only for

108 Also see, under Balakothaiah case, infra.

 149

reasons connected with the stated heads of restrictions, but also ‘in the

interests of those purposes’. The reasonableness of restrictions

ensures that they are not unqualified, prohibitive, arbitrary,

discriminative, or penal. There must be an element of reason,

intelligent care and policy deliberation in their imposition. It implies

proportion and objectivity, and a choice of course which is rationally

supportable, and is dictated by reason109.

In the United States of America, the freedom of

expression has been given preferred position in the judgments of the

Supreme Court. The Court was ready to uphold ‘social and economic

legislation’, but was rather cautious when legislation limiting the

exercise of freedom of expression was challenged before it. Thus,

there was a double standard accepted by the Court. Justice

Frankfurter did not like this preferred position given to the freedom of

expression. This doctrine of preferred freedom was developed in the

United States of America by the Roosevelt Court through Justices

Black, Douglas, Murphy, Stone and Rutledge. The result of this

doctrine was to shift the burden of proof on the shoulders of those

defending the legislation without raising in their favour the

presumption of the validity of legislation. This doctrine was

abandoned by a majority of judges after 1949. Justice Frankfurter

109 Chintaman Rao vs. State ofM.P., AIR 1951 SC 118.

 150

described it as “a complicated process of constitutional adjudication

by deceptive formulae”110.

However, the Supreme Court adopted a different yardstick

in deciding reasonableness of restrictions when cases came before it in

the context of economic development. In such cases the Court

considered the opinion of the Government for imposing restrictions

and practically in all such cases upheld such restrictions as

reasonable*111. But, the Court did not permit the Government to use its

discretion in an arbitrary manner in such cases112. Similarly, the Court

as a rule did not interfere in tax laws. The Supreme Court of India did

not follow American Supreme Court decision while interpreting

Article 19(l)(a) and 19(2). The Court observed, “it is hardly fruitful

to refer to the American decisions particularly when the Court has

more than once clearly enunciated the scope and effect of Article

19(l)(a) and 19(2)... our Constitution provides reasonably precise

general guidance in this matter. It would thus he misleading to

construe in the light of the American decisions given in a different

context”113.

110 Kovacs vs. Cooper, (1949) 336 US 77: 93 L Ed 513.

111 Dwarka Prasad Laxmi Narain vs. State ofU.P., AIR 1954 SC 224.
112 Prabhudas vs. Union, AIR 1966 SC 1044.
113 Santokh Singh vs. Delhi Admn., (1973) 1 SCC 659: AIR 1973 SC 1973 SC 1091, 1095.
 151

Judiciary has been enlarging the area covered by the

fundamental right to freedom of speech and expression. The Kerala

High Court in a Full Bench decision laid down that the freedom of

speech and expression includes freedom to acquire knowledge, to read

books, periodicals and read any type of literature subject to reasonable

restrictions placed on the right114. The Supreme Court went a little

further and laid down that the right of free speech and expression

conferred by Article 19(1 )(a) is not confined to the territory of India.

It can be exercised outside India115. The Court laid down that the

refusal to issue a passport violates the fundamental right of a citizen

not only under Article 21 but also Article 19(l)(a). The Court

observed, “If the fundamental right under Article 21 can be

exercisable outside India, why can freedom of speech and expression

conferred by Article 19(1) (a) be not so exercisable?”116.

(k) Administrative Discretion and Reasonable Restriction

The general principle is that it is unreasonable to leave

absolute and arbitrary discretion to an administrative officer to

regulate the freedom of speech and expression. The discretion to be

valid must be exercisable for purposes specified in Article 19(2), and

114 Kunnikkal Narayanan vj. Slate of Kerala, AIR 1973 Ker 97.
115 Maneka Gandhi vs. Union ofIndia, (1978) 1 SCO 248.
1,6 Id. at 638.
 152

subject to legislative policy and procedural safeguards. This judicial

approach is illustrated by the following cases.

A provision authorizing the district magistrate to prohibit

dramatic performance of a scandalous or defamatory nature,

corrupting persons or arousing or likely to excite feelings of

disaffection to the government has been held to be unconstitutional for

it makes a district disaffection to the government has been held to be

unconstitutional for it makes a district magistrate the final authority' to

determine the question whether or not a particular play is offensive

under the Act. Further, the district magistrate is not obligated to give

reasons for his decision and there is no high authority (judicial or

otherwise) to review his decision117.

A significant judicial pronouncement in the area is

Virendra vs. State of Punjab11*, Section 2 of a Punjab Act empow ered

the State Government to prohibit the printing of any matter relating to

a particular subject for a maximum period of two months in any issue

of a newspaper if the government was satisfied that such action was

necessary to prevent any activity prejudicial to the maintenance of

communal harmony likely to affect public order. The aggrieved party

could make a representation to the government against the order.

117 State of U.P. vs. Baboolal, AIR 1956 All. 571; Hamam vs. State of Punjab, AIR 1958 Punj. 243.
118 AIR 1957 SC 896: 1958 SCR 409.
 153

which, after consideration of the same, could modify, confirm or

rescind the order. Section 3 authorised the State Government to

prohibit the bringing into Punjab of any newspaper if it was satisfied

that such action was necessary to prevent any activity prejudicial to

the maintenance of communal harmony affecting public order.

These provisions were challenged on the ground of giving

arbitrary and uncontrolled discretion to the government to curtail

freedom of speech ‘on its subjective satisfaction’. The Supreme Court

pointed out that there existed in Punjab serious tension amongst the

various communities and in such a situation, conferment of wide

powers to be exercised in the subjective satisfaction of the

government could not be regarded as an unreasonable restriction. The

State Government being in possession of all material facts, was the

best authority to take anticipatory action for prevention of threatened

breach of peace. Therefore, determination of the time when, and the

extent to which, restriction should be imposed on the Press must of

necessity be left to the judgment and discretion of the government.

To make the exercise of those powers justiciable would defeat the

very purpose of the Act.

Under S. 99.A. Cr.P.C. 1898 (presently S.95, Cr.P.C.,

1974) the State Government may, by notification in the Gazette

stating the grounds of its opinion, forfeit any book, newspaper or any

document containing seditious matter, etc. in Harnam Das vs. State of

Uttar Pradesh119 the Court quashed the notification forfeiting certain

books because the Government failed to state the grounds for forming

its opinion. The ambit of government’s power is too large and

uncontrolled.

(1) Important Foreign Decision (U.S.A.)

(a) Picketing: Picketing is something more than free speech and

that a State can prohibit picketing only in the context of

violence or as a means toward obtaining an illegal objective120.

(b) Handbills: A Los Angeles ordinance prohibiting the

distribution of any bill which did not print on it the name and

address of the person who printed, wrote, complied or

manufactured the same, and the person or organization who

caused the same to be distributed was held void on its face .

(c) Demonstration: The notion that the First and Fourteenth

Amendments afford the same kind of freedom to those who

would communicate ideas by conduct such as patrolling,

marching, and picketing on streets and highways, as those

119 AIR 1961 SC 1662: (1962) 2 SCR 371.

120 Hudgens vs. NLRB 424 US 507; 96 SCt 1029; 47 US Led. 2d 196 (1976).
121 Talley vs. California 362 US 60; 80 S Ct 536; 4 US L Ed 2d 559 (1960).
 155

amendments afford to those who communicate ideas of pure

speech was rejected. The Supreme Court reversed the

conviction of Cox, the leader of a demonstration by 2000

blacks near the Courthouse .

(d) Restriction on political propaganda: The Postal Service and

Federal Employees’ Salary Act of 1962 restricting the use of

postal service for communist political propaganda was held to

be unconstitutional, because it required an official act (viz.

returning the reply card) as a limitation on the unaffected

exercise of the addressee’s First Amendment rights123.

(e) Restriction on obscenity - pornography: The States have a

legitimate interest in prohibiting discrimination or exhibition

of obscene material when the mode of dissemination carries

with it a significant danger of offending the sensibilities of

unwilling recipients or of exposure to juveniles124.

The Supreme Court of the U.S.A. disapproved the theory

123
Uarnpnt vs. Postmaster General 381 US 301; 85 S Ct 1493; 14 US Led 2d 398 (1965).
 156

from state regulation simply because they are exhibited for consenting

adults only”125.

(f) Freedom of press: The freedom of the press so indispensable to

democratic society presupposes an independent judiciary which

will, when occasion demands, protect that freedom .

(g) Political campaigns: The Supreme Court sustained the

provisions of the Federal Election Campaign Act of 1971

intended to require the disclosure of the source of all

significant contributions and expenditure made to influence a

federal election127.

(h) Right of association: A State College cannot deny associational

rights to students because of their belief or assumed

relationship with the students for a Democratic Society. But

the State College may, however, refuse to recognize a student

organization that refuses to abide by reasonable campus

regulations128. The provisions of the Hatch Act barring federal

employees from taking “an active part in political management

or in political campaign” are valid129.

125 Paris Adult Theatre vs. Slayton 413 US 40; 93 S Ct 2628; 37 US Led 2d 446 (1973).
126 Craig vs. Harney 331 US 367; 67 S Ct 1249; 91 US Led 1546 (1947).
127 Buckley vs. Valeo 424 US 1; 96 S Ct 612; 46 US Led 659 (1976).
128 Healy vs. James 408 US 169; 92 S Ct 2338; 33 US Led 2d 266 (1972).
129 U.S. Civil Service Comm. Vs. Letter Carriers 413 US 548; 93 S Ct 2880; 37 US Led 2d 796.
 157

(i) Right of access to governmental information: The Constitution

of the U.S.A. does not guarantee to the news media access to

governmental information or to sources of information beyond

that available to the public generally130.

(j) Flag Contempt: Flag contempt statutes have been characterized

as void for lack of notice on the theory that “what is

contemptuous to one man may be a work of art to another”12”.

(k) Right of Political belief: The practice of patronage, dismissal

of public employees who are satisfactorily performing their

jobs is unconstitutional under the First and Fourteenth

•I

Amendments .

(l) Applicability' of USA Law to Art. 19 of the Indian

Constitution: Article 19(1) (a) of the Constitution of India is

based on the First Amendment to the US Constitution. It can,

therefore, be legitimate and proper to refer to the decisions of

i <5 -i

the US Constitution J. American decisions may be considered

for the purpose of understanding the basic principles of

freedom of speech and expression1-34. So far as contempt Is

concerned, the US Constitution does not bear any resemblance

130 Houchins vs. KQED, Inc. 438 US 1; 98 S Ct 2588; 57 US Led 2d 553 (1978).
131 Smith vs. Goguen 415 US 566; 94 S Ct 1242; 39 US Led 2d 605 (1974).
132 Elrod vs. Bums 427 US 347; 96 S Ct 2673, 49 US Led 2d 547 (1976).
133 Express Newspapers (P) Ltd. Vs. Union of India AIR 1958 SC 578.
134 Indian Express Newspapers (Bombay) (P) Ltd. Vs. Union of India AIR 1986 SC 515.
 158

with Article 19(2) of the Constitution of India. Thus, the

decisions on contempt under the USA Constitution have no

application to contempt under Article 19(2) of the Constitution

of India135.

135
Daphtary, C.K. vs. OJP. Gupta, AIR 1971 SC 161.