FREEDOM OF PRESS IN INDIA - A WEAPON TO

PROTECTIVE DEMOCRACY IN INDIA

Master of Law

In

International Law And Constitutional Law

By

K.BALAMURUGAN

Register No. ML 17004

Under the Supervision and Guidance of

Dr.R.Kumudha Ph.D (Law)

Assistant Professor

Govt.Law College

Coimbatore – 46.

June 2018.
 CHAPTER – I
CONCEPT, MEANING AND
SCOPE OF FREEDOM
OF SPEECH AND
EXPRESSION
 CHAPTER - II
ARTICLE 19
PROTECTION OF CERTAIN
RIGHTS REGARDING
FREEDOM OF SPEECH ETC
 CHAPTER - 1

CONCEPT, MEANING AND SCOPE OF FREEDOM OF

SPEECH AND EXPRESSION

"The Constitution is not an instrument for the Government to restrain the

people, it is an instrument for the people to restrain the Government."

-Patrick Henry (1736-1799)1

2.1 INTRODUCTION

The freedom of speech is regarded as the first condition of liberty. It occupies

a preferred and important position in the hierarchy of the liberty, it is truly said about

the freedom of speech that it is the mother of all other liberties, hi modem time it is

widely accepted that the right to freedom of speech is the essence of free society and

it must be safeguarded at all time. The first principle of a free society is an

imtrammeled flow of words in an open forum. Liberty to express opinions and ideas

without hindrance, and especially without fear of punishment plays significant role in

the development of that particular society and ultimately for that state. It is one of the

most important fundamental liberties guaranteed against state suppression or

regulation.2

The rights conferred under Article 19 of the Constitution are the rights of free

man. These are natural law or common law rights and not created by a statute. As

such every citizen is entitled to exercise such rights provided conditions to be

imposed whenever so required by the State.3

1
Retrieved from <http://www.sIideshare.net/mkita96/indiaa-constitiition> visited on 09-03-2012.
2
Dheerendra Patanjali, "Freedom of Speech and Expression, India v America - A Study" Retrieved
from <http://www.indialawjournal.com /volume3/issus_4/article_ by_dheerajendra. html>visited on
12-10-2012.
3
A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Also see Collector of Malabar v. Erimal Ebrahim
Hajee, AIR 1957 SC 688.

1
 The freedom of speech and expression benefits more the hearer than the

speaker. The hearer and the speaker suffer as violation of then spiritual liberty if they

are denied access to the ideas of each other. This freedom is also essential for pursuit

of truth.4

The freedom of speech and expression is a very important fundamental right.

It is indispensable for the development of one's own individuality and for the success

of parliamentary democracy. It is said that in a democracy the rights to free

expression is not only the right of an individual but rather a right of the community to

hear and be informed.5

Our Constitution is based on the principle of checks and balances. The

Preamble expresses two ideas which complement each other, namely:

1. Rights of the individual which correspond to the duties of the State towards

the individual, and

2. Duties of the individual towards the State which correspond to the rights of the

society against the individual.

The State is under an obligation not to infringe upon the rights of the

individual. Similarly, the individual is obliged to contribute to the social welfare. 6 So,

every attempt needs to be made so that this reasonable means does not get disturbed.

We are given the freedom of speech, we can express ourselves. But, the beauty of the

freedom lies in its limits in the interest of the society.

4
Franklyn S. Haiman, "Speech and Law in a Free Society" University of Chicago Press, 1981.
5
Sujata V. Manohar, "T.IC. Tope's, Constitutional Law of India" Eastern Book Company, Lucknow,
2010, p. 143.
6
V.S. Deshpande, "Right and Duties under the Constitution", 15 JILI (1973), p. 95.

2
2.2 HISTORICAL BACKGROUND OF FREEDOM OF SPEECH &

EXPRESSION

Freedom to express and disseminate one's opinion is a demand of the

European enlightenment on the State which took its root initially in England within

the framework of common law precedents7. At the end of the 18th century, freedom

of expression of opinion expanded through the first basic rights proclamations. In the

context of English legal position, section 12 of the Virginia Bill of Rights, 1776,

declared that the freedom of the press is one of the great bulwarks of liberty and can

never be restrained by despotic Governments. Contrary to the English tradition of

Parliamentary supremacy, the 1st Amendment of the Constitution of United States

binds Parliament also. The Congress shall make no law abridging the freedom of

speech or of the press, in Article II of the French Declaration of the Rights of Man

and of the Citizen, 1789, in the sense of enlightenment, the freedom of opinion was

proclaimed as a human right "the unrestrained communication of thoughts or opinions

being one of the most precious right of man. Every citizen may speak, write and

publish freely, provided he be responsible for the abuse of this liberty, in the cases

determined by law. In the 19th century, the German States guaranteed freedom of

opinion in their constitutions within the framework of general criminal laws mostly by

express prohibition of subjecting the press to censor. 8The Federal Constitutional

Court has held that for a free democratic State the basic right to freedom of expression

7
A.V. Dicey, "Introduction to the Study of Law of the Constitution" Macrnillan, New York, 1959,
10th edi., p. 238ff, 247ff.
8
Christian Starck,"Freedom of Expression and Academic Freedom: Background and Formation of
Legal Principles" in Mahendra P. Singh (eds.), Comparative Constitutional Law, Eastern Book
Company, Lucknow, 2011, p. 409.

3
of opinion is an "essential constituent because only it enables permanent intellectual

discussion, i.e. combat of opinions which are its life breath."9

According to Abraham Lincoln,10 the democracy is Government by the

people, for the people and of the people. But there can be no Government by the

people if they are ignorant of the issues to be resolved, the arguments for and against

different solutions and the facts underlying those arguments. Thus, it is the people

who are the sovereign in a democracy.

The United Nations convened a Conference at Geneva in 1948 on the subject

matter of Freedom of Information which was attended by 54 countries. It passed a

series of resolutions for further consideration by the United Nations which ultimately

led the General Assembly of the United Nations to declare Freedom of Information a

fundamental human right.11 The Universal Declaration of Human Rights particularly

in its Article 19 states that "everyone has right to freedom of opinion and expression;

this right includes freedom to hold opinion without interference and to seek, receive

and import information and ideas through media and regardless of frontiers."12 The

plenary words of these proclamations signify both democratic and people oriented

right in one hand and also signify the right to information on the other. In I960, the

Economic & Social council of the United Nations adopted a derivative from Article

19 of the Universal Declaration of Human Rights in 1948. Sweden became the first

country in the world to enact a provision for access to official information for the

citizens.13 The Rome Convention for the Protection of Human Rights and

9
Luth-Urteil case, 7 BverfgE 198.
10
16th President of United States.
11
Subhash C. Gupta, "Right to Information Act, 2005: A New Approach to Public Accountability" in
Law in India Emerging Trends, Publications Bureau, Punjabi University, Patiala (eds.), 2007, p. 291.
12
United Nations General Assembly Resolution No. 217A (III), 10 th December, 1948.
13
Subhash C. Gupta, "Right to Information Act, 2005: A New Approach to Public Accountability" in
Law in India Emerging Trends, Publications Bureau, Punjabi University, Patiala (eds.), 2007, p. 292.

4
Fundamental Freedoms, 1950,14 and came into force on 3rd September, 1953; and

particularly Article 10, which spells the freedom of expression states that (i) everyone

has the right to freedom of expression. This right shall include freedom to hold

opinions and to receive and impart information’s and ideas without interference by

public authority and regardless of frontiers. This Article shall not prevent states from

requiring the licensing of broadcasting, television or cinema enterprises, and (ii) the

exercise of these freedoms since it carries with its duties and responsibilities may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by

law and are necessary in a democratic society, in the interest of national security,

territorial integrity or public safety, for the prevention of disorder or crime, for the

protection of health or morals, for the protection of the reputation or right of others,

for preventing the disclosure of information received in confidence, or for maintaining

the authority and impartiality of judiciary.

In India, the Preamble of the Constitution is not like Preamble of other

enactments but it is the gist of intention of the Constituent Assembly. While

interpreting any provision of it, Preamble should be considered an integral part of the

Constitution and should be treated as guidelines for the interpretation of the

Constitution, where there is ambiguity. The Preamble of the Constitution also shows

that in democracy it is the people who are supreme. The true democracy is governed

by five words enshrined in the beginning of the Preamble of the Constitution of India

i.e. WE, THE PEOPLE OF INDIA and ending with five words i.e. GIVE TO

OURSELVES THIS CONSTITUTION. Broadly speaking the people of India are

largely living in the darker side of the governance of the country and are often

uninformed about the public affairs and are dominated by those who wheel power in

14
P.K. Das, "Handbook on the Right to Information Act" Universal Law Publishing Co. Pvt. Ltd., New
Delhi, 2010, p. 15.

5
the executive, legislative and judicative spheres. The jurisprudence of democracy is

envisaged in Articles 23 and 25 of the Universal Declaration of Human Rights of the

year 1948 and in Part HI and Part IV of the Constitution of India which guarantees

some rights like right to life, liberty, dignity and decent conditions of life and

development.15 In a democracy, the electoral process has a strategic role. The little

man of this country would have basic elementary right to know full particulars of a

candidate who is to represent him in Parliament, where laws to bind his liberty and

property may be enacted. Thus, in a democracy it is the primary right, without it an

effective rule of law is not possible. Justice K.K. Mathew has observed as follows:

"As the freedom of expression concerning public affairs is indispensable to the

operation of the democratic system, it is a necessary implication from the

provisions of the Constitution establishing it".16

2.3 MEANING OF FREEDOM OF SPEECH & EXPRESSION

The Constitution of India guarantees various fundamental rights to its citizens.

One such important right is right to freedoms under Article 19. This includes right to

freedom of speech and expression,17 right to assemble peacefully and without arms18,

freedom to form associations and unions19, right to move freely throughout the

territory of India20, right to reside and settle in any part of the territory of India21 and

right to practice any profession or to carry on any occupation, trade or business 22.

Before 44th amendment, there was also a right to acquire, hold and dispose off

15
P.K. Das, 'The Right to Information Act*' Universal Law Publishing Co. PvL Ltd., New Delhi, 2010,
p. 3.
16
K.K. Mathew, "Democracy, Equality and Freedom" in Upendra Baxi (eds.), Eastern Book Company,
Lucknow,1978,p.98
17
Article 19(1) (a) of the Constitution of India.
18
Article 19(1) (b) of the Constitution of India.
19
Article 19(1) (c) of the Constitution of India.
20
Article 19(1) (d) of the Constitution of India.
21
Article 19(1) (e) of Constitution of India.
22
Article 19(1) (g) of the Constitution of India.

6
property under Article 19(f), but the same was omitted by this amendment in 1978. In

44th Amendment, an Article was added as Article 300A to the effect that no person

shall be deprived off his property saved by Authority of Law. The effect of this

amendment is that now tire right to property is no longer a fundamental right under

the Indian Constitution.

Under this research work the researcher closely concerns with Article 19(l)(a)

of the Constitution of India. Article 19(l)(a) guarantees that all citizens shall have the

right to freedom of speech and expression. This right is available only to every citizen

of India and not available to any person who is not a citizen of India i.e. foreign

nationals23. The freedom of speech and expression has been held to be basic and

indivisible for a democratic polity. The freedom of speech and expression means the

right to express one's conviction and opinions freely by words of mouth, writing,

printing, pictures, photographs, cartoons or any other mode. It means freedom of

speech and expression is to express one's convictions and opinions or ideas freely,

through any communicable medium or visible representation, such as gesture, signs

and the like.24 It means to freely propogate, communicate or circulate one's opinion or

views. In other words, freedom of speech and expression to lay what sentiments, a

free citizen pleases, before the public. 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. Freedom of speech opens up channels of free discussions of issues

and play a crucial role in public opinion on social, political and economic matters 25.

23
Hans Muller of Nurenburg v. SupdL, Presidency Jail, Calcutta, AIR 1955 SC 367. Also see State of
Gujrat v. Ambica Mills Ltd., AIR 1974 SC 1300.
24
Lovell v. City of Griffin, (1937) 303 US 444. Also quoted by Supreme Court in Romesh Thapper v.
State of Madras, AIR 1950 SC 124.
25
Jelis Subhan, "Emerging Rights Under Article 19(1 )(a) of the Constitution of India" Retrieved from
<http://papers.ssrn.com/sol3/papers.cfm?abstractmid=2145117> visited 27-02-2013.

7
In, one of the earliest judgments, Romesh Thappar v. State of Madras26 Chief

Justice Patanjali Sastri observed that:

"... (The freedom) lay at the foundation of all democratic

organizations, for without free political discussion, no public

education, so essential for the proper functioning of the processes of

popular government, is possible. A freedom of such amplitude might

involve risks of abuse. But the framers of the Constitution may well

have reflected with Madison, who was the leading spirit in the

preparation of the First Amendment of the Federal Constitution, that it

is better to leave a few of its noxious branches to their luxuriant

growth, than by pruning them away, to injure the vigor of those

yielding the proper fruits."

In the same judgment, the Court held that the public interest in freedom stems

from the requirement that members of the democratic society should be sufficiently

informed that they may influence intelligently the decisions which may affect

themselves.27

Freedom of speech and expression should, therefore, receive generous support

from all those who believe in the participation of people in the administration. The

freedom of speech and expression includes freedom of circulation and propagation of

ideas and, therefore, the right extends to the citizen to use the media to answer the

criticism leveled against the views propagated by him. Every citizen has undoubted

right to express what sentiments he pleases. This freedom must, however, be

26
AIR 1950 SC 124:1950 SCR 594.
27
Ibid.

8
exercised with circumspection and care must be taken not to trench on the rights of

other citizens or to jeopardise public interest.

Justice V.R. Krishna Iyer has observed that:

"Right to express one's thought is meaningless if it is not accompanied

by relaxed right to secure all information on matters of public concern

from relevant public authorities. However, to ensure that there is no

harm in inserting the freedom of information on a specific corollary to

Article 19 of the Constitution"

Freedom of speech and expression has long been a hallmark of a healthy

democracy and a free society. In England, this right is enjoyed as a result of the

application of the principle of 'the Rule of Law'. Under English Law the freedom of

expression is, of course, intrinsically important. It is valued for its own sake. In an

English case, it was held that freedom of expression has four broad social purposes to

serve:

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

(ii) It assists in the discovery of truth;

(iii) It strengthens the capacity of an individual in participating in decision-

making; and

(iv) It provides a mechanism by which it would be possible to establish a

reasonable balance between stability and social change.

All citizens should be able to form their own beliefs and communicate them

freely to others. In sum, the fundamental principle involved here is the people's right

to know.

9
 Freedom of speech and expression should, therefore, receive a generous

support from all those who believe in the participation of people in the

administration.28 The freedom of speech is that freedom which promotes the

discovery of truth found in John Milton's Areopagitica29 and persuasive opinions by

Justice Holmes "the best test of truth is the power of the thought to get it accepted in

the competition of the market.30 Lord Steyn explained that "Freedom of speech and

expression is the lifeblood of democracy. The free flow of information and ideas

informs political debate. It is a safety valve. People are more ready to accept decisions

that go against them if they can in principle seek to influence them. It acts as a brake

in the abuse of power by public officials. It facilitates the exposure of errors in the

governance and administration of justice of the country... 31" John Stuart Mill says that

if the Government suppresses communications, it may suppress ideas that are true or

partly true. Government's suppression of ideas rests necessarily on a false assumption

of infallibility, however, overstates his case. The freedom of speech contributes

greatly to the search for truth. It does not depend on whether suppression always

represents a claim of infallibility. His sense of truth is broad, covering correct

judgments about issues of value as well as ordinary empirical facts and embracing

knowledge conducive to a satisfactory personal life as well as facts of general social

importance.32

The concept of freedom of expression does not take the form of a positive or

enforceable right. It is a negative liberty to communicate with others or immunity

28
Attorney General v. Times Newspaper Limited, (1973) 3 ALL ER 54. Also quoted by the Supreme
Court in Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of India AIR 1986 SC 515.
29
John Milton, "Give me the liberty to know, to utter, and to argue freely according to conscience,
above all liberties" (London 1819).
30
Abraham v. United States, 250 US 616, 624 and 630 (1919).
31
Regina v. Secretary of State for the Home Department, (2000) 2 LR 115 (AC).
32
J.S.Mill, "On Liberty" in M.Cowling (eds.) Selected Writings of John Stuart Mill, New York, 1968,
p.121.

10
from interference by others.33 This means that a person may write or say what he

pleases so long as he does not infringe any law or the right of others. The freedom

unlike an infringed right is subject to statutory curtailment and may be restricted by

judicial development of law. Right to fly national flag freely with respect and dignity

is an expression and manifestation of his allegiance and feelings and sentiments of

pride for the nation.34 Similarly voting can legitimately be regarded as a form of

expression.35 It is a settled fact that where there is a conflict between the voice of the

people and that of the legislative, the former is to be preferred to latter.

The Constitution of India is the law of the land. Therefore, any right and

procedure thereof to access should have genesis of any of the rights guaranteed or

provided by the Constitution. It also guarantees us many freedoms; one of them is

freedom of speech and expression. Liberty of thought is the basis of freedom of

speech and expression under Article 19(l)(a) of the Constitution of India, which is an

essential component of democratic governance. As the information is the genesis of

thought and expression, the right to information has to be an invisible integral part of

the right to free speech. Undoubtedly, the information is vital not only for the life of

society but also for the life of individual. Article 21 of the Constitution guaranteeing

right to life includes basic right to be informed.36

2.4 SCOPE OF FREEDOM OF SPEECH AND EXPRESSION

The judiciary has been enlarging the area covered by the fundamental right to

freedom of speech and expression. Freedom of speech and expression is a vital feature

that a democracy runs with. For any democracy to thrive, people must be given the

liberty to express their feeling without restriction. This very important featui'e of the

33
Wheeler v. Leicester City Council (1985) AC 1054 per Browne-Wilkinson, I.J.
34
Union of India v. Navin Jindal, AIR 2004 SC 1559.
35
Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2363.
36
Krishna Pal Malik, "Right to Information" Allahabad Law Agency, Faridabad, 2013, p. 15.

11
freedom of speech and expression is enshrined to the Indian citizens by Article

19(l)(a) of the Constitution of India. It provides that all citizens irrespective of colour,

creed and religion have the right to raise their voice in matters of importance or

otherwise without any restriction within or without. This freedom comes in for the

assumption that rationality of men comes above everything else, and every individual,

by Ins/her own discretion and wisdom knows what is good or bad.37

A constitutional provision is never static; it is ever evolving and ever changing

and, therefore, does not admit of a narrow, pedantic or syllogistic approach. The

constitution makers employed a broad pharaseology while drafting the fundamental

rights so that they may be able to cater to the needs of a changing society. Therefore,

constitutional provisions in general and fundamental rights in particular must be

broadly construed unless the context otherwise requires. The scope and ambit of such

provisions, in particular the fundamental rights, should not be cut down by too astute

or too restricted an approach.38

While discussing the scope of freedom of speech and expression the Supreme

Court at many times has said that the words freedom of speech and expression must

be broadly constructed to include the freedom to circulate one's views by words of

mouth or in writing or through audio-visual instrumentalities. It therefore, includes

the right to propagate one's views through the print media or through any other

communication channel e.g. the radio and the television.39 The Court held that these

37
Retrieved from <http://wiki.answers.coi-n/Q/What_is_.Article__19_l_a_of_the_constitution
of_India> visited on 10-04-2011.
38
Sakal Paper (?) (Ltd. v. Union of India, (1962) 3 SCR 842:AIR 1962 SC 305. Referred to Dennis v.
United States, 341 US 494; Joseph Burstyn, Inc. v. Wilson, 343 US 495 and Mutual Film
Corporation v. Industrial Commission of Ohio, 236 US 230.
39
Arashdeep Kaur, "Article 19 Protection of Certain Rights regarding Freedom of Speech etc"
Retrieved from <http://www.scribd.eom/doc/51091293/Constitiition-ARTICLE-19#> visited on 10-
04-2011.

12
rights are great and basic rights which are recognised and guaranteed as the natural

rights and inherent in the status of a citizen in a free country.40

2.4.1 Freedom of Press

Article 19(l)(a) of the Constitution of India guarantees the freedom of speech

and expression but not expressly included the freedom of press. The phrase 'speech

and expression' is of very wide connotation, 'expression' naturally presupposes a

second party to whom the ideas are expressed or communicated. But it is implied that

freedom of speech and expression includes freedom of press also. The freedom of

expression, thus, includes the freedom to propagate one's own views and the views of

others and freedom to communicate views to others. That freedom is ensured by

freedom of their publication and circulation. In short, the freedom of speech and

expression includes the liberty of the press.41 Unlike the American Constitution,

Article 19(l)(a) of the Indian Constitution does not specifically or separately provide

for liberty of the press.42 The freedom of press means as medium of publication and is

closely linked with freedom of person and independence of judiciary.

Justice Marshall in 'Law of the Press' had to say as follows:

"It is the liberty of the press that is guaranteed, not the licentisness. It is

the right to speak the truth, not the right to bear false witness against

your neighbour. Every citizen has a constitutional right to the

enjoyment of his character as well as the ownership of his property,

and this right is as sacred as the liberty of the Press... As there is

always a class of moral preverts and degenerates in every community

40
State of West Bengal v. Subodh Gopal Boss and Others, AIR 1954 SC 92.
41
Narinder Kumar, "Constitutional Law of India" Allahabad Law Agency, Faridabad, 2005, p. 188.
42
The omission was explained by Dr. B.R. Ambedkar, when he observed that the press has no special
rights which are not to be given or which are not to be exercised by the citizen in his individual
capacity. The editor of a press or the manager is merely exercising the right of the expression, and,
therefore, no special mention is necessary of the freedom of the press.

13
 who feed their morbid appetites upon such scandals and rejoice at the

injury thus down to those who are infinitely their superiors that they

are not worthy to fasten the latches of their shoes. But to the credit of

the news papers profession it is due here to make a record of the fact

that the great majority of the members of that profession do not

approve or sanction such practices or such 'yellow' journalism, but

have a proper appreciation of the rights and purposes and functions of

a newspaper and deplore the fact that such unworthy persons are

engaged in the profession, as such as lawyers would deploy the black

sheep that would sometimes creep into the fold. The contrast between

the two classes marks the differences between respectability and

indecency, between intelligence and ignorance, between law abiding

patriotic citizens and the Ishmaelite, the assassin of character for the

accumulation of lucre. The great body of people condemns such

practices and such miscreants and the Courts would deserve

condemnation and abolition if they do not vigorously and fearlessly

punish such offenders. Such practices are an abuse of tire liberty of the

Press"…43

Justice Blackstone, in his Commentary on the Laws of England, while dealing

about the freedom of press in England observed as follows:

"The liberty of the press, properly understood, is essential to the nature

of a free State; but that this consists inlaying no previous restraints

upon publications, and not in freedom from censure for criminal matter

when published. Every free man has an undoubted right to lay what

43
Referred in M. Hasan and Anothers v. Government of Andhra Pradesh, AIR 1998 AP 35:1997(6)
ALT 209.

14
 sentiments he pleases before the public; to forbid this is to destroy the

freedom of the press. But if he publishes what is improper,

mischievous, or illegal, he must take the consequences of his own

temerity"44

Lord Denning, in 'Freedom under the Law', while dealing with publication of

news and control etc., observed as follows:

"Every country preserves to itself the right to prevent the expression of

views which are subversive of the existing Constitution or a danger to

the fabric of society Free and frank discussion and criticism of matters

of public interest must in no way be curtailed, but there comes a point

at which every country must draw the line; and that is when there is a

threat to overturn the State by force...."45

Arthur Hays answers what the freedom of press is in the following words:

"Perhaps we ought to ask ourselves just what freedom of the press

really is. Whose freedom is it? Does it merely guarantee the right of

the publisher to do and say whatever he wishes, limited only by the

laws of libel, public order and decency....? Is it only a special license to

those who manage the units of the press? The answer, of course, is No.

Freedom of the press ~ or, to be more precise, the benefit of freedom

of the press belongs to everyone - to the citizen as well as the

publisher. The publisher is not granted the privilege of independence

simply to provide him with a more favoured position in the community

than is accorded to other citizens. He enjoys explicity defined

44
Ibid
45
Ibid

15
 independence because it is the only condition under which he can

fulfill his role, which is to inform fully, fairly and comprehensively.

The crux is not the publisher's 'freedom to print'; it is rather the

citizens' right 'to know'.46

2.4.1.1 Whether Press in Citizen

Article 19(l)(a) of the Constitution guarantees freedom of speech and

expression only to human beings who are citizens and non-citizen nationals and

foreigners do not enjoy this right. Rather juristic persons, corporations, societies,

associations are not citizens. Tins right is available to natural human beings having

citizenship of India. Whereas, Article 19(l)(a) gives freedom to press on the plea that

press is constituted of citizens.47

The Supreme Court also dealt with the contention that newsprint policy does

not directly deal with the fundamental right mentioned in Article 19(l)(a). It was also

contended that regulatory statutes which do not control the content of speech but

incidentally limit the ventured exercise are not regarded as a type of law. Any

incidental limitations or restrictions on freedom of speech are permissible as the same

is essential to the furtherance of important governmental interest in regulating

freedom of speech. The Supreme Court negatived the said contention and Justice

Nanabhoy Palkhivala said that:

"The test of pith and substance of the subject matter and of direct and

incidental effect of the legislation are relevant to the questions of

legislative competence but they are irrelevant to the question of

46
Referred in M.Hasan and Anothers v.Government of Andhra Pradesh, AIR 1998 AP 35: 1997(6)
ALT 209.
47
G.P.Tripathi, “Constitutional Law : New Challenges” Central Law Publications, Allahabad, 2013,
p.368.

16
 infringement of fundamental rights. In our view this is a sound and

correct approach to interpretation of legislative measures and State

action in relation to fundamental rights. The true test is whether the

effect of the impugned action is to take away or abridge fundamental

rights. If it be assumed that the direct object of the law or action has to

be direct abridgement of the right of free speech by the impugned law

or action it is to be related to the directness of effect and not to the

directness of the subject-matter of the impeached law or action. The

action may have a direct effect on a fundamental right although its

direct subject-matter may be different."48

Although Article 19(l)(a) does not mentioned the freedom of the press, it is the

settled view of the Supreme Court49 that freedom of speech and expression also

includes freedom of the press and circulation, i.e. the right to print and publish what

one pleases, without any previous permission. Therefore, the imposition of pre-

censorship on publication is violative of the freedom of the press, unless justified

under clause (2) of Article 19.

In the case of Brij Bhushan v. State of Delhi50 in pursuance of section 7(l)(c)

of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi, the

chief Commissioner of Delhi issued an order against the petitioner, the printer,

publisher and editor of an English weekly 'the Organiser' published from Delhi,

directing them to submit, for scrutiny in duplicate before publication till further

orders, all communal matters and news and views about Pakistan including

photographs and cartoons other than those derived from official sources or supplied

48
Sakal Papers Pvt Ltd. v. Union of India, AIR 1962 SC 305.
49
Bennett Coleman & Co v. Union of India, AIR 1973 SC 106.
50
AIR 1950 SC 129.

17
by the news agencies. The Supreme Court in its majority decision struck down the

said order as violative of Article 19(l)(a) of the Constitution.

Again the Supreme Court in Virendra v. State of Punjab51 held that banning

of publication in the newspapers of its own views or the views of correspondents

about the burning topic of the day. In this case, a petition with regard to the validity of

the Punjab Special Powers (Press) Act, 1956, the Court said that:

"It is certainly a serious encroachment on the valuable and cherished

right to freedom of speech and expression if a newspaper is prevented

from publishing its own views or the views of its correspondents

relating to or concerning what may be the burning topic of the day. Our

social interest ordinarily demands the free propagation and interchange

of views but circumstances may require a reasonable subordination of

the social interest in free speech and expression to the needs of our

social interest in public order. The Constitution recognizes this

necessity and has attempted to strike a balance between the two social

interests. It permits the imposition of reasonable restrictions on the

freedom of carrying on trade or business in the interest of the general

public."

In Indian Express Newspapers (Bombay) Pvt Ltd. v. Union of India52 the

Supreme Court after pointing out that communication needs in a democratic society

should be met by the extention of specific rights e.g., the right to be informed, the

right to inform, the right to privacy, the right to participate in public communications,

the right to communicate, etc., proceeded to observe as follow:

51
AIR 1957 SC 896.
52
AIR 1986 SC 515:(1985) 2 SCR287:(1985) 1 SCC 641.

18
 "In today's free world freedom of Press is the heart of social and

political intercourse. The press has now assumed the role of the public

educator making formal and non formal education possible in large

scale particularly in the developing world where television and other

lands of modern communication are not still available for all sections

of society. The purpose of the press is to advance the public interest by

publishing facts and opinions without which a democratic electorate

cannot make responsible judgments. Newspaper being surveyors of

news and views having a bearing on public administration very often

carry material which would not be palatable to Governments and other

authorities. The authors of the article which are published in the

newspapers have to be critical of the action of the Government in order

to expose its weaknesses. Such articles tend to become an irritant or

even a threat to power."

The Court pointed out that the freedom of speech and expression guaranteed

under Article 19(l)(a) of the Constitution is not for the benefit of the press as it is for

the benefit of the public. The people have a right to be informed of the developments

that take place in a democratic process and the press plays a vital role in

disseminating this information. Neither the Government nor any instrumentality of the

Government or any public sector undertaking run with the help of public funds can

shy away from articles which expose weaknesses in its functioning and which in

given cases pose a threat to their power by attempting to create obstacles in the

information percolating to the members of the community.53

53
Ibid.

19
 In series of cases, the Supreme Court struck down the pre-publication ban on

newspapers etc. In Reliance Petrochemical Ltd. v. Proprietors of Indian Express

Newspapers, Bombay Pvt. Ltd.54 the Supreme Court ruled that the pre-publication ban

even under a Court injunction could be justified in the interest of justice only when

there was a clear and imminent danger to the administration of fair justice and not

otherwise.

Thus, a "free press" which is neither directed by the executive nor subjected to

censorship, is a vital element in a free State. The success of democracy depends upon

free, fair, honest and independent press.

In R. Rajagopal v. S0tate of Tamil Nadu55 the petitioner who was the

publisher of a Tamil weekly magazine approached the Supreme Court to restrain the

Government from interfering with their right of publication of the autobiography of

the condemned person Auto Sankar. The Supreme Court held that the Government or

their officials have no right to impose prior restraint upon the publication on the

apprehension mat they may be defamed. The Court further held that the right to

publish the life story of a condemned prisoner, in so far as, it appears from the public

records, even without his consent or authorisation, has been held to be included in the

freedom of the press guaranteed under Article 19(l)(a) of the Constitution. The Court

reasoned that right to privacy is implicit in the right to life and liberty guaranteed

under Article 21 of the Constitution. It is a right to be let alone. The prior restrain

upon such publication cannot be imposed. The freedom of the press that the Indian

54
AIR 1989 SC 190.
55
AIR 1995 SC 264.

20
Media enjoys an extension or a further realization of freedom of speech and

expression.56

The Hon'ble Andhra Pradesh High Court also held in M. Hasan and Another

v. Government of Andhra Pradesh57 that refusal to journalists and videographers

seeking interview with condemned prisoners amounted to deprivation of citizen's

fundamental right to speech and expression under Article 19(l)(a) of the Constitution.

As far as the exercise of fundamental rights concerned, position of a condemned

prisoner was on par with a free citizen of the country. The Court ruled that he had a

right to give his ideas and he was entitled to be interviewed or to be televised. The

Court observed that when such being the settled position we fail to understand why

the jail authorities shall apprehend such reporting or videography as not reasonable

and not in the interest of safety and security. Even their Jail Manual permits the

prisoner to be interviewed by others including a friend provided he is willing.

A friend includes a journalist and which in turn includes a videographer. There is a

letter written by the condemned prisoners expressing their willingness to be

interviewed by the journalist and the videographer. Under these circumstances, it is

not just and proper for the jail authorities to prevent the petitioners to interview the

condemned prisoners orally and by videographing. Any such denial is deprivation of a

citizen's fundamental right of freedom of speech and expression.

2.4.2 Telecasting or Broadcasting Rights

The Supreme Court in Secretary, Ministry of Information and

Broadcasting, Government of India v. Cricket Association of Bengal (CAB) 58 has

56
Retrieved from <http://wiki.answers.com/ Q/What_is_Ar1icle_19_l_a_of_the_
constitution_of_India> visited on 10-04-2011.
57
AIR 1995 AP 35:1997(6) ALT 209. Also see State through Supdt. Central Jail, New Delhi v.
Charulata Joshi, AIR 1999 SC 1379 and T.V. Vatheesworan v. State of Tamil Nadu, AIR 19S3 SC
361.
58
AIR 1995 SC 1236:(1995) 2 SCC 161.

21
expanded the right to freedom of speech and expression by saying that the right to

freedom of speech and expression includes the right to receive and impart

information. For ensuring the right of free speech of the citizens of this country, it is

necessary that the citizens have the benefit of plurality of views and a range of

opinions on all public issues. A successful democracy posits an aware citizenry.

Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to

arrive at informed judgment on all issues touching them. All these developments of

law giving meaning to freedom of speech and expression or personal liberty are not

required to be reconsidered nor there could be legislation so as to nullify such

interpretation except as provided under the exceptions to fundamental rights.

In this case, six nations cricket match was held in 1993. Cricket Association of

Bengal (CAB) requested Doordarshan to telecast the match. It agreed to pay royalty to

Doordarshan. Later on, the right of telecast was given to foreign T.V. CAB moved

Calcutta High Court pleading that it had fundamental right under Article 19(l)(a) to

telecast the cricket match. It was included in freedom of expression. Subsequently, in

Supreme Court the same plea was taken. The Supreme Court upheld this plea and

directed Doordarshan to provide facilities for telecast. The claim of monopoly of State

over electronic media was denied. Monopoly was not a ground given in Article 19(2)

of the Constitution. No new ground can be evolved for restraining right under Article

19(l)(a).

2.4.3 Commercial Advertisements

Advertisement is included in Article 19(l)(a) of the Constitution of India. In

Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.59 is an authority for

proposition that right to issue advertisement even if of commerical nature is covered

59
AIR 1995 SC 2438.

22
by Article 19(l)(a). It can be restricted only on any ground given in Article 19(2). The

telephone authorities permitted 'Tata Press Yellow Pages' containing advertisements

of commercial nature in telephone directory. A civil suit for injunction was filed by

Nigam and also Union of India claiming monopoly in publication of direcory under

Indian Telegraph Act. In an appeal by Tata against injunction issued by Trial Court

and confirmed by the High Court. The appeal was allowed by the Supreme Court and

High Court's order was set aside on the ground that advertisement is a kind of

commercial speech and is covered by Article 19(l)(a). Commercial speech is no doubt

a commercial transaction, nevertheless, it is dissemination of information regarding

product for the benefit of public at large. In democratic setup, flow of commercial

information is indispensable. Economic system, in democracy, would suffer

handicapped without freedom of commercial speech. Article 19(l)(a) of the

Constitution protects right of individual to listen, read and receive the commercial

speech in advertisements even if it so issued by business for promotion of trade and

business. The protection of Article 19(l)(a) of the Constitution is available both to the

speaker as well as the recipient of the speech. Therefore, the Nigam or the Union of

India could not restrain the appellant from publishing the 'Tata Press Yellow Pages'.

60
In Hamdard Dawakliana v. Union of India the Supreme Court had held

earlier that an advertisement of commercial nature was not protected by Article

19(l)(a) of the Constitution. After Tata Press case61, this view is overruled. As such

Hamdard Dawakhana view is now limited to protection of obnoxious advertisements

of commercial nature. Tata Press case view applies to all advertisements except that

are obnoxious. The Court, however, made it clear that the Government could regulate

60
AIR 1960 SC 554.
61
AIR 1995 SC 2438.

23
the commercial advertisements, which are deceptive, unfair, misleading and

untruthful.

2.4.4 Right to Reply or Answer the Criticism against One's Views

The right to reply, i.e. the right to get published one's reply in the same news

media in which something was published against or in relation to a citizen, was a part

of the freedom of speech and expression guaranteed under Article 19(1)(a) of the

Indian Constitution, held by the Supreme Court. The Court also stated that a liberal

interpretation should be given to the right to freedom of speech and expression

guaranteed under Article 19(l)(a).62

In Life Insurance Corporation of India v. Manubhai D. Shah63 respondent,

the executive trustee of the Consumer Education and Research Centre (CERC),

Ahmedabad, after undertaking research into the working of the Life Insurance

Corporation (LIC), published a study entitled "A Fraud on Policy Holders -

A Shocking Story". The study paper portrayed the discriminatory practices adopted

by the LIC which adversely affected the interest of a large number of policy holders.

The underlying idea was to point out that unduly high premiums were charged by the

LIC from those taking out life insurance policies thereby denying access to insurance

coverage to a vast majority of people who cannot afford to pay the high premiums.

Mr. N.C. Krishnan, a member of the LIC prepared a counter to the respondent's study

paper and published the same as an article titled 'LIC and its policy holders' in the

'Hindu', a daily newspaper, challenging the conclusions reached by the respondent in

his study paper. The respondent prepared a rejoinder 'Raw deal for policy Holders'

which too was published in the same newspaper.

62
Life Insurance Corporation of India v. Mannubhai D. Shah, AIR 1993 SC 171.
63
AIR 1993 SC 171.

24
 Thereafter, the LIC published its member's article which was in the nature of a

counter to the respondent's study paper in its magazine 'Yogakshema'. On the

respondent learning about the same, he requested that in fairness his rejoinder which

was already published in the 'Hindu' should also be published in the said magazine to

present a complete picture to the reader. The LIC refused his request on the ground

that their magazine was an in-house magazine circulated amongst subscribers who

were policy holders, officers, employees and agents of the Corporation and it is not

put up in the market for sale to the general public. On refusal of the LIC to publish his

rejoinder in its magazine 'Yogakshema', the respondent filed a writ petition in the

Gujarat High Court which came to the conclusion that the LIC's stand that the

magazine was an in-house magazine was untenable because it was available to anyone

on payment of subscription; and it invited articles for publication therein from

members of the public. The High Court accepted this petition on the grounds that the

magazine was an in-house magazine the Coiporation and members of the public are

invited to contribute articles for publication. LIC covered under the ambit of 'State'

within the meaning of Article 12 and LIC cannot under the guise of publication of an

in-house magazine violate the fundamental right of the respondent. Thus, the Hon'ble

Gujarat High Court held the refusal by LIC to publish respondent's rejoinder was

arbitrary and violative of Articles 14 and 19(l)(a) and also directed the LIC to publish

the rejoinder of the respondent in the next issue of the said magazine. The LIC

appealed against the decision of the High Court to the Supreme Court. The Hon'ble

Supreme Court rejected the appeal of the LIC and held that the LIC being a 'State'

within the meaning of Article 12 must function in the best interest of the community.

The LIC was created under the Life Insurance Corporation Act, 1956, to carry on Life

Insurance business to the best advantage of the community. Therefore, the community

25
was entitled to know whether or not this requirement of the Statute was being satisfied

in the functioning of the LIC. The Supreme Court pointed out that the attitude of the

LIC was unfair and unreasonable; unfair because fairness demanded that both view

points were placed before the readers and unreasonable because there was no

justification for refusing publication. By refusing to print and publish the rejoinder the

LIC had violated the respondent's fundamental right guaranteed under Article 19(l)(a)

of the Constitution.

2.4.5 Right to Exhibition of Films etc.

In a democracy it is not necessary that every one should sing the same song.

The freedom of expression is the rule and it is generally taken for granted. Every one

has a fundamental right to form his opinion on any issue of general concern. He can

form and inform by any legitimate means. The democracy is Government by the

people via open discussion. The Court has accepted that movies, films etc doubtless

covered under the ambit of freedom of speech and expression under Article 19(l)(a) of

the consitution. But at the same time the fundamental freedoms under Article 19(l)(a)

can be reasonably restricted only for the purposes mentioned in Article 19(2) and the

restriction must be justified on the anvil of necessity and not the quicks and of

convenience or expediency.64

One's ideas, views etc., can be expressed and conveyed by many other modes

apart from the press, for instance, radio, movies, television and cinematograph which

includes videograph. The films are more popular in our country and especially with

the rural masses, if the freedom of speech and expression includes freedom of press

the same can be extended to expression through radios, movies, films, television and

64
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

26
videographs. It is needless to say that freedom of speech and expression includes

freedom of propagation.

In K.A. Abbas v. Union of India65 the constitutionality of exhibition of films,

as a media of expression, and its pre-censorship came up before the Supreme Court.

Under the Cinematograph Act, 1952, films are categorised as 'U' films and 'A' films.

'U' films are meant for unrestricted exhibition’s, whereas 'A' films can be shown to

adults only. The petitioner, unable to get *U* certificate for his motion film named

"Tale of Four Cities", questioned the validity of the Cinematograph Act, 1952 along

with the rules made thereunder. The Supreme Court upheld the validity of the

Cinematograph Act, 1952, and said that pre-censorship of films was justified under

Article 19(2) as imposing a reasonable restriction. The Court observed that films have

to be treated separately from other forms of art and expression, because, a motion

picture was able to stir up emotions more deeply than any other product of art. Thus,

the classification of films into two categories, i.e. *U* & 'A' films, was, therefore,

held to be valid and a film can be censored on the grounds mentioned under Article

19(2) of the Constitution.

With regard to the power of precensorship, Chief Justice Hidayatulla observed

therein as follows:

"The task of the censor is extremely delicate The standards that we set

out for our censors must make a substantial allowance hi favour of freedom

thus leaving a vast area for creative art to interpret life and society with some

of its foibles along with what is good. We must not look upon such human

relationship as banned in toto and for ever from human thought and must give

scope for talent to put them before society. The requirements of art and

65
AIR 1971 SC 481.

27
 literature include within themselves a comprehensive view of social life and

not only in its ideal form and the line is to be drawn where the average man,

moral man begins to feel embarassed or disgusted at a naked portrayal of life

without the redeeming touch of art of genius of social value. If the depraved

begins to see in these things more than what an average person would, in

much the same way as it is wrongly said, a Frenchman sees a woman's legs is

everything, it cannot be helped. In our scheme of things ideas having

redeeming social or artistic value must also have importance and protection

for their growth."66

In Odyssey Communications Pvt Ltd. v. Lok Yidayan Sanghatans67 a stay

order issued by the Bombay High Court, restraining telecasting of certain episodes of

the serial named "Honi Anhonee" was challenged before the Supreme Court. The

leading question before the Court was whether these episodes should be prohibited

from being telecast. The Supreme Court held that the right of citizens to exibit films

on Doordarshan, subject to the terms and conditions to be imposed by the

Doordarshan, is a part of the fundamental right of freedom of expression guaranteed

under Article 19(l)(a), which can be curtailed only under circumstances set out in

Article 19(2) of the Constitution. The Court observed that a citizen's right to exhibit

films on television is similar to the right of a citizen to publish his views through any

other media such as newspapers, magazines, advertisements, hoardings etc. subject to

the terms and conditions of the owners of the media. The episodes in question did not

violate any law or any right of the petitioners nor was the serial likely to affect

prejudicially the well being of the people. Thus, showing of these episodes was not

likely to endanger public morality.

66
Ibid.
67
AIR 19SS SC 1642.

28
 In S. Rangarajan v. P. Jagjivan Ram68 the appellant is a film producer.

He produced a Tamil film "Ore Oru Gramathile" and applied for certificate for

exhibition of the film. The examination committee upon seeing the film refused to

grant the certificate but on a reference being made to the 2nd Revising Committee for

review and recommendation, the Committee by a majority of 5:4 recommended the

grant of a 'U' certificate subject to deletion of certain scenes. 'U' certificate was

challenged in the High Court by means of writ petitions. It was contended before the

High Court that the film is treated in an irresponsible manner, the reservation policy

of the Govt, has been projected in a biased manner and the so-called appeal in the film

that 'India is one' is a hollow appeal which touches caste sensitivity of the Brahmin

forward caste. It was also asserted that the film would create law and order problem in

Tamil Nadu. The writ petitions were dismissed by the Single Judge but upon appeal

they were allowed and the 'U' certificate issued to the appellant-producer was

revoked. These two appeals, one by the producer of the film and the other by the

Union of India have been filed by special leave of challenging the decision of the

High Court. The principal contentions raised on behalf of the appellants were:

i. That the fundamental right of freedom of free expression guaranteed under the

Constitution covers even the medium of movies; that the opinion on the film

ought not to be rested on the isolated passages disregarding the main theme

and its message;

ii. That the Court should not concern itself with the correctness or legality of the

views expressed in the film and the Court cannot limit the expression on any

general issue even if it is controversial and that the writings of the film must

68
(1989) 2 SCC 574.

29
 be considered in a free and liberal manner in the light of the freedom of

expression guaranteed under the Constitution.

It was asserted that the theme of the film is that reservation could be on the

basis of economic backwardness instead of caste. The counsel for the respondents was

critical about the manner in which the reservation policy of the Government has been

condemned and the events and the characters portrayed in the film, as they are

depicted in a biased manner and reaction to the film in Tamil Nadu is bound to be

volatile and likely to create law and order problem. The Supreme Court observed that

the motion pictures were originally considered as a form of amusement to be allowed

to titillate but not to arouse. They were treated as mere entertainment and not an art or

a means of expression. Movie motivates thought and action and assures a high degree

of attention and retention. It makes its impact simultaneously arousing the visual and

aural senses. The movie had unique capacity to disturb and arouse feelings. It has as

much potential for evil as it was for good. It has an equal potential to instil or cultivate

violent or good behaviour'. Censorship by prior restraint is, therefore, not only

desirable but also necessary. The Censors Board should exercise considerable

circumspection on movies affecting the morality or decency of our people and cultural

heritage of the country. The moral values in particular, should not be allowed to be

sacrificed in the guise of social change or cultural assimilation. The censors should be

responsive to social change and they must go with the current climate. The censors

may display more sensitivity to movies which will have a markedly deleterious effect

to lower the moral standards of those who see it. If the film is unobjectionable and

cannot constitutionally be restricted under Article 19(2)v freedom of expression

cannot be suppressed on account of threat of demonstration and processions or threats

of violence. That would tantamount to negation of the male of law and surrender to

30
black mail and intimidation. It is the duty of the State to protect the freedom of

expression since it is a liberty guaranteed against the State. The State cannot plead its

inability to handle the hostile audience problem. It is its obligatory duty to prevent it

and protect the freedom of expression. The Revising Committees have approved the

film. The members thereof come from different walks of life with variegated

experiences. They represent the cross section of the community. They have judged the

film in the light of the objectives of the Act and the guidelines provided for the

purpose. There is nothing wrong or contrary to the Constitution in approving the film

for public exhibition. The framework of the Indian Constitution differs from the First

Amendment to the U.S. Constitution. Article 19(l)(a) guarantees to all citizens the

right to freedom of speech and expression. The freedom of the expression means the

right to express one's opinion by words of mouth, writing, printing, picture or in any

other manner, it would thus include the freedom of communication and the right to

propagate or publish opinions. The communication of ideas could be made through

any medium, newspaper, magazine or movie. But this right is subject to reasonable

restrictions on grounds set out under Article 19(2). Reasonable limitations can be put

in the interest of 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. In matters of certification

of films, it is necessary to take prompt action by the respective authorities. The

producer who has invested a large capital should not be made to wait needlessly. He

has a statutory right to have the validity of the film determined in accordance with

law. It would be, therefore, proper and indeed appreciative if the film is reviewed as

soon as it is submitted. It is not proper to form an opinion by dwelling upon stray

sentences or isolated passages disregarding the main theme. The democratic form of

31
Government itself demands its citizens' an active and intelligent participation as a

basic features and a rational process of democracy which distinguishes it from all

other forms of Government Public discussion on issues relating to administration had

positive value. Our commitment to freedom of expression demands that it cannot be

suppressed unless the situations created by allowing the freedom are pressing and the

community interest is endangered. The anticipated danger should not be remote,

conjectural or far fetched. It should have proximate and direct nexus with the

expression. The expression of thought should be intrinsically dangerous to the public

interests. In other words, the expression should be inseparably locked up with the

action contemplated like the equivalent of a 'spark in a power keg'. It is difficult to

understand how the expression in the film with criticism of reservation policy or

praising the colonial rule will affect tire security of the State or sovereignty and

integrity of India. There is no utterance in the film threatening to overthrow the

Government by unlawful or unconstitutional means. There is either no talk of

secession nor is there any suggestion for impairing the integration of the country. The

film seems to suggest that the existing method of reservation on the basis of caste is

bad and reservation on the basis of economic backwardness is better. The film also

deprecates exploitation of people on caste considerations. The fundamental freedom

under Article 19(l)(a) can be reasonably restricted only for the purposes mentioned in

Art. 19(2) and the restriction must be justified on the anvil of necessity and not the

quicks and of convenience and expediency. Open criticism of Government policies

and operations is not a ground for restricting expression. We must practice tolerance

to the views of others. Intolerance is as much dangerous to democracy as to the person

himself. The Court allowed the appeals, set aside the judgment of the High Court and

dismissed the writ petitions.

32
 The Apex Court 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. The Court further directed to

the Government, Media, Doordarshan and 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 directed the Universities and the

Education Boards to make 'environment education' as a compulsory subject in their

courses.69

The Supreme Court in Life Insurance Corporation of India v. Manubhai D.

Shah70 held that a film-maker has a fundamental right to exhibit his film on

Dooddarshan under Article 19(l)(a) of the Constitution. In this case, the respondent,

Cinemart Foundation produced a documentary film on the Bhopal Gas Disaster titled

"Beyond Genocide" which was awarded the Golden Lotus, being the best non-feature

film of 1987. At the time of the presentation of awards, the Union Minister for

Information & Broadcasting, had declared that the award winning films would be

telecast on Dooddarshan. The respondent submitted his film to Doordarshan for

telecast but Doordarshan refused to telecast the same on the grounds that (i) the film

was out dated (ii) it had lost its relevance (iii) it lacked moderation and restraint (iv) it

was not fair and balanced (v) political parties have raised various issues concerning

the tragedy and (vi) claims for compensation by victims were sub-judice. Thus, the

Court observed that the respondent had the right to convey his perception of the gas

disaster in Bhopal through the documentary film. Merely because, it was critical of

the State Government was no reason to deny selection and publication of the film. In

69
M.C. Mehta v. Union' of India, 1992 SCC 382.
70
AIR 1993 SC 171.

33
fact, the community was keen to know what actually had happened, what was

happening, what remedial measures the State Government was taking and what were

the likely consequences of the gas leak.

Again in Bobby Art International v. Om Pal Singh Hoon71 the Hon'ble

Supreme Court upheld the grant of 'A' certificate to the film named "Bandit Queen"

and held that the censor of nudity, rape and the use of expletives exhibited in the film

were in aid of the theme and were not intended to arouse prurient or lascivious

thoughts, but intended to arouse revulsions against the prepetrators and pity for the

victim.

2.4.6 Right to Fly National Flag

The Hon'ble Supreme Court in Union of India v. Naveen Jindal72 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(l)(a) of the Constitution, being an

expression and manifestation of his allegiance and feelings and sentiments of pride for

the Nation, so long as the expression is confined to nationalism, patriotism and love

for motherland. It cannot be used for commercial purpose or otherwise. The same is

not an absolute right but a qualified one, subject to reasonable restiictions 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.

71
AIR1996SC1846:(1996)4SCCI.
72
AIR 2004 SC 1559:(2004) 2 SCC 476.

34
2.4.7 Right to Remain Silent

In Bijoe Emmanuel v. State of Kerala73 three children belonging to

Jehovah's Witnesses were expelled from the school for refusing to sing the National

Anthem during school prayers. They used to stand up respectfully when the National

Anthem was being sung, but did not join in singing it. The Kerala High Court upheld

their expulsion from the school on the ground that they committed an offence under

the Prevention of Insults to National Honours Act, 1971. However, the Hon'ble

Supreme Court reversed the decision of the Kerala High Court. The Supreme Court

held that no person could be compelled to sing the National Anthem, if he has genuine

conscientious objections based on his religious belief. 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 Article 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.

Thus, the expulsion of the children from that school was a violation of their

fundamental right under Article 19(l)(a) of the Constitution which also included

freedom of silence.

2.4.8 Right against Noise Pollution

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

73
AIR 1987 SC 748:(19S6) 3 SCC 615.

35
reasonable restrictions can be imposed on the freedom of speech, the Courts have

implied this limitation from Article 19(l)(a) itself. 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(l)(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".74

In K. Venu v. Director General of Police75 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 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, Kottayam76 the Kerala High Court

has taken noise pollution into account saying "exposure to high noise is a known

risk." The Court has observed that "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 other rights of 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 in Moulana Mufti Syed Md. Noorur Rehraan

Barkati v. State of West Bengal77 held that Article 19(l)(a) of the Constitution

protected the citizens against excessive sound and upholding the restrictions on the

74
New Road Brothers v. Commissioner of Police, Emakiilam, AIR 1999 Ker, 262.
75
AIR 1990, Ker. 344.
76
AIR 1993 Ker 1.
77
AIR 1999 Cal. 15. Also see Masood Alam v. Commissioner of Police, AIR 1956 Cat. 9 and
Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Orissa 70.

36
use of loudspeakers at the time of giving azan on the ground of noise pollution. The

Court has stated that excessive noise certainly causes pollution in society. Under

Article 19(l)(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 Court further held that

no one can, under Article 19(l)(a), claim on absolute rights to suspend others basic

human rights and fundamental rights.

The Hon'ble Supreme Court has ruled in Church of God (Full Gospel) in India

v. ICK.R. Majestic Colony Welfare Association78 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. The Court further observed that:

"Undisputedly, no religion prescribes that prayers should be performed

by disturbing the peace of others nor does it preach that they should be

through voice amplifiers or beating of drums. In our view, in a

civilized society in the name of religion, activities which disturb old or

infirm persons, students or children having their sleep in the early

hours or during daytime or other persons carrying on other activities

cannot be permitted. It should not be forgotten that young babies in the

neighbourhood are also entitled to enjoy their natural right of sleeping

in a peaceful atmosphere. A student preparing for his examination is

entitled to concentrate on his studies without there being any

unnecessary disturbance by the neighbour's. Similarly, the old and the

78
AIR 2000 SC 2773:(2000) 7 SCC 282. Also see Om Biranguna Religious Society v. State of West
Bengal, (1996)100 CWN 617.

37
 infirm are entitled to enjoy reasonable quietness during their leisure

hours without there being any nuisance of noise pollution. Aged, sick,

people afflicted with psychic disturbances as well as children up to

6 years of age are considered to be very sensible to noise. Their rights

are also required to be honoured."

2.4.9 Right to Receive Information

The right to 'freedom of speech and expression' in Article 19(l)(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 advertisements, 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(l)(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. Right to know is a basic right of the citizens of a free

country and Article 19(l)(a) of the Constitution protects this right. The right to receive

information springs from the right to freedom of speech and expression guaranteed

under Article 19(l)(a). The freedom to receive and to communicate information and

ideas without interference is an important aspect of the freedom of speech and

expression because without adequate information, a person cannot form an informed

opinion.79

In State of Uttar Pradesh v. Raj Nation80 the Supreme Court held that

Article 19(l)(a) not only guarantees freedom of speech and expression, it also ensures

79
MP, Jain, "Indian Constitutional Law" Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2012,
p. 1081, 1083.
80
AIR 1975 SC 865:(1975) 4 SCC 428.

38
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."81

The Hon'ble Supreme Court observed that:

"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."82

Further in Secretary, Ministry of Information 81 Broadcasting,

Government of India v. Cricket Association of Bengal83 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 Case84 the

Supreme Court concluded that the "commercial speech" cannot be denied the

protection of Article 19(l)(a) merely because the same is issued by businessmen.

"Commercial speech" is a part of freedom of speech guaranteed under the Article

19(l)(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.

81
S.P.Gupta v. Union of India, (1981) Suppl. SCC 87.
82
M.C. Mehta v. Union of India, 1992 SCC 382.
83
AIR 1995 SC 1236.
84
AIR 1995 SC 2438: (1_995) 5 SCC 139.

39
 It has been ruled that when a substantially significant population body is

illiterate or does not have easy access to ideas or information, it is important that all

available means of communication, particularly audio-visual communication, are

utilised not just for entertainment but also for education, information, propogation of

scientific ideas and the like.85

The Hon'ble Supreme Court in Dinesh Trivedi, M.P and Others v. Union of

India86 observed that 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 that 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 elections87 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(l)(a).

Democracy cannot survive without free and fairly infonned voters. Subsequently the

Central Government amended the Representation of the People Act, 1951, by passing

the Representation of the People (Third Amendment) Act, 2002.

85
Union of lndia v. The Motion Picture Association, AIR 1999 SC 2334.
86
(1997) 4 SCC 306: (1997) 1 SCJ 697.
87
Association for Democratic Reforms v. Union of India, AIR 2001 Del. 126.

40
 It is, thus, quite clear that right to acquire and get information is a fundamental

right under the Indian Constitution. But what type of information, it includes?

Obviously, not all types of information, but only the information relating to matters of

public or common importance affecting people in general. Till now, most of the

Government Departments were denying information to the public under the Official

Secret Act. But various judgments quoted above have given this right to people and it

will no longer be possible for Government to deny such information unless it does not

concern the public at all.88

2.5 REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH AND

EXPRESSION

In modem State, it has been realised that freedoms cannot be guaranteed in

absolute terms and cannot be uncontrolled. For, an organised society it is a pre-

condition for civil liberties. While absolute power results in tyranny, absolute

freedoms lead to ruin and anarchy.89 Justice Patanjali Shastri observed that:

"Man as a rational being desires to do many things, but in a civil

society his desires have to be controlled, regulated and reconciled with

the exercise of similar desires by other individuals."90

The fundamental rights of citizens and of human beings in civilized society,

based upon co-operation, are not absolute and unconditional. They are defined and

limited by the very nature of the social organization, the demand of industry and the

needs of mutual co-operation in a widespread division of labour. Freedom is a

convenient term to express some of these rights. But absolute freedom, in the sense of

88
B.P. Srivastava, "Constitutional Provisions and Judicial Pronouncements on Freedom of
Information" Orissa Review, November 2006, p. 87-93. Retrieved from <http://orissa.gov.in/e-
magazine/ Orissa review /nov-2006/engpdf/87-93.pdf> 24-03-2008.
89
Willis, "Constitutional Law and the United States" p. 477.
90
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

41
freedom to action by undisciplined impulses can only belong to the savage cave

dwellers or the beast of the jungle. Rights are coupled with or conter balanced by

obligations or duties of citizenship, which need as much to be emphasized as rights.91

The Supreme Court while dealing with the question as to how far the above

rights can be exercised held that possession and enjoyment of such rights are subject

to reasonable restrictions and conditions. As such control is necessary and essential to

the safety, health, peace, general order and morale of the community. In a free and

democratic society a citizen has right to say what he wishes. 92 However, it is the duty

of the Constitution that a balance be struck between individual liberty and social

control as explained by the Supreme Court.93

It is difficult to give an exact definition of the word 'reasonable'. 94 What is

reasonable restriction or whether such a restriction abuses a fundamental right? There

is no definite test to adjudicate reasonableness of a restriction. It is the duty of the

Court to decide and each case is to be judged on its own merits, hi other words, no

abstract standard or general pattern of reasonableness is applicable uniformly to all

cases.95 The fundamental rights are allowed to be enjoyed and there shall be great

restraint of their interference by executive action and the executive cannot interfere

without the sanction of law authorising such act or interference.

The term 'reasonable' implies intelligent care and deliberation, i.e. the choice

of a course, which reason dictates. It seeks to strike a balance between the individual

right secured by Article 19(1) and social control permitted by Article 19(2) to (6) of
91
The Framing of India's Constitution-Select Documents, Universal Law Publishing Co. Pvt. Ltd.,
New Delhi, 2012, Vol.11, p. 48.
92
Divisional Forest Officer v. Biswanath Tea Company, AIR 19S1 SC 1368.
93
K.K. Kochuni v. State of Madras, AIR 1960 SC 1080. Also see Collector of Customs, Madras v.
Nathella Sampathu Chetty, AIR 1962 SC 316.
94
Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujrat) Pvt. Ltd. and Anothers, AIR
1989 SC 973.
95
M.P. Jain, "Indian Constitutional Law" Lexis Nexis Butterworihs Wadhwa Nagpur, Gurgaon 2012,
p.1073

42
the Constitution.96 However, this right is not absolute and reasonable restrictions can

be imposed in the interest of sovereignty and integrity of India, security of the state,

friendly relations with foreign states, public order, decency and morality and

contempt of court, defamation and incitement to an offence.97 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 law.98

The limitations imposed by Articles 19(2) to 19(6) on the freedoms guaranteed

by Articles 19(l)(a) to (g) of the Constitution serve two fold purposes, viz.,

I. They specify that these freedoms are not absolute but are subject to regulation;

II. They put a limitation on the power of a legislature to restrict these freedoms.

A legislature cannot restrict these freedoms beyond the requirements of

Articles 19(2) to 19(6).99

The Supreme Court also took note of the test of reasonableness in these words:

"It is important in this context to bear in mind that the test of

reasonableness, wherever prescribed, should be applied to each

individual statute impugned, and 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 remedied thereby, the disproportion of the imposition, the

96
Union of India v. Motion Pictures Association, AIR 1999 SC 2334.
97
Article 19(2) of the Constitution of India.
98
Krishnan Kakkanth v. State of Kerala, AIR 1997 SC 128. Also see Kharak Singh v. Stata of UP.,
AIR 1963 SC 1295.
99
MP. Jain, p. 1072.

43
 prevailing conditions at the time, should all enter into the judicial

verdict."100

The Supreme Court, in several cases, has laid down the following guidelines

for determining the reasonableness of restrictions:

1. It is the Courts and not the Legislature that will decide whether a restriction is

reasonable or not.101

2. Restriction must not be arbitrary, unbridled and excessive. Moreover, the

restriction must not be beyond what is required in public interest and must be

consistent with Article 14 of the Constitution.102

3. There is no fixed standard for reasonableness. Each case must be decided on

its own merits.103

4. The restriction must be reasonable from both substantive as well as procedural

standpoint and the time and duration of the restriction cannot be unlimited.104

5. Restrictions imposed due to implementation of Directive Principles may deem

to be reasonable.105

6. The test of reasonability must be objective in the sense that it does not matter

what a Judge or Court thinks what is reasonable but what a normal reasonable

person would think.106

100
State of Madras v. y.G. Row, Union of India & State Interveners of Travancore, AIR 1952 SC 196:
1952 SCR 597.
101
Chntaman Ro v. State of M.P., AIR 1951 SC 118.
102
Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200.
103
Dhararn Dutt v. Union of India, AIR 2004 SC 1295.
104
Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200.
105
State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
106
Sharda v. Dharampal, AIR 2003 SC 3450.

44
 7. There must be a direct and proximate nexus or a reasonable connection

between the restriction imposed and the object sought to be achieved and

must not be excessive.107

8. It is the reasonableness of the restriction which is to be determined by the

Court and not the reasonableness of the law authorising the imposition of

restriction.108

9. Restriction, under certain circumstances, may also amount to prohibition.109

A principle of freedom of speech asserts some range of protection for speech

that goes beyond limitations on Government interference with other activities. While

a minimal principle of liberty maintains that Government should not inhibit

communications that pose no legitimate threat of harm, a distinctive principle of

freedom of speech posts more robust constraints.110

2.5.1 Grounds of Restrictions on Freedom of Speech and Expression

It is necessary to maintain and preserve freedom of speech and expression in a

democracy, so also it is necessary to place some curbs on this freedom for the

maintenance of social order. No freedom can be absolute or completely unrestricted.

111
Article 19(2) specifies the grounds to which reasonable restrictions on the freedom

of speech and expression can be imposed:

a. Security of State: Under Article 19(2) reasonable restrictions can be imposed

on freedom of speech and expression in the interest of security of State. The

term 'security of state' refers only to serious and aggravated forms of public

107
M.R.F. Ltd. v. Inspector, Kerala Government, AIR 1999 SC 188.
108
N.B. Kliare v. State of Delhi, AIR 1950 SC 211.
109
Narendra Kumar v. Union of India, AIR 1960 SC 430.
110
Kent Greenawalt, "Free Speech Justifications" in Mahendra P.Singh (eds.), Comparative
Constitutional Law, Eastern Book Company, Lucknow, 2011, p. 369.
111
M.P. Jain, "Indian Constitutional Law" Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2012,
p. 1104.

45
 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. While, speeches or expressions 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 State.112 The expression

'security of the state' in Article 19(2) does not merely mean as danger to the

security of the entire country, but endangering the security of a part of the

State would also involve a tin-eat to the security of the State.113

b. Friendly relations with Foreign States: This ground was added by the

Constitution (First Amendment) Act, 1951. The object behind the provision is

to prohibit unrestrained malicious propaganda against a foreign friendly state,

which may jeopardise the maintenance of good relations between India and

that State. No similar provision is present in any other Constitution of the

World. In India, the Foreign Relations Act, (XII of 1932) provides punishment

for libel by Indian citizens against foreign dignitaries. Interest of friendly

relations with foreign States, would not justify the suppression of fair criticism

of foreign policy of the Government. It is to be noted that members of the

Commonwealth including Pakistan is not a 'foreign state' for the purposes of

this Constitution. The question arises before the Supreme Court whether a

restriction can be imposed on the freedom of speech and expression on the

ground of its prejudicial to a Commonwealth country. The Court stated 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.114

112
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
113
Ram Nandan v. State, AIR 1959 All. 101.
114
Jagan Nath v. Union of India, AIR 1960 SC 675.

46
 The result is that freedom of speech and expression cannot be restricted on the

ground that the matter is adverse to Pakistan.

c. Public Order: This ground was also added by the Constitution

(First Amendment) Act, 1951. The concept of 'public order' is wider than

'security of state'.115 'Public order' is an expression of wide connotation and

signifies that state of tranquility which prevails among the members of

political society as a result of internal regulations enforced by the Government

which they have established. Public order is something more than ordinary

maintenance of law and order. 'Public order' is synonymous with public peace,

safety and tranquility.116 The test for determining whether an act affects law

and order or public order is to see whether the act leads to the disturbances of

the current of life of the community so as to amount to a disturbance of the

public order or whether it affects merely an individual being the tranquility of

the society undisturbed.117

Anything that disturbs public tranquility or public peace disturbs public order.
118
Thus, communal disturbances and strikes promoted with the sole object of causing

unrest among workmen are offences against public order.119 Public order thus, implies

absence of violence and an orderly state of affairs in which citizens can peacefully

pursue their normal avocation of life. Thus, creating internal disorder or rebellion

would affect public order. However, mere criticism of Government does not

necessarily disturb public order. In its external aspect 'public safety' means protection

of the country from foreign aggression. Under public order the State would be entitled

115
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
116
Supdt Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
117
Collector & District Magistrate v. S. Sultan, AIR 2008 SC 2096.
118
Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
119
Jawali v. State of Mysore, AIR 1966 SC 1387.

47
to prevent propaganda for a state of war with India. The words 'in the interest of

public order' includes not only such utterances as are directly intended to lead to

disorder but also those that have the tendency to lead to disorder. Thus, a law

punishing utterances made with the 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 cases those activities may not actually lead to a

breach of peace. But there must be reasonable and proper nexus or relationship

between the restrictions and the achievements of public order.120

d. Decency or Morality: These are terms of variable content having no fixed

meaning for ideas about decency or morality; vary from society to society and

time to time depending on the standards of morals prevailing in the

contemporary society.121 Thus, words 'morality' or 'decency' are words of wide

meaning. Sections 292 to 294 of the Indian Penal Code provide instances of

restrictions on the freedom of speech and expression in the interest of decency

or morality. These sections prohibit the sale or distribution or exhibition of

obscene words, etc. in public places.122 The Apex Court123 ruled that the words

'decency and morality'is not confined to sexual morality alone. The ordinary

meaning of the '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 observations from an English case124

120
Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
121
M.P. Jain, "Indian Constitutional Law" Lexis Nexis Butterworths Wadhwa Nagpui', Gurgaon, 2012,
p.1109.
122
Ranjit Udeslii v. State of Maharashtra, AIR 1965 SC 831.
123
Ramesh Y. Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113.
124
Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions, (1972) 2 All
ER 898. Also referred in Director General of Doordarshan v. Anand Patwardhan, AIR 2006 SC
3346.

48
 "....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 find to be shocking, disgusting or revolting...."

e. Contempt of Court: Restriction on the freedom of speech and expression can

be imposed if it exceeds the reasonable and fair limit and amounts to contempt

of court. It cannot be held as law that in view of the constitutional protection

of freedom of speech and expression, no one can be proceeded with for the

contempt of court on the allegation of scandalising or intending to scandalise

the authority of any Court125.125 Section 2(a) of the Contempt of Courts Act,

1971, provides that 'contempt of court' may be either 'civil contempt' or

'criminal contempt'.

f. Defamation: A statement, which injures a man's reputation, amounts to

defamation. Defamation consists in exposing a man to hatred, ridicule, or

contempt. According to Winfield126, defamation is the publication of a

statement which reflects on a person's reputation and tends to lower him in

estimation of right-thinking members of society generally or tends to make

them shun or avoid him. The civil law relating to defamation is still uncodified

in India and subject to certain exceptions. Section 499 of the Indian Penal

Code, 1860, defines the offence of defamation. It recognises both slander and

libel.

g. Incitement to an offence: This ground was also added by the Constitution

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

cannot confer a right to incite people to commit offences. The word 'offence' is

125
Re: Arundhati Roy, AIR 2002 SC 1375.
126
Winfield and Jolowicz on Tort, 274 (1979).

49
 defined as any act or omission made punishable by law for the time being in

force. The incitement to an offence does not refer to incitement to break a law.

Thus, an incitement to a breach of every civil law is not necessarily

contemplated by Article 19(2).

h. Sovereignty and Integrity of India: This ground was also added to Article

19(2) by the Constitution (Sixteenth Amendment) Act, 1963. The main

purpose is to guard the freedom of speech and expression from being used to

assail the sovereignty and territorial integrity of the Country.

Sedition: It should be noted that the sedition is not mentioned in clause (2) of

Article 19 as one of the grounds on which restrictions on freedom of speech

and expression may be imposed. As understood by English law, sedition

embraces all those practices whether by words, or writing which are calculated

to disturb the tranquility of the State and lead ignorant person to subvert the

government. The Supreme Court held that section 124-A of the Indian Penal

Code, 1860 was limited to acts involving an intention or a tedency to create

disorder or disturbance of law and order or incitement to violence and was not

violative of Article 19(l)(a) read with Article 19(2) of the Constitution.127

2.5.2 Fundamental Duties

Further restrictions have been imposed on the freedom of speech and

expression by Article 51A defining fundamental duties of a citizen (42nd Amendment

in 1976). Under Article 51A, no one should in exercise of the freedom of expression

or of the press do any of the following acts:

1. to disparage the constitution, its ideals and institutions, the National Flag or

the National Anthem;

127
Kedar Nath v. State'of Bihar, AIR 1962 SC 955.

50
 2. to undermine the sovereignty, unity and integrity of India;

3. to disrupt the spirit of common brotherhood among all the people; and

4. to insult the rich heritage of our composite culture.

2.6 WHY WE NEED SEPARATE ENACTMENT INSPITE OF

CONSTITUTIONAL PROVISIONS

The right to access information held by public bodies is a fundamental human

right of every citizen, protected under the Constitution of India. It is accepted by

Supreme Court that Right to information is an inherent part of right to freedom of

speech and expression under Article 19(l)(a) and the right to life and personal liberty

under Article 21 of the Constitution. But then, the question arises why we need a

separate law for freedom of information when there is a constitutional provision. In

spite of Constitutional provisions, which guaranteed fundamental rights, there are

certain reasons to do so, like, (i) the provisions of Part-Ill are not only providing the

fundamental rights, these are just the enabling clauses authorizing the Parliament to

enact laws for creating the provisions for interpretation of various fundamental rights

enshrined in Part III of the Constitution of India. We need comprehensive legislation

on each and every right guaranteed under Part III of the Constitution. That is why,

right to information must be guaranteed by a strong legislation and the process of law-

making itself must be participatory; and (ii) we have not been able to create a culture

and climate where values of freedom, rights and a democratic way of life are

respected. One of the purposes of making laws like the right to information, which is

primarily a human right, is to help create this culture.128

128
Retrieved from <http://orissa.gov.in/e-magazine/Orrissareview/nov-2006/engpdf/108-
114.pdf>visited on 24.08.2008.

51
2.7 CONCLUSION

It can be easily concluded that right to freedom of speech and expression is

one of the most important fundamental rights. It includes circulating one's views by

words or in writing or through audio-visual instrumentalities, advertisements or

through any other communication channel. It also comprises of right to information,

freedom of press etc. Thus, this fundamental right has a vast scope. From the above

case law analysis, it is evident that the Court has always placed a broad interpretation

on the value and contents of Article 19(l)(a), making it subjective only to the

restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or

choke this freedom have always been firmly repelled, more so when public authorities

have betrayed tyrannical tendencies.

52
 TABLE OF CONTENTS

CONTENTS Pg No.

1) Acknowledgement 2

2) Table of cases 3

3) Abstract 4

4) Reasonable restrictions 5

5) Freedom of speech and expression 5-10

 Freedom of press 7-9

 Right to information 9-10

6) Grounds of restriction 11-14

7) Freedom to assemble 14-15

8) Freedom to form association 15 -17

9) Freedom of movement and residence 17-20

10) Freedom to carry on trade and occupation 20

11) Bibliography

1
 TABLE OF CASES

• A.K. Gopalan vs The State Of Madras. Union Of... on 19 May, 1950

• Association for Democratic Reforms Case

• Babulal Parate v. State of Maharashtra

• Brij Bhusan Vs State of Delhi (1950)

• Damyanti Narang Vs Union of India

• Excel wear Vs Union of India (1979 SC 25)

• Express newspaper Vs Union of India (1986)

• Hamdard Dawakhana Vs Union of India

• Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors

• Harshaker Vs Deputy Excuse & Taxation commissioner AIR 1975 SC 1121

• Himat lal Vs Police commission case

• Indian express newspaper Vs Union of India AIR 1962 SC 305

• Indian express newspaper Vs UOI the court held that (AIR 1986 SC 515)

• Indian Express Newspapers pvt ltd Vs union of India (1985

• Indirect Tax Practitioners Assn. Vs R.K. Jain

• K. Krishnamurthi Vs Union of India

• K.A. Abbas Vs Union of India

• Kharak Singh Vs The State of U. P. & Others on 18 December, 1962

• New York Time Vs Sullivan 376 US 254.

• Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police.(1973)

2
• Railway Board Vs Niranjan Singh AIR (1969) SC 966)

• Rangarajan Vs P. JagjivanRam (1989)2 SCC 574

• Romesh Thaper Vs State of Madras AIR 1950 SC

• S.M. Kala Vs University of Rajasthan

• Sakal papers Vs Union of India AIR 1986

• Sitaramacharya v. Dy, Inspector of School

• State of madras Vs V.G Row

• T.M.A Pai foundation Vs State of Karaataka (AIR 2003 SC 355)

• TATA Press ltd Vs MTNL(AIR 1995 SC 2438),

• Unni Krishnan Vs State of A.P. (AIR 1993 SC 2178

• Vishakha Vs state of Rajasthan (AIR 1997 SC 3011)

• Shyam Bihari Tiwari Vs State of U.P. (1994)

3
 ABSTRACT

Protection of certain rights regarding Freedom of Speech (ARTICLE19)

19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(g) to practise any profession, or to carry on any occupation,

trade or business

(2) 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 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

(3) Nothing in sub clause (b) of the said clause shall affect the operation of

any existing law in so far as it imposes, or prevent the State from

making any law imposing, in the interests of the sovereignty and

integrity of India or public order, reasonable restrictions on the

exercise of the right conferred by the said sub clause

4
(4) Nothing in sub clause (c) of the said clause shall affect the operation of

any existing law in so far as it imposes, or prevent the State from

making any law imposing, in the interests of the sovereignty and

integrity of India or public order or morality, reasonable restrictions on

the exercise of the right conferred by the said sub clause

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the

operation of any existing law in so far as it imposes, or prevent the

State from making any law imposing, reasonable restrictions on the

exercise of any of the rights conferred by the said sub clauses either in

the interests of the general public or for the protection of the interests

of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of

any existing law in so far as it imposes, or prevent the State from

making any law imposing, in the interests of the general public,

reasonable restrictions on the exercise of the right conferred by the said

sub clause, and, in particular, nothing in the said sub clause shall affect

the operation of any existing law in so far as it relates to, or prevent the

State from making any law relating to,

(i) the professional or technical qualifications necessary for practising any

profession or carrying on any occupation, trade or business, or fi|) the

carrying on by the State, or by a corporation owned or controlled by

the State, of any trade, business, industry or service, whether to the

exclusion, complete or partial, of citizens or otherwise .

5
FREEDOMS NOT ABSOLUTE - SUBJECT TO REASONABLE

RESTRICTIONS

Reasonable restriction means intelligent care and discussion that the restriction

is not beyond what is required for public interest. It should not be arbitrary and

excessive. Further, the restriction can only be imposed by law and not by executive or

departmental decision.

Test of reasonable restrictions - Spanning several cases, SC has laid down the

following guidelines :

1. It is the courts and not the legislature that will decide whether a law is

reasonable or not.

2. Reasonable means that the law is not arbitrary and the restriction is not beyond

what is required in public interest. The time and duration of the restriction

cannot be unlimited.

3. There is no fixed standard for reasonableness. Each case must be decided on

its own merits.

4. The restriction must be reasonable from substantiate as well as procedural

stand point.

5. Restrictions imposed due to implementation of Directive Principles may

deemed to be reasonable.

6. The test of reasonability must be objective in the sense that it does not matter

what a Judge or Court thinks what is reasonable but what a normal reasonable

person would think.

7. The restriction must have a relation to the object that is sought through the law

and must not be excessive.

6
 8. It is the reasonableness of the restriction that a count has to determine and not

the reasonableness of the law itself.

9. Restriction may amount to prohibition.

FREEDOM OF SPEECH AND EXPRESSION

ARTICLES 19(1) (A) & 19(2)

Meaning and Scope

Article 19(1) (a) of Indian Constitution says that all citizens have the right to

freedom of speech and expression Freedom of speech and expression is the most basic

of all freedoms granted to the citizens of India. J Patanjali Shastri has said in the case

of Romesh Tliaper Vs State of Madras1 that freedom of speech and that of the press

lay at the foundation of a democratic society, for without free political discussions, no

public education is possible. which is so important for the proper functioning of the

govt. Freedom of Speech and expression means the right to express one's own

convictions and opinions freely by words of mouth, writing, printing, pictures or any

other mode. It thus includes the expression of one's idea through any communicable

medium or visible representation, such as gesture, signs, and the like. Freedom of

speech would amount to nothing if it were not possible to propagate the ideas. Thus,

the freedom of publication and press is also covered under freedom of speech. Free

propagation of Ideas is the necessary objective and this may be done on the platform

or through the press. This propagation of ideas is secured by freedom of circulation.

Liberty of circulation is essential to that freedom as the liberty of publication. Indeed,

without circulation the publication would be of little value. The freedom of speech

and expression includes liberty to propagate not one's views only. It also includes the

1
AIR 1950 SC 124

7
right to propagate or publish the views of other people; otherwise this freedom would

not include the freedom of press.

Freedom of expression has four broad special purposes to serve:

1) It helps an individual to attain self-fulfillment.

2) It assists in the discovery of truth.

3) It strengthens the capacity of an individual in participating in decision-making.

4) It provides a mechanism by which it would be possible to establish a

reasonable balance between stability and social change.

5) All members of society would be able to form their own beliefs and

communicate them freely to others.

In sum, the fundamental principle involved here is the people's right to know.

Freedom of speech and expression should, therefore, receive generous support from

all those who believe in the participation of people in the administration. It is on

account of this special interest which society has in the freedom of speech and

expression that the approach of the Government should be more cautious while

levying taxes on matters of concerning newspaper industry than while levying taxes

on other matters. Explaining the scope of freedom of speech and expression Supreme

Court has said that the words "freedom of speech and expression" must be broadly

constructed to include the freedom to circulate one's views by words of mouth or in

writing or through audiovisual instrumentalities. It therefore includes the right to

propagate one's views through the print media or through any other communication

channel e.g. the radio and the television. Every citizen of this country therefore has

the right to air his or their views through the printing and or the electronic media

8
subject of course to permissible restrictions imposed under Article 19(2)of the

Constitution.

Freedom to air one's view is the lifeline of any democratic institution and any

attempt to stifle, suffocate or gag this right would sound a death knell to democracy

and would help usher in autocracy or dictatorship. The modern communication

mediums advance public interest by informing the public of the events and

development that have taken place and thereby educating the voters, a role considered

significant for the vibrant functioning of a democracy. Therefore, in any setup more

so in a democratic setup like ours, dissemination of news and views for popular

consumption is a must and any attempt to deny the same must be frowned upon unless

it falls within the mischief of Article 19(2) of the Constitution. The various

communication channels are great purveyors of news and views and make

considerable impact on the minds of readers and viewers and our known to mould

public opinion on vitals issues of national importance. The freedom of speech and

expression includes freedom of circulation and propagation of ideas and therefore the

right extends to the citizen to use the media to answer the criticism leveled against the

views propagated by him. Every free citizen has undoubted right to lay what

sentiments he pleases. This freedom must, however, be exercised with circumspection

and care must be taken not to trench on the rights of other citizens or to jeopardise

public interest.

NEW DIMENSIONS OF FREEDOM OF SPEECH AND EXPRESSION

Government has no monopoly on electronic media: The Supreme Court

widened the scope and extent of the right to freedom of speech and expression and

held that the government has no monopoly on electronic media and a citizen has

under Art. 19(l)(a) a right to telecast and broadcast to the viewers/listeners through

9
electronic media television and radio any important event. The government can

impose restrictions on such a right only on grounds specified in clause (2) of Art. 19

and not on any other ground. A citizen has fundamental right to use the best means of

imparting and receiving communication and as such have an access to telecasting for

the purpose.

Commercial Advertisements: The court held that commercial speech

(advertisement) is a part of the freedom of speech and expression. The court however

made it clear that the government could regulate the commercial advertisements,

which are deceptive, unfair, misleading and untruthful. Examined from another angle

the Court said that the public at large has a right to receive the "Commercial Speech".

Art. 19(l)(a) of the constitution not only guaranteed freedom of speech and

expression, it also protects the right of an individual to listen, read, and receive the

said speech.

Telephone Tapping: Invasion on right to privacy : Telephone tapping violates

Art. 19(l)(a) unless it comes within grounds of restriction under Art. 19(2). Under the

guidelines laid down by the Court, the Home Secretary of the center and state

governments can only issue an order for telephone tapping. The order is subject to

review by a higher power review committee and the period for telephone tapping

cannot exceed two months unless approved by the review authority.

The freedom of speech and expression can be studied under two heads:

1) Freedom of press

2) Right to information

10
FREEDOM. OF PRESS I.N.DEMOCRACY "

It is the primary duty of all the national courts to uphold the freedom of the

press and invalidate all laws and administrative actions which interfere with such

freedoms against constitutional mandate1', observed the Supreme

Court in Indian express newspaper Vs Union of India2, While highlighting

the importance of the freedom of the press in a democracy. To arrest the malpractices

of interfering with the free flow of information , the democratic constitution all over

the world provided guarantee of freedom of speech and expression underlying the

circumstances under which restrictions are imposed.

Freedom of press in India and U.S.A - there is no provision in the

constitution of India providing guarantee for the freedom of the press but the Supreme

Court in Sakal papers Vs Union of India3 widely interpreted the scope of art.

19(l)(a) to include within its fold the freedom of the press which is regarded as a

'species of which freedom of expression is a genus". Thus in India the freedom of

press flows from the freedom of speech and expression and enjoy no higher privilege

than the freedom of speech and expression.

But the first amendment to the constitution of the USA protected the freedom

of the press and in the USA the press functions as a watch-dog overseeing generally

the functions of the executive, legislature and the judiciary and to criticize the abuse

of the power by the governmental agencies, New York Time Vs Sullivan 376 US 254.

Freedom of Circulation - the Indian Constitution does not use the expression

'freedom of press' in art 19 but it is included in one of guarantees in art 19(l)(a) of the

constitution. Justice Venkataramiah in Indian Express Newspapers pvt ltd Vs union

2
AIR 1962 SC 305
3
AIR 1986

11
of India4 (1985) observed that the freedom of press is one of the items around which

the greatest and betterest of constitutional struggles have been waged an all countries

where liberal constitution prevails.

The effect of art 29 on the freedom of press was analysed by the apex court in

Express newspaper Vs Union of India5 (where two earlier decisions of the court in

Romesh Thaper Vs state of Madras, and Brij Bhusan Vs State of Delhi 6 where the

government tried to put a ban on the circulation of newspaper. The court while

interpreting the scope of art 19(l)(a) of the constitution held that "the freedom of

speech and expression includes freedom of propagation of ideas which freedom was

ensured by the freedom of circulation and that the liberty of press consisted in

allowing to previous restraint upon the publication. It was further observed that the

fundamental freedom of speech and expression enshrined in our constitution

was based on the provision to the First Amendment of the constitution of USA. Also

there would be violation of the liberty of press not only when there is a direct ban on

the circulation of a publication, but also when some action on the part of the

government adversely affects the publication".

Right to Privacy -publication of autobiography of a condemned prisoner-

prior restraint-the question concerning the freedom of press vis a vis the right of the

citizen and the scope of prior restraint by the government and the parameters of the

right of the press to criticize was considered by the Supreme Court in S. Rangarajan

Vs P. Jagjivan Ram7, the Facts of the case were that the petitioners who were the

publishers of a Tamil weekly magazine approached the Supreme Court to restrain the

government from interfering with their right of publication of the autobiography of

4
AIR 1985
5
AIR 1986
6
AIR 1950
7
AIR 1989 SCC 574

12
the condemned person Auto Sankar. The Supreme Court Held that the government or

their officials have no right to impose prior restraint upon the publication on the

apprehension that they may be defamed. The Court reasoned that " right to privacy is

implicit in the right to life and liberty guaranteed under art 21 of the constitution. It is

a right to be let alone. A citizen has a right to safeguard privacy of his own, his

family, marriage, procreation, motherhood, child bearing and education amongst other

matters and none can publish anything without his consent. But once the matter

becomes part of public record including the court's record, the publication of the same

would not violate the right the right to privacy and it becomes a legitimate subject for

comments by the press and media."

However, in the interest of decency an exception must be carved out to this

rule.

Right of press - interview and photograph of under-trial prisoners-

conditions- the press is entitled to exercise the freedom of speech and expression by

publishing a matter which does not invade the rights of other citizens and which does

not violate the sovereignty and integrity of India, the security of state, public order,

decency and morality. The press must obtain the willingness of person sought to be

interviewed and so-called right of press which is obtained on the basis of the

permission would be subjected to prohibitions from Jail Manual.

Should the journalist reveal its source-the Press Council Act, 1978 provides

that it should not force a journalist to reveal its source. But the Delhi High Court in a

case against The Pioneer said that if the court considered necessary in the interest of

justice, the court could direct the journalist to disclose its source of information.

RIGHT TO INFORMATION

13
 Freedom of speech - right of voters, antecedents of candidates: the

foundation of a healthy democracy is to have well-informed citizens-voters. The

reason to have right of information with regard to the antecedents of the candidate is

that voter can judge and decide in whose favour he should cast his vote. It is voter's

discretion whether to vote in favour of an illiterate or literate candidate. It is his

choice whether to elect a candidate against whom criminal cases, for serious or non-

serious charges were filed but is acquitted or discharged For the first time the right to

know about the candidate standing for election has been brought within the sweep of

article 19(1) (a). There is no doubt that by doing so a new a new dimension has been

given dictated by the need to improve and refine the political process of election.

The Supreme Court in Association for Democratic Reforms Case8 has Held

that article 19(1) (a) which provides for freedom of speech and expression would

cover in its fold right of the voter to know specified antecedents of a candidate , who

is contesting elections.

Also in K. Krishnamurthi Vs Union of India9 the nature of Right to vote and

contest elections -was Held that it does not have the status of fundamental rights -

They are in the nature of legal rights which can be controlled through legislative

means - Constitution empowers the Election Commission to prepare electoral rolls for

identifying the eligible voters in elections for Lok Sabha and Vidhan Sabha - Right to

vote is not an inherent right and cannot be claimed in an abstract sense-1951 Act

includes grounds that render persons ineligible from contesting elections. Thus, there

is no inherent right to contest elections since there are explicit legislative controls

over the same - Representation of the People Act, 1951. Thus it is a statutory right.

8
AIR 2002 SC 2112
9
AIR 2010, VOL.7, SCC 202

14
COMMERCIAL ADVERTISEMENTS - INCLUDED

In Hamdard Dawakhana Vs Union of India10, it was held that 'commercial

advertisements' were not included within the concept of freedom of speech and

expression.

In Indian express newspaper Vs UOI11 the court held that all commercial

advertisements could not denied the protection of art 19(l)(a), merely because they

were issued by a businessmen.

Thus explaining the effect of the combined reading of both the above cases the

Supreme Court in TATA Press ltd Vs MTNL12 Held that 'commercial speech could

not be denied the protection of art 19(l)(a), merely because they were issued by

businessmen. In a democratic society it was observed that free flow of commercial

information was indispensible.

Pre- censorship of films - K.A. Abbas Vs Union of India13

Facts - The petitioner made a documentary film called "A Tale of Four Cities"

which attempted to portray the contrast between the life of the rich and the poor in the

four principal cities of the- country. The film included certain shots of the red tight

district in Bombay. Although the petitioner applied to the Board of Film Censors for a

'U' Certificate for unrestricted exhibition of the film, he was granted a certificate only

for exhibition restricted to adults. On an appeal made to it by the petitioner, the

Central Government issued a direction on May 3, 1969 that a 'u' Certificate may be

granted provided certain specified cuts were made in the film. The petitioner

thereafter field the present petition seeking a declaration that the provisions of Part

10
1960
11
AIR 1986 SC 515
12
AIR 1995 SC 2438
13
AIR 1971

15
11 of the Cinematograph Act, 1952, together with the rules prescribed by the Central

Government on February 6, 1960 in the exercise of its powers under s. 5-B of the

Act were un- constitutional and void; he further prayed that the direction dated

July 3, 1969 should be quashed. The petitioner claimed that his fundamental tight of

free speech and expression was denied by the order of the Central Government and

that he was entitled to a 'U' Certificate for the film as of right.

Held - (i) Censorship of films including prior restraint is justified under the

Constitution.

It has been almost universally recognised that the treatment of motion pictures

must be different 'from that of other forms of art and expression. The motion picture

is able to stir up emotions more deeply than any other product of art. Its effect

particularly on children and adolescents is very great since their immaturity makes

them more willingly suspend their disbelief than mature men and women. They also

remember the action in the picture and try to emulate or/ imitate what they have seen.

Therefore, classification of films into two categories of TJ* films and 'A' films is a

reasonable classification. It is also for this reason that motion picture must be

regarded differently from other forms of speech and expression. A person reading a

book or other writing or hearing a speech or viewing a painting or sculpture is not so

deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a

different footing is also a valid classification."

GROUNDS OF RESTRICTIONS

It is necessary to maintain and preserve freedom of speech and expression in a

democracy, so also it is necessary to place some restrictions on this freedom for the

maintenance of social order, because no freedom can be absolute or completely

unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State

16
may make a law imposing "reasonable restrictions" on the exercise of the right to

freedom of speech and expression "in the interest of'1 the public on the following

grounds: Clause (2) of Article 19 of Indian constitution contains the grounds on which

restrictions on the freedom of speech and expression can be imposed

1) Security of State: Under Article 19(2) reasonable restrictions can be imposed

on fredom of speech and expression in the interest of security of State. The

term "security of state" refers only to serious and aggravated forms of public

order 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 State.

2) Friendly relations with foreign states : This ground was added by the

constitution (First Amendment) Act, 1951. The object behind the provision is

to prohibit unrestrained malicious propaganda against a foreign friendly state,

which may jeopardise the maintenance of good relations between India, and

that state. No similar provision is present in any other Constitution of the

world. In India, the Foreign Relations Act, (XII of 1932) provides punishment

for libel by Indian citizens against foreign dignitaries. Interest of friendly

relations with foreign States, would not justify the suppression of fair criticism

of foreign policy of the Government. It is to be noted that member of the

commonwealth including Pakistan is not a "foreign state" for the purposes of

this Constitution. The result is that freedom of speech and expression cannot

be restricted on the ground that the matter is adverse to Pakistan.

17
3) Public Order: This ground was added by the Constitution (First Amendment)

Act. 'Public order is an expression of wide connotation and signifies "that state

of tranquility which prevails among the members of political society as a

result of internal regulations enforced by the Government which they have

established." Public order is something more than ordinary maintenance of law

and order. 'Public order' is synonymous with public peace, safety and

tranquility. The test for determining whether an act affects law and order or

public order is to see whether the act leads to the disturbances of the current of

life of the community so as to amount to a disturbance of the public order or

whether it affects merely an individual being the tranquility of the society

undisturbed. Anything that disturbs public tranquility or public peace disturbs

public order. Thus communal disturbances and strikes promoted with the sole

object of causing unrest among workmen are offences against public order.

Public order thus implies absence of violence and an orderly state of affairs in

which citizens can peacefully pursue their normal avocation of life. Public

order also includes public safety. Thus creating internal disorder or rebellion

would affect public order and public safety. But mere criticism of government

does not necessarily disturb public order. In its external aspect 'public safety'

means protection of the country from foreign aggression. Under public order

the State would been titled to prevent propaganda for a state of war with India.

The words 'in the interest of public order' includes not only such utterances as

are directly intended to lead to disorder but also those that have the tendency

to lead to disorder. Thus a law punishing utterances made with the 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

18
 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. But there must be reasonable and proper nexus or relationship between

the restrictions and the achievements of public order.

4) Decency or morality: The words 'morality or decency' are words of wide

meaning. Sections 292 to 294 of the Indian Penal Code provide instances of

restrictions on the freedom of speech and expression in the interest of decency

or morality. These sections prohibit the sale or distribution or exhibition of

obscene words, etc. in public places. No fix standard is laid down till now as

to what is moral and indecent. The standard of morality varies from time to

time and from place to place.

5) Contempt of Court: Restriction on the freedom of speech and

expression can be imposed if it exceeds the reasonable and fair limit and

amounts to contempt of court. According to the Section 2 'Contempt of court'

may be either 'civil contempt' or 'criminal contempt.' In a democratic country

Judiciary plays very important role. In such situation it becomes essential to

respect such institution and its order. Thus, restriction on the freedom of

speech and expression can be imposed if it exceeds the reasonable and fair

limit and amounts to contempt of court. According to the Section 2 'Contempt

of court' may be either 'civil contempt' or 'criminal contempt.' But now, Indian

contempt law was amended in 2006 to make "truth" a defence. However, even

after such amendment a person can be punished for the statement unless they

were made in public interest. Again in Indirect Tax Practitioners

Assn. Vs R.K. Jain14, it was held by court that, "Truth based on the facts

14
2010 VOL 8 SCC 281

19
 should be allowed as a valid defence if courts are asked to decide contempt

proceedings relating to contempt proceeding relating to a speech or an

editorial or article". The qualification is that such defence should not cover-up

to escape from the consequences of a deliberate effort to scandalize the court.

Also in a recent judgement in a case.

Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors.15

Facts of case-In a Souvenir published by a literary group/Association of

lawyers practicing in Supreme Court, various messages, articles, poems etc. were

contributed by members of the Bar and the Hon'ble Judges. Respondent, a Senior

Advocate also sent a message to be published in the Souvenir, which expressed

concern about the plight of junior members of the Bar and about the falling standards

of legal fraternity. The message was neither released to the press, nor was the

Souvenir made available for sale. It was circulated only to its members and other

members of the Bar. Thereafter, when respondent No. 1 filed his nomination for

contesting the post of President of Supreme Court Bar Association, a news item was

published in the Sunday, Times of India daily wherein certain excerpts of the message

were reported, which suggested that the senior advocate made frontal attack on the

judiciary. Petitioner, the practicing lawyers of Punjab and Haryana High Court filed

criminal contempt of court under Article 215 of the Constitution of India against the

three respondents alleging that one respondent entered into a conspiracy with other

two respondents to bring administration of justice into disrespect which amounted to

deliberate interference in the administration of justice.

Held -"Any criticism about the judicial system or the judges which hampers

the administration of justice or brings administration of justice into ridicule must be

15
AIR 2010

20
prevented. The contempt of court proceedings arise out of that attempt. National

interest requires that all criticisms of the judiciary must be strictly rational and sober

and proceed from the highest motives without being coloured by any partisan spirit or

tactics. There is no manner of doubt that freedom of expression as contemplated by

Article 19(l)(a) of the Constitution is available to the Press and to criticize a judgment

fairly albeit fiercely is no crime but a necessary right. A fair and reasonable criticism

of a judgment which is a public document or which is a public act of a Judge

concerned with administration of justice would not constitute contempt. In fact, such

fair and reasonable criticism must be encouraged because after all no one, much less

Judges, can claim infallibility. The Message examined the evils prevailing in the

judicial system and was written with an object to achieve maintenance of purity in the

administration of justice."

6) Defamation: Defamation: Ones' freedom, be it of any type, must not affect

the reputation or status another person. A person is known by his reputation more than

his wealth or any thing else. Constitution considers it as ground to put restriction on

freedom of speech. Basically, a statement, which injures a man's reputation, amounts

to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt.

The civil law in relating to defamation is still uncodified in India and subject to

certain exceptions.

7) Incitement to an offence: This ground was also added by the constitution

(First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot

confer a right to incite people to commit offence. The word 'offence' is defined as any

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

8) Sovereignty and integrity of India- To maintain sovereignty and integrity

of a state is prime duty of government. Taking into it into account, freedom of speech

21
and expression can be restricted so as not to permit any one to challenge sovereignty

or to permit any one to preach something which will result in threat to integrity of

the country,

9) Sedition: As understood by English law, sedition embraces all those

practices whether by words, or writing which are calculated to disturb the tranquility

of the State and lead ignorant person to subvert the government. It should be noted

that the sedition is not mentioned in clause (2) of Art. 19 as one of the grounds on

which restrictions on freedom of speech and expression may be imposed.

FREEDOM TO ASSEMBLE -ART 19(1) (B)

Art 19(1) (b) guarantees to the citizens of India the right to assemble

peaceably and without arms. Under art,19(l)(3), however, the state can make any law

imposing reasonable restrictions on the exercise of this right in the interest of public

order, and sovereignty and integrity of India.

To some extent, there is common ground between art 19(1) (a) and art 19 (1)

(b). For example -demonstrations, processions and meetings considered under art

19(1) (a) also fall under art 19(1) (b) for a demonstration also amounts to an assembly

and, therefore, the same principles apply under both articles. The right to strike is not

available under either of these articles.

Restrictions on freedom of assembly

1) Assembly should not be violent but peaceful.

2) It should be without arms

3) The public order has to be maintained.

22
 Meetings in government places - this could be well understood by a case

judgement in Railway Board Vs Niranjan Singh16. The Question arose that whether

anyone could hold meetings in government premises or not even though the person is

government employ?

The court held that it is true that the freedoms guaranteed under our

Constitution are very valuable freedoms and this Court would resist abridging the

ambit of those freedoms except to the extent permitted by the Constitution. The fact

that the citizens of this country have freedom of speech, freedom to assemble

peaceably and freedom to form - associations or unions does not mean that they can

exercise those freedoms in whatever place they please. The exercise of those

freedoms will come to an end as soon as the 'right of some-one else to hold his

property intervenes. Such a limitation is inherent in the exercise of those 'rights. The

validity of that limitation is not to be judged by the tests prescribed by Sub-Arts.

(2) And (3) of Art. 19. In other words the contents of the freedoms guaranteed under

cls.(a), (b) and (c), the only freedoms with which we are concerned in this appeal, do

not include the right to exercise them in the properties belonging to others a citizen of

this country in the exercise of his right under cls. (d) And (e) of Art. 19(1) could move

about freely in a public-office or even reside there unless there exists some law

imposing reasonable restrictions on the exercise of those rights."

Absolute ban on public meetings - in India citizens had a right to hold

meetings in public streets before the constitution, subject to the control of appropriate

authority regarding the time and place of the meeting and considerations of public

order. In Himat lal Vs Police commission case17 the court held that the State cannot

by law abridge or take away the right of assembly by prohibiting assembly on every

16
AIR 1969 SC 966
17
AIR 1973

23
Public Street or public place. The State can only make regulations in aid of the right

of assembly of each citizen and can only impose reasonable restrictions in the interest

of public order. If the right to hold public meetings flows from Art. 19 (1) (b) and Art.

19(1) (d) it is obvious that the State cannot impose unreasonable restrictions. It must

be, kept in mind that Art 19 (1) (b), read with Art. 13, and protects citizens against

State action. It has nothing to do with the right to assemble on private streets or

property without the consent of the owners or occupiers of the private property.

This Court in Babulal Parate v. State of Maharashtra 2 rightly observed:

"The right of citizens to take out processions or to hold public meetings flows from

right in Art. 19(1) (b) to assemble peaceably and without arms and the right to move

anywhere in the territory of India."

FREEDOM TO FORM ASSOCIATION:

ART 19(1) (C) AND 19(4)

An association means "a collection of persons who have joined together for a

certain object, which may be for the benefit of the members or the improvement,

welfare or advantage of the members or the improvement, welfare or advantage of the

public or some scientific, charitable or similar purpose". Article 19(l)(c) includes the

right to form companies, societies, partnership firms, trade unions, clubs, political

parties and the like body of persons. This freedom implies that several individuals can

get together and form voluntary admit in the association with common aims,

legitimate purpose and a community of interests. The person who form the association

have the associational right to continue with the member with those other whom they

voluntarily admit an association. Any state action directed to highjack association by

taking it over, introducing officials in the management body of association, trading

out the member or restricting the committees and bodies constitution in accordance

24
with the constitution of the association. Association of which citizens may be

members may be social, academic creational, religious, cultural, or professional,

vocational or political. These may include associations for of cultural activities.

Recognising the importance of the right of forming associations in a

democratic society, the courts have not favoured the vesting of absolute discretion in

the executive to interfere with this fundamental right. A discretion vested in a

government official to prohibit formation of an association, without proper

safeguards, has been held to be unconstitutional.

From time to time the Supreme Court has always been trying to clarify the

extent of right to form association

Reasonableness, 19(4)

State of madras Vs V.G Row18, the Supreme Court declared the provision to

be unconstitutional for the test to be declaring an association unlawful was 'subjective'

and the factual existence of the grounds was not justifiable. The court emphasized that

curtailing the right to form association was fraught with serious potential reactions in

religious, political and economic fields. Therefore, the vesting of power in the

government to impose restriction on this right without consideration in judging the

reasonableness of the restrictions. The existence of a summary and largely one-sided

review by an advisory board was no substitute for a judicial inquiry.

Membership of an association

In Darayaiiti Narang Vs Union of India19 the apex court held the citizen's

freedom to form an association includes his right to become a member of an

association already existing, right to continue to manage and organise an association

18
AIR 1952 SC 196
19
AIR 1971

25
already formed, right to formulate and implement the lawful objectives of such

association.

Freedom not to join an association

The question whether the associational freedom not to join an association, or

union was raised in S.M. Kala Vs University of Rajasthan is left open to be

considered at some appropriate moment in future. His associational freedom protects

the right of a person not to become a member, if he does not want to join it, or

voluntarily to cease or to resign its membership.

Right to form associations and union is guaranteed so that the people can form

a group of people having the similar view, In SHaramacharya v. Dy, Inspector of

School20, it was held that this right necessarily implies a right not to be a member of

an association. Thus, no one can be compelled to become member of an association.

The freedom under the sub-clause (c) of clause (1) of article 19 is subject

certain reasonable restrictions under the law which may be imposed in interest of:

1) Sovereignty and integrity of India;

2) Public order;

3) Morality

The reasonableness of restrictions is determined by a direct nexus between the

demands of social control conducive to public interests and the imposed restrictions.

It can be judicially determined in the context of each individual case, after taking into

consideration both the substantive and procedural aspects of the proposed statutory

restrictions. The government servants may be forbidden from becoming from

becoming members of, or otherwise being associated with any political party or a like

20
AIR 1958 A.P.78

26
organisation. The officers and man of the armed and security forces and police force

including the non gazetted members of the police organisation are not free to form, or

to members of any association/union/, society or institution, unless permitted by a law

/ police regulation framed under legal authorisation. Nor any association of their can

seek, or can apply registration under the Trade Union Act 1926- But the right to

association remains citizen's basic right, although its reach does not extend to the

privileges of incorporated bodies of citizens: The Hindi Sahitya Sammelan-

Rastrabhasa Prachar Samiti Cases.

LAW OF CONSPIRACY AND UNLAWFUL ASSOCIATION

The act of forming an association is lawful, unless it constitutes a crime, or

tort of conspiracy. The tort of conspiracy consists in a combination for the purpose of

damaging the plaintiffs interests in trade or otherwise. The tortious conduct of one of

the defendants can be attributed to all of them. A combination of traders in a trade to

ward off free lawful competition with a rival trader, or of the trade union officers to

get a non-union employee dismissed by the employer and the like constitutes a

tortious conspiracy.

An unlawful association is one which encourages aids, or aims at unlawful

purposes, abets commission of acts of violence, intimidation or immorality. An

association otherwise lawful ceases to be lawful.

FREEDOM OF MOVEMENT AND RESIDENCE:

ART 19(1) (D), (19) (E) AND (19) (5)

IMPORTANCE

Inhered in his status of citizenship, the citizen's right to move freely

throughout the territory of India is an important aspect of his freedom. The freedom of

27
locomotion guarantees him in general right of free movement which is an aspect of

his personal liberty, although a specific and limited part of it. It secures to hi, the right

and privilege to go to any place within the country across all states and inter- state

barriers. A citizen needs no passport and no visa while travelling inside the country.

Art 19(1) (d) guarantees to every citizen the right to move freely throughout

the territory of India. Art 19(l)(e) guarantees to a citizen the right to reside and settle

in any part of India. 19(5), however the state may impose restrictions on these rights

by law in the interests of general public or for the protection of the interests of any

Scheduled Tribe.

ARTICLE 19(1) (D) AND 19(1) (E) ARE COMPLEMENTARY

Broadly speaking the two rights contained in articles 19(1) (d) and 19(1) (e)

are parts of the same right and are complementary and often go together. Most of the

cases considered under article 19(d) are relevant to article 19(e) also. The two rights

are therefore discussed together.

FOREIGNERS

Art 19(1) (d) applies only to the citizens and not to foreigners. Accordingly the

fundamental right of a foreigner is confined to art 21 guaranteeing his life and liberty.

He cannot claim the right to reside and settle in the country as guaranteed by art 19(1)

(e). The government of India thus has the power to expel foreigners from India.

Restricting movement to maintain public order

The Punjab Akalis threatened to hold a demonstration in Delhi on the occasion

of the inauguration of Asian games. To frustrate such demonstration, the governments

of Haryana and Uttar Pradesh took stringent measures, such as, barricading highways,

28
resorting to seizure and arrests, intercepting movement of Akalis across the border on

to Delhi.

These steps were challenged through a writ petition in the Supreme Court. The

Supreme Court laid down some general norms as to how the police should behave in

such a situation. The police is entitled to impose reasonable restraints on the physical

movement of the members of the public in order to protect public property and avoid

needless inconvenience to other citizens in their lawful pursuits. But all such restraints

on personal liberty have to commensurate with the object which furnishes their

justification. The sanctity of person and privacy has to be maintained at all costs and

ought not to be violated in the name of maintenance of law and order.

Externment

Art 19(1) (d) and art 19(1) (e) have been invoked frequently to challenge the

validity of an externment order served by the executive on a citizen requiring him to

leave a state or a district. Such an order prima facie curtails the freedoms guaranteed

by these articles, and therefore the courts are entitled to test whether the order and the

law under which it has been made is reasonable within article 19(5). The

reasonableness of restrictions can be judicially determined in any given case in

accordance with the regulation of the citizen's fi-eedom and the procedural

requirements of the official conduct in the matter. Where a person was directed to

remove himself from the Greater Bombay area, and settle at a place specified in the

externment order, because the activities of that person in the greater Bombay were

causing alarm and it was reasonably believed that he was about to be engaged in

commission of certain offences, the externment order was held to be reasonable both

29
in the sense of expulsion from the Greater Bombay, and fixation of a place of

residence as held in Pandharnath Sridhar Raitgnek Vs Dy. Commr. of Police21.

Kharak Singh Vs The State of U. P. & Others22 on 18 December, 1962

FACTS - The petitioner was challenged in a dacoity case but was released is there

was no evidence against him. The police opened a history sheet against him. He was

put under surveillance -is defined in Regulation 236 of the U. P. Police Regulations.

Surveillance involves secret picketing of the house or approaches to the houses of the

suspects, domiciliary visits at night, periodical enquiries by officers not below the

rank of Sub-Inspector into repute, habits, association, income, expenses and

occupation, the reporting by constables and chaukidars of movements and absences

from home, the verification of movements and absences by means of inquiry slips and

the collection and record on a history sheet of all information bearing on conduct.

The petitioner filed a writ petition under Art. 32 in which he challenged the

constitutional validity of Chapter XX of U. P. Police Regulations, in which

Regulation 236 also occurs.

HELD- "Art. 19 (1) (d) the "freedom" here guaranteed is a right "to move freely"

throughout the territory of India. Omitting as immaterial for the present purpose the

last words defining the geographical area of the guaranteed movement, we agree that

the right to '"move" denotes nothing more than a right of locomotion, and that in the

contest the adverb '"freely" would only connote that the freedom to move is without

restriction and is absolute, i. e., to move wherever one likes, whenever one likes and

however one likes subject to any valid law enacted or made under cl. 5. It is manifest

that by the knock at the door, or by the man being roused from his sleep, his

21
AIR 1973
22
AIR 1962

30
locomotion is not impeded or prejudiced in any manner. Learned Counsel suggested

that the knowledge or apprehension that the police were on the watch for the

movements of the suspect, might induce a psychological inhibition against his

movements but, as already pointed out, we are unable to accept the argument that for

this reason there is an impairment of the '"free" movement guaranteed by sub-cl. (d).

The freedom guaranteed by Art. 19 (1) (d) has reference to something tangible and

physical rather and not to the imponderable."

The right to move about being excluded its narrowest interpretation would be

that it comprehends nothing more than freedom from physical restraint or freedom

from confinement within the bounds of a prison; in other words, freedom from arrest

and detention, from false imprisonment or wrongful confinement or locomotion.'1

OUTCOME

Police surveillance

The court ruled that no aspect of police surveillance fell within the scope of art

19(1) (d). Against the validity of shadowing of the suspect's movement, it was argued

that if a person suspected that his movements were being watched by the police, it

would induce him a psychological inhibition against movement and this would

infringe art 19(1) (d).

Right to privacy

An interesting question considered by the court in these cases is whether there

is in India a fundamental right to privacy. In this case the apex court ruled that the

right to privacy is not a guaranteed right in India. The right to privacy is however, not

absolute and reasonable restrictions can be placed thereon in public interest under art

19(1) (5).

31
A.K. Gopalan vs The State Of Madras.23

Law relating to preventive detention—Whether infringes Fundamental Right

as to "freedom of movement.

Facts-The petitioner who was detained under the Preventive Detention Act

(Act IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas corpus

and for his release from detention, on the ground that the said Act contravened the

provisions of Arts. 13, 19, 21 and 22 of the Constitution and was consequently ultra

rites and that his detention was therefore illegal.

Held - Whatever be the precise scope of Art. 19 (1) (d) and Art. 19(5) the

provisions of Art. 19(5) do not apply to a law relating to preventive detention,

inasmuch as 'there is a special self-contained provision in Art. 22 regulating it.

Though on movement is nothing denial of personal liberty, yet it has nothing to do

with the preventive detention. It is an independent and substantive and specific right.

It is exercisable when he is free from unlawful confinement and detention. When

under preventive detention, he loses the sub-stratum for its exercise. Article 19 of the

Constitution has no application to a law which relates directly to preventive detention

even though as a result of an order of detention the rights referred to in sub-cls. (a) to

(e) and (g) in general, and sub-cl. (d) in particular, of cl. (3) of Art. 19 may be

restricted or abridged; and the constitutional validity of a law relating to such

detention cannot therefore, be judged in the light of the test prescribed in el. (5) of the

said Article.

23
AIR 1950 SC 27

32
FREEDOM TO CARRY ON TRADE AND OCCUPATION

ART 19(1) (G) AND ART 19(6)

FREEDOM, TRADE AND OCCUPATION - DEFINED - the term

'occupation' means some activity by which a person is occupied or engaged. It would

be an activity of a person undertaken as a means of livelihood or a mission of life. For

instance, a journalist has fundamental right to carry on his or her occupation under art

19(l)(g). It includes 'profession', 'trade', or 'business'. The term 'profession' has been

interpreted to mean an occupation requiring the exercise of intellectual skill, often

coupled with manual skill. The term 'business' means any activity involving the

production, distributions and consumption of wealth and production and availability

of material services. While 'trade' is an activity concerning the sale and purchase of

goods. It is an exchange of any article either by barter or for money or for service

rendered. The party paying consideration in any trade is aware for what he is paying

the consideration.

Exception to the freedom of trade-intoxicants or drugs- the apex court in

Harshanker Vs Deputy Excuse & Taxation Commissioner said that "trade is and

include occupation of buying and selling, barter or such skilled work as of goldsmith's

commission agent etc. The citizen cannot be prevented from carrying on any trade or

profession, except on ground of unlawful character of the trade, or else, that it is extra

commercium. He does not possess freedom to carry on trade, for instance, in

intoxicants or drugs".

There can be no trade in crime. It is as per the will of the person to do or to

continue some business, but this right carry on any trade or profession also includes

his right to discontinue the business, or close down the business, trade or profession as

in Excel Wear Vs union of India (AIR 1925 SC25)

33
 Right Against Sexual Harassment of Working Women - In Vishaka Vs

State of Rajasthan the Supreme Court observed that sexual harassment of working

women at working places would be violation of the victim's , fundamental rights

under art 19(l)(g). In this case a social worker was brutally gang raped in a village of

rajasthan. The court took a serious note of the matter and issued certain guidelines for

the prevention of such incidents.

No Right Against Competitions - art 19(1 )(g) does not guarantees protection

from competition in trade. Therefore, the loss of income on account of competition in

trade does not infringe the right to trade under art 19(l)(g). In Shyam Bihari Tewari

Vs State of U.P26., the supreme court held that a cinema owner had no locus standi to

challenge, the establishment and grant in aid, for new cinema hall.

Right to impart education and establish educational institutions - the

Supreme court in unni Krishna vs state of A.P" commonly known as capitation fee

case observed that activity of establishing an educational institutional institution could

neither a trade or business nor could it be a profession within the meaning of art

19(l)(g).

The above decision of Supreme Court was overruled by T.M.A Pai

Foundation Vs State of Karnataka where the court held that:-

"Education used to be charity or philanthropy in good old times. Gradually it

became an 'occupation'. Some of the Judicial dicta go on to hold it as an 'industry'.

Whether, to receive education, is a fundamental right or not has been debated for quite

some time. But it is settled that establishing and administering of an educational

institution for imparting knowledge to the students is an occupation, protected by

Article I9(l)(g) and additionally by Article 26(a), if there is no element of profit

34
generation. As of now, imparting education has come to be a means of livelihood

for some professionals and a mission in life for some altruists.

It is submitted that taking over the right to regulate admission and fee structure

of unaided professional institutions is not a 'reasonable restriction' within the meaning

of Article 19(6) of the Constitution.

Restrictions on the right to carry on trade or business art 19(6)

 Reasonable restrictions in public interest.

 Restriction must not be unreasonable or excessive.

 Restriction may amount to total prohibition.

 State trading and state monopoly in a trade or business.

35
 BIBLIOGRAPHY

1. Prof. Jain M.P, Indian constitutional law, 5th edition, Wadhwa and company

Nagpur publishers, New Delhi.

2. Prof. Narender Kumar, Constitutional Law of India, 7* edition, Allahabad

Law agency, Haryana.

3. Prof. M.C. Kagzi, The Constitution of India, 6th edition, Vol-2, India Law

House, New Delhi.

4. The Constitution of India- Bare Act, universal law publishers, New Delhi.

5. Datar P Arvind, Commentry on the Constitution of India, vol-1, 2nd edition,

wadhwa and company , Nagpur law publishers.

6. De DJ, the Constitution of India, vol-1, 3rd edition, Asia law house,

Hyderabad.

Webliography

1) www.indiankanoon.org

2) www.supremecouitofmdia.nic.in

3) www.legalhelpindia.com

36
 FREEDOM OF MEDIA IN INDIA : A WEAPON TO KILL ENEMIES OR

PROTECTION GUARD FOR PUBLIC – THE TWO SIDES

Ratnesh Dwivedi
Assistant Professor
Amity School of Communication
Amity University, Uttar Pradesh, India
e-mail rtnsh_dwivedi@yahoo.com
Freedom of Press: An Analytical Overview:

1.0 Freedom of Press : An Analytical Overview:

"The press [is] the only tocsin of a nation. [When if] is completely silenced...

all means of a general effort [are] taken away." --Thomas Jefferson

"Right to Freedom of Speech and Expression" is a fundamental right of the

citizens of India. This is mentioned in Part III of the Constitution of India -

Article 19(1).

This Article is so wide in scope that Freedom of the Press is included in

Freedom of Speech and Expression. It includes the right of free propagation and free

circulation without any previous restraint on publication.

The freedom of speech and expression does not give right to every possible

use of language. It would lead to disorder and anarchy.

The Article 19(2) of the Constitution 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 of morality or in relation to contempt of court, defamation or incitement to an

1
offense. Whenever, emergency is declared in a country, these rights remain

suspended.

All our governments have preferred press freedom to be linked with social and

fundamental responsibilities and the obligation to report objectively.

Taking into consideration the constraints of the Indian model of democracy

and socialism and the objectives laid in the Preamble of the Constitution or its

Directive Principles of the State Policy, the second Press Commission has advocated

that the press should be neither an adversary nor an ally of the Government, but a

constructive critic.

The press is a great social asset, for it has to serve the entire community of

varying minds with its raw material for though, as also to act as a watch-dog by

exercising its role to warn and curb forces of repression, corruption and divisiveness.

The freedom of press is the mother of all other freedoms. This freedom can be

used to create a brave new world or to bring about universal catastrophe.

(Malhan : 110).

There are media laws which curtail press freedom and the right of the citizen

to information, as well as right to freedom of speech and expression, besides the

restrictions imposed by constitution. Press freedom can be weighed from two sides.

1. The external and internal pressures such as interference by political and

business leaders, pressure from advertisers, physical attacks on the press

people, and so on.

2. Various media laws, such as the Indian Penal Code, 1860, Indian Telegraph

Act, 1885, The Copy Right Act, 1957, impose restrictions on the exercise of

the right of freedom of speech and expression by the press.

2
 The second Press Commission has suggested certain amendments in the

existing press laws to expand the scope of press freedom and at the same time to

project the right to privacy of the individual and prevent newspapers from indulging

into free style of character assassination.

Freedom of the press is the freedom of communication & expression through

vehicles including various electronic media & published materials. While such

freedom mostly implies the absence of interference from an overreaching state, its

preservation may be sought through constitutional or other protection.

The Indian Press has a long history right from the times of British rule in the

country. The British Government enacted a number of legislations to control the

press, like the Indian Press Act, 1910, then in 1931-32 the Indian Press (Emergency)

Act etc. During the Second World War (1939-45), the executive exercised exhaustive

powers under the Defence of India Act & enforced censorship on press. At the same

time the publication of all news relating to the Congress activities declared illegal.

In the Post-Constitutional Era, there is a change in the outlook. The

Constitution of India in Article 19(1) (a) lays down that "All citizens shall have the

right, to freedom of speech & expression." Unlike, the U.S. Constitution, the Indian

Constitution does not expressly provide freedom of press. However, it is now well

settled that the words "speech & expression" in Article 19(1) (a) includes freedom of

press also.2 The freedom of press means freedom from interference from authority

which would have the effect of interference with the content &. circulation of

newspapers.3 The Article 19(1) (a) of the Constitution is subject to certain restrictions

laid down in Article 19(2) of the Constitution.

3
1.1.Position in U.S.A

Freedom of Press is also recognized by the American Constitution. Initially,

the freedom of press was not expressly provided in the American Constitution. The

freedom of press was inserted only after the First Amendment of the American

Constitution. The Amendment prohibited the U.S. Congress from making laws which

infringes the freedom of press. The First Amendment of the U.S. Constitution was

influenced by the Virginian Declaration of Rights.

1.2.Position in U.K.

The Parliament is sovereign in the United Kingdom. Unlike, the U.S., India &

other states the -subjects of U.K. does not possess any guaranteed rights. The freedom

of press is also well recognized in the U.K. The citizens have full liberty to do

anything up to the extent that it does not violate the rule of common law or statute

law.

l.3.Status of Freedom of Press in India

In Romesh Thapar v/s State of Madras,4 Patanjali Shastri, CJ, observed that

"Freedom of speech & of the press lay at the foundation of all democratic

organization, for without free political discussion no public education, so essential for

the proper functioning of the process of popular government, is possible." In this

case,5 entry and circulation of the English journal "Cross Road", printed and

published in Bombay, was banned by the Government of Madras. The same was held

to be violative of the freedom of speech and expression, as "without liberty of

circulation, publication would be of little value".

The Hon'ble Supreme Court observed in Union of India v/s Association for

Democratic Reforms6 , "One-sided information, disinformation, misinformation and

4
non information, all equally create an uninformed citizenry which makes democracy a

farce. Freedom of speech and expression includes right to impart and receive

information which includes freedom to hold opinions". In Indian Express Newspapers

v/s Union of India,7 it has been held that the press plays a very significant role in the

democratic machinery. The courts have duty to uphold the freedom of press and

invalidate all laws and administrative actions that abridge that freedom. Freedom of

press has three essential elements. They are: 1. freedom of access to all sources of

information, 8 2. Freedom of publication, and 3. Freedom of circulation.

There are many instances when the freedom of press has been suppressed by

the legislature. In Sakal Papers v/s Union of India,9 the Daily Newspapers (Price and

Page) Order, 1960, which fixed the number of pages and size which a newspaper

could publish at a price was held to be violative of freedom of press and not a

reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co.

v/s Union of IndiaJO the validity of the Newsprint Control Order, which fixed the

maximum number of pages, was struck down by the Court holding it to be violative of

provision of Article 19(l)(a) and not to be reasonable restriction under Article 19(2).

The Court also rejected the plea of the Government that it would help small

newspapers to grow.

1.4.Restrictions on Freedom of Press in India

The freedom of press comes within the ambit of freedom of speech &

expression. In a democracy, freedom of press is highly essential as it (the press) acts

as a watchdog on the three organs of a democracy viz. the legislature, the executive &

the judiciary. But, the freedom of press is not absolute in nature. It is subject to certain

restrictions which are mentioned in Article 19(2) of the Constitution. The following

are the grounds of restrictions laid down in Article 19(2)

5
 1) Sovereignty & Integrity of India

2) Security of the State

3) Friendly relations with Foreign States

4) Public Order

5) Decency or Morality

6) Contempt of Court

The grounds of 'Public Order' & 'Friendly relations with Foreign States' was

added by the Constitution (First Amendment) Act, 1951. While the ground of

'Sovereignty & Integrity of India' was added by the Constitution (Sixteenth

Amendment) Act, 1963.

1.5.Seditfon

Section 124A of the Indian Penal Code deals with the offence of sedition. It

lays down that," 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 excites or attempts to excite disaffection towards, the Government

established by law in India, shall be punished with imprisonment for life, to which

fine may be added, or with imprisonment which may extend to three years, to which

fine may be added, or with fine". But Explanation 3 says "Comments expressing

disapprobation of the administrative or other action of the Government without

exciting or attempting to excite hatred, contempt or disaffection, do not constitute an

offence under this section". In Devi Saran v/s State AIR 1954 Pat 254, the Court has

held that Section 124A imposes reasonable restriction on the interest of public order

& therefore it is protected under Article 19 (2) of the Constitution.

6
1.6. Current Scenario of Press & Its Achievements

As discussed earlier, press is regarded as one of the pillars of a democracy as it

acts as a watchdog of the three organs of democracy. Though, freedom of speech &

expression (including of press) is enjoyed by the citizens but there are many instances

where the press has to face difficulties as well. In the recent past, in the Tehelka Case,

the portal Tehelka.com was forced to shut down completely & its journalists were

continuously harassed as the journalists exposed the 'scam' in the defence ministry

involving Ex-Defence Personnel & Central Government Ministers. There are many

instances where journalists were threatened & even assaulted at times.

Despite of these difficulties the press has achieved a lot of success in the

recent past. In Jessica Lai's case, Manu Sharma, son of a Haryana minister, killed

Jessica on April 29, 1999, because she refused to serve him liquor in the restaurant

where she was working. The case was closed and all the accused were freed due to

lack of evidences, but finally, the case was reopened after media and public outcry,

which led to Sharma's conviction.

In Priyadarshini Mattoo's Case, Santosh Kumar, son of an IPS officer raped

and killed his colleague, Priyadarshini Mattoo, a law student in 1996, after she refused

his proposal. Ailing and aged father of Priyadarshini got judgment in October 2006,

after a long run trial. The Delhi High Court rebuked lower courts and authority under

investigation for acquittal of accused. The media played a significant role in this case

as well. Similary, in Nitish Katara's case the media played an important role. In

Aarushi Talwar's murder case, media played an important part by highlighting the

loopholes in the case owing to which the police was forced to take some action.

Aarushi's father is the prime suspect in this case.Recently, in Ruchika's Case, Ruchika

Girhotra, a 14-year-old tennis player, was molested by then Haryana police IG S.P.S.

7
Rathore in Panchkula in 1990-Three years later, Ruchika killed herself, which her

friend and case witness Aradhana attributes to the harassment of Ruchika and her

family by those in power. Nineteen years later, Rathore walks away with six months

of rigorous imprisonment and a 1000-rupee fine, reportedly due to his old age and the

"prolonged trial". This led to public outrage & media played a significant role in it.

Later on the Government of India asked the Central Bureau of Investigation to re-

investigate the case & the police medals awarded to S.P.S. Rathore was also stripped.

A case of Abetment of Suicide under Section 306 of the IPC was also filed against

S.P.S.Rathore.In 2005 news channel Aaj-Tak carried out Operation Duryodhana

which revealed 11 MP's of the Lok Sakha accepting cash for asking question in the

Lok Sabha. Later on an Investigation Committee was set up headed by Senior

Congress MP Pawan Kumar Bansal. All the 11 MP's were found guilty & were

sacked from the Lok Sabha.

1.7.Press needs to be Responsible

Though, the press has played significant roles for public welfare but at times it

act irresponsibly. For instance the electronic media hyped the Abhi-Ash wedding in

such a way that other important news were neglected. In Prof. Sabharwal's case, when

Prof. Sabharwal was killed by ABVP activists, there were a number of news channels

& newspaper correspondent were present & they had evidence of the murder but the

media acted irresponsibly & the police called it an 'Open & Shut Case'. Recently,

when Mumbai was under terror threat in 26/11 the media acted irresponsibly by

telecasting live the long sisty hour Operation Black Tornedo by the security forces to

combat the attack at The Taj Mahal Palace Hotel &. Nariman House. It included live

feed of air dropping NSG Commandoes on the rooftop of Nariman House. At times

news channel covers news such as 'Bollywood Gossips' &. 'Page 3' etc which has

8
reduced them to a mere 'Entertainment Channel'. There are many important issues

which should be covered by the media but unfortunately it does not. In April 2009,

Union Home Minister P.Chidambaram was addressing the media at a press

conference a journalist threw show at the minister on protest of acquittal of a

Congress leader accused of leading Anti-Sikh riots in 1984. The journalist named

Jarnal Singh was a reporter of Dainik Jagran, a local newspaper. Later on he

apologized to the Union Home minister for his act. This was one of the most

condemnable act which showed the ugly side of the press.

2.0.The Declining Status of Press Freedom in India:

India's ranking in a global press freedom index has fallen significantly in the

past year, putting it behind countries such as Liberia, Kyrgyzstan, South Sudan and

Albania. India fell to 131 out of 179 on the Press Freedom Index compiled by

Reporters Without Borders, from 122 last year.

The index uses 44 different criteria "ranging from censorship of news media to

physical attacks on journalists, and the ability of the media to investigate and

criticise" and "reflects the degree of freedom that journalists, news media, and

netizens enjoy in each country and the efforts made by the authorities to respect and

ensure respect for this freedom," the US organisation said.

On the list, the Arab nations of Syria, Bahrain and Yemen were the biggest

fallers, reflecting the crackdowns on the popular uprisings. "Crackdown was the word

of the year in 2011. Never has freedom of information been so closely associated with

democracy," said the organisation. "Never have acts of censorship and physical

attacks on journalists seemed so numerous."

9
 The US fell 27 points to 47, as a result of the arrest of journalists covering the

Occupy movement, while China fell to 174 because of a stepping up of Internet

censorship and increased control of news outlets as a result of local protests. The top

position was shared by Finland and Norway, followed jointly by Estonia and

Netherlands. Eritrea remained at the bottom position, a position it has held since 2007.

In India, RwB pointed to the exposure of violence of journalist as a result of

the ongoing conflicts in Jammu and Kashmir and Chhattisgarh, as well as intimidation

of journalists by mafia groups in the country's biggest cities. "However the authorities

were no better," they warned, pointing to the "dangerous implications" of the

Information technology Rules 2011 introduced last year and which requires Internet

firms to remove "harassing", "obscene", "libellous" and other forms of content or risk

prosecution. Foreign journalists were also impacted, with troubles obtaining visas,

and pressure to give the country positive coverage, the organisation said.

3.0.Freedom of Press In India in the 21st Century:

Freedom of press in India if overlooked from a surface looks adequate enough,

yet as we go deeper into the crux of the issue the broader, and I may say, ugly picture

comes into the highlight. Unlike America, India fails to give special privileges to the

press. Like ordinary citizens, press also has its freedom of speech and expression

under article 19(1)A, which allows the press to print and publish without any

restrictions, both news and views; to criticize, to circulate anywhere in India, to print

any number of pages and to access public information.

Like all the laws in India, freedom of press is not absolute. The reasonable

restrictions under freedom of press are in the interest of society: security and

sovereignty, friendly relations, decency and morality, contempt of court. These

10
restrictions though stand on a justifying grounds, a question which arises is who

makes sure that these restrictions is imposed under right circumstances.

As seen in the recent case in Tamil Nadu where six journalists were sentenced

to 15 days simple imprisonment for alleged breach of privilege and contempt by the

state Legislative Assembly. Another incident which brings the freedom of press under

radar is when Alex Perry, a foreign journalist published an article about Prime

Minister Vajpayee's fitness, thereby questioning his ability to lead the nation,

considerably angered the ruling party at that time.

Another case which questions the freedom of press is the recent blogger case,

where Chyetanya Kunte was sent a legal notice by NDTV for suggesting that Barkha

Dutta's reports of the Mumbai siege might have endangered lives. This incident got

the public to question the freedom of press and there were demonstrations of anger

with howls of protest about NDTV's bullying tactics, and defenses of a blogger's right

to free speech.

Mr. Shah Jahan, Bureau chief of Asianet News, said that freedom of press is

adequate in most of the issues. In corporate cases, the coverage of news becomes a

major problem, he says. Even before the 2G scam hit the news channel, there was bits

and pieces of news everywhere within all news channels about the scandal, yet no one

could come out in open and publish the news due to lack of evidence. Only when the

documents were made public by wiki, the news channels were able to confront those

involved in it. Thus, one of the major threat which journalist today face, is defamation

due to lack of evidence.

Another point to note is that freedom of press is often in the putty of those in

power. In India, money and power rules everything, including media. Media,

journalist to be more precise is often affiliated towards particular political party due to

11
which news provided by them is biased. The case in point is Times of India and

Times Now, which openly claims herself to be left aligned, due to which news is

influential towards the congress party. Recently, with the Baba Ramdev case, research

shows that Times Now gave a negative report on the midnight crises, purposely

downplaying his motives behind the fast and thus creating a furor over the entire

issue. They played with the power dynamics clearly in the favour of ruling party,

making Baba Ramdev nothing less than a criminal punished for fighting against

corruption.

Another factor which risks the freedom of press in India is the ownership of

media organizations. Very often editors and journalists cannot enjoy adequate

freedom of collecting and disseminating facts and offering comments as they are

under the pressure of the capitalist owners. Also, news which is presented in the

media has to be in accordance to advertisements and the sponsor's. This was seen in

the case of an IBM employer who was forced to resign when he 'commented' on the

working of IIPM. This led to a fury within the IIPM administration and they

threatened the IBM that they will severe all the future ties with the IBM and also

cancel the order of the computers. Due to this, the employer was pressurized to resign

least it affect the company and cause a huge loss in capital within the company.

Unless this whole structure of ownership and control in the newspaper industry, and

also the manner of the economic management of the Press, is changed, the Press

cannot be really free.

Jayashree Nandi, of Times of India says that there hasn't been much

restrictions on the freedom of press since the emergency in 1984. In comparison to

countries in the Middle East and in South East Asia which have strict government

regulation on the content the press puts out, India stands in a good position. "Here we

12
are fortunate not to have any such inhibitions or restrictions", she says. The only

precaution which is needed to be taken by the journalist, to avoid reasonable

restrictions is that they need to be very careful about media ethics and laws and not

get involved in defamation cases. Thus, they should quote, provide proof in the form

of documents or use RTI to expose issues in the government.

Seetha Lakshmi, Editor of Times of India, feels that the freedom of press is

curbed mostly pertaining to religious issues. Journalists are often questioned, when

news regarding religious sentiments is published; as there is always a chance that the

'sovereignty' of the country might be threatened as one or more religious groups might

feel 'upset' over the comment made by the reporter often leading to riots.

Mr. Anil (job information withheld), feels that freedom of press is frequently

misused by the media organizations, and they use the license given to them to write

anything without verifying the facts. This trend is seen mostly in the broadcast

industry, he feels. In order to lead the race for 'breaking news', 24/7 news channels

publish reports without cross checking their leads and sources. Also, in order to

produce something different, news is often a product and a reality.

Freedom of press requires checking, and though there is a need for special

recognition of press within the constitution, I feel that in order to keep a check on

media organizations is by reducing the growing number of 24 hour news channel.

24 news channels is a commercial product which reduces the credibility of news and

also often dwell in sensationalism due to which the essence of news is lost. The

freedom of press needs to make special consensus with regard to New Media,

especially blogs. Also, the Supreme Court must deal strictly with regard to political

affiliations and media organizations, as this puts the function of media as the watch

dog of the country into scrutiny.

13
 On the whole, Reasonable restrictions imposed by the constitution hold

ground but there are a lot of loop holes within these restrictions which needs to be

answered by the court. Clear remarks should be given to the journalist about their

excise of freedom at the same time some clause should be present which checks the

usage of freedom of the press.

4.0.Threat to Press Freedom in India:

The threat to freedom of the press in this country or for that matter in all of

Asia hangs like the proverbial sword of Damocles. In India, no political party can

boast of respecting the freedom of the press. There have been numerous instances of

newspaper offices bein; vandalised and editors and journalists being roughed up by

political flunkeys for publishing articles that were critical of their leaders whose

credentials were suspect, to say the least. This sorry state of affairs has increased in

recent years.

Not long ago, an article published by Alex Perry, a foreign journalist, on

Prime Minister Vajpayee's fitness, thereby questioning his ability to lead the nation,

considerably angered the ruling party.

The press is considered the watchdog of democracy. Sadly, there is scant

regard for this truism in a country which is, ironically, the world's largest democracy.

Self-discipline, which is so crucial for the survival of any democracy, is fast

disappearing from the Indian polity. Tolerance levels are declining and arrogance is

all-pervasive.

More often than not political power is used to further the cause of the power-

hungry rather than to serve the masses. When obedience to the enforceable is itself

neglected, obedience to the unenforceable is out of the question. Even after more than

14
five decades of Independence, democracy in India has still not matured and the

quality of public life is declining alarmingly.

Today, political leaders are voted to power because of their oratory and

manipulative skills and not for their wisdom and virtue. We cannot expect better

governance if we continue to elect people with criminal track records and malafide

intentions. Fortunately, the Indian citizen can depend on a strong judiciary, which has

so often come to the rescue.

The press, on its part, should bear in mind that freedom of the press does not

mean a license to write anything. This freedom is precious and it has to be used

judiciously.

When this freedom is misused, public respect for this profession will diminish.

The press has to guard against this.

5.0-Tlie Limits of Press Freedom in J 81K: Newspapers in JScK are working

under twin pressures

The Press wields immense power in a democratic society. Dickens called the

Press "the mighty engine". So great is its influence that some have called it the Fourth

Estate. Napoleon used to say- "Your hostile newspapers are more to be feared than a

thousand bayonets." For, the press forms opinions, shapes movements and controls

policies through well-informed criticism.

A free press is the symbol of a free people. An independent, well-informed

press is a powerful check on arbitrary governments and irresponsible administrators.

For newspapers are agents of the public, which bring to the notice of the people acts

of injustice or oppression, or mal~administration that would otherwise have remained

hidden away from public knowledge. They augur misgovernrnent at a distance and

15
sniff the approach of tyranny in every tainted breeze' (Burke). They exercise a

constant vigilance on the rulers, which is salutary for all.

Nowadays it is difficult for the press to be free. Either a newspaper is

controlled by some financial magnates entirely or it is a mouthpiece of a political

party or it is under the thumb of the government and in that case its importance is

reduced and independence compromised.

6.0.Constitutional aspect of freedom of press:

The Indian Constitution, while not mentioning the word "press", provides for

"the Right to Freedom of Speech and Expression" (Article 19(1) a). However this

right is subject to restrictions under sub clause (2), whereby this freedom can be

restricted for reasons of "sovereignty and integrity of India, the security of the State,

friendly relations with foreign States, public order, preserving decency, preserving

morality, in relation to contempt, court, defamation, or incitement to an offense".

Laws such as the Official Secrets Act, Armed Forces Special Powers Act

(AFSPA) Disturbed Areas Act (DDA) and Prevention of Terrorist Activities Act

(PoTA) have been used to limit press freedom. Under PoTA, person could be detained

for up to six months for being in contact with a terrorist or terrorist group. PoTA was

repealed in 2006, but the Official Secrets Act, AFSPA, DDA continue to be an

impediment towards the freedom of press in some parts of India especially Jammu &

Kashmir. Pertinent to mention here that Right to Information Act (RTI) has an

overriding effect over Official Secrets Act of 1923.

For the first half-century of India's independence, media control by the state

was the major constraint on freedom of press in India. Indira Gandhi famously stated

in 1975 that All India Radio is "a Government organ, it is going to remain a

16
Government organ. With the liberalization starting in the 1990s, private control of

media has burgeoned, leading to increasing independence and greater scrutiny of

government.

The Universal Declaration of Human Rights states: "Everyone has the right to

freedom of opinion and expression; this right includes freedom to hold opinions

without interference, and impart information and ideas through any media regardless

of frontiers"

7.0.Freedom of press in Jammu & Kashmir

The real freedom of the press can exist only where a free people can function

freely as in true democracy. It may be asked, why do I say there is no freedom of the

press in J&K ? The reason is that this part of the world has been in a state of conflict,

chaos and confusion since last more than six decades and the press has not at all been

so free which it should have been. The unnecessary interference of various state and

non state actors, different so called agencies has hampered the growth of the fourth

estate in Jammu & Kashmir. Not only the press but other institutions as well could not

grow here due to this conflict.

Twenty-seven journalists have been confirmed as being killed for their work

in India since 1992, according to Committee to Protect Journalists (CPJ) research, and

10 of those deaths took place in Jammu and Kashmir, a higher concentration than any

other state. India ranked eighth on CPJ's Impunity Index in 2010. That index lists

countries where journalists are killed regularly and governments fail to investigate.

It calculates unsolved journalist murders as a percentage of each country's population.

It is impressed upon the J&K Government to ensure protection of journalists. The

Kashmir based press has been literally sandwiched. If it writes what people demand

the DAVP advertisements are snapped by the Ministry of Information & Broadcasting

17
or even the local Information Department and if it writes in favour of the Government

the press faces wrath of the people.

The working journalists in J&K need to undergo various capacity building

programmes on the issues related to various aspects of journalism but unfortunately

no such centers have been provided by the Government or any Non Government

Organization (NGO) where such programmes could be undertaken. It is a matter of

serious concern that we do not have even a press club in Srinagar where such type of

activities could be held. The Chief Minister Omar Abdullah had assured valley

journalists soon after assuming to power in early 2009 about providing press club

facility in Srinagar but till date there is no progress on this matter and remains only a

dream for the journalists. The continuous ban on Srinagar based local cable news

network by the Government also raises a big question on the freedom of press in J&K.

8.0.Freedom of Expression and The Right to Know:

Freedom of expression is enshrined in the Constitution of India as a

fundamental right under Part HI of the Constitution. Nevertheless, there has been a

hierarchy of values and a gradation to these rights. The right to property, for instance

is considered to be the weakest of these rights and is, at present, only a legal right- not

a fundamental right. Even though freedom of expression is a fundamental right, with

the passage of time, through several amendments a number of restrictions have been

placed on the exercise of this right which have narrowed down their scope

considerably.

Intimately associated with the freedom of expression is the idea of Human

Rights - the basic right of every human being, irrespective of colour, race, gender or

status, to live with dignity which means the right to food, clothing, shelter,

18
primary health and education. It also means the right to practice (or not to) religion

and the right to dissent. In recent years in India, dissenters have been persecuted and

threatened, and in a few cases even physically eliminated. Dissenters who questioned

beliefs, especially what were considered accepted practices, were the ones who faced

the ire of the intolerant.

As in the case of the Hindus. In Hinduism there is flexibility at the

philosophical level but not at the sociological level where one confronts the caste

system. Even today, the caste system is so rigid that many who break caste mles are

punished by what are known as the caste or jaati panchayats. At the religious level,

we witness the re-emergence of the cultural police who have no hesitation in issuing

fat was against dissenters.

Despite freedom of expression being a fundamental right its unfettered

exercise was scuttled even in the days of Jawaharlal Nehru. Even then

there was always some form of censorship for the benefit of the rulers. For example,

Mr. A. D. Gorwala's column in The Times of India written under the pseudonym

"Vivek" was discontinued at Nehru's insistence for it was too critical of him. And no

other newspaper was ready to publish Mr. Gorwala's column. This compelled

Mr. Gorwala to start his own small weekly which he named Opinion to publicise his

views and his right to free expression. The situation got worse over the years and

during the (so-called) Emergency of 1975-1977 these freedoms were suspended.

A new phenomenon that has developed menacing proportions in recent years

is what can be described as cultural policing not only by the party in power but by

communal or non-secular parties who decide what is good or bad for our culture.

Fortunately, the judiciary has been a source of protection of freedom of expression. In

India, there has been only one case where the Supreme Court banned a book on the

19
ground of obscenity and that was D. H. Lawerence's Lady Chatterly's Lover. In most

cases pornographic books and movies, though they attract legal action under

obscenity laws, generally die a natural death. A case in point is the blue films that

were screened at a couple of theatres in Bombay. People got tired and ultimately the

theatre had to stop screening such films not because of any legal or police action but

simply because of the operation of the law of demand and supply.

The hurting of religious sensibilities is something that every group alleges

when someone says or writes on a religious theme that is not to the liking of the

religious group concerned. Unfortunately, those who- claim their religious freedom

has been affected generally take to the streets. This stifles freedom of expression. On

the ground of protecting religious susceptibilities banning of books has become a

passion with India's rulers of all hues. Books are banned without reading them, like

the Satanic Verses. In fact, India has the dubious distinction of banning this book even

before the Islamic countries did so. Pradip Dalvi's play Godse was banned on the

ground that it hurt the image of Mahatma Gandhi and justified his assassination. Such

censorship is detrimental to the healthy growth of civil society. Even the Mahatma

would himself have opposed the ban on the Godse play. The destruction of works of

art (the most recent case being the paintings of M. F. Hussain) is also a clear sign of

growing intolerance. In a democracy there are civilised ways of expressing one's

dissent.

On the other hand, the sensible way in which certain Dalit writers like

Namdeo Dhasal reacted to Mr. Aran Shourie's book on B. R. Ambedkar is a salutary

example of democratic dissent. They opposed the banning of the book as it would go

against their earlier stand when they opposed a demand made by caste Hindus for a

ban on Dr. B. R. Ambedkar's Riddles of Hinduism. Riddles of Hinduism is a chapter

20
in the Complete Works of Dr. Ambedkar published by the Government of

Maharashtra. Liberals need to applaud the stand of the Dalit writers for their mature

response to a provocative book by Mr. Arun Shourie.

The audio-visual media, especially television and the cinema are showing a

growing number of films depicting violence some of which are extremely gory.

Though it is not easy to establish a direct correlation between cinema, TV viewing

and violence, there can be no denying that such depiction have had ill effects on the

immature, adolescent, the unemployed or school dropouts. This has, for example,

been responsible according to some for the "Shahrukh Khan phenomeno" where

disappointed lovers kill girls who do not reciprocate their love, leaving an already

marginalised group like women in a more dangerous public space. A film hero doing

such things gets a sort of legitimacy among some sections of the public.

The writing of history books has been another major problem where the group,

for the time being in power, seeks to inject its views, like under Congress rule, the

Nehru-Gandhi dynasty sought to marginalise all other leaders including the

Mahatma's role in the freedom movement. Even in the regional writings of history,

the local heroes are exaggerated to look bigger and greater than they really were. This

has led to the creation of sacred cows who cannot be touched. There is therefore need

to draw the line between learned research and licence.

The recent spurt of celebrating festivals in public, disrupting traffic by erecting

pandals on public thoroughfares has intruded into the freedom of expression of

citizens who do not wish to participate in such festivals. This has led to the hardship

of ordinary citizens who use these roads. But the politicisation of these festivals has

led to greater problems. Initially it started, more as a weapon during the freedom

movement, with a 10-day Ganpati festival. This festival was largely confined to

21
Maharashtra. But in recent years it has spread to other cities and towns outside

Maharashtra. Ditrga Puja, a 10-day festival in Bengal, equivalent of the Ganpati

festival in Maharashtra is now assuming the same importance and duration in

Bombay. One would have understood it if this arose from religious fervour. But there

is increasing evidence that these festivals are promoted by the politically powerful.

For almost a month each year public thoroughfares are at their disposal, not to speak

of a variety of gangsters and thugs who patronise these festivals who spend crores of

rupees in building plaster of pans and thermocole replicas of well-known monuments

and temples. The right to dissent here is not accepted and there is fear of physical

retaliation for those who dare to protest; contributions are forced, film songs which

are far removed from prayer not only rob the occasion of its solemnity but the loud

music goes on round the clock talcing the decibel level to an unbearable pitch. Thus

the right of dissent is swept away by giving in to a false illusion of a majority that

does not exist.

The national obsession with secrecy to hide uncomfortable facts is a blot on

our democracy. In India this idea of the right to know is closely connected to the

freedom of the Press which calls itself the "fourth estate". Till very recently the

electronic media was controlled by the state and the newspapers were considered the

only free agents. But are they really free? Are they not controlled by caste interests,

joint families or joint stock companies. It is the print press that has unearthed a lot and

has played the role of the opposition. But they do not have any more rights than

ordinary citizens. There have been instances when this right has been misused as a

weapon to intimidate the famous where it has degraded to licence and mudslinging.

This is no freedom, for freedom entails responsibility which has to be exercised with

self restraint and for a social purpose.

22
 At the same time, this has led to public offices and institutions becoming more

transparent and accountable to the public whose money they spend. Citizens groups in

Rajasthan have organised protest against the reluctance of officials to part with

information and have insisted that they have a right to know how much has been spent

on building a bridge, for example. In fact, audit reports once placed on the floor of the

House are public documents, but one sees a desperate bureaucracy trying to keep

them away from public scrutiny. To begin with, at least all economic documents can

be made public for there are no secrets in it that affect state security.

With the explosion of technology and the beginning of the information age,

the concept of national sovereignty will soon become redundant because no country

can control the flow of information on the internet.

Then there is the Right to Privacy which should be harmoniously blended with

the Right to Know. How justified was the media in prying into the private lives of

Princess Diana and President Clinton? Wasn't the Starr Report a waste of public

money where the private sexual exploits of two consenting adults disturbed the fabric

of American society and almost wrecked the Presidency.

Freedom of Expression constitutes one of the central principles of liberalism.

The Indian Constitution - largely liberal in spirit - recognised this inasmuch as "liberty

of thought, expression, belief, faith and worship" figures in its admirable preamble.

Freedom of Expression is also recognised universally as a Human Right - a

basic right of every human being, irrespective of colour, race, gender or status.

Since the promulgation of the Indian Constitution, the Right to Freedom of

Expression has been under siege, both by the state and certain groups in our society.

The First Amendment narrowed the ambit of this freedom. In the last fifty years, this

23
freedom -which should have evolved into a larger one - has been more narrowly

defined to reduce spaces where freedom can be exercised.

Further, in the last few years, greater, and perhaps even dangerous death

threats have emanated from extreme groups or parties which have become self-

appointed guardians of "morality" in the country. It is they who want to enforce what

people can or cannot read, which film or play to be censored or which performer can

or cannot appear on stage; or what an artist can portray.

In a free society which boasts of democracy, it is the Constitution that should

be the supreme law, not fatwas oredicts issued by cultural vigilantes.

The destruction of works of art or the banning or burning of books is a clear

sign of growing intolerance. In a liberal democratic state, even while such acts should

be curbed with an iron hand, there is need to educate people on forms of protest that

are consonant with a liberal society.

There is a genuine concern, with the growing trend in films made for the

cinema and TV to depict violence and scenes of rape in a revolting manner. But even

here, it is not for the State to interfere. It is the media itself which needs to institute

self- regulatory mechanism to check this undesirable trend perhaps on the lines of the

Press Council.

Threats to freedom of expression appear not only against the media or against

widely known authors or artists. There are also growing threats to academic freedom

and this is evident particularly in the writing of history. There is an increasing trend

encouraged and promoted by fundamentalist and ideologically motivated groups to

"invent" pasts which glorify exclusively and exaggeratedly their own specific

traditions. This abuse of scholarship and distortion of history needs to be resisted.

24
Freedom of the press - a bastion of a liberal and democratic society - too has been

under constant threats and pressures, not only from the State, but from extremists who

do not hesitate even to use violence to silence journalists who do not share their

beliefs. There is need to develop appropriate measures to protect the privacy of the

individual particularly in the context of the intrusive powers of modern

communications technology.

There is need, further, to inquire into and modify laws relating to the

privileges of legislators which have often tended to curb the freedom of the press to

report and inform their readers.

In addition, the Courts too have not been always helpful, as they could be, in

safeguarding the rights of the press. The frequent use of "stay orders" have tended to

limit the freedom of the press to inform their readers. The Right to Know is a

corollary to the Right to free expression. In a liberal state, citizens can exercise their

Rights meaningfully only if they are also adequately informed. An informed citizenry

is a pre-condition of responsible citizenship.

The Right to Know, however, has acquired significance and relevance in our

society, only recently. It is not unsurprising for governments - even the democratically

elected ones - to hide uncomfortable facts from the people. The need to safeguard the

country's security interests is often the excuse advanced to withhold information.

Under the blanket term "state security", numerous acts of omission and commission

are hidden from public scrutiny.

Liberals should support any legislation which seeks to empower citizens with

the Right to Know, particularly in the areas where large financial outlays have been

made. In a liberal society, acts of governments should be both transparent and

accountable.

25