Right To Freedom Of Speech And Expression

This article has been written by Harshita Chaudhary. She completed her bachelor’s in Science from Chhatrapati Shahu Ji Maharaj University, Kanpur, and is now in her second year, currently pursuing an LLB from Lloyd School of Law, Greater Noida.

***This article has been published in LegalOnus Law Journal (LLJ) Volume 1, Issue 5, 2025

Abstract:

This article is about Article 19(1)(a) i.e., “FREEDOM OF SPEECH AND EXPRESSION” of the Indian Constitution, also its historical perspective from the world’s view ,emerging from late 6^th and early 5^th century B.C and today it is constitutionally recognized Right  of a citizen  in India, it is recognized in Other Countries also. From Indian Perspective “Freedom of speech and expression” is Fundamental Right , in which state can impose reasonable restrictions on citizens .The philosophy behind this Freedom of speech and expression lies in “Preamble” of the Indian Constituion. There were many instances where freedom of speech and expression came in conflict with law for example in case of sedition, publication, press .But freedom of speech and expression is not an absolute right, also its reasonable restrictions are exhaustive in nature .Freedom of speech is important for a person to showcase his opinions in political, economic, social matters throughout the country.

Introduction:

Article 19 of the Indian Constitution guarantees to all citizens the six rights ,One of them is “RIGHT TO FREEDOM OF SPEECH AND EXPRESSION”. Originally article 19 contained seven rights and 7^th right was deleted by the 44^th Amendment Act of 1978.This right is protected against only state action and not private individuals, this right is available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc. Freedom of speech and expression implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The state can impose reasonable restrictions on the grounds of Article 19(2).[1] Article 10 of The European Convention On Human Rights states that Everyone has the right to freedom of expression and to receive and impart information .It covers the freedom of the press. Freedom of expression is essential for democratic society. The media require particular protection because they play a key role in defending freedom of expression. Article 10 protects, among others, the right to criticise, to make assumptions or value judgments and the right to have opinions.Such protection is not restricted to “true” statements; it applies in particular to political speech and debate on questions of public interest. Freedom of expression plays a key role in elections. Artistic expression is also protected by Article 10.[2]

In United States Of America, James Madison introduced 12 amendments to the First Congress in 1789.  In the Bill of rights, The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.[3]

Historical Context Of Freedom Of Speech And Expression:

It is thought that the ancient Athenian democratic principle of Free Speech may have emerged in the late 6^th or early 5^th century BC. Edward Coke claimed freedom of speech as an “ancient custom of parliament. In 1590s ,England’s Bill of Rights 1689 legally established  the constitutional right of freedom of speech in parliament ,which is still in effect.one of the world’s first Freedom Of The Press acts was introduced in Sweden in 1766.The Declaration of  the Rights Of Man and of the Citizen ,adopted  during French revolution in 1789,specifically reaffirmed freedom of speech as inalienable right.Today freedom of speech ,or the freedom of expression is recognized  in Interntional and regional human rights law .The right is enshrined in Article 19 of the Intrenational Covenant On civil And Political Rights,Article 10 of the European Convention On Human Rights,Article 9 Of the African Charter On Human and People’s Rights,Article 19 of The Indian Constitution.[4]

The law in the current form in India finds its root in the Hate Speech Law Section 295(A) enacted by the British Administration in India This act was brought about in the backdrop of a series of murders of Arya Samaj leaders who polemicized against Islam. The Constitution of India Bill 1895, widely considered to be the first Indian articulation of a constitutional vision, contained the following provision related to freedom of speech and expression – ‘Every citizen may express his thoughts by words or writings, and publish them in print without liability to censure, but they shall be answerable to abuses, which they may commit in the exercise of this right, in the cases and in the mode the Parliament shall determine.’

Other constitutional antecedent documents too contained provisions on freedom of speech and expression. These included: Commonwealth of India Bill 1925, Nehru Report 1928, and States and Minorities 1945. In most cases, the provisions contained some form of restrictions on freedom of speech and expression.[5]

Insights to Article19(1)(a):

It says that all citizens shall have the right “to freedom of speech and expression”.but ,this is subject to limitations imposed under article 19(2) which empowers the state to put reasonable restrictions on the following grounds: “security of the state,Friendly relations with foreign states ,public order ,decency and morality, contempt of court, defamation, incitement to an offence, and sovereignty and integrity of India”. The freedom of speech and expression means the right to express one’s convictions, and opinions freely by word of mouth, writing , printing, pictures or any other mode.It also includes the right to propagate or publish the views of other people, otherwise it would not include the ‘freedom of press’.

1. Freedom Of Press: Unlike American Constitution ,Art.19(1)(a) does not expressly mention the liberty of press. Press is supposed to guard public interest by bringing to fore the misdeeds failings and lapses of the government and other exercising governing power.Rightly,therefore ,it has been described as fourth estate.

In Bennett coleman’s case (AIR 1973 SC 106),[The petition was filed challenging the import policy for newsprint for the years 1972-1973, Certain provisions of the Newsprint Control Order 1962 were also challenged as they were violating Article 19(1)(a) and 14 of the Constitution.[6]] It was  held that the freedom of newspapers to publish any no. of pages or to circulate to any no. of persons and to fix price is each an integral part of the freedom of speech and expression.Freedom of Press is both Quantitative and Qualitative.Freedom lies both in circulation and its content.

In Sakal Newspaper’s Case (AIR 1962 SC 305), [ The Sakal Papers Ltd., a private company that publishes newspapers, specifically a Marathi daily newspaper named Sakal , had a unique pricing and page allocation strategy In 1952, the Government appointed a Press Commission ,The commission formulated a report ,leading to the enactment of the Newspaper (Price and Page) Act, 1956 and a subsequent Order in 1960. According to these regulations, newspaper companies were required to charge prices based on the number of pages they published.[7] ] It was held that the Freedom of Speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers.

2. Freedom Of Silence: In National Anthem Case(1986) 3 SCC 615, [They were students at a school in Kerala ,they did not participate in singing the National Anthem during the assembly. It was noted that the children never disrespected or insulted the National Anthem during the assembly but stood respectfully and quietly.. On being noticed by a Member of Legislative Assembly (MLA), the students were expelled from the school Aggrieved by the expulsion, the father of the children sought relief from the decisions of the school administration.[8]] It was held that freedom under Article 19(1)(a) also includes the Freedom OF Silence.
3. Right to Fly National Flag: In Naveen Kumar Jindal V. Union Of India (1955), it was held that Freedom of expression under Article19(1)(a) includes freedom to Fly National Flag by a citizen at his home,office, or business place.In Union Of India V. Naveen Kumar Jindal(2004) 2 SCC 410, the Supreme Court made certain important observations in respect of flying of the National Flag.
4. Right to Reply: In LIC V. Manubhai Shah (1992)3 SCC 637, the Supreme court held that the Freedom Of Speech and Expressions Includes Freedom Of Circulation and propagation of ideas and ‘therefore’ the right extends to the citizen to use media to answer the criticism levelled against his views propagated by him. A ‘Right to Reply’ (by a dissonant note) is implied in the system of freedom of expression.
5. Right to Strike: a constitutional bench of the Supreme Court in Harish Uppal V. Union Of India ( AIR 2003 SC 739), categorically pronounced that the lawyers had no right to go on strike or give a call for boycott, not even a token strike. It has been suggested that the Advocates can get redressal of their grievances by passing a resolutions, making representations and taking out silent processions ,holding Dharnas or to resort to relay fast ,having discussion by giving T.V interviews and press statements.
6. Pre – Censorship of Films: In A Abbas V. Union Of India (AIR 1971 SC 481) Pre-Censorship of films justified under article 19(2) on the grounds that films have to be treated separately from other forms of art & expression because a motion picture was able to stir up emotions more deeply .Hence, classification of films into ‘A’ & ‘U’ categories held to be Valid.

In Odyssey Communications Pvt. Ltd. V. Lokvidayan Sangathan ( AIR 1988 SC 1642)  , it was held that Right of citizens to exhibit films  on Doordarshan subject to the terms and condition imposed by the Doordardshan is a part of the Fundamental right of freedom of expression.

7. Right Of Information: The Secretary , Ministry of I & B Cricket Association , Bengal with Cricket Association , Bengal V. Union Of India (AIR 1955 SC 1236) , is a landmark judgement as it recognizes the ‘right to information’ as a fundamental right to speech and expression under article  19(1)(a).The court observed  that a citizen has a Fundamental Right to use the best means of imparting and receiving information through ‘electronic media’ albeit with caveat,the airwaves are public resource and must therefore be regulated in public interest.The court ruled that freedom of speech and expression includes the right to educate,inform,and entertain.
8. Contempt of Court: In Re Arundhati Roy Case (AIR 2002 SC 1375); Radha Mohan Lal V. Rajasthan High Court (AIR 2003 SC 1467), The right to freedom of speech expression does not entitle a person to commit ‘contempt of court.’
9. Right to Know: In Union Of India V. Association Of Democratic Reforms (AIR 2002 SC 2112), it was held that the voter’s right to know antecedents including criminal past of a candidate to membership of parliament or legislative assembly is a fundamental right to speech and expression under article 19(1)(a),and article 19(1) and (2) of the International Covenant On Civil and Political Rights,1966.[9]
10. Right to Internet Access: In Anuradha Bhasin V. Union Of India(2020), The Right To Freedom Of Speech And Expression and Right To Practise any Profession , or to carry on any occupation trade or business over the medium of internet under Articles 19(1)(a) and 19(1)(g) has been held to be constitutionally protected. Thus, a negative right to internet is subject to reasonable restrictions under Article 19(2) and 19(6) has been recognized.[10]
11. Digital Speech: In case of “ Shreya Singhal V. Union Of India” By striking down Section 66A of the Information Technology Act, 2000, the Supreme Court upheld the fundamental right to free speech, ensuring that individuals are not penalised for expressing opinions that may be considered “offensive” or “menacing.” The Court’s ruling also clarified the liability of online intermediaries, protecting them from excessive legal burdens while promoting accountability.[11]
12. Free Speech With Right to Life: In case “Justice K.S. Puttaswamy (Retd.) v Union of India” held that the right to privacy is protected under Article 21(Right to Life and Personal Liberty) and is an essential aspect of the freedoms guaranteed by Part III of the Constitution.[12] Any restriction to the right to the right to freedom of speech and expression over the medium of internet under article 19(1)(a) and 19(1)(g)  have to pass personality test which was enumerated by decision in puttaswamy case.[13]

Constitutional Remedies Available in Case Of Violation Of Article19(1)(a) :

1. Article 32– Article 32 of the Constitution of India was mentioned by Dr. B R Ambedkar as the “heart and soul of the Constitution” and he was right in his quoting. Article 32 has been given in the Chapter 3rd of the Constitution which is the chapter of Fundamental Rights, those basic rights which are enjoyed by every citizen of this country for a dignified life and even the government or parliament cannot infringe and curb those rights. Article 32 is a fundamental right which is known as Right to Constitutional Remedies and it holds a great importance as it gives power to the Supreme Court to issue writs in those cases where a citizen of India or anyone on his behalf has approached the court through a public interest litigation, seeking remedy or protection for the fundamental rights which are violated by the State or its authorities.[14] In Case of  Maneka Gandhi vs. Union of India and Ors., Mrs Maneka Gandhi approached the Supreme Court under Article 32 of the Constitution. She argued that the impounding of her passport violated her fundamental rights under Articles 14 (equality before law), 19 (freedom of speech and other freedoms), and 21 (protection of life and personal liberty) , The Supreme Court’s decision significantly expanded the ambit of personal liberty under Article 21, integrating it with Articles 14 and 19. The case illustrates that any law or administrative action that curtails personal liberty must be non-arbitrary, fair, and subject to the principles of natural justice.[15]
2. Article 226 – Article 226 grants High Courts the authority to issue writs for enforcing fundamental rights and for other purposes. This simply means that individuals can approach High Courts not only for violations of fundamental rights but also for other legal rights recognized by law. [16]

Reasonable Restrictions:

Article 19(2) states that Nothing in subclause (a) of clause (1) shall effect existing law, or prevent 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 interest 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.[17]

The security of the state implies when an entire country faces threat of security whether internal or external, mere public disorder in parts of country does not amount to the threat of security in whole Nation. In the case of Romesh Thappar v. State of Madras (1950), the order passed by the government of Madras under Section 9(1A) of the Madras Maintenance of Public Order Act, 1949, was challenged. The Supreme Court held that Section 9(1A) of the Madras Maintenance of Public Order Act was not protected by Article 19(2) as there is a fine distinction between “public order” and “security of the state”, the latter standing on a higher footing, and thereby, the court held the provision to be unconstitutional to that extent. the petitioner.

Friendly relations with foreign states, was added by the Constitution (1st Amendment) Act, 1951. As per the recognised principles of international law, the state is seen to be responsible for the acts of its citizens if such acts are detrimental to another state.

Public order , the said ground was added by the Constitution (1st Amendment) Act, 1951. The said ground was added as an after-effect of the Romesh Thappar case.

Incitement of an offence, The following ground was added by the Constitution (1st Amendment) Act, 1951. During the Parliamentary debates, the proposal of using the word “violence” instead of the word “offence” was moved. The reasoning behind the given proposal was that the word “offence” has a very wide meaning and can include all the acts punishable under the Indian Penal Code and other special and local laws.

The ground ‘Sovereignty & Integrity of the Country’ was added by 16^th Constitutional Amendment Act,1963 to curb out the separatist tendency that was arising in that time. The given ground was added to prohibit any material that may be used to assail the territorial integrity and sovereignty of India. “Territorial Integrity” herein refers to the Territorial demarcation of India as a whole and not the demarcation of states.[18]

Decency & Morality is Subjective ground, read with Bhartiya Nyaya Sanhita,2023 also in case of Ranjeet D. Udeshi v. State of Maharashtra 1965 AIR 881, court held that anything which is nude does not means an obscenity as long as it does not arouse sexual interest of the person. Whereas In America, [Since the freedom of speech is mainly governed by the first amendment of the constitution and first amendment did not talk about obscenity and freedom of speech, The Supreme Court has usually refused to give obscenity any protection. The governments, both federal and state, have been permitted to make suitable legislation.[19]]

The ‘Ground Contempt of Court’ contains Civil and Criminal Content which is defined in Section 2(b) and Section 2(c) “The Contempt Of Courts Act,1971.”

Defamation here is both ‘Tort’ (Libel & Slander) and ‘Crime’ under Bhartiya Nyaya Sanhita,2023. [American law also recognizes the liability for defamatory speech or publication i.e. slander and libel.[20]]

Significance of Article 19 (1)(a):

• Societal good: Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays a significant role in the development of a particular society.
• Self-development: Free speech is an integral aspect of each individual’s right to self-development and fulfilment. Restrictions inhibit our personality and its growth.
• Democratic value: Freedom of speech is the bulwark of democratic Government. This freedom is essential for the proper functioning of the democratic process as it allows people to criticize the government in a democracy, freedom of speech and expression open up channels of free discussion of issues.
• Ensure pluralism: Freedom of Speech reflects and reinforces pluralism, ensuring that diversity is validated and promotes the self- esteem of those who follow a particular lifestyle.[i]

Conclusion:

The Supreme Court ruled that no further curbs can be imposed on the fundamental right to Freedom of speech and expression holding that the existing eight reasonable restriction under article 19(2) of the Constitution are exhaustive.[ii] The first four months of 2024 in India have already seen at least 134 instances of free speech violations, with journalists, academics, YouTubers and students being among those affected, the Free Speech Collective organization.[iii] Expressing one’s opinions through speech is one of the basic rights guaranteed by the Constitution of India and in the modern context, the right to freedom of speech and expression is not just limited to expressing one’s own views through words but it also includes the circulation of those views in terms of writing, or through audiovisuals, or through any other way of communication. This right also comprises of the right to freedom of the press, the right to information, etc. Hence it can be concluded with this article that the concept of freedom is very much essential for the proper functioning of a Democratic State. [iv]  

[1] M LAXMIKANTH,INDIAN POLITY 7.10-7.11(6^TH ed. 2020)

[2] Freedom of expression, THE EUROPEAN CONVENTION ON HUMAN RIGHTS, https://www.coe.int/en/web/human-rights-convention/expression (last visited Oct. 14,2024)

[3] The Constitution, THE WHITE HOUSE, https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/#:~:text=The%20First%20Amendment%20provides%20that,for%20a%20redress%20of%20grievances. (last visited ,Oct. 14,2024).

[4] Freedom of speech,WIKIPEDIA(Sept.28,2024,09:36) https://en.wikipedia.org/wiki/Freedom_of_speech.

[5] Freedom of expression in India, WIKIPEDIA, https://en.wikipedia.org/wiki/Freedom_of_expression_in_India ( last visited Oct. 14,2024)

[6] Bennett Coleman vs. Union of India (1973), I PLEADERS , https://blog.ipleaders.in/bennett-coleman-vs-union-of-india-1973/#:~:text=Facts%20of%20Bennett%20Coleman%20vs,of%20the%20Constitution%20of%20India. (last vsisted Oct. 14,2024).

[7] Sakal Papers Ltd vs Union of India, LAW BHOOMI, https://lawbhoomi.com/sakal-papers-ltd-vs-union-of-india/ (last visited Oct. 14,2024).

[8] Bijoe Emmanuel v. State of Kerala : case analysis, I PLEADERS, https://blog.ipleaders.in/discussion-bijoe-emmanuel-case/#:~:text=Bijou%20Emmanuel%20v.,accused%20is%20not%20disrespecting%20it (last visited Oct. 14,2024).

[9] DR. ASHOK K. JAIN ,CONSTITUTIONAL LAW OF INDIA (PART 2)  100-114 (Ascent Publications 2^nd ed.2009)

[10] See, https://blog.ipleaders.in/right-internet-fundamental-right/

[11] See, https://lawbhoomi.com/shreya-singhal-v-union-of-india/

[12] See, https://lawbhoomi.com/justice-k-s-puttaswamy-retd-anr-v-union-of-india-ors/

[13] See, https://blog.ipleaders.in/right-internet-fundamental-right/

[14] See, https://lawcolumn.in/article-32-and-article-226-different-articles-with-same-motive/

[15] See, https://lawbhoomi.com/case-brief-maneka-gandhi-v-union-of-india/

[16] Article 226 of Indian Constitution- Detailed Analysis, Testbook.Com , https://testbook.com/constitutional-articles/article-226-of-indian-constitution (last visited April 16 ,2025)

[17] INDIA CONST. art 19, cl. 2

[18] Reasonable restrictions on Fundamental Rights ,I PLEADERS, https://blog.ipleaders.in/reasonable-restrictions-on-fundamental-rights/ (last visited Oct.15,2024).

[19] Freedom of Speech and Expression India v America – A study ,INDIA LAW JOURNAL, https://www.indialawjournal.org/archives/volume3/issue_4/article_by_dheerajendra.html (last  visited Oct. 14,2024)

[20] Freedom of Speech and Expression India v America – A study, INDIA LAW JOURNAL, https://www.indialawjournal.org/archives/volume3/issue_4/article_by_dheerajendra.html (last visited Oct. 14,2024).

[i] Freedom of speech and expression,DRISHTI JUDICIARY, https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/freedom-of-speech-&-expression( last visited Oct. 06,2024)

[ii] Dhananjay Mahapatra,Right to free Speech cannot be curtailed further:Supreme Court.,TIMES OF INDIA,(last updated Jan. 04,2023) https://timesofindia.indiatimes.com/india/right-to-free-speech-cannot-be-curtailed-further-supreme-court/articleshow/96720155.cms.

[iii] India Has Seen At Least 134 Violations of Free Speech in 2024: Free Speech Collective,THE WIRE, https://thewire.in/rights/india-134-free-speech-violations-2024-free-speech-collective ,(last visited Oct. 06,2024.

[iv] Freedom of Speech and Expression under the Constitution of India, I PLEADERS, https://blog.ipleaders.in/freedom-speech-expression-constitution-india/, (last visited Oct. 06, 2024)