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The Right to Freedom of Speech & It�s Limitations

If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.- George Washington

Magna Carta (1215)[i] is the first ever written document which talks about fundamental rights of citizens of a country. The Declaration of Rights of Man and the Citizen (1789) was enacted in France which contained all the natural, inalienable and sacred rights of man. Also in 1787, the Bill of Rights was incorporated in America. A democracy is meaningless without Fundamental Rights[ii].

Every republic country by now has understood the need of Fundamental Rights and has incorporated it in its constitution. Even though the constitution of England is unwritten and has no such code of Fundamental Rights, it still recognizes the concept of these basic rights which has gradually become very wide. The enforcement of human rights is a very significant matter in the modern constitutional jurisprudence. Its incorporation in the modern constitutional documents derives from the doctrine of natural law and natural rights.This article deals with Right to freedom of speech and expression in India and its limitations or ground of restrictions.

Fundamental Rights in India:
It is a charter of rights contained in the part 3 of Indian constitution. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, right to life, the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus, etc. Fundamental Rights constitutes limitations upon state action. [iii]

Even the Constitution makers had to go through such hardships so while framing the constitution, they had a very positive approach towards these rights. India being a country of diverse cultures and religions had to have such rights for a sense of protection, security and confidence and so this concept was welcomed graciously.

Articles 12 to 35 of the Constitution contain the fundamental rights of the people which are borrowed from the Bill of Rights in the US Constitution. [iv]

The Indian Constitution guarantees to the people certain basic human rights and freedoms such as equal protection of laws, freedom of speech and expression, freedom of religion, freedom of association, freedom to move freely and to reside anywhere in India, freedom of profession,... If a right is violated, a person can claim it against the state which is made enforceable by Article 32 and Article 226 of the Indian Constitution, without which these rights is not of much use. The six freedoms are guaranteed in Article 19.

Article 19(1)(a):
Fundamental Right to Freedom of Speech and Expression: Anything that serves as the foundation or basis of a system of belief, as a truth, law, or principle, a primary and necessary truth; an essential.[v]

Right - It is a moral or legal claim to have something or behave in a particular way. [vi]

Fundamental Right:
They are a generally regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental, or inalienable entitlements or "rights." Such rights thus belong without presumption or cost of privilege to all human beings under such jurisdiction. The concept of human rights has been promoted as a legal concept in large part owing to the idea that human beings have such "fundamental" rights, such that transcend all jurisdiction, but are typically reinforced in different ways and with different emphasis within different legal systems.

  1. The state of being free or liberated.
  2. A political right.[vii]

The expression or communication of thoughts or opinions in spoken words; something spoken or uttered.[viii]

The act or mode of uttering or representing, as by language or gesture.[ix]

Freedom of Speech:
The right to express one�s thoughts and opinions without governmental restrictions as guaranteed by the First Amendment.[x]

Freedom of Expression:
The freedom of speech, press, assembly or religion as guaranteed by the First Amendment.[xi]

The freedom guaranteed under Article 19(1) (a) means the right to express oneself and one�s opinions freely either by mouth, writing, printing, picture or electronic media or any other manner addressed anyhow to the ears or eyes. It means communicating ideas to a second party before us. It is a very important right which is necessary for the proper functioning of the democratic process as it is regarded as the first condition of liberty and is the mother of all liberties. [xii]

This freedom plays a crucial role in the formation of public opinion on social, political and economic matters. Like all the other questions on life and liberty, freedom of speech is also broadly interpreted by the Supreme Court of India ever since the adoption of the Constitution. It is a basic human and natural right. It includes within it the propagation and interchange of ideas and the flow of information which implies one�s opinion, viewpoint and debates.

Article 19(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. [xiii]

The restriction must inevitably fall under any reasonable of the grounds i.e. in the interest of sovereignty and integrity, security, friendly foreign relations, public order, decency or morality, or contempt of court, defamation or incitement leading to an offence. If it does not, then it can be held invalid. But apart from it a bigger question of reasonableness must also be answered. This question may vary from case to case.

Grounds of restrictions:
  1. Sovereignty and Integrity of India:
    This ground was added by the Sixteenth Amendment of the Constitution i.e. 6th October, 1963. The main purpose was to enable the State to curtail actions being used to disturb the territorial integrity and sovereignty of the Union of India.[xiv] Thus, by this the legislature can restrict such a right if it seeks for secession of any part of the territory of India from the Union thus hampering the integrity of the entire nation and not that of the constituent states.
  2. Security of the State:
    In general it means absence of public disorder or disturbance which can be caused by threat of violence, inciting war agitations against the government excluding small activities such as riots, unlawful assembly, rash driving, display of enmity, etc. Thus the right can be restricted if any of the above is an outcome of the practise of such rights causing insecurity in the state. The cases of Romesh Thappar v State of Madras[xv] and State of Bihar v Shailabala Devi[xvi] describe the gravity of the activities which may result in public disorder harming the security of the state.
  3. Friendly relations with Foreign States:
    This ground was added by the Constitution First Amendment Act of 1951. It is intended to curtail all actions which by nature disturb the good and friendly relations either with the neighbouring countries or with other countries on various grounds like trade, economy, security, etc. It is well recognised under the purview of International Law[xvii] that if two States are in relation, then they are responsible for the acts of those within their respective jurisdictions. The defamation of any related country or any of its representatives or ambassadors would come under this section.
  4. Public Order:
    This ground was inserted in the Constitution First Amendment Act of 1951, which was required to be done after the judgement in Romesh Thappar�s case saying that ordinary breaches or local actions did not amount to cause public disorder and specifically laid down all such grounds for restricting this right. Public order in a general sense can be in line with public safety, peace, tranquillity, etc., and must not be misinterpreted with law and order or security of a state. Thus, in the interest of public, the legislature can hold any restriction as reasonable and countable.
  5. Decency or Morality:
    It deals with those actions which question public or individual morality which can be got from the consequence of the action on the ones to whom it has been addressed. It is somewhat understood as lack of obscenity and factors like age and culture come out to be material. Simple abuse arousing a mass would not necessarily invite this ground.
  6. Contempt of Court:
    The court does not allow any kind of interference in its proceedings or in due course of justice resulting in lowering the prestige of this temple. This contempt is defined in Section 2 of the Contempt of Courts Act, 1971. It includes Civil and Criminal contempt.
    1. Civil contempt "wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court".
    2. Criminal contempt �means the publication (whether by words. spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:
      1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
      2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
      3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.[xviii]
  7. Defamation:
    Along with the rights of freedom of speech and expression, a person also possesses a right to his reputation which nobody can injure or defame. Defamation in any form of writing, printing, or permanent media is libel and in the form of spoken words or gestures is slander. Freedom of speech could overlap this issue and cause hatred against the person who has been affected by it. CITATION Placeholder1 \l 16393
  8. Incitement to an offence:
    Any act causing incitement of any public criminal offence along with breaching public order may be brought under this ground of restriction. General Clauses Act defines offence as �any act or omission made punishable by any law for the time being in force�.[xix] Hence, instigation of any act in prohibition by law resulting in an offence it not permitted under this ground because freedom of speech is not a license to incite people to commit offence.

Thus, concluding to prove the hypothesis, Fundamental Right to freedom of speech and expression is a limited right but not in the strictest sense. The judiciary through its flexible approach has considered each case concerning it with a fresh and broad outlook, hence widening the scope of fundamental rights with its wide interpretation. Society is advancing and so is law.

  1. Ranbir Singh, A Lakshminath, Constitutional Law, Lexis Nexis Butterworths Wadhwa.
  2. D.D.Basu, Introduction to The Constitution of India, Lexis Nexis Butterworths Wadhwa, 20th Edition Reprint 2010.
  3. Lucent�s General Knowledge
  4. Prof. M.P.Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Sixth Edition 2010
  5. The New International Webster�s Comprehensive Dictionary of The English Language, Trident Press International, Deluxe Encyclopaedic Edition 2004
  6. Oxford Advance Learners Dictionary (New 8th Edition)
  7. Bryan A. Garner, Black�s Law Dictionary, WEST, Ninth Edition.
  8. Bryan A. Garner, Black�s Law Dictionary, WEST, Ninth Edition.
  9. The New International Webster�s Comprehensive Dictionary of The English Language, Trident Press International, Deluxe Encyclopaedic Edition 2004
  10. Bryan A. Garner, Black�s Law Dictionary, WEST, Ninth Edition.[xi] Bryan A. Garner, Black�s Law Dictionary, WEST, Ninth Edition.
  11. Report of the Second Press Comm., Vol. I, 34-35
  12. P.M.Bakshi, The Constitution of India, Universal Law Publishing Co. Eleventh Edition.
  13. Mahendra P. Singh, V.N.Shukla�s Constitution of India, Eleventh Edition, Eastern Book Co.
  14. AIR 1950 SC
  15. AIR 1952 SC
  16. Mahendra P. Singh, V.N.Shukla�s Constitution of India, Eleventh Edition, Eastern Book Co.
  18. D.D.Basu, Shorter Constitution of India, Twelfth Edition, Prentice-Hall of India

Award Winning Article Is Written By: Ms.Hemlata Singh - Law Student at University School of Law and Legal Studies, GGSIPU
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