The freedom of speech and expression is regarded as 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 the other liberties. In modern time it is widely accepted that the right to
freedom of speech is the essence in the society and it must be safeguarded all
the time. The first principle of a free society is an untrammeled flow of words
in a open forum. Liberty to express opinions and ideas without hindrance, and
especially without fear of punishment plays significant role in the development
of the particular society and ultimately for the state. It is one of the most
important fundamental liberties guaranteed against state suppression or
The freedom of speech and expression is a very important
fundamental right under the Constitution. It is indispensible for the
development of one’s own individuality and for the success of parliamentary to
democracy. It is said that in a democracy the right to free expression is not
only the right of an individual but rather a right of the community to hear and
The freedom of speech and expression is not only guaranteed by
the Constitution or statutes of various states but also by various international
conventions like Universal Declaration of Human Rights, European Convention on
Human Rights and fundamental freedoms, International Covenant on Civil and
Political Rights etc. These declarations expressly talks about freedom of
speech and expression.
Origin of Freedom of Speech And Expression
The concept of freedom of speech originated long back. England’s Bill
of Rights 1689 adopted freedom of speech as a constitutional right and still in
effect. The French Revolution in 1789 adopted the Declaration of Rights of Man
and of Citizen. This further affirmed the Freedom of Speech as an undeniable
right. The Declaration of Freedom of Speech in Article 11 states:
“The free communication of ideas and opinions is one of the most precious of the
right of man. Every citizen may, accordingly, speak, write and print with
freedom, but shall be responsible for such abuses of this freedom as shall be
defined by law”.
The Universal Declaration of Human Rights that was adopted in
the year 1948 also states that everyone should have the freedom to express their
ideas and opinions. The freedom of speech and expression is recognized as a
human right under Article 19 and has now formed a part of the international and
regional human rights law. In International human rights the freedom of speech
and expression is recognized in International Covenant on Civil and Political
Rights (ICCPR). Article 19 of the ICCPR states that-
“Everyone shall have the right to hold opinions without interference and
everyone shall have the right to freedom of speech and expression ; the
right shall include freedom to seek, receive, and impart information and ideas
of all kinds, regardless of frontiers either orally or the form of writing or
print, in the form of art, or through any other media of their choice”.
Meaning of Freedom of Speech And Expression
The Constitution of India guarantees various fundamental rights to
its citizens. One such important right is right to freedom under Article 19.
This includes right to freedom of speech and expression, right to assemble
peacefully and without arms, freedom to form associations and unions, right to
move freely throughout the territory of India, right to reside and settle in any
part of the territory of India and right to practice and profession or to carry
on any occupation, trade or business.
Under this research work, it closely concerns with the
Article 19(1)(a) of the Constitution of India. Article 19(1)(a)guarantees that
all the citizens have the right to freedom of speech and expression . This right
is available only to the citizens of India and not available to any person who
is not a citizen of India i.e. foreign nationals.
Freedom of speech and expression means the right to express
one’s own conviction and opinions freely by means of words of mouth, writing,
printing, picture or any other mode. It thus includes the expression of one’s
idea through any communicable medium or visible representations such as gesture,
signs and the like. The expression connotes also publication and thus the
freedom of press is included in this category .The Freedom of press is regarded
as a species of which the freedom of expression is a genus. Free propagation of
ideas is the necessary objective and this may be done on the platform or through
In the Preamble to the Constitution of India, the people of
India declared their solemn resolve to secure to all its citizen liberty of
thought and expression. The Constitution affirms the right to freedom of
expression, which includes the right to voice one’s opinion, the right to seek
information and ideas, the right to receive information and the right to impart
information. The Indian state is under an obligation to create conditions in
which all the citizens can effectively and efficiently enjoy aforesaid rights.
In Romesh Thappar v State of Madras, the Supreme Court of India held that the
freedom of speech and expression includes freedom to propagate ideas which is
ensured by the freedom of circulation of a publication is of little value
Importance of Freedom of Speech Amd Expression
“Give me the liberty to know, to utter, and to argue freely according to
conscience, above all liberties”. – John Milton.
John argued that without human freedom there can be no progress in science, law
or politics, which according to him required free discussion of opinion. Mill’s
on Liberty, published in 1859 became a classic defense of the right to freedom
John argued that truth drives out falsity, therefore, the free expression of
ideas, true or false should not be feared. The truth is not stable or fixed but
evolves with time.
John also argued that free discussion is necessary to prevent the “deep slumber
of a decided opinion”. The discussion would drive the onwards March of truth and
by considering false views the basis of true views could be re-affirmed.
An opinion only carries intrinsic value to the owner of that opinion, thus
silencing the expression of that opinion is an injustice to a basic human right.
For Mill, the only instance in which sped can justifiable suppressed is in order
to prevent harm from a clear and direct threat. Neither economic or moral
implications, nor the speakers own well-being would justify suppression of
“Democracy is based essentially on free debate and open discussion, for that is
the only corrective of government action in a democratic setup. If democracy
means government of the people by the people and for the people, it is obvious
that every citizen must be entitled to participate in the democratic process and
in order to enable him to intelligently exercise his right of making a choice,
free and general discussion of public matters is absolutely essential”.
In 1927, in Whitney v. California, Louis Brandies J, made a classic statement on
the freedom of speech in the context of the U.S Constitution:
“Those who won our independence believed that the final end of the state was to
make men free to develop their faculties. They believed liberty to be secret of
happiness and courage to be the secret of liberty. They believed that the
freedom to think as you will and to speak and assembly discussion would be
futile... that public discussion is a political duty; and that this should be a
fundamental principle of the American government.”
The Right to freedom of speech and expression as per as Indian Constitution mean
the right to express one’s own convictions and opinions freely. The word
“freely” means including by words of mouth, writing, printing, banners, signs,
and even by way of silence.
The supreme court of India has held that hosting the National Flag by citizens
is a form of freedom of speech and expression in Union of India v. Naveen Jindal
The Right to Information (RTI) emerges as a fundamental right under Article
19(1)(a), as a freedom of speech and expression are meaningless without access
Under freedom of speech and expression, there is no separate grantee of freedom
of press and the same is included in the freedom of expression, which is
conferred on all the citizens in Virender v. State of Punjab and Sakal Papers v.
Union of India. It has also been by this judgment that freedom of press under
the Indian Constitution is not higher than the freedom of an ordinary citizen.
Need To Protect Freedom of Speech And Expression
Freedom of speech offers human being to express his feelings to other,
but this is not the only reason; purpose to protect the freedom of speech. There
could be more reasons to protect these essential liberties. These are four
important justification for freedom of speech:
1. To discover truth: Historically the most durable argument for a free speech
principle has been based on the importance of open discussion to the discovery
of truth. It is evident from the famous funeral address given by pedicles as
back in 431 BC Athenians, he pedicles out, did not consider public discussion
merely something to be put up with; rather they believed that the best interact
of the city could not be served with a full discussion of issue before the
assemble. If restrictions as speech are tolerated, society prevents the
ascertainment and publication of accurate facts and valuable opinion. The best
test of truth is power of the thought to get it accepted in the competition of
market. The truth would emanate from a ‘free trade in ideas’ on intellectual
2. Non self- fulfillment: A second major theory of free speech sees it as
integral aspect of each individual rights to self development and fulfillment.
Restrictions inhibit our personality and its growth. The reflective mind,
conscious of options and the possibilities for growth, distinguished human
beings from animals. Freedom of speech is also closely linked to other
fundamental freedoms. Thus, for full- fulfillment development of personality,
freedom of speech and expression is highly essential.
3. Democratic value: Freedom of speech is the bulwark of democratic government.
This freedom is essential for the proper functioning of the democratic process.
It is regarded as the first condition of liberty. It occupies a preferred
position in the hierarchy of liberties giving succor and protection to all other
liberties. It has been truly said that it is mother of all other liberties.
In a democracy, freedom of speech and expression open up channels of
the discussion of issues. Freedom of speech plays a critical role in the
formation of public opinion in social, political and economic matters.
4. To ensure pluralism: Freedom of speech reflects and re in force pluralism,
ensuring that different types of lives are validated and promote the self esteem
of those who follow a particular life- style. The French Council Constitutional
and Italian Constitutional court have ruled that the free speech rights of media
corporations may be limited to ensure that the Constitutional value of pluralism
So, it can be concluded that the freedom of speech enables the
discovery of truth, is crucial to the working of a democratic Constitution is an
aspect of human self fulfillment or autonomy. It is the speaker’s interest of
audience in receiving ideas and information.
Grounds For Restriction
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. 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
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. 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 threat to the security of the State.
b) Friendly relations with Foreign stat: 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 jeopardy 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. 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’. ‘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. 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 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.
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. 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. 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
behavior or propriety. The Court has cited with approval the following
observations from an English case.
“….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 scandalizing or intending to scandalize
the authority of any Court. Section 2(a) of the Contempt of Courts Act, 1971,
provides that ‘contempt of court’ may be either ‘civil contempt’ or ‘criminal
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 Winfield, 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 un codified in India and
subject to certain exceptions. Section 499 of the Indian Penal Code, 1860,
defines the offence of defamation. It recognizes both slander and libel.
g) Incitement to an offence: This ground was also added by the Constitution
(First Amendment) Act, s1951. Obviously, freedom of speech and expression cannot
confer a right to incite people to commit offences. The word ‘offence’ is
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 tendency to create disorder or disturbance
of law and order or incitement to violence and was not violative of Article
19(1)(a) read with Article 19(2) of the Constitution.
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
instrumentality, 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(1)(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.