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A Detailed Analysis Of FOSE

The Origin Of Freedom Of Speech And Expression

  • The freedom of speech and expression largely originated from the land of Greeks in 5th Century BC
  • The English Bill of Rights of 1689 ( the iron gull ink manuscript) adopted freedom of speech and expression as a Constitutional Right- Interesting story behind dissenting judgment in Privy Council.
It is a right which is also present in the French- Voltire- I may disagree with you but I defend to the death
  • your right to say it!
  • The First Amendment to the US Constitution guarantees the free Speech and it says that the "Congress can make no law abridging the freedom of speech or press". It was introduced in 1791.
  • This freedom of speech and expression is a pivotal pre-requisite right for any functional democracy.

  • The theories that have been primarily used to justify freedom of speech and expression is the intrinsic value theory- According to this theory freedom of speech and expression is a value by it self and it requires to be protected.
  • The other theories are promotion of truth theory and promotion of democracy theory.
  • The market place of idea theory is also used to justify free speech.

Right To Speech And Expression

  • On 2nd of December, 1948 the founding fathers of our Constitution had an elaborated on discussion on the draft Art. 13 of the Indian Constitution
  • The draft Article pertained to freedom of expression.
  • It was the deep anguish of the framers of our Constitution that there were far too many restrictions, and we had won the fundamental rights after removing the oppressing British Yolk and the restrictions make the rights loose its flavour- As expressed by Mr. Hanumantaya.
  • Sardar Boopinder Singh Man expressed concerns relating to the existence of Sedition as a restriction, and sedition as a means to curb the freedom of speech and expression.
  • This is where the language and the restrictions placed in Art. 19(2) comes into serious discussion, the Indian framers have done a balancing Act and have not provided an all-encompassing right to speech.
  • Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.
  • This was a part of a concurring opinion written by Justice. Brandies in Whitney V. California (1927).
  • To this date it is considered as a most eloquent judgment written on Free speech.
  • The debates on free speech often ignore the term "expression"
  • Much of the free speech jurisprudence infact hinges on how the term expression is understood.
  • The term expression would include anything written or spoken or broadcasted but what about non-actions?
  • Consider Bijoy Imanuel Kumar V. state of Kerala- What if the students did not stand?
  • Is it protected under Art. 19(1)(a)? Is it violative of the national Honours Act of 1971?
  • Lawrence Liang argues that 19(1)(a) is full subject whereas 19(2) is a infant citizen.

Scope Of Fose

  • The Supreme Court in Manubhai Shah case has held that the scope of the 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 freedom of speech is available to both communication and commercial communication.
  • However, the scope of 19(1)(a) is a fairly contentious topic in SC, the Hon'ble Court in Baragur Ramachandrappa v. St of Karnataka banned a book relating to fictionalized historical novel of the saint Basavanna.
  • There was a portion related to the unknown parentage of the saint and the State had used Section 95 of CRPC to ban it. The same was upheld by the Supreme Court as well.
  • Even in the Naz Foundation case, the Supreme Court failed to express the applicability of Art. 19(1)(a) although the argument was made by the petitioner in that case- Right to express one's identity.

Test Of Reasonability

  • Any legislation which doesn't fall within the scope of Art. 19(2) runs the risk of falling foul of free speech doctrine.
  • The Supreme Court in 2015 held that annoyance, grossly offensive, menacing as unreasonable grounds mentioned in Sec. 66 A of the Information Technology Act.
  • Although, the Courts rightfully declared the provision as unconstitutional has this provision left the Indian prisons?
  • Why do I use the word Indian Prisons?
  • The Supreme Court in Ramanohar Lohia case held that for a restriction must have a reasonable relation to the object of the legislation.
  • Proximity and proportionality are two important facets of reasonability.

Baragur Ramachandrapa V. St Of Karnataka

  • While dissecting this judgment we can understand that Section 95 of CRPC, uses the word " appears" when the word appears is being used in the legislation does it mean that a prima facie case has to be made or is it simply left to the satisfaction of the Government?
  • The Court erred in not applying the reasonability test through the eyes of a common man but instead went by the interpretation made by certain members of the society, this approach is flawed.
  • Finally, the Court arrogated for itself the role of literary-cum-historical interpreter of disputed claims of fact. Thus if any author writes a speculative work of fiction on a historical topic and is unable to prove the 'facts', and this speculation offends a small class of persons, the Court in Baragur Ramchandrappa effectively presumes that such work can be deemed to be 'deliberately designed to be hurtful'

Self Inflicted Wound

  • Granville Austin describes the Indian Constitution as one that encompassed three strands: 'building a strong state, establishing the institutions and spirit of democracy, and fostering a social revolution'. Together, they formed the 'seamless web' of the Constitution, but within the very first year this web began to unravel, with conflicts between the democratic thread ( free speech)
  • In Romesh Thappar v State of Madras, the Government of Madras imposed a ban upon the entry and circulation of a magazine, Crossroads.
  • Romesh Thappar approached the Supreme Court, arguing that the ban was a violation of his freedom of speech and expression. The question was whether a law which allowed for the banning of books 'for the purpose of securing the public safety or the maintenance of public order' violated Article 19(2), since the latter did not contain the phrase 'public safety' or 'public order', and whether it fell within a 'law relating to any matter which undermines the security of or tends to overthrow the State'. The Court held that the phrase 'public safety' had a much wider connotation than 'security of the State', as the former included a number of trivial matters not necessarily as serious as the issue of the security of the State.
  • The judgment was one of the reasons why the first amendment was piloted.
  • The word "public order" was added within a year of the birth of our Constitution because of the early judgments given by the Supreme Court.
  • This is in stark contrast to the principle that was followed in Ireland.
  • The Oireachtas in Ireland decided that the parliament should not have the amending power to the Constitution for the first eight years.
  • This was owing to the fact that the interim Government was appointed and not elected.

Hate Speech

  • The Indian legislature has not spelt out the difference between vertical hate speech and horizontal hate speech.
  • Why is this difference important?
    The speech made by a politician has a much higher threshold to incite offence or violence in comparison to a Facebook post made by a teenager.

Right To Movement And Residence

  • Art. 19 of the Indian Constitution guarantees the right to movement and take up residence in any part of India.
  • The inspiration for this right is taken from the free city of Danzig.
  • Because of the perpetual horrors of war that the free state had to face, their constitution provided them the right to movement and take up residence.
  • The same can be found in Art. 13 of UDHR, and Art. 12 of ICCPR talks about the right to movement.

The Importance Of This Right

  • This right is significant and has deep implication for the Indian Constitution
  • The pertinence of this provision can be found from the speech of Shri Rohini Kumar Chaudhari on 2.12.1948.
  • House to the unhappy condition which had prevailed so far as the relations between us and the people of the tribal areas were concerned. The British Government wanted to keep these regions as their own preserve, not having imagined for a moment that they will have at any time to quit this country.
  • Sir, I can only draw the attention of the House to a very unfortunate incident which took place even after the achievement of independence. A few months ago some Members of the Central Legislature headed by our friend the Honourable Mr. Santhanam had occasion to pay a visit to the Manipur State. Although the officers of the Provincial Government had allowed us to go there freely, we were held up there for more than an hour by the orders of the Manipur State.
  • I would make this clear by an illustration. It is a matter of great amazement that in this country there is a law known as the Criminal Tribes Act, 1927 under which a person is considered a criminal from the moment of his birth.
  • There are also some unfortunate communities in this country whose members would not have the right to move freely in the territory of India granted under this sub-clause to every citizen of India.
  • I believe, Sir, that you are aware that under the Criminal Tribes Act the people following pastoral occupations cannot go to any particular part of India they would like to go. Now they do not have that freedom. We have in our province a tribe known as Mang Garodi. If it has to go from the village of Khape to the village of Janwanver it is followed by the Police who sees to it that it goes only to the latter village and nowhere else.

Kharak Singh V. State Of Up

  • The bone of contention in Kharak Singh's case was regarding the power bestowed to the police by the 236 (B) of Police Regulation Code.
  • The case largely dealt with the privacy aspects relating to domiciliary visits, but the petitioner had also taken an interesting argument that the domiciliary visits violated his right to free movement.
  • The majority judgment did not accept that privacy was a constitutional right or that the regulation violated his right to movement within the territory of India- The reason given by Justice. Ayyangar was that the person sleeping inside the house would not be aware of the picketing or domicilary visits.
  • The Minority view penned by Justice. Subbarao did not agree with either of the aspects of the majority judgment and did argue that there was a violation of privacy and liberty to movement.

Restriction To The Right

  • Like any other right, the right to freedom of movement and take up residence is not an absolute restriction, it has got certain restrictions such as in the interest of the Schedule tribes.
  • In India there are also catena of judgments which speak about the SITA Act (The Immoral Traffic (Prevention) Act, 1956.)
  • The Court in Kaushilya Devi case had a chance to test the validity of Section 20 of the Act.
  • The Court through the judgment of Justice. K. Subbarao went on to state that the restriction can be placed on their movement in the interest of the general public, and youth.

Right To Assemble And Freedom To Form Association

  • The freedom to assemble and the freedom of association are cornerstones of the life of citizens in a constitutional democracy.
  • Article 19 (1) (b) provides that all citizens shall have the right to assemble peaceably and without arms. ( This right has an unspoken classification I.e. the rule does not allow the Government servants to strike).
  • Article 19 (1) (c) accords all citizens the right to form associations or unions or cooperative societies.
  • The rationale for these rights can broadly be found in the intersection of the Constitution and the Criminal Code, the colonial masters naturally did not want people to gather in masses owing to unrest situation, and the criminal codes were used as a means to curb these unrest.

Right To Assemble- A Colonial Perspective

  • The British colonial ruler keenly regulated the ability to assemble. The imperative reason for this was the interest of the State in preventing organizing around the freedom movement.
  • The Police Act, 1861 provided the police with the ability to 'direct the conduct' of assemblies and processions. Ones that were likely to cause 'a breach of the peace' were required to apply for licenses.
  • The Prevention of Seditious Meetings Act, 1911 was to prevent public meetings that were likely to promote sedition or disaffection.
  • The Criminal Procedure of 1872 curtailed assemblies and was meant to provide for employing the military in aid of the civil power, the Criminal Procedure is existing in a amended form.

Opinion Of The Founding Fathers

Damodar Swarup Seth, a member of the Constitutent Assembly of India argued that these restrictions (then public order and morality the other restrictions which are present in Art. 19(3) was added later) re-ensure that the rights guaranteed under this article are placed at the "mercy or the high-handedness of the state" and that Supreme Court would "have no alternative but to uphold the restrictive legislation."

His fears came to be true as well:
The restriction continue to remain in the form of CRPC 144, H.J. Khandekar reminded the Constituent Assembly that this section was being 'consistently imposed' on the big cities at that time. Consequently he argued that there "cannot be a public gathering of even five or seven persons in cities, nay, not even for carrying on conversations among themselves or giving vent to their ideas and feelings".

144 Crpc- Prior Permission Jurisprudence

  • The colonial relic has been held to be constitutional without any guiding light, more often these provisions have been used on the basis of the presumption of the authority and unfettered discretion.

    In Himat Lal K. Shah v. Commissioner of Police, the Supreme Court considered the question as to whether the requirement that prior permission in writing from the police before holding a public meeting on a public street violated the Petitioners Article 19 (1) rights? Here the rule in question enabled the Commissioner or an officer designated by her to refuse permission for such a meeting.

    Chief Justice Sikri writing for the majority distinguished between a statutory provision that enabled the regulation of conduct of persons in assemblies and processions and a rule that enabled the refusal of permission to hold public meetings on public streets without guidelines being prescribed for the officer responsible. He found no fault with the prior permission requirement, as according to him "the right which flows from Art. 19 (1) (b) is not a right to hold a meeting at any place and time. It is a right which can be regulated."

Babulal Parate V. St Of Maharashtra

Babulal Parate v. State of Maharashtra. Here, the members of an association of mill workers assembled and blocked traffic, in response the police prevented the mill workers from taking out a procession and then registered cases of rioting and tresspass against them.

The District Magistrate passed an order under Section 144Cr.P.C, which the petitioners unsuccessfully contended violated their freedom to assemble.

Justice Mudholkar finds that the "anticipatory action of the kind permissible under section 144 is not impermissible under clauses 2 and 3 of the Article 19". He cites public order as one such instance of a ground that warrants restrictions in advance. The judge concludes that section 144 does not suppress any lawful activity, and only permits anticipatory action by an authority where the danger to public order is 'genuinely apprehended'.

Ramlila Maidan Incident

  • In 2011, Delhi police used Sec. 144 of CRPC against sleeping protesters in Delhi
  •  Justice. Swatentra kumar stated that taking action under Sec. 144 CRPC is not violative of Art. 19 and mandating prior permission is not violative of Art. 19 and would fairly fall within the ambit of the restriction placed under the reasonable restriction.
  • However, he found flaws in the hasty nature in which 144 was used and mooted about suitable punishment for the policemen.

Freedom Of Assosciation

The Constitution's Article 19 (1) (c) guarantees the freedom of association to all citizens. However, Article 19 (4) provides that the right to form associations or unions can be limited by reasonable restrictions in the form of an existing or new law made in the interests of the sovereignty and integrity of India, or public order or morality. The restriction on the grounds the interests of the sovereignty and integrity of India, was not in the original text of the Constitution.

State of Madras v. VG Row concerned the Indian Criminal Law Amendment (Madras) Act, 1950 which empowers the state to declare associations to be illegal by a notification. Section 15 (2) (b) of this statute provided that an association could be declared to be unlawful if it constituted a danger to the public peace, or has interfered with the maintenance of public order or the administration of the law.

Freedom Of Assosciation

The statute did not provide for any judicial inquiry or for the service of even a notice. Justice Patanjali Sastri writing for a five judge bench, held that section 15 (2) (b) did not fall within the limits of authorised restrictions of article 19 (1) (c).

The Court opined that that the curtailment of the right to form associations or unions had consequences in the religious, political and economic arenas. Therefore, the Court reasoned that such curtailment without allowing such a decision to be 'duly tested in a judicial inquiry' agitates against the reasonableness of the restriction.

In Raghubir Dayal v Union of India, the petitioner was part of an association of traders that engaged in forward trading, was refused recognition by the Central Government, and hence could not function. At the Supreme Court, the association contended that the denial of recognition and resultant inability to function violated their rights under Article 19(1)(c). The Court ruled that the freedom of association does not involve a guaranteed right to recognition.

The Supreme Court explained its position by stating that the action of seeking recognition was voluntary and not mandated by the state.

Right To Trade And Profession

According to the words of Mr. Hanumantaya (one of the founding fathers of our Constitution), the right relating to practise any trade or profession and property is a mockery on average Indian Population and it is a right which will exist solely on the papers made solely to prepare a living for the future Constitution lawyers.

In his words, this provision (19(1)(g) and the erstwhile 19(1)(f) is a very unique set of rights which are protected only in nations like Switzerland and United States of America and it is quite unwanted in the Indian set up.

Art. 31 of the Switzerland Constitution of 1878, guaranteed economic liberty that included the right to own property as well as right to occupation.

� The right to trade and profession can also be traced in the 14th amendment to the US constitution which was passed in 1866 which came into force in 1868, even the bare provisions of the 14th amendment does not talk about trade or profession. ( In US the term trade and profession was read within the ambit of term property by judicial pronouncements later on).

The concept of economic liberty was introduced for the first time in the dissenting judgment of Justice. Bradley in the slaughter house case., this idea introduced by him was not accepted by his colleagues at that time but several years later it went on to become the accepted position in the US Constitution.

The facets of economic liberty was an accepted position in the United States Constitution in 1905 in Lochner V. New York.

Hence, both in Switzerland as well as in US you will find that these rights present almost in the same genus of rights, as a result our founding fathers were also persuaded to include them together.

Prof. Yashwant Rai was in support of this provision and stated that after independence Indians' will be allowed to practice the profession they intend to ( He was referring to a situation where Indian Lawyers were not allowed to practice in the Hill stations belonging to the North eastern part of India.)

Mr. HJ. Khandekar was quite critical of these rights and in his own words:
The most unfortunate people in this country, in my opinion, are the sweepers. Whatever we may talk about the grant of rights to these unfortunate sweepers the fact remains that these unfortunate people have never been given any rights by any person in India nor have they ever enjoyed any right said to have been granted to them. To talk of their freedom to practise any profession or trade is a mockery to them. I do not know of the conditions prevailing in other provinces but I know what happens in my province.

If a sweeper working under a Municipal Committee desires to give up his work, in my province, he would have to give a notice in writing addressed to the District Magistrate of his intention to do so and can leave his service only if that officer agrees to release him.

I am of the view that even the very name of sweeper is a matter of contempt by people.

The fact is that if all the sweepers of Delhi, or Bombay or Calcutta were to stop cleaning latrines, sweeping the streets, they would be said to be acting against public interest; and under this law and under the Essential Services Act they would be compelled to do this work. Then how can you say that all human beings shall have equal rights.

Today you will find restrictions as those which can be introduced by the Government in the interest of the General Public under Art. 19(6).

The structure of Articles 19(1)(g) and (6) suggests competing interests at play. Indeed, protecting the liberty of individuals in pursuing their livelihoods, enhancing the legitimacy of restrictive laws, and public safety concerns may cut in opposite directions at times.

For instance, if it is easy for the State to regulate economic activity via Article 19(6), then groups may try to influence the State so that it regulates in a manner that benefits them.

On the other hand, limiting the State's ability to regulate in the public interest may harm public safety and allow for parties to impose costs on others. Moreover, if the State is able to put tight limits on certain activities, then that is likely to have an impact on economic growth by deterring or channeling entry into that activity.

This precarious situation led to catena of cases in our jurisdiction.

Article 19(1)(g) protects activities that are POTB, but these terms are not defined in the Indian Constitution. Rather, case law has taken up the gauntlet and provided a series of factors that are relevant in deciding whether an activity is a POTB ( Profession, Occupation, Trade and Business.)

In Fatehchand Himmatlal v State of Maharashtra

The Supreme Court held that moneylending in rural environments-which was often unscrupulous and at usurious rates need not be considered a POTB, even though providing credit was a trade with a lengthy history.

State of Maharashtra V. IHRA Hotels Case
The Supreme Court was faced with a law-the Bombay Police Act 1951-which prohibited dance performances in certain venues (eg, beer bars), but allowed it in other venues (eg, three-star or higher hotels). The argument in favour of such disparate treatment was that dancing in beer bars was likely associated with trafficking in women and an entry point to prostitution, amongst other things, whereas dancing in the 'higher-end' venues was not.

The Court rejected this argument and held that dancing is a POTB and that any concerns with its social effects in particular contexts should be addressed under the Article 19(6) analysis of 'reasonable' restrictions in the public interest, rather than in the definition of POTB in Article 19(1)(g)

In Coovergee B Bharucha v Excise Commissioner, the Supreme Court held that liquor trading was not a POTB because it was outside the realm of regular commerce. In Krishna Kumar Narula v State of Jammu and Kashmir-that sole reliance on morality as the basis for POTB status was problematic. Nonetheless held that the same could be a restriction under 19(6) but not under 19(1)(G).

Restriction To 19(1)(G)

Chintaman Rao v State of Madhya Pradesh, where the Court says: Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.

The balance can then be understood as:
  • The first, is whether the restriction seems likely to obtain the stated objectives of the law creating it, if it does not, then the courts seem likely to invalidate the restriction.
  • The second question the courts focus on is when a restrictive law allows for substantial discretion to government or its officials, does it provide significant guidance on how to exercise that discretion and how a decision could be reviewed?
  • The excessive restriction can be understood from the facts of Chintaman Rao case- Bidi manufacturing in Agricultural areas throughout the areas.
  • Instead, the State could (i) have prohibited those people from engaging in bidi manufacturing who are likely to be involved in agricultural activity (because not all labourers are agricultural workers); and (ii) prohibit bidi manufacturing only during agricultural seasons, not all year round. In light of this, the restriction was held to be excessive and hence unreasonable under Articles 19(1)(g) and (6).
  • This is being followed in lot of cases relating to Butchering of cows from Mohd Hanifi Quersihi- Total Ban on milch cows and dry cows which are employed in labour. However, cows can be slaughtered when they reach a age where they can do none of the above.
  • In st of Gujrat v. Mirzapur Moti case, it was held that with advent of changed technology cows can be used in advanced age and butchers right have to be compensated
  • In Om Prakash V. St of Uttarakhand- Ban on sale of eggs in public in Hrishikesh throughout the year owing to religious sentiments.
  • The court substantiated this heavily with the Directive Principles of state policy, especially Art. 51(e)
  • RM Seshadri v District Magistrate, Tanjore, In this case, the State of Madras had issued two notifications under section 8 of the Cinematograph Act 1952 that led the District Magistrate to impose conditions on the licence granted to the petitioner (a cinema theatre owner). The condition at issue required that:[t]he licensee shall exhibit at each performance one or more approved films of such length and for such length of time, as the Provincial Government or the Central Government may, by general or special order, direct.
  • The Court held this condition was unreasonable because it was drafted in very broad language without guidance as to what kinds of films should be shown (eg, educational) and was likely to operate 'harshly' on the owner.
Written by: Shashwata Sahu, Advocate, LL.M., KIIT School of Law

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