Chapter-3

RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

“Everyone has 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.”
(Universal Declaration of Human Rights, 10th December, 1948)

3.1. Introduction

Freedom of speech and expression is live wire of the democracy; it is

integral to the expansion and fulfillment of individual personality. Democracy
being collective will of the people, personality of individuals shape the society
into a cohesive, well knit and viable administrative unit.

Milton in his Areopagitica says that without this freedom „there can be
no health in the moral and intellectual life of either the individual or the nation‟
freedom of speech and expression is more essential in a democratic set up of
state where people are the sovereign rulers. In “without freedom of speech”
says Ivor Jennings, “the appeal to reason which is the basis of democracy
cannot be made”

Public discussion of political, economic and social problems being

essential to the proper functioning of a democratic government it is imperative
that free society should keep the channels of communication wide open to the
free circulation of ideas and this is well achieved by the guarantee of freedom
of speech and expression.

Internal autonomy is very essence of freedom; there should not be any

outside intervention in the life of individual. An individual has to form his own
opinions, thoughts and ideas and must be entitled to express them as that alone
will result in realization of his character and potentiality as a human being.
Among all creatures, man alone has been endowed with reason, which can
germinate thoughts. It is necessary condition for self fulfillment that he should

56
have uninhibited right to express them. Personality can be developed only by
self expression by the right to form one‟s own beliefs and opinions. It is
privilege of every human being to use and interpret experience in his own way
and act of choosing between alternatives bring a man‟s moral faculties into
play. Free speech is traffic in indispensable commodity namely ideas.

There are many instruments that came into existence at international

level for laying down the standards of freedom of speech and expression such
as: Universal Declaration of Human Rights, International Covenant on Civil
and Political Rights, International Covenant on Economic, Social and Cultural
Rights, International Convention on the Elimination of All Forms of Racial
Discrimination, Convention on the Elimination of All Forms of Discrimination
against Women.

There are some regional attempts made for giving encouragement to the
freedom of speech and expression as American Convention on Human Rights,
Declaration on Principles of Freedom of Expression, African Charter on
Human and Peoples' Rights, Declaration of Principles on Freedom of
Expression in Africa, Amsterdam‟s Recommendations, Freedom of the Media
and the Internet, and Organization for Security and Co-operation in Europe.

Right to express is not only limited to speaking but also includes

various forms, freedom of speech and expression found its place in United
Nations, Universal Declaration of Human Rights, there are various countries
throughout the world that have given the formal recognition in their
Constitutions, though practice approach to provide legal protection may differ
nation to nation, such nations include: Africa, Hon Kong, India, Japan, China,
Philippines, Thailand, Australia, Europe, Denmark, Finland, France, Germany,
Greece, Hungary, Ireland, Netherlands, Sweden, United Kingdom, Norway,
Russia, Switzerland, Turkey, Canada, United State, Brazil, etc.

There was in British regime rise the demand for freedom of speech and
expression on various occasions as: Nehru Committee (1928), Indian National
Congress Karachi Session (1931) Round Table Conference for the discussion

57
over the Constitutional Reforms (1930- 32), the Government of India Act,
(1935), and finally after the Indian Independence Constitution of India
incorporated Under Art. 19 (1)(a).

One of the main objectives of the Indian Constitution as envisages in the

preamble, is to secure Liberty of thought and expression to all the citizens.
With the intention to give effects to objectives mentioned in the Preamble
Constitution maker have incorporated freedom of speech and expression as
fundamental rights which means it is guaranteed against state actions

In order to give effect to these objectives mentioned in the preamble by

our Constitutional framers,“freedom of speech and expression” has been
guaranteed as fundamental rights under Article 19(1)(a) available to all
citizens, subject only to restrictions which may be imposed by the State under
clause (2) of that Article.

Art. 19 (2) nothing in sub clause (a) of clause (1) shall effect the
operation of any existing law, or prevent the state from making law, in so far as
such law imposed reasonable restrictions on the exercise of the right conferred
by the said sub-clause 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.

Freedom of speech considering the basic freedom by the Indian

judiciary interpreted it various facets and expand various horizons in various
cases like freedom of speech and expression under 19(1)(a) which includes
freedom of press or media, right to know that is right to information,
Telecasting or Broadcasting Rights, Commercial Advertisements, Right to
Reply or Answer the Criticism against One‟s Views, Right to Exhibition of
Films, Right to Fly National Flag Right to Remain Silent, etc.

58
3.2. Origin and Development

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

European understands on the State which took its root initially in England
within the framework of common law precedents.1 At the end of the 18th
century, freedom ofexpression of opinion extended 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 greatestwalls of liberty and can never be restrained by dictatorial
Governments. Unlike the English tradition of Parliamentary supremacy, the 1st
Amendment of the Constitution of United States binds Parliament also. The
Congress shall make no law curtail the freedom of speech or of the press. Inthe
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 announced as
a human right “the unlimited communication of thoughts or opinions being one
of the most precious rights of man. Every citizen may speak, write and publish
freely, provided he will be responsible for the abuse of this liberty, in the cases
determined by law. In the 19th century, 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. The Federal
Constitutional Court has held that for a free democratic State the basic right to
freedom of expression of opinion is an “essential constituent right because only
it enables permanent intellectual discussion, i.e. combat of opinions which are
its life breath.”2

According to Abraham Lincoln,3 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

1. A.V. Dicey, “Introduction to the Study of Law of the Constitution” Macmillan, New York, 10th
edit P.238 ff, 247 ff, (1959)
2. Luth Urteil case, 7 Bverfg, 198.
3. The President of United States, (1809-1865)

59
and against different solutions and the facts underlying those arguments. Thus,
it is the people who are the sovereign in a democracy.

Eleanor Roosevelt and the Universal Declaration of Human Rights

(1949) Article 19 express4 that “Everyone has the right to freedom of opinion
and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any
medium regardless of frontiers.”

Freedom of speech is the right to communicate one‟s opinions and ideas

without fear of government redress or censorship. The term freedom of
expression issometimes used synonymously, but includes any act of seeking,
receiving and imparting information or ideas, regardless of channel used.5

Government can impose different restriction on the freedom of speech

and expression based on its nature, common restrictions on speech relate to
libel, slander, sedition, incitement, slangs, obscenity, pornography, classified
information, copyright violation, trade secrets, non-disclosure agreements, right
to privacy, right to be forgotten, political correctness, public security, public
order, public nuisance, campaign finance reform, perjury, and operation.

Whether these limitations imposed on legitimate reason,under the harm

principle based upon whether have influence on the third party‟s opinions or
actionharmful to the second party constitutes such harm or not. There are
certain policies of government as well as other compulsory organizations for
imposing restrictions on freedom of speech for political reasons.

The term “offense principle” is used6to extend the range of free speech
limitations for the purpose of prohibitingany type of expression where they are
considered offensive to society, special interest groups or individuals. For
example, freedom of speech is limited in many jurisdictions to widely differing

4. www.un.org/en/universal declaration human-rights

5. https://en.wikipedia.org/wiki/Freedom_of_speech
6. Van Mill, David. "Freedom of Speech", Stanford Encyclopedia of Philosophy. ( 2014).

60
decrees by religious legal system,religious offence or incitement to ethnic or
racial hatred laws.

The right to freedom of expression is recognized as a human right under

article 19 of the Universal Declaration of Human Rights and recognized in
International Human Rights law in the 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 expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other
media of his choice”. ThisArticle additionally states that the exercise of these
rights carries“special duties and responsibilities” and may “therefore subject to
certain restrictions” when necessary for respect of the right or reputation of
others” or for the protection of national security or of (public order), or of
public health or morals”7

Concept of freedom of speech can be found in early Human Rights

documents. England‟s Bill of Rights 1689 legally confirmed the Constitutional
right of „freedom of speech in Parliament‟ which is still in effect.8During the
French Revolution in 1789, the Declaration of the Rights of Man and of the
Citizen, adopted specifically affirmed freedom of speech as an unchallengeable
right. The Declaration furnished for freedom of expression in Article 11, which
declared

The free communication of ideas and opinions is one of the most

precious of the rights of man. Every citizen may, accordingly, speak, write, and

7. "Art. 19", International Covenant on Civil and Political Rights (Office of the United Nations
High Commissioner for Human Rights; adopted and opened for signature, ratification and
accession byUN General Assembly resolution, 2200A (XXI) of 16 December 1966,
8. Williams, E. N, The Eighteenth-Century Constitution, Cambridge University Press. pp. 26–29,
(1960)

61
print with freedom, but shall be responsible for such absence of this freedom as
shall be defined by law.9

The Universal Declaration of Human Rights, adopted in 1948, in such

declaration Article 19 declared that: Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.10

Today, freedom of speech or the freedom of expression is acknowledged

in international and regional human rights law. The right is incorporated in
Article 19 of the African Charter on Human and Peoples Right which is based
on John Milton‟s arguments Freedom of Speech is understood as having
different aspectsof right that includes not only the right to express, or
disseminate information and ideas but three further distinct aspects:

1. The right to seek information and ideas;

2. The right to receive information and ideas;
3. The right to impart information and ideas.

International, national and regional slanders also recognize the freedom

of speech, as the freedom of expression, includes any method, be it orally, in
written, in print, through the internet or through art forms. This means that the
protection of freedom of speech as a right includes not only the content, but
also the means of expression.11

3.3. Contribution of Jurist to the Evaluation of Right to Freedom of

Speech and Expression.

An English philosopher John Stuart Millattempted to establish standards

for the relationship between authority and liberty. He has started his writing by

9. Arthur W, Diamond Law Library at Columbia Law School, (2008), “Declaration of the Rights of
Man and of the Citizen”, Hrcr.org (www.hrcr.org), (2013)
10. United Nations,"The Universal Declaration of Human Rights".UN.org (www.un.org), (1948)
11. United Nations, “The Universal Declaration of Human Rights”, UN.org, (1948)

62
discussing the historical “struggle between authority and liberty,12describing
the dictatorship of government, which, according to him, needs to be controlled
by the liberty of the citizens. He divides this control of authority into two
mechanisms: important rights belonging to citizens, and the “establishment of
Constitutional checks by which the consent of the community, or of a body of
some sort, supposed to represent its interests, was made a necessary condition
to some of the more important acts of governing power”13

Mill claimed that in order to be right one should have the possibility to
be wrong, and that there for liberty is necessary to the investigation and finding
of truth.

Millstates in his 1859 classic on Liberty:“The peculiar evil of silencing

the expression of opinion is that it is robbing the human race; posterity as well
as the existing generation; those who dissent from the opinion, still more than
those who hold it. If the opinion is right, they are deprived of the opportunity of
exchanging error for truth: if wrong, lose, what is almost as great a benefit the
clearer perception and livelier impression of truth, produced by its collision
with error.” 14

As Mill Statsit is impossible to find truth without a free and open

discourse, if there is no possibility of differing from conventional views, the
ideas of the truth cannot be found. The freedom of speech is therefore essential
for scientific progress and academic development.

John Stuart Mill has Stated benefits of „searching for and discovering
the truth‟ as a way to further knowledge. He argued that even if an opinion is
false, the truth can better be understood by refuting the error. And as most
opinions are neither completely true nor completely false, he points out that
allowing free expression allows the airing of competing views as a way to

12. Mill, John Stuart (1859),On Liberty (2 ed.), London: John W. Parker & Son pp,7(1850)
13. Ibid
14. www.oxfordreference.com/view/10.1093/acref/...001.0001/q-oro-ed3-00007298

63
preserve partial truth in various opinions.15 Mill also argued in support of
freedom of speech on political ground, stating that it is a critical component for
a representative government to have in order to empower debate over public
policy. Freedom of expression allows personal growth and self-realization. He
said that the freedom of speech was avital way to develop talents and realize a
person‟s potential and creativity. He repeatedly said that eccentricity was
preferable to uniformity and stagnation.16

John Lock also gave the importance to the freedom of expression as he

stated freedom of expression as „the basic right of human beings which helps
them to find out the truth‟. He argued that ideas of freedom of expression
include that individual human beings are entitled with liberty and equality to
express, receive and transfer ideas, thoughts, feelings, and positions of their
own and that of others to reach out informed decisions and choices of their
lives and ultimately develop democratic culture as well as society.

John Rawls was a political philosopher who established the Theory of

Justice year 1971 through which he attempted to solve the problems of
distributive justice from which he derives his two principles of justice first one
is liberty principle and that of second is the principle of difference. According
to John Rawls first principle of justice, each person is to have an equal right to
the most extensive basic liberty compatible with a similar liberty for others 17

The political liberties are the basic liberties of citizens to vote and run
for office, freedom of speech and assembly, liberty of conscience, and freedom
from arbitrary arrest.

Eric Barnett defends the right to freedom of speech and expression on

the ground of democracy He says, “Probably that most attractive and certainty
the most fashionable free speech theory in modern democracies” on the defense
of Eric Barnett.

15. Freedom of Speech,Volume 21, by Ellen Frankel Paul, Fred Dycus Miller, Jeffrey Paul
16. Freedom of Speech,Volume 21, by Ellen Frankel Paul, Fred Dycus Miller, Jeffrey Paul
17. Rawls, p, 53 revised edition; p.60 old first edition, P. 60, (1971)

64
 Thomas I. Emerson widens it by saying that freedom of speech helps to
provide a balance between stability and change. Why because freedom of
speech and expression acted as „safety valve‟ in any democracy to let off steam
when people might otherwise be bent on revolution. Further he said that “the
principle of open discussion is a method of achieving a more adaptable and at
the same time more stable community, of maintaining the precarious balance
between healthy cleavage and necessary consensus.”18

Alexander Meikle Johntries to build relationship between right to

freedom of speech and expression and democratic system. Freedom of speech
is the very basic principle that exists in the democracy Alexander Meikle
Johnargues that the concept of democracy is that of self-government by the
people. For such a system to work an informed electorate is necessary. In order
to be appropriately knowledgeable, there must be no constraints on the free
flow of information and ideas. According to him democracy will not be true to
its essential ideal if those in power are able to manipulate the electorate by
withholding information and stifling criticism. He acknowledges that the desire
to manipulate opinion can stem from the motive of seeking to benefit society.
However, he argues, choosing manipulation negates, in its means, the
democratic ideas.19

Richard Moon has developed argument that the values of freedom of

speech and freedom of expression lie with social interactions. Moon writes,“By
communicating an individual forms relationships and associations with others
like family, friends, co-workers and countrymen. By entering into discussion
with others an individual participates in the development ofknowledge and in
the direction of the community.20

18. Marlin, Randal, Propaganda and the Ethics of Persuasion, Broadview Press, pp. 228–229. (2002)
19. Marlin, Randal, Propaganda and the Ethics of Persuasion, Broadview Press, pp. 226–227, (2002)
20. Ibid.

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3.4. International Instruments: Freedom of Expressions

This right to freedom of expression also has close similarity with

different international Conventions.

3.4.1. International Agreements.

At the international level there are some agreements which focuse and
give the stress on the freedom of speech and expression due to the importance
of it in democratic flow of democratic system, which is pointed in the different
international agreement as:

3.4.1.1 Universal Declaration of Human Rights

Adopted unanimously by the General Assembly on 10 December 1948,

the Universal Declaration is the most important elaboration of the human rights
obligations set forth in the United Nations Charter, while at the time of
adoption it was widely viewed as a Statement of Principles, Which has
acquired legal significance over the decades.

The proclamation of Teheran, marking the Universal Declaration‟s 2oth

Anniversary endorsed by the UN General Assembly, declared that the
Universal Declarationstates common understanding of the peoples of the world
concerning the inalienable and inviolable rights of all members of the human
family and constitutes an obligation for the members of the international
community.21In 1971 U.N. Secretary-General Observed:

During the years, since its adoption, the Declaration has come through
its influence in a variety of contexts, to have marked impact on the pattern and
content of international law and to acquire a status extending beyond the
originally intended for it. In general, two elements may be distinguished in this
process: first, the use of the declaration as a yardstick by which to measure the
content and standard of human rights, and second, the reaffirmation of the
Declaration and its provisions in a series of other instruments. These two

21. Final Act of the International Conference on Human Rights 4 para 2 , UN Doc, A/CONF 32/41
endorsed by the General Assembly in GA Res 2442 (XXIII 19 Dec. 1968 23 GAOR, Supp No 18
(A/7218) 49.

66
elements, often to be found combined, have caused to gain a cumulative and
pervasive effect.

The Universal Declaration was the first step in the formation of

International Bill of Human Rights, which was completed in 1976 with the
entry into force of the two main international human rights treaties, the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, social and Cultural Rights.

The entry into force of the Covenants did not, in any way, diminish the
widespread impact of the Universal Declaration. On the contrary, as stated in a
UN manual,

The very existence of the covenants, and the fact they contain the
measures of implementation required to ensure the realization of the rights and
freedom set out in the declaration, give greater strength to the declaration.22

The Declaration protects all the people and applies to all governments: It
is, as its title implies, truly universal in its application and applies to every
member of the human family, everywhere, regardless of whether or not his
Government accepts its principles or ratifies the covenants…23

The Universal Declaration has a tremendous impact on the development

of both international and national human rights law. Virtually, all human rights
treaties adopted by UN bodies since 1948 elaborate principles set forth in the
declaration both the American and the European Conventions on Human
Rights declare in their preambles that the principles to which they give effect
are those set forth in the declaration, and the CSCE states pledged in the
Helsinki final Act to act.

“In conformity with the purpose and principles of the Charter of the UN
and the Universal Declaration” Moreover, many countries have modeled

22. United Nations Action in the Field of Human Rights, (New York, United Nation, 1983), UN
Doc,ST/HR/2 / Rev.2, UN Sales No E83 XIV 2 Chap II Para, 67, 14.
23. Ibid

67
clauses of their Constitutions and statutes on the Universal Declaration, and
national courts have invoked its norms.24

As Stated by Chief Justice Muhammad Haleem of Pakistan:

The result is that the Universal Declaration is now widely acclaimed as a

Magna Charta of human kind, to be complied with by all actors in the world
arena. What began as mere common aspiration is now hailed both as an
authoritative interpretation of the human rights provisions of the UN charter
and as established customary law….constituting the heart of a global bill of
rights.25

Article 19 of the Universal Declaration proclaims the right to freedom of

expression, which includes freedom Article 20 declares the right to peaceful
assembly and association, including the right not to be belonged to any
association. These rights are limited by Article 29, which permits restrictions,
solely for the purpose of securing … respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society. Moreover, the rights set forth in the
Universal Declaration “may in no case be exercised contrary to the purpose and
principles of United Nations”.

3.4.1.2 International Covenant on Civil and Political Rights, 1966

The international covenant is an extension of the civil and political

rights set forth in the Universal Declaration. As of February 1993, 116
countries had ratified or acceded to it. The Human Rights Committee monitors
compliance with the International Covenant‟s First optional protocol.26 The
pronouncements of the Committee are among the most authoritative Statements
of the obligations imposed by the International Covenant. Art 19 sets forth the

24. Substantial parts of Declaration have been incorporated in the Constitution of several countries,
including Algeria, the Ivory Coast, Madagascar and Cameroon, see UN Action in the field of
Human Rights (1983), Chap II F Para 75
25. “The Domestic application of International Human Rights Norms”, in Developing Human Rights
Jurisprudence:the Domestic Application of International Human Rights, Report of a Judicial
Colloquium in Bangalore (Commonwealth Secretariat) ( 1988),
26. UN, Human Rights Committee.

68
Right to freedom of opinion, expression and information. Paragraph 1 asserts
the absolute right to hold opinions “without interference”. Paragraph 2 States
the positive content of freedom of expression namely: the, “freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other
media of his choice.

Article 20 requiresstates parties to prohibit by law (though not

necessarily to declare criminal) any propaganda for war and any incitement to
discrimination, hostility or violence on national, racial or religious grounds. 27

Article 21 protects the right of peaceful assembly, and Article 22

safeguards the right to freedom of association, “including the right to form and
join trade unions”.

3.4.2 Regional Agreements.

Along with the international level, at the regional level in the world
there were various attempts made for better and effective protection of the
freedom of speech and expression, such attempts could be discussed as follows

3.4.2.1 The European Convention on Human Rights, 1950

The council of Europe has developed an extensive body of law,

jurisprudence and standards regarding freedom of expression, access to
information, and the related rights to freedom of peaceful assembly and
association. The primary statement of law is the convention for the protection
of Human Rights and Fundamental Right.

Article.10 of the European Convention protests freedom of expression,

and Art. 11 protect freedom of peaceful assembly and association. The
European court of human rights (established in January 1959) has issued more
than two dozenjudgments addressing Art. 10 issues and two judgments

27. Striking a Balance, Hate Speech, Freedom of Expression and Non-discrimination, Landon, (1992)

69
concerning Art 11.28 Articles 10 and 11 have been further elaborated by reports
and decisions of the European Commission of Human Rights. Decisions and
recommendation of the Committee of Ministers (political and executive arm of
Council of Europe) add additional guidance, particularly concerning access to
information.

The judgments of the European courts of Human Rights are legally

binding only on the State party against which an application has been filed.
However, because they constitute authoritative interpretations of the
conventions obligations, they are to be applied by the courts of all States parties
to the European Convention (currently 26) whenever questions concerning
Convention rights arise.29

In addition, Art.10 has implications for the law of the European

Convention in the exercise of their powers,30and the European Court of Justice
has consistently held that Fundamental human rights, especially as set forth in
the European Convention, are “ enshrined in the general principles of
Community Law”.31

The European convention also has considerable influence outside

Europe. Its provisions are consulted in construing similar provisions of
International Covenant;32 the American Convention,33 and National
Constitutions and Laws.34

28. J. Polakiewicz, V. Jocob Foltzer, “The European Human Rights Convention in Domestic Law:
The Impact of Strasbourg case-laws in States where Direct Effect is given to the Convention”,
12Human Rights LJ (1991), As of 31 Dec. 1990, the Court had delivered a total of 235
Judgments.
29. List of parties to the ECHR,Units its Dissolution(1992)
30. See the Preamble to the Single European Act and Art.F of Title of the Maastricht Treaty on
European Union,
31. Society for the protection of unborn children, (SPUC) V. Grogan, Case No, C-159/90 (1991)
32. D. McGoldrick, the Human Rights, the Human Rights Committee, Oxford Clarendon Press,1991).
33. The compulsory Membership of a Journalists Association case, The Inter-American Court of
Human Rights ruled that a restriction on freedom of expression, “necessary” within the meaning
ofArt.13(2) of the ACHR had to comply with the test of necessity articulated by the European
Court Concerning Art. 10 (2) of the, ECHR
34. A Lester, “Freedom of Expression” in R Macdonald, F Matcher & H Petzold (ed.), The European
System for the Protection of Human Rights, The Hague (1993)

70
 Paragraph 1 of Article 10 states that “Everyone has the right to freedom
of expression, this right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority and
regardless of frontiers.” But, pursuant to paragraph 2, the exercise of these
freedoms “may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society” in
order to prevent various public and private interest. The respondent States must
establish that any restriction: 1) is prescribed by law 2) has a legitimate aim and
3) is “necessary in democratic society” to promote that aim.35

3.4.2.2 The American Convention on Human and People’s Rights and

American Declaration of Rights and Duties of Man

The General Assembly of the Organization of American States (OAS)

adopted the American Declaration of the Rights and Duties of Man on 2 May
1948, several months before the UN adopted the Universal Declaration. The
American Convention on Human Rights, adopted in1969, elaborates and
expands upon the obligations set forth in the American Declaration, grants
additional powers to the Inter-American Commission and establishes the court
of Human Rights. All 35 Members of the OAS are obliged (though not legally
bound) to comply withDeclaration of those (but not United States or Canada)
areStates parties to the Convention.

Art. 13 of the Convention set forth the positive protection of and

permissible restriction on, the right to freedom of expression in five sub-
paragraphs. Paragraph 1 states the positive right in terms nearly identical to
those of the InternationalCovenant. Although it does not specify that everyone
is entitled to hold opinion without interference, that the protection is assumed
to be implicit. Paragraph 2 explicitly prohibits prior censorship and sets forth
the grounds upon which subsequent liability may be imposed. In an advisory

35. The Observer and Guardian V, The United Kingdom, (Spy catcher case at, Para, 59(a)

71
opinion, the Inter-American Court ruled that a requirement that journalists be
licensed violates the prohibition of prior censorship.36

Paragraph 3 is unperfected among the human rights treaties examined

here, in that it expressly prohibits indirect methods of restricting expression,
such as unfair allocation of newsprint or broadcasting frequencies, and
prohibits such methods by private persons as well as by government. It, thus,
imposes a positive obligation on governments to restrain private action that
might impair the free exercise of the rights to seek, receive and impart
information and ideas. Paragraph 4 permits prior censorship of “public
entertainments” for the sole purpose of protecting the morals children any
youths and only if prescribed by law. Paragraph 5 requires States parties to
prohibit war propaganda and advocacy of national, racial or religious hatred.

Art. 14 also has no parallel among the human rights treaties. It requires
States parties to ensure that anyone injured by “inaccurate or offensive
statements” published by the mass media has a right to reply or make
correction using the same media organ. Art. 14(3) require that every organ of
mass communication shall have a person who may be held liable for violations
of honor or reputation. The Inter-American Court, in an advisory opinion, has
declared that Article 14 obliges States parties to adopt such legislative or other
measures as may be necessary to give effect to the right of reply.37

Article 15 and 16 of the American Convention protect the right to

freedom of peaceful assembly and association, subject only to restrictions
which are prescribed by law “necessary in a democratic Society” to protect
national security, public safety or public order, public health or morals, or the
rights or freedom of others.

36. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,
Advisory Opinion (1985)
37. Enforceability of the Right of Reply or Correction, Advisory Opinion (1986)

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3.4.2.3 The African Charter on Human and People’s Rights

The African Charter on Human and People‟s Rights (“African Charter”)

has been adopted by the 53 countries of the Africa Union (which replaced the
organization for African Unity in 2002).38 The charter declares in Article:
“Every individual shall have the right to receive information… (and) to express
Disseminate his opinions within the law.” As affirmed by the African
Commission on Human and People‟s Rights, the plain language of this
provision establishes that the African Charter protects the full range of modes
of communication among people, including communication on the Internet, as
well as the access to information on the Internet.39 The African Charter also
provides that the parties “have the duty to promote and ensure through
teaching, education and publication, the respect of the rights and freedoms
contained in the (African Charter) and to see that these freedom and rights as
well as corresponding obligations and duties are understood.” Finally, the
African Charter circumscribes any potential restrictions on the fundamental
right to free expression; instead, Article 27 provides that individuals should
exercise protected freedoms” with due regard to the rights of others, collective
security, morality and common interest.”

Regional enforcement of Human rights in Africa has barely begun. The

African Charter established a Commission on Human Rightsto interpret the
charter and protect human rights in 1987.40 The commission in turn established
special reporters on freedom of expression in 2004, whose mandate includes
advising Member States on national media legislation, investigating and
intervening in alleged violations of the right to freedom of expression, and
documenting and reporting on the status of free expression in Africa.41The
African Court on Human and people‟s Rights, which is to work in tandem with

38. http://www1.umn.edu/humanrts/instree/z1afchar.htm.
39. The adoption of the Declaration of Principles on Freedom of Expression in Africa (2002),
http://www.achpr.org/english/resolutions/resolution67_en.html.
40. African Commission on Human and Peoples' Rights, http://www.achpr.org/.
41. African Commission on Human and Peoples Rights, “Resolution on the Mandate and
Appointment of aSpecial Rapporteur on Freedom of Expression in Africa” (2004)

73
the Commission, had its first judges appointed in 2006 and issued its first
decision in December of 2009.42

3.4.2.4 The Middle East and North Africa (MENA)

The Arab Charter on Human Rights (“Arab Charter”) went into effect
on March 15, 2008.43 It has been ratified by 10 of the 22 members of the
League of Arab States. Article 32 States that that “present Charter guarantees
the right to information and freedom of opinion and expression, as well as the
right to seek, receive and impart information and ideas through any medium,
regardless of geographical boundaries.”44 This language echoes Article 19 of
the Universal Declaration. Similar to the European Convention, this right is
subject to “the fundamental values of society” and may be limited where
required “to ensure respect for the rights or reputation of other or protection of
national security, pubic order and public health or morals.”

In addition, more than a dozen MENA countries are party to the

ICCPR.45 Additionally, the 1996 Declaration of Sana‟a on promoting
independent and Pluralistic Arab Media, Adopted by the UNESCO General
Conference, recognized the need to promote free expression principles to
expand information access and internet penetration in the region. The
Declaration Stated that Arab countries should “enact and or revise laws with a
view to: enforcing the right to freedom of expression ad press freedom and
legally enforceable free access to information”.46

In 2004, foreign minister from more than fifteen MENA countries

adopted the Sana‟s Declaration on Democracy, Human Rights, and the role of
the International Criminal Court, which stated that: a free and independent

42. African Court on Human and Peoples Rights,http://www.african-court.org/en/court/history/

43. Mervat Rishmawi, “The Arab Charter on Human Rights,” Arab Reform Bulletin, Carnegie
Endowment for International Peace, ( 2009)
44. League of Arab States, Arab Charter on Human Rights,
(2004)http://www1.umn.edu/humanrts/instree/loas2005.html.
45. According to “False Freedom,” Algeria, Egypt, Iran, Iraq, Israel, Jordan, Lebanon, Kuwait,
Libya,Morocco, Syria,Tunisia, and Yemen have ratified.
46. UNESCO, Official Documents

74
media is essential for the promotion and protection of democracy and human
rights. Pluralism in the media and its privatization are vital for contributing to
the dissemination of human rights information, facilitating information public
participation, promoting tolerance and contributing to governmental
accountability…the participant therefore agree to work towards future
modalities of democratic consultation and cooperation… for strengthening
democracy, human rights and civil liabilities, especially freedom of opinion
and expression…47

The same year, more than 270 representatives of international and

regional media professional and non-governmental organizations as well as
media expert from the academic world and the media industry adopted the
Marrakech Declaration, stating that “the time has come to move from the
promise of Article 19 of its Universal implementation. Freedom of expression
and press freedom are at the core of construction of the Information society in
Africa, the Arab region, and throughout the world… the internet and other new
media form should be afforded the same freedom of expression protections as
traditional media.”48

3.4.2.5 Asia

Asia is only region of the world that does not have a regional human
rights treaty. Nevertheless, many Asian countries have begun to recognize the
importance of adhering to internationally accepted principles of freedom of
expression and access to information. One of the primary intergovernmental
bodies in the region is the 10 member Association of Southeast Asian Nations
(ASEAN). Though it has been criticized for its approach to human rights, in
2009 it created the Intergovernmental Commission on Human Rights

47. Intergovernmental Regional Conference on Democracy, Human rights, and the Role of the
International CriminalCourt, “Final Declaration,”
48. The Marrakech Declaration, adopted by the participants of “Role and Place of Media in the
Information Society. InAfrica and the Arab States: International Conference as a follow-up to the
World Summit on the Information Societyunder the High Patronage of His Majesty the King
Mohammed VI,” (2004).

75
(AICHR).49 The Commission is make up one representative from each of the
ASEAN countries.50 One of the commission‟s purpose outlined in its
foundational “Terms of Reference,” is to uphold the Universal Declaration of
Human Rights and other human rights instruments to which ASEAN members
are party. It remains to be seen whether the AICHR will be positive force for
human rights or live up to the predictions of its critics.

3.4.2.6 European Community

The treaty of Rome is the foundation of the European Community in

1957, Neither it, nor any secondary legislation made under it which confers on
individuals the right to freedom of expression.

However, certain Treaty provisions, particularly those relating to the

free movement of goods, service and persons may indirectly protect the rights
to freedom of expression (particularly relating to commercial speech) insofar as
such aright is a necessary corollary to the exercise of those freedoms.

Fundamental rights and freedoms, including freedom of expression,

form an integral part of community law which the European Court of justice
(ECJ) will uphold.51 The European Convention on Human Rights, to which all
12 EC members are party, is of particular significance. However, while the ECJ
will apply fundamental rights in Assessing national measures that implement
community legislation,52 it will not interfere where the measure challenged as
incompatible with the European Convention is a matter of purely national law53
or does not in some way implicate commercial activity.

The free movement of good is assured by Art. 30-36 of the Treaty. In

essence, these provisions prohibit member‟s States from introducing or
maintain any quantitative restrictions or measures on the import or export of

49. ASEAN Intergovernmental Command on Human Rights,

50. Terms of Reference, p, 4, (2009)
51. Nold v. EC Commission, Case No. 4/73, 1974 ECR 491.
52. Wachauf v. Germany, Case No. 5/88, 1989 ECR 2609.
53. Cinéthèque S.A. v.Fédération National des CinémasFrançais, Case Nos. 60-61/84, 1986 1 CMLR
365.

76
goods in free circulation within the community. Art. 36, however, Permits
prohibitions or restriction on grounds, inter alia, of public morality, public
policy or public security, so long as such prohibitions or restrictions do not
constitute a means of arbitrary discrimination or a disguised restriction on trade
between member States. In addition, the ECJ has developed the doctrine of a
“rule of reason” or “mandatory requirements” under which such prohibitions or
restrictions may be imposed on number specific grounds of which consumer
protection perhaps the most relevant.

Thus, subject to the exceptions mentioned above, a member state may

not restrict the import or export of published material or of news or other
information by electronic means (such as provided by news agencies). Special
rule apply in relation to broadcasting.

The rule governing the free movement of services, set out in Article 59-
66, concern with the right to provide services from one member State to
another and the right of citizens to move across borders to receive services. As
the jurisprudence of the ECJ has made clear, ancillary to those rights are the
rights of service provider to provide information and the right of the consumer
to receive information about those services. Therefore, unless a restriction on
the giving or receiving of such information may be justified on ground of
imperative public interest (Articles 56 and Article 66) or on grounds that the
activity is connected with the exercise of official authority (Article 55). It
would be contrary to community law. However, only the service provider or its
agents have right under Community law to disseminate information about its
services; community law essentially is limited to activities that have a
commercial aspect. Thus, in a case concerning Ireland‟s ban on the provision of
information by counseling centers about where to obtain lawful abortions in
Great Britain, the ECJ ruled that EC law did not apply because the Irish centers
did not have any commercial ties with the British Clinics. 54

54. In a parallel case brought under the European Convention, however, the European Court of
Human Rights ruledThatIreland's ban violated the right of women of child-bearing age to receive

77
 Article 48-51 of the Treaty guarantee the free movement of workers
(excluding those employed in the public services), and Article 52-58 (right of
establishment) ensure that citizens of the community have the right to take up
and pursue activities in any member State. These rights may be prohibited or
restricted only on ground of imperative public interest or exercise of official
authority. Thus, for example, a member State may not prohibit a company from
establishing a newspaper with the specific purpose of attacking government
policy, unless it can justify the restriction on one of the two permissible
exceptions.

The Single European Act55 was signed by the 12 member States in 1986
for the purpose eliminating remaining barriers to the single internal market by
31 December 1992.

The member States signed the Treaty, once ratified by all member
States, will enlarge the scope of community competence and increase the
European parliament‟s powers. It pledges the member States to full economic
and monetary union, including the creation of a single currency by 1 January
1999, and to the development of a common foreign and security policy with a
view to the eventual creation of common defenses policy.

Article F of Title of the Maastricht Treaty acknowledge the

Community‟s commitment to fundamental human rights: “The Union shall
respect fundamental rights, as guaranteed by the European Convention on
Human Rights... and as they result from the Constitutional traditions common
to the Member States as general principles of Community Law.”56

3.4.2.7 Conference on Security and Cooperation in Europe.

In 1975, representatives from 35 countries participated in the

Conference on security and cooperation in Europe (CSCE) and signed the

information and the right of Counseling Centers and Counselors to Impart Information, Open
Door Counseling and Dublin Well Woman Centre v. Ireland, Judgment of 29 Oct.1992
55. OJ 1987, L 1.
56. (1992), 1 CMLR, 719

78
Helsinki Final Act of 1975. The 35 included all of the countries of Europe
except Albania, as well as Canada, the United States and the Soviet Union
since 1991, Albania, Croatia, Slovenia, and the independence States of the
former Soviet Union have also joined.57

The Helsinki Final Act and subsequent CSCE documents are political
declaration, not treaties, although they are thus not legally binding, this does
not deprive them of all legal significance.58 In practical terms, the political and
moral strength of their obligations may be even more important than their
precise legal status.59

The Helsinki Final Act includes four “baskets” of promises, of which

Basket III is of greatest relevance to human rights. One of the Basket III
sections, titled “information” calls for improvement in the free flow of
information across borders in the print, cinema and broadcasting media. Little
progress was made in expanding human rights protections until the advent of
perestroika.

In the Vienna concluding Document issued in January 1989, the

participating States declared their commitment to “make further efforts to
facilitate the freer and wider dissemination of information of all kinds for
journalists. “They further declared their commitment, in accordance with the
International Covenant and the Universal Declaration, to “ensure that
individuals can freely choose their sources of Information”.60

Moreover, the document reflects dramatic progress on the contentious

question of the right of States to jam incoming radio and television broadcasts.
Whereas, formerly, leaders of the Soviet Union had insisted on the right to jam
broadcasts as an aspect of their sovereignty, the Vienna document requires the

57. A list of the current members of the CSCE

58. J. A. Frowein, “The Interrelationship between the Helsinki Final Act, the International Covenants
on Human Rights and the European Convention on Human Rights”, in T Buergenthal (ed.),
Human Rights, InternationalLaw and the Helsinki Accord, New York, Montclair, (1977)
59. P Malanczuk, “Freedom of Information and Communication: Recent Developments in the
Helsinki Process”, Hague Yearbook of Int'l Law, (1990),
60. Vienna Concluding Document,

79
participating States to “ensure that radio services operating in accordance with
the ITU Radio Regulations can be directly and normally received in their
States”. While the provision does not expressly prohibit jamming, that has been
its effect and indeed was its intent.

The conference on the human Dimension (CHD) which took place in

Copenhagen in June 1990 produced a document of considerable significance
for human rights generally. In particular, the participating States agreed to
ensure that any restriction on fundamental rights and freedom must be provided
by law and… consistent with their obligations under International law, in
particular the International Covenant on civil and political Rights, and with
their International Commitments, in particular the Universal Declaration of
Human Rights… any restriction on rights and freedoms must, in a democratic
society, relate to one of the applicable law and strictly proportionate to the aim
of that law.61

Importantly, the above language parallels the three-part test for

restrictions articulated by the European Court of Human Rights (legality,
legitimacy of purpose, and proportionality). In addition, the participating States
expressly recognized the “important expertise” of the Council of Europe in the
area of human rights and invited consideration of ways in which the council
might contribute to the “human dimension of the CSCE”62.

In the Copenhagen Document, the participating States also accepted a

Statement of the right to freedom of expression which closely parallel Art. 10
of European Convention.63 The document of the October 1991 Moscow
Meeting of the Conference on the Human Dimension reaffirmed and further
elaborated this standard by acknowledging “the right of the media to collect,
report and disseminate information, news and opinion”64

61. Copenhagen Document of the Conference on the Human Dimension, Para, 24

62. Copenhagen Document of the Conference on the Human Dimension, Para, 24
63. Ibid
64. Ibid

80
 At the Copenhagen, along with the clear recognition of the right to
freedom of expression consistent with international standard, the participating
States also committed themselves to combat advocacy of national, racial and
religious hatred in all its forms. Until the Copenhagen meeting, this subject had
only been raised by western delegates in regard to anti-Semitism in the former
Soviet Union. The new concern reflected the serious threat that rising a racism,
xenophobia and ethics hatred posed to the goal of security and co-operation
throughout the new Europe. The participating States declared their firm
intention to intensify their efforts to combat “totalitarianism, racial and ethical
hatred, anti-Semitism, xenophobia and discrimination against anyone” They
further more committed themselves to “promote understanding and tolerance”,
provide protection against any acts that constitute incitement to violence” and
“recognize the right of individual to effective remedies”.

It is interesting to note that, while this document goes further than the
International Covenant, the European Convention or the American Convent, in
committing governments to take affirmative measures to combat racism and
incitement to hatred, it shies away from the controversial provisions of the
International Covenant and the American Convention which require the
prohibition of incitement to hatred or discrimination not leading to violence.

3.5. Affirmative Action by Countries throughout World

The concept of right to freedom of speech and expression consider as

natural right and inherent to human right which means right to one‟s opinion or
expression of thoughts or an ideas publically without any fear of censorship or
unreasonable punishment.

Right to speech is not confined with public speaking only but it includes
various form of expression. Right to expression find it place in United Nations
Universal Declaration of Human Rights, and affirmative actions taken by most
of nations and provide formal recognition by their laws. However practical
have approach to provide legal protection to freedom of speech and expression

81
is differ from nation to another.Freedom of speech and expression is
guaranteed by several Constitutions in the world. they are:

Africa: the most of African countries in its Constitutions confer legal

protection to right to freedom of speech and expression but exercise of rights
inconsistence in practice.

Section 16 of Constitution and chapter 2 of South Africa Bill of Rights

provide legal protection with certain limitations to freedom of speech and
expression. South Africa is country where more liberal in case of granting the
freedom of speech and expression.

Asia: most of the Asian countries also provide legal as well as Constitutional
protection to the freedom of speech and expression.

Hon Kong: under the heading of Fundamental Rights and Duties of the
Residence,Chapter III of the HongKong Basic Law Art.27.provide freedom of
speech, of the press and publication, with limitations of public security.

India: Art. 19 (1) (a) of the IndianConstitution guaranteed freedom of speech

and expression along with reasonable restriction can be imposed by the
parliament on this right on the ground mention clause (2) as the integrity of
India, security of State, friendly relations with foreign States, public order,
decency or morality, contempt of court and defamation or incitement to an
offence. As freedom of press uphold by the Supreme Court of India as part
national policy, and different laws enacted by the Indian parliament for
imposing reasonable restriction on the freedom of speech and expression in
different situation like Prevention of Terrorism Ordinance of 2001, The
Terrorist and Disruptive Activities (prevention) Act 1985. Etc.

Japan:In the developed country like Japan also in its JapaneseConstitution

chapter III, Article 21 provides freedom of speech; press and all other forms of
expression are guaranteed.

Pakistan: Art. 19 of the Constitution of Pakistan, guaranteed freedom of

speech and press with certain limitations like blasphemy against Islam.

82
China: Art.35 of the Constitution of the People‟s Republic of China. Deals
with citizens of china enjoy freedom of speech, of the press, of assemble, of
association, of procession and demonstration. Later on various limitations
imposed on the different grounds in different Act like protection and
Management Regulation.

Philippines:Under the Constitution of the Philippines 1987, Article III, section

4 guaranteed that no law shall be passed abridging the freedom of speech of
expression. However few laws impose limitations on this right of freedom of
speech and expression, on different grounds like offences against decency and
good customs, public order established policies, lawful orders etc.

Thailand: Thailand also not behind to give the place to the freedom of speech
and expression in its Thai Constitution which provide for freedom of
expression, but in this country also such right to freedom of expression not
absolute, government may impose reasonable restrictions on the freedom of
expression to preserve national security, public order, to preserve others right,
to protect public morals, etc.

Australia: In Australia provisions for freedom of speech and expression not

clear in any Constitutional or statutory declaration on this freedom, however
freedom of speech and expression upheld implied freedom of speech which
was recognized in the Lange v. Australian Broadcasting Corporation65.

Europe: In the year 1950 European Convention on Human Right was signed
on 9 November. In this convention much of human rights guaranteed to the
citizens of member of countries of the council of Europe. In this convention
Art.10 deals with the citizen‟s freedom of speech and expression, which
includes freedom to hold opinion and to receive and impart information and
ideas without interference by public authority.

Denmark: In Denmark also by Grund loven granted freedom of speech in sec.

77 which deals any person shall be at liberty to publish his ideas in print, in

65. (1997), 189, CLR, 520

83
writing, and in speech, subject to his being held responsible in a court of law.
Hate speech is declared as illegal according to Danish Penal code u/s 266(b) as
restriction on freedom of speech and expression.

Finland: Section 12 of the Constitution of Finland deals with freedom of

expression and right of access to information which means everyone has
freedom of expression, entailing the right to express, disseminate and receive
information, opinions and other communications without prior prevention by
anyone. However there are certain restrictions imposed on the ground of
defamation against private person, Disparagement of the flag of Finland,
Blasphemy and hate speech etc.

France:In the country of France declaration of the right of man and the
Citizen, having Constitutional value and, in this declaration its Article 11 deals
with the free communication of thoughts and of opinion is of the most precious
rights of man: any citizen thus may speak, write, print freely, save (if it is
necessary) to respond to the abuse of this liberty, in the cases determined by the
law.

Not only declaration of France but also France adhere to the European
Convention of Human Rights and accept its jurisdiction.

Germany:Basic law of Federal Republic of Germany Art.5 which lays down

that there is no censorship and freedom of expression that may be limited by
law, on the ground which are Malicious gossip and defamation, Hate speech,
insult of individuals etc.

Greece:Constitution of Greek provide guarantee of freedom of speech and

expression and of the press for all citizens. However this freedom of speech
and expression is not absolute but government can put restrictions on various
grounds like insult of religion, insult of president of Greece, disclose
information relating to the Greek Armed forces or to various Aspects of Greece
National securities etc.

84
Hungary: Fundamental law of Hungary established in its Article VII,VIII, IX,
and X right to freedom of expression, speech, press, thought, conscience,
religion, etc.but this rights are limited by the penal code u/s 269 on the ground
of Incitement against a community etc.

Ireland: Constitution of the Italy guaranteed freedom of speech in Article 21

which runs as anyone has the right to freely express their thoughts in speech,
writing, or any other form of communication. Italy could be impose restrictions
on the freedom of expression on the ground of public morality, insult against
the honor and prestige of the president, vilification of a person‟s religion,
insults against the honor and decorum of others and defamation of another
person within the country.

Netherlands: Under the Dutch Grondwet, Article 7 guaranteed everybody the

right to make public ideas and feeling by printing them without prior
censorship, however the Dutch Criminal Code u/s 137 impose restrictions on
the ground of intentionally gives public expression to views insulting to a
group of person on account of their race, religion, or conviction or sexual
preference.

Sweden: In Constitution of Sweden, chapter 2 protects personal freedom of

expression whether orally, pictorially, in writing, or in any other way, where as,
in other part of same Constitution mention the freedom of printed press as well
as the principle of free access to public records and provide and extent
protections to those of other media including television, radio and websites.
Restriction could be impose on the ground of hate speech threats or expression
of contempt based on race, skin color, nationality or ethical origin, religious
belief or sexual orientation.66

United Kingdom: In United Kingdom, Article 10 of the domestic law Human

Right Act, 1998 guaranteed the freedom of expression however in the common

66. Piano, Ail, Freedom in the World 2009, The Annual Survey of Political Rights & Civil Liberties.
p. 689.(2009)

85
law and there were no provisions for the freedom of expression for their
citizens. Now it is incorporated in domestic law along with certain exceptions
like breach of peace, racist, incitement, insulting word or behavior intending or
likely cause harassment, incitement to terrorism, abolish of monarchy, etc.

Norway: In the country of Norway in its Constitution Article 100 guaranteed

freedom of speech and it exist since 1814 justification for it given that which
are the seeking of truth, promotion of democracy and individual freedom and
limitations to this right may be prescribed by the law to protect the privacy of
the individual or for other weighty reasons.

Russia: Russian Constitution also provides of freedom of speech and press

however government laws forced to regulate self-censorship

Switzerland: Under the Article of 16 of the SwissConstitution guaranteed

freedom of information for every citizen.

Turkey: The Constitution of Turkey guaranteed freedom of expression under

Article 26 run as “freedom of expression and dissemination of thought”.

North America

Canada: Right to freedom of expression guaranteed by the Canadian charter of

rights and freedoms under the section 2(b) which run as everyone has the
fundamental freedoms like freedom of thought, belief, opinion and expression,
including freedom of the press and other media of communication and it is also
mention that freedom of expression and other rights under the charter are not
absolute and can be limited under certain situation.

United State: In the United StatesConstitution by 1st amendment in the year

1791 guaranteed that “congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances. However there are several
exceptions in common law like obscenity, defamation, incitement, national
security etc.

86
South America

Brazil: In Constitution of Brazil under the Article 5 guaranteed expression

thought is freeand provide exceptions to like hate speech, racism, defamation,
libel, etc.

3.6. Right to Freedom of Speech and Expression in India

Chapter III of the Indian Constitution guarantee fundamental right to

citizens of India, it is treated as the Magna Charta of India. Fundamental rights
which are inviolable and are to be guaranteed to him, the principle underlying
such guarantee of fundamental rights and the necessity for securing, These
rights to the people is present in all modern Constitutions. Right to freedoms
which are very basic and necessary for the development of individuals, out of
these freedoms, freedom of speech and expression is the one of them as
fundamental right incorporated in u/Art. 19 (1)(a) , before to see this provision
necessary to historical back ground of freedom of speech and expression.

3.6.1. Historical Background

What we see the fundamental rights today in the IndianConstitution, it

has long struggle in British regime, for the first declaration of fundamental
rights arose in the year 1928 at the all parties‟ conference in which Nehru
Committee incorporated these rights in its report. The committee stated that:

“Our first care should be to have our fundamental rights guaranteed in a

manner which will not permit their withdrawal under any circumstances.”67

Indian National Congress Karachi Session held in the year 1931, in

which Session it was declared that any Constitution which might be proposed
would be acceptable only, if it contained certain fundamental rights as
formulated by it.

British government organized three Round table conference for the

discussion over the Constitutional reforms in India during the 1930- 32.

67. Report of Nehru Committee (1928)

87
OurIndian national leaders given the tress for Bill of Rights in the new
Constitution Act, the view was that to binding the administration with certain
declaration of rights of Indians. But unfortunately the Simon Commission
rejected this demands. Stating that:

“We are aware that such provisions have been inserted in many
Constitutions, notably in those of the European States formed after the war.
Experience however has not shown them to be of any practical value. Abstract
declarations are useless unless there exist the will and means to make them
effective”.68

India appointed joint parliamentary committee which was one type

of adhoc Parliamentary committee. Such committee agreed with the
observations as to the value of a bill of Rights and presented it as a dilemma.

“Either the declaration of Rights is of so abstract a nature that has no

legal effect of any kind, or its legal effect will be to impose an embarrassing
restriction on the power of the Legislature and to create a grave risk that a large
number of laws may be declared invalid by the Courts because of inconsistency
with one or other of the rights so declared”.69

In the Government of India Act, 1935, however certain concessions

were made. Section 275 provided:

“A person shall not be disqualified by sex for being appointed to any

civil service or civil post under the Crown in India, other than such a service or
post as may be specified by general or special order made by Governor-General
or the secretary of State for India as the case may be”.

Section 298(1) of the Act further said:

“No subject of His Majesty domiciled in India shall on ground only of

religion, place of birth, decent, color or any of them is ineligible for office

68. Report of the Indian Statutory Commissions, 1930 ( cmd 3569-1930)

69. Report of the Joint ParliamentaryCommittee on, Indian Constitutional Reforms,Vol. I, Part I
Para,366.(1934)

88
under the Crown in Indiaor be prohibited on any such grounds from acquiring
holding or disposing of property or carrying on any occupation, trade, business
or profession in British India”.

Section 299 (1) and (2) Stated:

No person shall be deprived of his property in British India, save by

authority of law.

Neither the federal nor a provincial legislature shall have power to make
any law authorizing compulsory acquisition for public purposes of any land, or
any commercial or industrial undertaking or any interest in, or any company
owning, any commercial or industrial undertaking, unless the law provides for
the payment of compensation for the property acquired and either fixes the
amount of compensation or specifies the principles on which and the manner in
which it is to be determined”.

The Constitution assembly adopted the objectives resolution moved, by

Pandit Nehru, stating that the object of the Constitution Assembly was to draw
up a Constitution, when the occasion arose to draft the Constitution for
independent India.

The people of India gave to themselves, the Constitution of India, with a

view make it Sovereign, Democratic, Socialist, secular and Republic. In our
democratic society, pride to place has been provided to freedom of speech and
expression, which is mother of all liberties.

One of the main objectives of the Indian Constitution as envisages in the

preamble, is secure LIBERTY OF THOUGHT AND EXPRESSION to all the
citizens. Freedom of expression is among the foremost of human rights. It is
the system of administration; various Constitutions make a mention of the
freedom of expression. While freedom of thought is a personal
freedom.freedom of expression is collective freedom, whose character becomes
more and more pronounced as the technical methods of their diffusion multiply
and improve.

89
 The right of free speech is absolutely requisite for the prevention of a
free society in which government is based upon the consent of an informed
citizenry and is dedicated to the protection of the rights of all, even the most
despised minorities.70

By inserting the fundamental rights in the Constitution, India has

consciously torn herself from the British Tradition. British liberty was directly
only against the executive to capture,and tyranny while parliament was always
held sacrosanct, above the scrutiny of the court of justice. The American
concept was the judicial supremacy making the congress subject to the
Supreme Court sphereof interpretation. The pattern adopted under the
Constitution of India is compromise between the parliamentary sovereignty of
the U.K. and the judicial supremacy of the U.S.A.

3.6.2. Constitutional Safeguard: Right to Freedom of Speech and

Expression.

In the preamble, the people of India gave to themselves, the Constitution

of India, with a view to make it Sovereign, Democratic, Socialist, secular and
Republic. In our democratic society, pride to place has been provided to
freedom of speech and expression, which is mother of all liberties.One of the
main objectives of the Indian Constitution as envisages in the preamble, is
secure LIBERTY OF THOUGHT AND EXPRESSION to all the citizens.

In order to give effect to this objectives mentioned in the preamble by

our Constitutional maker, “freedom of speech and expression” has been
guaranteed as a fundamental rights under Article 19(1)(a) available to all
citizens, subject only to restrictions which may be imposed by the State under
clause (2) of that Article. The relevant portion of Article 19 read as follows:

Art.19. (1) All citizens shall have rights

a) To Freedom of speech and expression;

b) To assemble peaceable and without arms,

70. Spenser v. Randall, 357 US 513.

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c) To form association or union,
d) To move freely throughout the territory of India,
e) To reside and settle in any part of the territory of India,71
f) To acquire, hold and dispose of property72
g) To practice any profession or to carry on any occupation, trade or
business.

Art. 19 (2) nothing in sub clause (a) of clause (1) shall effect the
operation of any existing law, or prevent the State from making law, in so far
as such law imposed reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interest of sovereignty and integrity of
India,73 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.

Art. 19 (1) guarantees certain fundamental rights, subject to the power

of the State to impose restrictions on the exercise of those rights. The Article
was thus intendedto protect these rights against State action other than in the
legitimate exercise of its power to regulate private rights in the public interest.74

Violation of the fundamental rights of one individual by another

individual (without support of State) is not within the purview of Art. 1975

The scope of this guarantee has however been defined by the limitations
incorporated in clause (2) to (6) of the Art. 19. Itself. These clauses permit the
Stateto impose reasonable restrictions for the purpose of any objectives
mentioned therein. The Article thus consists of two parts:

(i) the declaration of rights in clause (1) , comprising seven sub-Clauses,

71. „And‟ inserted by the Constitution, (44th Amendment) Act, 1978, w.e.f. 20-6-1979
72. Sub-Cl. (f) omitted by the Constitution (44th Amendment) Act, 1978,w.e.f. 20-6-1979.
73. Inserted by the Constitution (16th Amendment) Act, 1963, w.e.f. 6-10-1963.
74. Samdasani P.D. V. Central Bank of India, AIR 1952 SC 59 : 1952 SCR 391
75. Ibid.

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(ii) The limitation contained in clauses (2) to (6).

The courts have to consider these questions, namely, whether the

impugned law imposes a restriction on any these rights, whether restriction
imposed is for the purpose of achieving any of the objects, mentioned in the
relevant clause, and whether the restriction is reasonable. There is no definite
or positive test to adjudge the reasonableness of restriction. Each case is to be
judged on its own merit, and no abstract standard or general pattern of
reasonableness can be laid down as applicable to all cases. The impugned law
may contain substantive as well as procedural provisions and both must satisfy
the test of reasonableness. Patanjali Shastri C.J. formulated the following wing
test for determining the reasonableness of restriction:76

“The nature of the right alleged to have been infringed, the underlying
purpose of the restriction imposed, the extent and urgency of the evil sought to
be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time should all enter into the judicial verdict.”

Courts of India have wider discretionary powers U/Art. 19 for

determination of reasonableness of the restrictions imposed by the State on
freedom speech and expression.

3.6.2.1 Nature of the Right in General

Certain rights to freedoms guarantee U/Art. 19. subject to the power of

the State, to impose restrictions on the exercise of those rights. The Article thus
was intended to protect these rights against State action other than in the
legitimate exercise of its power to regulate private rights in the public interest.

(i) It may be observed that Art. 19 are confined to what are known as
civil rights as distinguished from political rights.

(ii) Though the concept of natural rights is not relevant in India for
ascertaining whether these are any inviolable rights apart from those included
in the Constitution, the concept has nevertheless been utilized for determining

76. State of Madras V. V. G. Row, (1952) S.C.R. 597

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the ambit of the fundamental rights themselves, for determining how far the
guarantee under Art. 19 will be available. The Supreme Court has observed that
Art. 19 refer to what are known as natural or common law rights as
distinguished from the right created by the statute. The Supreme Court has
observed that Art. 19 (1) Guarantees77.“These great and basic rights which are
recognized and guaranteed as the natural rights, inherent in the status of a
citizen of a free country.”

(iii)Whatever a right is created by the statute, it can be exercised only

subject to the conditions imposed by the statute, and it can be restricted in any
manner or taken away by the legislature at any time.

Fundamental rights guarantees under the Constitution, it cannot be taken

away by the legislature. It can only be subjected to such restrictions as are
permissible under the Constitution,for example, the right to freedom of speech
and expression in Art. 19 (1)(a) can be subjected to reasonable restrictions only
on any of the grounds specified in Art. 19 (2)

(iv) The right guaranteed by Art. 19 are different from contractual

rights. The right to carry on any business or to hold property and to enter into
contracts as incidental to such rights is a fundamental right, but these rights
granted by a contract are not fundamental rights,78 they are protected by the
ordinary law of the land.79

3.6.2.2 Nature of Limitations in General

Unrestricted individual rights cannot exist in any modern political

society.80 In factthere is no formal declaration of any fundamental rights in
England. In the England prevails the doctrine of the Sovereignty of parliament,
which gives unlimited power on parliament to abridge, modify or even abolish
any of the rights of the people. The British concept does not envisage a legal

77. State of West Bengal V. Subodh Gopal, (1954) S.C.R. 587.

78. Secretary to the Gov‟t V. A.G. Factory, A.I.R. 1959, A.P. 538.
79. State of Bihar V.Kameswar, A.I.R. 1952 S.C. 252.
80. M.P. Jain, Constitutional Law, Tripathi, Bombay, P. 388.

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check on the power of parliament which theoretically is free to make any law
which pleases, even though it affects the basic civil rights and liberties of the
people.81

In the United States, also even though the Constitutional guarantees of

fundamental rights and the limitations are permissible through various devices
contrived and sanctioned by the Supreme Court. As the U.S. Supreme court
said:

“The liberty of the individual to do as pleases in innocent matters is not

absolute. It must frequently yield to the common good”.82

The inherent conflict between the interests of the society and the interest
of the individual is a never ending problem of political theory and at every
stage in human history, some workable reconciliation between these conflicting
interests has to be evolved.83

When law is validated as having imposed a restriction upon a freedom

of speech and expression, what the court has to examine is the substantive of
the legislation, without being attract by the mere appearance of legislation. The
legislative power being subject to the fundamental rights, the legislature cannot
indirectly take away or abridge the fundamental rights in which it cannot do
directly.84

On the other hand effect of legislature are applicable for this purpose
only in so for as they are direct and unavoidable consequences or the effect
which could be said to have been in the contemplation of the legislature.85

A restriction cannot be said to be a restriction within the meaning of Art.

19 unless it is imposed by law and which the citizen has no option but to obey.
Where the restraint is self-imposed inasmuch as the operation of the law is

81. Liversidge V. Anderson, (1942) A.C. 206.

82. Adkins V. Children‟s Hospital, (1923), 261, U.S. 525
83. Harrison V. Schaffner, (1941), 312 U.S. 579.
84. Gopalan A. K. State of Madras, 1950, S.C.R. 88 (101) A.I.R. 1950 S.C. 27.
85. Hamdard Dawakhana V. Union of India, A.I.R. 1960, S.C. 554

94
attracted by reason of a contract which the citizen is free to enter into his own
or choice, he cannot complain of the unreasonable of the law.86

3.6.2.3 Reasonableness of Restrictions Imposed on Rights to Freedoms

U/A 19.

In examining the reasonableness of a statutory provision whether it is

infringement of the fundamental rights guaranteed under Art. 19, The directive
principles of State policy.

Restrictions must not be inconsistent or of an uncontrolled nature so as

to go beyond the requirement of the interest of general public.

In order to judge the reasonableness of the restrictions, no conceptual or

general pattern or a fixed principle can be laid down so as to be universal
application and the same will be very form case to case as also with regard to
changing conditions, values of human life, social philosophy of the
Constitution, prevalent conditions and all around circumstances.

A just balance has to be struck between the restrictions imposed and the
social control anticipates by Art. 19(6).Current social values as also needs
which are intended to be satisfied by the restrictions.

There must be a direct and immediate nexus or reasonable connection

between the restrictions imposed and the object sought to be achieved. If there
is a direct nexus between the restrictions, and the object of the Act, then a
strong presumption in favor the Constitutionality of the Act will naturally arise.

As ifthe parliament want impose restrictions on the fundamental rights

of freedom under Article 19.as above discussed it must be on both way
substantive as well as procedural reasonableness. It means whatever law
enacted by the parliament to impose restrictions on fundamental freedoms of
citizens of India such law must be reasonable and what so ever procedure
adopted restrict the fundamental freedom Under Article 19 (1), such process

86. Kharak Singh V. State of U.P, A.I.R. 1963, S.C. 1295

95
require that person must be given an opportunity of being heard in defense
before his freedoms deprived.

Article 19 (1) (a) freedom of speech and expression

Right to freedom of speech and expression under Article 19 (1)(a)

means the right to express one‟s thought and opinion freely by word of mouth,
writing, printing, picture, or electronic media,87 or in any other manner
(addressed to the eyes or the ears) it would thus include not only the freedom of
the press, but the expression of one‟s ideas by any visible demonstration, such
as gestures and the like. Expression naturally presupposes a second party to
whom the ideas are expressed or communicated.

In short, freedom of expression includes the freedom of propagation of

ideas, their publication and circulation88and right to answer the criticism
leveled against such views,89 the right to acquire and import the ideas and
information about matter of common interest.90 It would not however, include
every concomitant right except where, in given case; it forms an integral part of
the named fundamental right.91

It is necessary for the operation of the democratic system and for self-
development and setting up a homogeneous egalitarian society.92

3.6.2.4 Grounds of Restriction on Freedom of Speech and Expression

Any restriction imposed upon the above fundamental right of freedoms

is prima facie unconstitutional, unless it can be legitimate under the limitation
clause, i. e. Cl. (2)93 of the Article 19 of the Indian Constitution. This clause
authorized the State impose restrictions upon the freedom of speech only on

87. L.I.C.V. Manubhai D. Shah, A.I.R. 1993, S.C. 171

88. Romesh Thapper V. State of Madras, 1950, S.C.R. 594.
89. L.I.C.V. Manubhai D. Shah, A.I.R. 1993, S.C. 171
90. Hamdard Dawakhana V. Union of India, A.I.R. 1960, S.C. 554
91. Maneka Gandhi V. Union of India, A.I.R. 1978, S.C. 597
92. D.C. Saxena (Dr.) V. Hon‟ble Chief Justice of India, A.I.R. 1996, S.C. 554
93. Rangarajan S. V. Jagjivan Ram P, (1989), 2 S.C.J. 128

96
certain specified grounds so that, if any particular case, the restrictive law
cannot rationally94 be shown to relate to any of these specified grounds, the law
must be held to be void.95 The right to freedom of speech and expression
cannot rise of above the national interest and the interest of the society which is
another name for the interest of general public. It is true that Article 19(2) does
not use the word “national interest,” “interest of society” or “public Interest”
but the several grounds mentioned in Clause (2) are ultimately referable to the
interest of the nation and the society.96

Cl. (2) of the Article 19 of the Indian Constitution as amended, enable

the legislature to impose restrictions upon the freedom of speech and
expression, on the following grounds.

1. Sovereignty and Integrity of India

This ground has been added as a ground of restriction on the freedom of

expression by the 16thAmendment of the Constitution with effect from October,
1963. The object was to enable the State to combat cries for secession and the
like from organization such as the Dravida Kazhgam in south and the plebiscite
front in Kashmir, and activities in pursuance thereof which might not possibly
be brought within the fold of the expression „Security of State‟.

2. Security of the State

Security of the State means the „absence of serious and aggravated form
of public disorder‟ as different from ordinary breaches of „public safety‟ or
„public order‟ which may not involve any danger to the State itself. Thus
security of the State is endangered by crimes of violence intended to overthrow
the government,97 levying of war and rebellion against the government,
external aggression or war, but not by minor breaches of public order or
tranquility, such as unlawful assembly, riot affray, rash driving, promoting

94. Sodhi Shamser Singh V. State of Pepsu A.I.R. 1954, S.C. 276
95. Romesh Thapper V. State of Madras, 1950, S.C.R, 594
96. Secretary M.I. &B.V. Cricket Association of Bengal, (1992),2 S.C.C. 161.
97. Santokh Singh V. Delhi Administration, A.I.R, 1973, S.C. 1091.

97
enmity between classes and the like.98 But incitement of violence crime like
murder which is an offence against „public order‟ may also undermine the
security of the State.99

3. Friendly Relations with Foreign States

The object of this exception to the freedom of speech and expression is

to prevent libel against foreign State in the interest of maintaining friendly
relations with them.

4. Public Order

This ground was introduced by the Constitution (1st Amendment) Act,

1951. In order to meet the situation arising from the Supreme Court decision in
Romesh Thapper‟s100 case, the ordinary or local breaches of public order were
no ground for restriction the freedom of speech guaranteed by the Constitution.
Following this decision, it was held in some cases that incitement to individual
murder or promoting disaffection amongst classes did not tend to undermine
the security of the State and was not accordingly, punishable under the
Constitution.

It was to override the above judicial decisions that the ground „public
order‟ was inserted.

The concept of „public order‟ must be distinguished from the popular

concept of „law and order‟ and of „security of State‟. They refer to three
concentric circles. „Law and Order‟ represent the largest circle within which is
the next circle representing public order and the smallest circle represents
security of the State.101 Hence, an activity which affects law and order may not
necessary affect public order,102 and activity which may be prejudicial to

98. Romesh Thapper V. State of Madras, 1950, S.C.R, 594

99. State of Bihar V. Shailaaba (Smt) A.I.R, 1952, S.C. 329
100. Romesh Thapper V. Stateof Madras, 1950, S.C.R, 594
101. Ram Manohar Lohia V. State of Bihar AIR 1966, S.C. 740
102. Bhupal Chandra Ghosh V. Arif Ali, A.I.R. 1974 S.C. 255

98
public order may not necessary affect security of State.103 Absence of public
order is an aggravated form of disturbance of public peace, which affects the
general current of public life104 and any act which merely affect the security of
others may not constitute a breach of public order.105

5. Decency or Morality

This exception has been engrafted for the purpose of restricting speeches
and publications which tend to undermine public morals.106

Decency or morality is not confined to sexual morality alone. Decency

indicates that the action must be in conformity with the current standard of
behavior or propriety.107

6. Contempt of Court

In the exercise of one‟s right of freedom of speech and expression,

nobody can be allowed to interfere with due course of justice or to lower the
reputation or authority of the court.108

But in the contempt jurisdiction should not be used by judge to uphold

their own dignity. In the free market place of ideas, criticism about the judicial
system or the Judges should be welcomed, so long as criticisms do not impair
or hamper the „administration of justice‟109.

7. Defamation

Just as every person possesses the freedom of speech and expression,

every person also possesses a right to his reputation which is regarded a
property. Hence nobody can so use his freedom of speech or expression as to

103. Ram Manohar Lohia V. State of Bihar A.I.R. 1966, S.C. 740
104. Bhupal Chandra Ghosh V. Arif Ali, A.I.R. 1974, S.C. 255
105. Madhu Limaye V. Sub Divisional Magistrate, Manghyr, A.I.R. 1971, S.C. 2486
106. Ramesh Yeshwant Prabhoo (dr.) V. Prabhakar Kashinath Kunte, A.I.R. 1996, S.C. 1113
107. Ranjit D. Udeshi V. State of Maharashtra, A.I.R. 1965, S.C. 881
108. Namboodripad E.M. Sankaran V. Narayan Nambiar T. A.I.R. 1970, S.C. 2015
109. Duda P.N. V. Shivshankar P. AIR. 1988, S.C. 1208.

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injure another‟s reputation. Laws penalizing defamation do not, thereof,
constitute infringement of the freedom of speech.110

8. Incitement to an Offence.

This ground will permit legislation not only punish or prevent

incitement to commit serious offences like murder which lead to breach of
public order, but also commit any offence,111 which according to the General
Clauses Act, means any act or omission made punishable by any law for the
time being in force. Hence, it is not permissible to instigate another to do any
act which is prohibited and penalized by any law. But mere instigation donot to
pay a tax or may not necessarily constitute incitement to an offence.112

3.7. Expanding horizons of freedom of Speech and Expression

Government has not 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 not monopoly on electronic media, and a
citizen has under Art. 19 (1) (a) a right to telecast and broadcast to the
viewers/listeners through electronic media television and also radio any
important event. The government can impose restrictions on such a right only
on grounds specified in clause (2) of Art. 19 and no 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.

3.7.1. Freedom of Press

The fundamental right of the freedom of press understood in the right of

the freedom of speech and expression, is essential for the political liberty and
proper functioning of democracy. The Indian Press Commission says,
"Democracy can thrive not only under the vigilant eye of legislature, but also
under the care and guidance of public opinion and the press is par excellence,

110. Namboodripad E.M. Sankaran V. Narayan Nambiar T. A.I.R. 1970, S.C. 2015
111. Santokh Singh V. Delhi Administration, A.I.R 1973, S.C. 1091
112. Kedar Nath Singh V. State of Bihar A.I.R. 1962, S.C. 955

100
the vehicle through which opinion can become articulate."113 Unlike the
American Constitution, Art. 19 (1) (a) of the Indian Constitution does not
expressly mention the liberty of the press but it has been held that liberty of the
press is included in the freedom of speech and expression. The editor of a press
for the manager is merely exercising the right of the expression, and therefore,
no special mention is necessary of the freedom of the press. Freedom of press
is the heart of social and political intercourse. It is the primary duty of the
courts to uphold the freedom of press and invalidate all laws or administrative
actions which interfere with it contrary to the Constitutional mandate.

3.7.2. Right to Information

The right to know,receive and impart information has been

acknowledged within the right to freedom of speech and expression. A citizen
has a fundamental right to use by wayof imparting and receiving information
and it has an access to telecasting for the purpose, but the right to know has,
however, not yet extended to the extent of invalidating Section 5 of the Official
Secrets Act, 1923 which prohibits disclosure of certain official documents. One
can conclude that 'right to information is nothing but part of right of speech and
expression.

The right to access information held by public bodies is a basic human

right of every citizen, protected under the Constitution of India. It is accepted
by Supreme Court that Right to information is an deep rooted part of right to
freedom of speech and expression under Article 19(1)(a) and the right to life
and personal liberty under Article 21 of the Constitution.

That is why, right to informationguaranteed by a strong legislation and

the process of law-making itself participatory; and (ii) we have been able to
create a culture and climate where values of freedom, rights and a democratic

113.http://www.academia.edu/26648773/Media_and_Human_Rights_Journalist_Covering_Kashmir_A
_Conflict Zon

101
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.114

3.7.3. Telecasting or Broadcasting Rights

The Supreme Court in Secretary, Ministry of Information and

Broadcasting, Government of India v. Cricket Association of Bengal (CAB)115
has enlarged scope of 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 safeguard the right of free speech of the citizens of
this country, it is require that the citizens have the satisfaction of plurality of
views and a range of opinions on all public issues. A successful democracy
propounds 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
review nor there did legislations so as to nullify such interpretation except as
provide under the exceptions to fundamental rights.

In this above mentioned case, six countries cricket match was held in
1993. Cricket Association of Bengal (CAB) seeks Doordarshan to telecast the
match, and itwas agreed to pay royalty to Doordarshan. Later on, matter moved
toCalcutta High Court pleading that it had fundamental right under Article
19(1)(a) to telecast the cricket match. It was included in freedom of expression.
Subsequently, in Supreme Court the same appeal was taken. The Supreme
Court upheld this appeal and directed Doordarshan to provide facilities for
telecast. Supreme Court held that 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(1)(a).

114. Retrieved from <http://orissa.gov.in/e-magazine/Orissareview/nov-2006/engpdf/108-

114.pdf>visitedon 24-08-2008.
115. A.I.R. 1995 S.C. 1236, (1995) 2 S.C.C. 161

102
3.7.4. Commercial Advertisements

Advertisement is included in Article 19(1)(a) of the Constitution of

India. In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.116 was an
argument forauthoritywas that right to issue advertisement eventhrough
commercial nature is covered by Article 19(1)(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 professes monopoly in publication of directory under Indian
Telegraph Act. In a plea by Tata against injunction issued by Trial Court and
established 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 it includes in Article 19(1)(a). Commercial speech is
no doubt a commercial transaction, even though it is circulation of information
regarding product for the benefit of public at large. In democratic setup,
proceed of commercial information is indispensable. Economic system, in
democracy, would be miserable handicapped without freedom of commercial
speech. Article 19(1)(a) of the Constitution safeguard 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 security of Article
19(1)(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‟.

In Hamdard Dawakhana v. Union of India117 the Supreme Court had

held earlier that an advertisement of commercial nature was not protected by
Article 19(1)(a) of the Constitution. After Tata Press case, this view is
overruled. As such Hamdard Dawakhana view is now limited to protection of
extremely unpleasant advertisements of commercial nature. The Court,

116. A.I.R. 1995, S.C. 2438.

117. A.I.R. 1960 SC 554

103
however, made it clear that the Government could modulate the commercial
advertisements, which are deceptive, unfair, misleading and untruthful.

3.7.5. 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(1)(a).118

In Life Insurance Corporation of India v. Manubhai D. Shah119

respondent, the executive trustee of the (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 draws the unfair practices adopted by the LIC which adversely overripe
the interest of a large number of policy holders. The underlying idea was to
point out that excessively 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 excessively 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.

118. Life Insurance Corporation of India v. Mannubhai D. Shah, A.I.R. 1993, S.C. 171
119. A.I.R. 1993, S.C. 171.

104
3.7.6. Right to Exhibition of Films etc.

In a democracy, it is not required that everyone should sing the same

song. The freedom of expression is the rule and it is generally taken for
granted. Everyone has a fundamental right to form his views on any issue of
general concern. He can form and inform by any legal means. The concept of
democracy is Government by the people by way of open discussion. The Court
has accepted that movies, films etc doubtless covered under the scope of
freedom of speech and expression under Article 19(1)(a) of the Constitution.
But at the same time the fundamental freedoms under Article 19(1)(a) can be
reasonably restricted only for the purposes mentioned in Article 19(2) and the
restriction must be justified on the anvil of need and not the quick‟s and of
convenience or expediency.120

One‟s ideas, views etc., can be expressed and communicate by many

other modes apart from the press, for i.e., radio, movies, television and
cinematograph which includes videography. 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 movies, radios, films, television and videography. It is not necessary to
say that freedom of speech and expression includes freedom of propagation.
121
In the case of K.A. Abbas v. Union of India challenged 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 classified as „U‟ films and „A‟ films. „U‟ films are meant for
unrestricted exhibitions, whereas „A‟ films can be shown to adults only. The
petitioner did, not able to get „U‟ certificate for his motion film named “Tale of
Four Cities”, questioned the Constitutional validity of the Cinematograph Act,
1952 alongwith the rules made there under. The Supreme Court justifies the
validity of the Cinematograph Act, 1952, and said that pre-censorship of films

120. S. Rangarajan v. P. Jagjivan Ram, (1989), 2 S.C.C. 574

121. A.I.R. 1971, S.C. 481

105
was approved under Article 19(2) as imposing a reasonable restriction. The
Court perceives 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. Therefore films divided into two
categories U and A Films which held to be valid and film can be censored, held
to be valid and a film can be censored on the grounds mentioned under Article
19(2) of the Constitution.

With concern to the power of pre-censorship, Chief Justice Hidayatulla

note 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 in
favor 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 to and forever from human thought
and must give scope for talent to put them before society. The requirements of
art and literature include within themselves a comprehensive view of social life
and not only in its ideal form and the line are to be drawn where the average
man, moral man begins to feel embarrassed 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.”122

3.7.7. Right to Fly National Flag

The Supreme Court in Union of India v. Naveen Jindal123 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(1)(a) of the Constitution, being an
expression and show of his allegiance and feelings and sentiments of pride for

122. A.I.R. 1971, S.C. 481

123. A.I.R. 2004, S.C. 1559 (2004), 2 S.C.C. 476

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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
restrictions 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 Honor Act, 1971, regulate the use of the National Flag.

3.7.8. Right to Remain Silent

In Bijoe Emmanuel v. State of Kerala124, three children belonging to

Jehovah‟s Witnesses were debar from the school for refusing to sing the
National Anthem during school prayers. They used to stand up respectfully, but
did not join in singing it. The Kerala High Court upheld their expulsion from
the school on the ground for which they committed an offence under the
Prevention of Insults to National Honors Act, 1971.

However, the 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 or 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(1) (a) of the
Constitution which also included freedom of silence.

124. A.I.R. 1987, S.C. 748, (1986), 3 S.C.C. 615.

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3.8. Summary

Right to freedom of speech and expression is the human rights which is

guaranteed in the almost all the written Constitutions of the democratic
countries which include freedom of press also. The freedom of speech and
expression is a very important fundamental right. It is essential for the
development of one‟s own individuality and for the success of parliamentary
democracy. It is said that, the right to free expression is not only the right of an
individual but rather a right of the society to hear and be informed in a
democracy.

The right to freedom of expression is recognized as a human right under

article 19 of the Universal declaration of Human Rights and acknowledged in
International Human Rights law in the 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 expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other
media of his choice”. Article additionally States that the exercise of these
rights carries“special duties and responsibilities” and may “therefore be subject
to certain restrictions, when necessary for respect of the right or reputation of
others or for the protection of national security or of (public order), or of public
health or morals”. Concept of freedom of speech can be found in early human
rights documents. England‟s Bill of Rights 1689 legally established the
Constitutional right of „freedom of speech in Parliament‟ which is still in
effect. The Declaration of the Rights of Man and of the Citizen, adopted during
the French Revolution in 1789, specifically affirmed freedom of speech as an
inalienable right.

Now a days, freedom of speech, or the freedom of expression, is

acknowledged in international and regional human rights law. The right is
incorporate in Article 19 of the African Charter on Human and Peoples Right.

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Based John Milton‟s arguments freedom of speech is understood as a multi-
faceted right that includes not only the right to express or disseminate
information and ideas, but three further distinct aspects, the right to seek
information and ideas; the right to receive information and ideas; the right to
impart information and ideas.

International, regional and national slandered also acknowledged that

freedom of speech, as the freedom of expression, includes any method, orally,
in written, in print, through the internet or through art forms. This means that
the protection of freedom of speech as a right encompass not only the content
but also the means of expression.

The right to freedom of speech and expression is closely related to other

rights, and may be restricted when conflicting with other rights, to privacy, fair
trial as well as the honor and reputation of others. However greater latitude is
given when criticism of public figures is involved.

John Stuart Mill attempt to establish standards for the relationship

between authority and liberty, Mill professes that in order to be right one
should have the possibility to be wrong, and that there for liberty is necessary
to the investigation and finding of truth. He stated in his 1859 classic on
Liberty.

John Milton also argued for freedom of speech and expression and his
consecrated and understood as multi faced right that freedom of expression
include not only right to express, or disseminate, information and ideas, but
three further distinct aspects: The right to seek information and ideas; the right
to receive information and ideas; the right to impart information and ideas.

John Lock also gave the importance to the freedom of expression;

according to him freedom of expression is the basic right of human beings
which authorize them to find out the truth. According to John Rawls first
principle of justice, each person have an equal right to the most ample basic
liberty compatible with a similar liberty for others, the basic liberties of citizens
are the political liberty to vote and run for office, liberty of conscience,freedom
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of speech and assembly freedom of personal liberty and freedom from arbitrary
arrest.

Eric Barnett defends the right to freedom of speech and expression on

the ground of democracy. Thomas I. Emerson spread it by saying that freedom
of speech helps to provide a balance between stability and change.

Alexander Meiklejohntry to strengthen relationship between right to

freedom of speech and expression a democratic system, Freedom of speech
have very basic principle which exists in the democracy.

Richard Moon has developed argument that the values of freedom of

speech and freedom of expression rest with social interactions. Moon writes,
“by communicating an individual forms relationships and associations with
others like family, friends, co-workers and countrymen. By entering into
discussion with others an individual participates in the development
ofknowledge and in the direction of the community”.

Freedom of speech and expression is guaranteed by several

Constitutions in the world. They are: South Africa Bill of Rights, chapter 2 and
section 16 of Constitution, Hong Kong Basic Law Art.27., and India Art. 19(1)
(a) of the Indian Constitution, Japanese Constitution chapter III Article 21,
Pakistan Art. 19 of the Constitution of Pakistan, China Art.35 of the
Constitution of the People‟s Republic of China, Under the Constitution of the
Philippines 1987, Article III section 4 Thailand Constitution which provide for
freedom of expression, in Denmark granted freedom of speech in sec. 77, in
Finland section 12 of the Constitution, France declaration of the right of man
and the Citizen, having Constitutional value an in this declaration its Article 11
, Basic law of Federal Republic of Germany Art.5, Fundamental law of
Hungary established in its Article VII, VIII, IX, and X right to freedom of
expression , speech, press, thought, conscience, religion, the Constitution of the
Italy Article 21, Under the Dutch Grondwet Article 7 , in the Constitution of
Sweden chapter 2, in United Kingdom Article 10 of the domestic law Human
Right Act, 1998, Article of 16 of the Swiss Constitution, the Constitution of

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Turkey Article 26, Canadian charter of rights and freedoms under the section
2(b), In the United States Constitution by 1st amendment in the year 1791, in
the Constitution of Brazil under the Article.

The earliest demand for a declaration of fundamental Rights arose in

India in 1928, however certain concessions were made. In the Government of
India Act, 1935,however, when the juncture arose to draft the Constitution for
independent India. The Constitution assembly adopted the objectives resolution
moved by Pandit Nehru, stating that the object of the Constitution Assembly
was to draw up a Constitution. The people of India gave to themselves, the
Constitution of India, with a view make it Sovereign, Democratic, Socialist,
secular and Republic. In our democratic society, pride to place has been
provided to freedom of speech and expression, which is mother of all liberties.
The right of free speech is absolutely indispensable for the prevention of a free
society in which government is based upon the consent of an informed
citizenry and is dedicated to the protection of the rights of all, even the most
dislike minorities.

In order to give effect to this objective, “freedom of speech and

expression” has been guaranteed as a fundamental rights under Article 19(1)(a)
available to all citizens, subject only to restrictions which may be imposed by
the State under clause (2) of that Article. The relevant portion of Article 19
read as follows:

Article19. (1) (a) indicate that All citizens shall have rights to Freedom
of speech and expression; (2) nothing in sub clause (a) of clause (1), shall
effect the operation of any existing law, or prevent the State from making law,
in so far as such law imposed reasonable restrictions on the exercise of the right
conferred by the said sub-clause 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.

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 The fundamental right of the freedom of press includes the freedom of
speech and expression, is necessary for the political liberty and proper
functioning of democracy. The Indian Press Commission says, "Democracy
can thrive not only under the vigilant eye of legislature, but also under the care
and guidance of public opinion and the press is par excellence, the vehicle
through which opinion can become articulate." Unlike the American
Constitution, Art. 19 (1) (a) of the Indian Constitution does not expressly
mention the liberty of the press but it has been held that liberty of the press is
included in the freedom of speech and expression.

The right to know, 'receive and impart information has been recognized
within the right to freedom of speech and expression. 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(1)(a) and the right to life and personal liberty
under Article 21 of the Constitution.

It can be easily concluded that right to freedom of speech and expression

is one of the most necessary fundamental rights. It includes circulating one‟s
views by words or in writing or through audio-visual instrumentalities,
advertisements or through any other communication means. It also content of
right to information, freedom of press etc. Thus, this fundamental right has an
extensive 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.

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