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Freedom of expression in India

The Constitution of India provides the right to freedom, information, misinformation and non-information, all
given in articles 19, 20, 21 and 22, with the view of equally create an uninformed citizenry which makes
guaranteeing individual rights that were considered vi- democracy a farce. Freedom of speech and expression
tal by the framers of the constitution. The right to free- includes right to impart and receive information which
dom in Article 19 guarantees the Freedom of speech and includes freedom to hold opinions”.
expression, as one of following six freedoms:[1] In Indian Express v. Union of India,[6] it has been held
that the press plays a very significant role in the demo-
cratic machinery. The courts have duty to uphold the
1 Constitutional law freedom of press and invalidate all laws and administra-
tive actions that abridge that freedom. Freedom of press
has three essential elements. They are:1. freedom of ac-
Main Article Fundamental Rights in India
cess to all sources of information,[7] 2. freedom of pub-
In a landmark judgement of the case Maneka Gandhi v. lication, and 3. freedom of circulation.[4]
Union of India,[2] the Supreme Court held that the free-
In India, the press has not been able to practise its free-
dom of speech and expression has no geographical limi-
dom to express the popular views. In Sakal Papers Ltd.
tation and it carries with it the right of a citizen to gather
v. Union of India,[8] the Daily Newspapers (Price and
information and to exchange thought with others not only
Page) Order, 1960, which fixed the number of pages and
in India but abroad also.
size which a newspaper could publish at a price was held
The constitution of India does not specifically mention to be violative of freedom of press and not a reasonable
the freedom of press. Freedom of press is implied from restriction under the Article 19(2). Similarly, in Bennett
the Article 19(1)(a) of the Constitution. Thus the press Coleman and Co. v. Union of India,[9] the validity of
is subject to the restrictions that are provided under the the Newsprint Control Order, which fixed the maximum
Article 19(2) of the Constitution. Before Independence, number of pages, was struck down by the Supreme Court
there was no constitutional or statutory provision to pro- of India holding it to be violative of provision of Article
tect the freedom of press. As observed by the Privy Coun- 19(1)(a) and not to be reasonable restriction under Article
cil in Channing Arnold v. King Emperor:[3] “The freedom 19(2). The Court struck down the rebuttal of the Govern-
of the journalist is an ordinary part of the freedom of the ment that it would help small newspapers to grow.
subject and to whatever length, the subject in general may
In Romesh Thapar v. State of Madras (1950 SCR 594,
go, so also may the journalist, but apart from statute his
607; AIR 1950 SC 124), entry and circulation of the
privilege is no other and no higher. The range of his as-
English journal “Cross Road”, printed and published in
sertions, his criticisms or his comments is as wide as, and
Bombay, was banned by the Government of Madras. The
no wider than that of any other subject”. The Preamble
same was held to be violative of the freedom of speech
of the Indian Constitution ensures to all its citizens the
and expression, as “without liberty of circulation, publi-
liberty of expression. Freedom of the press has been in-
cation would be of little value”. In Prabha Dutt v. Union
cluded as part of freedom of speech and expression under
of India ((1982) 1 SCC 1; AIR 1982 SC 6.), the Supreme
the Article 19 of the UDHR. The heart of the Article 19
Court directed the Superintendent of Tihar Jail to allow
says: “Everyone has the right to freedom of opinion and
representatives of a few newspapers to interview Ranga
expression, this right includes freedom to hold opinions
and Billa, the death sentence convicts, as they wanted to
without interference and to seek, receive and impart in-
be interviewed.
formation and ideas through any media and regardless of
frontiers.” There are instances when the freedom of press has been
suppressed by the legislature. The authority of the gov-
In Romesh Thapar v. State of Madras,[4] Patanjali Shas-
ernment, in such circumstances, has been under the scan-
tri, CJ observed: “ Freedom of speech and of the press
ner of judiciary. In the case of Brij Bhushan v. State of
lay at the foundation of all democratic organisations, for
Delhi (AIR 1950 SC 129), the validity of censorship pre-
without free political discussion no public education, so
vious to the publication of an English Weekly of Delhi,
essential for the proper functioning of the process of pop-
the Organiser was questioned. The court struck down the
ular government, is possible.”
Section 7 of the East Punjab Safety Act, 1949, which di-
The Supreme Court observed in Union of India v. Assn. rected the editor and publisher of a newspaper “to submit
for Democratic Reforms:[5] “Onesided information, dis-

1
2 1 CONSTITUTIONAL LAW

for scrutiny, in duplicate, before the publication, till the law and order, public order, security of State. Anything
further orders , all communal matters all the matters and that disturbs public peace or public tranquillity disturbs
news and views about Pakistan, including photographs, public order.[13] But mere criticism of the government
and cartoons”, on the ground that it was a restriction on does not necessarily disturb public order.[14] A law pun-
the liberty of the press. Similarly, prohibiting newspaper ishing the utterances deliberately tending to hurt the reli-
from publishing its own views or views of correspondents gious feelings of any class has been held to be valid as it is
about a topic has been held to be a serious encroachment a reasonable restriction aimed to maintaining the public
on the freedom of speech and expression.[10] order.[15]
It is also necessary that there must be a reasonable nexus
1.1 Restrictions between the restriction imposed and the achievement of
public order. In Superintendent, Central Prison v. Ram
Under Indian law, the freedom of speech and of the press Manohar Lohiya (AIR 1960 SC 633), the Court held the
do not confer an absolute right to express one’s thoughts Section 3 of U.P. Special Powers Act, 1932, which pun-
freely.Clause (2) of Article 19 of the Indian constitution ished a person if he incited a single person not to pay or
enables the legislature to impose certain restrictions on defer the payment of Government dues, as there was no
free speech under following heads: reasonable nexus between the speech and public order.
Similarly, the court upheld the validity of the provision
empowering a Magistrate to issue directions to protect
• I. security of the State, the public order or tranquillity.[16]
• II. friendly relations with foreign States, Decency and morality: The word 'obscenity' is identical
with the word 'indecency' of the Indian Constitution. In
• III. public order,
an English case of R. v. Hicklin,[17] the test was laid down
• IV. decency and morality, according to which it is seen 'whether the tendency of the
matter charged as obscene tend to deprave and corrupt
• V. contempt of court, the minds which are open to such immoral influences’.
This test was upheld by the Supreme Court in Ranjit D.
• VI. defamation,
Udeshi v. State of Maharashtra (AIR 1965 SC 881). In
• VII. incitement to an offence, and this case the Court upheld the conviction of a book seller
who was prosecuted under Section 292, I.P.C., for selling
• VIII. sovereignty and integrity of India. and keeping the book Lady Chatterley’s Lover. The stan-
dard of morality varies from time to time and from place
Reasonable restrictions on these grounds can be imposed to place.
only by a duly enacted law and not by executive action.[11] Contempt of court: The constitutional right to freedom of
Security of the State: Reasonable restrictions can be im- speech would not allow a person to contempt the courts.
posed on the freedom of speech and expression, in the The expression Contempt of Court has been defined Sec-
interest of the security of the State. All the utterances tion 2 of the Contempt of Courts Act, 1971. The term
intended to endanger the security of the State by crimes contempt of court refers to civil contempt or criminal
of violence intended to overthrow the government, wag- contempt under the Act. But judges do not have any gen-
ing of war and rebellion against the government, external eral immunity from criticism of their judicial conduct,
aggression or war, etc., may be restrained in the interest provided that it is made in good faith and is genuine crit-
of the security of the State.[12] It does not refer to the or- icism, and not any attempt to impair the administration
dinary breaches of public order which do not involve any of justice. In In re Arundhati Roy ((2002) 3 SCC 343),
danger to the State.[4] the Supreme Court of India followed the view taken in the
American Supreme Court (Frankfurter, J.) in Pennekamp
Friendly relations with foreign States: This ground was
v. Florida (328 US 331 : 90 L Ed 1295 (1946)) in which
added by the Constitution (First Amendment) Act of
the United States Supreme Court observed: “If men, in-
1951. The State can impose reasonable restrictions on
cluding judges and journalists, were angels, there would
the freedom of speech and expression, if it tends to jeop-
be no problem of contempt of court. Angelic judges
ardise the friendly relations of India with other State.
would be undisturbed by extraneous influences and an-
Public order: This ground was added by the Constitution gelic journalists would not seek to influence them. The
(First Amendment) Act, 1951 in order to meet the situa- power to punish for contempt, as a means of safeguard-
tion arising from the Supreme Court’s decision in Romesh ing judges in deciding on behalf of the community as im-
Thapar, s case (AIR 1950 SC 124). The expression 'pub- partially as is given to the lot of men to decide, is not a
lic order' connotes the sense of public peace, safety and privilege accorded to judges. The power to punish for
tranquillity. contempt of court is a safeguard not for judges as per-
In Kishori Mohan v. State of West Bengal, the Supreme sons but for the function which they exercise”. In E.M.S.
Court explained the differences between three concepts: Namboodripad v. T.N. Nambiar ((1970) 2 SCC 325; AIR
3

1970 SC 2015), the Supreme Court confirmed the de- For the first half-century of independence, media con-
cision of the High Court, holding Mr. Namboodripad trol by the state was the major constraint on press free-
guilty of contempt of court. In M.R. Parashar v. Farooq dom. Indira Gandhi famously stated in 1975 that All In-
Abdullah ((1984) 2 SCC 343; AIR 1984 SC 615.), con- dia Radio is “a Government organ, it is going to remain
tempt proceedings were initiated against the Chief Min- a Government organ...” [21] On 26 June 1975, the day
ister of Jammu and Kashmir. But the Court dismissed after the so-called emergency was declared in violation
the petition for want of proof. of the natural rights of Indian citizens, the Mumbai edi-
Defamation: The clause (2) of Article 19 prevents any tion of The Times of India in its obituary column car-
ried an entry that read “D.E.M O'Cracy beloved husband
person from making any statement that injures the rep-
utation of another. With the same view, defamation has of T.Ruth, father of L.I.Bertie, brother of Faith, Hope
and Justica expired on 26 June”.[22] With the liberalisa-
been criminalised in India by inserting it into Section 499
of the I.P.C. tion starting in the 1990s, private control of media has in-
creased, leading to increasing independence and greater
Incitement to an offence: This ground was also added by scrutiny of government. Organisations like Tehelka and
the Constitution (First Amendment) Act, 1951. The Con- NDTV have been particularly influential, e.g. in bring-
stitution also prohibits a person from making any state- ing about the resignation of powerful Haryana minister
ment that incites people to commit offence. Venod Sharma. In addition, laws like Prasar Bharati act
Sovereignty and integrity of India: This ground was passed in recent years contribute significantly to reducing
also added subsequently by the Constitution (Sixteenth the control of the press by the government.
Amendment) Act, 1963. This is aimed to prohibit anyone
from making the statements that challenge the integrity
and sovereignty of India. 3 Sedition
According to the English Law, sedition embraces all the
2 Practical constraints and curtail- practices whether by word or writing which are calculated
to disturb the tranquillity of the State and lead an ignorant
ments person to subvert the Government.[23] Basic criticism of
the government is not seen as sedition unless the Govern-
• Freedom of speech and expression, which enable an ment believes that it was calculated to undermine the re-
individual to participate in public activities. The spect for the government in such a way so as to make peo-
phrase, "freedom of press" has not been used in Ar- ple cease to obey it.[24] Section 124A of the Indian Penal
ticle 19, though freedom activists, as well as most Code defines the offence of sedition as follows: “Sedi-
scholars and industrialised jurisdictions throughout tion. Whoever by words, either spoken or written, or by
the world recognise that freedom of expression in- signs, or by visible representation, or otherwise, brings or
cludes freedom of press. Reasonable restrictions can attempts to bring into hatred or contempt, or excites or
be imposed in the interest of public order, security attempts to excite disaffection towards, the Government
of State, decency or morality. established by law in India, shall be punished with im-
prisonment for life, to which fine may be added, or with
According to the estimates of Reporters Without Bor- imprisonment which may extend to three years, to which
ders, India ranks 120th worldwide in press freedom in- fine may be added, or with fine”. But Explanation 3 says
dex (press freedom index for India is 39.33 for 2007).[18] “Comments expressing disapprobation of the administra-
The Indian Constitution, while not mentioning the word tive or other action of the Government without exciting or
“press”, provides for “the right to freedom of speech and attempting to excite hatred, contempt or disaffection, do
expression” (Article 19(1) a). However this right is sub- not constitute an offence under this section”.[25] In Kedar
ject to restrictions under subclause (2), whereby this free- Nath v. State of Bihar (AIR 1962 SC 955), the court
dom can be restricted for reasons of "sovereignty and upheld the constitutional validity of the Section 124A of
integrity of India, the security of the State, friendly re- I.P.C and also upheld the view taken in Niharendu’s case.
lations with foreign States, public order, preserving de-
cency, preserving morality, in relation to contempt of
court, defamation, or incitement to an offence”. Laws 4 Bibliography
such as the Official Secrets Act and Prevention of Terror-
ism Act [19] (POTA) have been used to limit press free- • Callamard, Dr. Agnes, Freedom of Speech and Of-
dom. Under POTA, person could be detained for up to six fence: Why Blasphemy Laws Are not the Appropri-
months before the police were required to bring charges ate Response, (18 June 2006), www.google.com (as
on allegations for terrorism-related offences. POTA was a pdf)
repealed in 2004, but was replaced by amendments to
UAPA.[20] The Official Secrets Act 1923 remains in ef- • Cohen, Henry, C.R.S. Report for Congress: Free-
fect. dom of Speech and Press: Exceptions to the First
4 6 REFERENCES

Amendment, (27 August 2003), www.google.com ( [17] LR 3 QB 360.


as a pdf ).
[18] Worldwide press freedom index 2007 Reporters Without
• Liang, Lawrence, Reasonable Restrictions and Un- Borders
reasonable Speech, (2004), www.google.com ( as a [19] “The Prevention of Terrorism Act 2002”.
pdf ).
[20] Kalhan, Anil et al. (2006). “Colonial Continuities: Hu-
• Pandey, J. N., Constitutional Law of India, 42nd ed. man Rights, Antiterrorism, and Security Laws in India”.
(2005), Central Law Agency, Allahabad. 20 Colum. J. Asian L. 93. Retrieved 2009-03-24.

• Singh, M. P., Constitution of India, 10th ed. (2001), [21] “Freedom of the Press”. PUCL Bulletin, (People’s Union
Eastern Book Co., Lko. for Civil Liberties). July 1982.

• Tiwari, Dr. Mahendra, Freedom of press in In- [22] Austin, Granville (1999). Working a democratic constitu-
dia: Constitutional Perspectives, (2006), www. tion: the Indian experience. Oxford University Press. p.
supremecourtcases.com. 295. ISBN 0-19-564888-9.

• Rajak, Brajesh, Pornography Law; XXX Must not [23] R. v. Salliven, (1868) 11 Cox Cases 55.
be Tolerated, (2011) Universal Law Publishing Co. [24] Niharendra v. Emperor, AIR 1942 FC 22
Pvt. Ltd. New Delhi.
[25] Section 124A of the Code

5 See also
• Internet censorship in India

6 References
[1] Constitution of India-Part III Article 19 Fundamental
Rights.

[2] AIR 1978 SC 597.

[3] AIR 1914 PC 116, 117.

[4] Romesh Thapar v. State of Madras, AIR 1950 SC 124.

[5] Union of India v. Assn. for Democratic Reforms,(2002)


5 SCC 294.

[6] Indian Express v. Union of India,(1985) 1 SCC 641.

[7] M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395.

[8] Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305.

[9] AIR 1973 SC 106; (1972) 2 SCC 788.

[10] Virendra v. State of Punjab, AIR 1957 SC 896; Express


Newspapers v. Union of India, AIR 1958SC 578, 617.

[11] Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.

[12] State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

[13] Om Prakash v. Emperor, AIR 1948 Nag, 199.

[14] Raj Bahadur Gond v. State of Hyderabad, AIR 1953 Hyd


277.

[15] Ramjilal Modi v. State of Uttar Pradesh, AIR 1957 SC


622; 1957 SCR 860.

[16] Babulal Parate v. State of Maharashtra, AIR 1961 SC


884.
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