The Restricted Quantum of Freedom of Speech and Expression

By Ankit Kumar 15 Minutes Read

Introduction

Freedom of Speech and Expression under Article 19(1)(a) is regarded as one of the basic human rights and natural rights given to humans by the virtue of their being human. It is regarded as the first condition of liberty[1] and mother of all other liberties as no rights can be demanded or exercised without having the right to freedom of speech and expression. Thus, it is a means to exercise all other rights available to a citizen of the country. It gives succour and protection to all other liberties. However, this right is restricted by Article 19(2) in the interest of the sovereignty and integrity of India, security of the State, Public order, decency and morality and also Contempt of Courts Act and defamation.[2] Thus, the quantum of freedom of Speech and Expression via provisions of reasonable restrictions under Article 19(2) of the Constitution,

Reasonable Restrictions and its ambit

• The reasonable restrictions under article 19(2) can be classified into two sets. First referable to national interest and second to society.
• The first set of grounds are the sovereignty and integrity of India, the Security of the State, friendly relations with foreign States and public order and the second set of grounds are decency or morality, contempt of court, defamation or incitement to an offence.
• The expression ‘reasonable restriction’ as observed in the case of Chintaman Rao v. the State of MP, 1950[3] connotes the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.[4]
• Thus, the legislature cannot impose arbitrary restriction on freedom of speech and expression. As held by Supreme Court in the case of Sakal Papers(P) Ltd. v. the Union of India, 1962[5] freedom of speech can be restricted only in the interest of 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.

Sovereignty and Integrity of India

• “Sovereignty” means “supremacy in respect of power, dominion or rank; supreme dominion authority or rule”[6].
• The Preamble to the Constitution declares India as a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and it is free to govern and take decisions in the matters related to its internal and external affairs.
• An act which is derogatory to the supremacy of our Constitution or is prejudicial to the nation’s power of self-governance, can be considered as prejudicial to the sovereignty and integrity of India.

Security of the State

• All rights are exercisable when a nation is safe and secure and for the same purpose Article 19(2) also imposes reasonable restriction on the grounds of security of the states.
• If the right to freedom of speech and expression of a person is a threat to the security of the state it can be curtailed.
• However, there exists a confusion among the public order, security of the state and law and order.
• The Supreme Court in the case of Dr. Ram Manohar Lohia v. State of Bihar & Ors., 1966[7] made distinction among them. The “public order” was said to comprehend disorders of less gravity than those affecting “security of the State”, “law and Order” also comprehends disorders of less gravity than those affecting “public Order”.
• The Court further said that one has to imagine three concentric circles. Law and Order represents the largest circle within which is the next circle representing public order and smallest circle represents security of the state[8] and the gravity of disorder increases towards the centre.

Friendly relations with foreign States

In the age of globalisation where ‘world is one,’ friendly relations with other States is very necessary. The COVID pandemic also marks its importance. Thus, the speech and expression which is derogatory to the nation for whom we have friendly relations bears an adverse impact on our foreign affairs.

Public Order

• By the 1^st Constitutional Amendment Act, 1951, ‘Public Order’ as a reasonable restriction added to the article 19(2) of the constitution and as per the seventh schedule the law-making power related to this subject is in the hands of States.
• It comes under Entry I, List II of the Seventh Schedule.
• In the case of Romesh Thappar v. State of Madras,1950[9] the Supreme court held that the expression ‘public order’ signifies a state of tranquility. Also, it is synonymous to the public safety and tranquility as held in the case of Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, 1960.[10]
• However, In Arun Ghosh v. State of West Bengal, 1970[11] the court observed the need to distinguish public order with the law and order. The Court observed that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the Public Order is a question of degree and the extent of the reach of the act upon the society.[12]
• In this regard, the act of theft which affects an individual is a branch of law and order. And if an act affects the community, then it comes under the ambit of public order. A beautiful observation concerning this made by Hon’ble Justice Patanjali Sastri in the case of Machindar Shivaji v. The King, 1950 that an offence or a breach of law which has no effect at all on the public peace and tranquility cannot taken to be an offence endangering public order.[13]

Decency or Morality

• The fundamental right of freedom of speech and expression is restricted on the grounds of ‘decency’ and ‘morality,’ but it is a very vague term.
• There is lack of yardstick to determine what is moral or decent at a time as the thing which is moral to one may be immoral to another as the apex Court rightly held in the case of Chandrakant Kalyandas Kakodkar v. State of Maharashtra[14] its notions vary from country to country.
• Further, the Supreme Court remarked in the case of Baragur Ramachandrappa v. State of Karnataka[15] that what may be laughable allegations to a progressive people could appear as sheer heresy to a conservative or sensitive one.
• Thus, the concept of morality or decency not only differs from person to person, but also from society to society and from time to time.
• With its beautiful judicial interpretation Hon’ble Supreme Court in the case of K.A Abbas v. union of India observed that sex and obscenity are not always synonymous and that it was wrong to classify sex as essentially obscene or even indecent, or obscene.[16]

Contempt of Court

• The Court has the duty to protect the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court.[17]
• The Supreme Court and the High Courts as a Court of record under Article 129 and 225 inherently possess the power to punish for its contempt. Criminal Contempt is defined and penalised under Contempt of Court Act, 1971.
• According to the Act, ‘Criminal Contempt’ means any publications which scandalises or lowers (or tends to) the authority of any court; interferes with the due course of judicial proceedings; or interferes or obstructs (or tends to) the administration of justice in any other manner.
• However, in the case of Aswini Kumar Ghose v. Arabina Bose[18] and Haridas das v. Usha Rani Banik,[19] the Supreme Court recognised the right to criticise judgment. The apex Court in the case of Rajendra Sail v. M.P. High Court Bar Association[20] observed that the judgements of courts is a public document and can be commented upon, analysed and criticized but in a dignified manner without attributing motives.

Defamation

• In simple words, defamation means ‘defaming a person’ and it is punishable under both civil and criminal jurisdiction. It is a criminal offence u/s 499 of IPC (prior to 1^st July 2023) and Section 356 of BNS.  
• A person’s reputation is considered as his property and central to human existence. Reputation is an integral and important part of the dignity of the individual[21] and the law of defamation seeks to protect the individual against damage to its reputation.
• Defamation can take any of these two forms: libel or slander.
• When the publication of a defamatory statement is expressed in some permanent form (writing, printing, pictures, statue), it is considered libel, while when it is orally expressed or transmitted, it is slander.
• The purpose of adding defamation as a reasonable restriction is observed by the Supreme Court in Om Prakash Chautala v. Kanwar Bhan, 2014[22] that “the reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud …….and no one like to have his reputation dented.”[23]

Evolved rights under Article 19(1)(a)

• Despite these eight heads of reasonable restrictions under Article 19(2), Article 19(1)(a) is among the most evolved rights of the constitution and provides various sets of rights to the citizens of India.
• It includes Right to Publications and Circulation, Right to dissent, Right to advertisement, Right to portray social evils and historical events, Right to receive information and right to choose medium of instruction, Reporting Court and Judicial proceedings, Right to silence and Others.

Conclusion

The right to freedom of speech and expression has a very wide range of application, however its quantum is restricted by reasonable restrictions so that one’s right does not surpass the boundary of the rights of the others. It envisaged dissemination of all kinds of views, both popular and unpopular,[24] at the same time that view should not be with malice. This right is very essential for a democratic to thrive and develop intellectually. Thus, it is necessary that restriction imposed upon it should be reasonable and serve the public and national interest not the interest of the government body.

[1] Re: Ramlila Maidan Incident Dt. 4/5.06.2011 v. Home Secretary, Union of India & Ors. 2012) 5 SCC 1, 2012) 2 SCC (Crl) 241.

[2] Sanjay Narayan, Editor-in-Chief Hindustan v. Hon. High Court Of Allahabad, JT 2011 (10) SC 74.

[3] (1950) SCR 759.

[4] Ibid.

[5] (1962) 3 SCR 842.

[6] Sardar Govindrao v. State of MP (1982) 2 SCC 414.

[7] (1966) 1 SCR 709.

[8] Ibid.

[9] (1950) SCR 594.

[10] (1960) 2 SCR 821.

[11] (1970) 3 SCR 288.

[12] Ibid.

[13] Machindar Shivaji v. The King, AIR 1950 FC 129 (T).

[14] (1969) 2 SCC 687.

[15] (2007) 5 SCC 11

[16] K.A Abbas v. Union of India, (1970) 2 SCC 780.

[17] Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406.

[18] AIR 1953 SC 75.

[19] (2007) 14 SCC 1.

[20] (2005) 6 SCC 109.

[21] Reynolds v. Times Newspapers Ltd. (2001) 2 AC 127.

[22] (2014) 5 SCC 417.

[23] Ibid.

[24] S. Khusboo v. Kanniammal, (2010) 5 SCC 600.

Ankit Kumar