9 Right to Free Speech and Expression under the Constitution of India

Prof. Abhishek Sudhir

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constitutionally recognized components of an individual’s right to freedom of speech and expression;
• To help the students understand the manner in which the right to freedom of speech and expression is protected by the constitution.

2. Introduction (Voice Over)

The right to free speech and expression is the bedrock of Indian democracy. An environment in which one can feel free to express one’s thoughts and opinions without any hesitation is essential for the social, economic and cultural progress of the country. With this in mind, the Supreme Court of India has interpreted the article 19(1)(a) of the constitution in a liberal manner and has judicially created several rights, some of which could not have been anticipated by the framers of the constitution themselves. This module will discuss some of these constitutional developments in which the right to freedom of speech and expression has been used to protect rights not explicitly mentioned in the constitution but implicit in its spirit.

3. Freedom of Speech and Constitution of India

The right to freedom of speech and expression has been set out in Article 19(1) (a) of the

Constitution:

“Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right

(a) to freedom of speech and expression;”

Certain restrictions on this right have been placed under Article 19(2) of the Constitution:

“(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the 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”

The text of the Constitution is simple and brief and does not answer questions such as what constitutes ‘expression’ or as to whether ‘freedom of press’ is protected? These questions have been answered by the Supreme Court in its various judgments.

3.1 Importance of Free Debate in Democracy

India is a democratic nation and democracy is entwined with the concept of free speech. Democracy is after all based on the idea that every person should have his/her say in the government i.e. government of the people, by the people, for the people. The Supreme Court has observed that:

“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential”.

3.2 – Right to not hear

Freedom of speech and expression includes the freedom to express opinions. Conversely does it include the freedom to not be forced to be receptive to these ideas? Answering in the affirmative, the Supreme Court has held that this right comprehends the freedom to be free from what one desires to be free from. Imposing a ban on the use of loudspeakers, the Court observed that a loudspeaker forces a person to hear what he wishes not to hear. The Court has also held that the use of a loudspeaker is incidental to the exercise of the right, but in and of itself does not constitute a right to express opinions.

3.3 – Right to Receive Information

In a public interest litigation filed by the People’s Union for Civil Liberties, the issue was whether a voter has the right to receive relevant information, such as assets, qualification and involvement in offence for being educated and informed for judging the suitability of a candidate contesting election as MP or MLA?

The Court held that the right of the citizens to obtain information on matters relating to public acts flows from the Fundamental Right enshrined in Art. 19(1)(a). Having access to basic details of candidate contesting elections for Parliament or state assemblies will help the voter make informed choice when exercising his or her franchise. Thus, the right to information has been held to be an intrinsic part of Article 19 by the Supreme Court of India.

3.4 – Freedom of the Press

The Government in the 1970s, in order to curb the freedom of the press, put in place a “news print policy”. The policy imposed ownership restrictions, limits on the number of pages a newspaper could carry among other things. The government justified these restrictions as a manner of regulating the supply of newsprint quota to newspapers. The Supreme Court held that object of the policy was not relevant as the restrictions were excessive and prohibitive, thereby directly affecting the circulation of newspapers. The Court held that the liberty of the press included the right to free propagation and free circulation without any prior restraint.

In a similar case, the Government through an amendment excluded newspapers from the purview of goods and consequentially charged a higher rate of tax on them. Striking down the amendment, the Court held:

“Freedom of the press is not expressly guaranteed as a Fundamental Right, it is implicit in the freedom of speech and expression. Freedom of press has always been a cherished right in all democratic countries. The newspapers not only purvey news but also ideas, opinions and ideologies besides much else. They are supposed to guard public interest by bringing to fore the misdeeds, failings and lapses of the Government and other bodies exercising governing power. Rightly, therefore, it has been described as the Fourth Estate. The democratic credentials of a State are judged today by the extent of freedom the press enjoys in that State.”

3.5 – Right to receive and impart information

In the Cricket Association of West Bengal (CAB) case, Doordarshan denied the CAB permission to telecast cricket matches through a frequency not owned or controlled by government of India but owned by a foreign satellite agency. Aggrieved by Doordarshan’s stance on the issue, CAB approached the Court arguing that the game of cricket provided entertainment to the public and was a form of speech and expression under 19 (1) (a), which included a right to telecast the matches and broadcast it to the public.

The Court in agreement with the petitioner held that freedom of speech and expression includes the right to acquire information and to disseminate the same. The right to communicate therefore means the right to communicate through any media that is available, whether print or electronic or audio-visual such as advertisements, articles, speech etc. and includes the freedom to communicate and circulate one’s views.

The right to freedom of speech and expression includes the right to educate, the right to inform, and to entertain and also right to be educated, informed and entertained. The former is the right of the telecaster and the latter the right of the viewers. The right to impart and receive information is a species of the right to freedom of speech and expression, and a citizen has the right to use the best means possible of imparting and receiving information.

3.6 – Right to Commercial Speech

In a case where Tata Press Ltd wanted to publish a telephone directory, Mahanagar Telephone Nigam Ltd. (MTNL) forbade them from doing so claiming an exclusive right to publish telephone directories under the Telegraphs Act 1885.

The court rejected MTNL’s contention and held that commercial advertisement is a form of speech and expression as they disseminate information through advertisement.

3.7- Right to remain silent and Right to Demonstration

In a case where the Government had imposed a complete ban on civil servants from participating in any form of demonstration, striking down the rule in question the Court held that demonstration being visible representation of ideas would be protected as a form of speech provided they are not violent and disorderly. In another case court has held that Article 19(1) (a) includes in itself the right to remain silent.

3.8- Right Against Telephone Tapping

A public interest litigation was filed by PUCL in wake of a leaked report “Tapping of politicians phones” allegedly written by the Central Bureau of Investigation8. The court held that telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.

It further held that right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression.

3.9 – Right to use the media to answer the criticism levelled against the propagated view.

Manubhai wrote an article suggesting that the Life Insurance Corporation of India (LIC) was charging unduly high premiums from its insurance policy subscribers9. The LIC acted by publishing a rejoinder in the daily national newspaper and its in-house magazine ‘Yogakshema’. Manubhai now wrote another article rebutting what LIC wrote in its rejoinder and asked LIC to publish it in its in-house magazine. His request was turned down by LIC and as a result he approached the court.

The court held that the attitude of the LIC was both “unfair and unreasonable. It was unfair because fairness demanded that both viewpoints were placed before the readers and unreasonable because there was no justification for refusing publication. By refusing to print and publish the rejoinder, LIC had violated the respondent’s Fundamental Right. The Court further held that every citizen of this free country, therefore, has the right to air his or her views through the print and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. The right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him.

3.10 – Right to exhibit films on television

In Odyssey Communications Pvt. Ltd, the Supreme Court had to decide whether certain episodes of the television show in question should be prohibited from being telecast10. The Court answering in the negative held that the right of a citizen to exhibit films on Doordarshan, subject to the terms and conditions imposed by Doordarshan, is a part of the Fundamental Right of freedom of expression guaranteed under Art. 19(1)(a) which can be curtailed only under the circumstances set out in Art. 19(2).

Lokvidayan Sanghatana, the petitioner in this case had contended that show was likely to spread false or blind beliefs amongst the members of the public. The court however rejecting the contention held that the episodes in question did not violate any law or any right of the petitioners nor was the serial likely to affect prejudicially the wellbeing of the people. The showing of these episodes was not likely to endanger public morality and thus could not be restrained from being telecasted.

The court concluded by holding that a citizen’s right to exhibit films on television “is similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisements, hoardings etc., subject to the terms and conditions of the owners of the media.”

3.11 – Right Against Pre-Censorship

The Government of India had issued directions under Section 7(1)(c) of the East Punjab Public Safety Act to the editor and publishers of a newspaper, asking them to submit for scrutiny, in duplicate, all news stories about communal matters, news and views about Pakistan11. The direction was struck down as violative of Article 19(1) (a) for imposing an unreasonable restriction not justified under 19(2). The court held that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression guaranteed by Article 19(1) (a).

3.12 – Reasonable Restrictions

Article 19(2) uses the phrase ‘reasonable restrictions’ but the phrase has not been defined anywhere in the Constitution. Reasonableness is subjective as what may be reasonable to one person may be completely unreasonable to another. In order to solve this dilemma, the Court has come up with certain tests for determining reasonability. Some of the widely used tests are given below:-

O. K. Ghosh v. Ex. Joseph – The restriction imposed should be reasonable and be “rationally proximate and in nexus with public interest”.

Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai – The reasonableness should be determined in an objective manner and from the angle of the general public’s interest and not from the viewpoint of the person upon whom the restriction are imposed.

4. Summary

The freedom given under Article 19(1)(a) is ever expanding and is not confined to traditional understandings of free speech. As demonstrated above, the Supreme Court of India has innovatively expanded the scope of the right to include the right to receive information, the right to commercial speech, the right to remain silent and the right to impart information.

Reference

• J Basu, Durga Das. Introduction to the Constitution of India. (21st Edn. , 2013) Lexis Nexis Butterworths Wadhwa.”
• Jain, M. P. “Indian Constitutional Law,(6th Edn. Vol. 1, 2010) Lexis Nexis Butterworths Wadhwa.”
• Seervai, Hormasji M. Constitutional law of India: a critical commentary. Vol. 1. NM Tripathi, 1975.
• Damania, Farzad. “Internet: Equalizer of Freedom of Speech-A Discussion on Freedom of Speech on the Internet in the United States and India, The.” Ind. Int’l & Comp. L. Rev. 12 (2001): 243. (https://journals.iupui.edu/index.php/iiclr/article/download/17749/17932)
• Tiwari, Shishir, and Ghosh, Gitanjali. ‘Social Media And Freedom Of Speech And Expression: Challenges Before The Indian Law’. Academia. N.p., 2014. Web. 10 Nov. 2014. (https://www.academia.edu/4117408/Social_Media_and_Freedom_of_Speech_and_Expressi on_Challenges_before_the_Indian_law)