Balancing Liberty & Restriction - Constitutional Evolution Of Free Speech In India
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Category: Constitutional & Human Rights
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BALANCING LIBERTY & RESTRICTION:
CONSTITUTIONAL EVOLUTION OF FREE SPEECH IN INDIA Kishore Kulkarni, B. A. LL. B. , Sri Jagadguru Renukacharya College of Law, Bangalore* “To say that restraints on freedom of speech and expression are permissible under our constitution is not to say that any particular restraint is desirable or ought to be imposed” -H. M. Seervai Throughout India’s freedom struggle there was a persistent demand for a written Bill of Rights for the people of India which included guarantee of free speech. Understandably, the Founding Fathers of the Indian Constitution attached great importance to freedom of speech and expression. Their experience of waves of repressive measures during British rule convinced them of the immense value of this right in the sovereign democratic republic which India was to under its Constitution.
1 The free speech provision, in the setting of the other Fundamental Rights, is designed to afford the people of India the kind and measure of liberty available to the individual in the- United Kingdom or in the United States. The Indian Constitution does, indeed, depart from the American and British systems in major points of form, technique, and method-even as these two differ from each other. 2 The significance of freedom of speech in a democratic society cannot be overstated. It enables the free flow of information, encourages the exchange of ideas, promotes transparency and accountability, and fosters an inclusive and tolerant society. Freedom of speech acts as a vital safeguard against authoritarianism, ensuring that the voices of the people are heard, and governments are held accountable for their actions. 3 * Final Year, B. A. ,LL.
B, Sri Jagadguru Renukacharya College of Law, Bangalore 1 Raza, Aqa. "‘Freedom of Speech and Expression’s a Fundamental Right in India and the Test of Constitutional Regulations: The Constitutional Perspective. " Indian Bar Review 43. 2 (2016): 87-110, 2 Tripathi, Pradyumna K. "Free speech in the Indian constitution: Background and prospect. " Yale LJ 67 (1957): 384. 3 Jayasawal, Swapnil. “The Law of Sedition in India: A Critical Analysis in Light of Freedom of Speech Guaranteed Under the Constitution. ” Journal of Scientific Research & Technology (JSRT), vol. 1, no. 2, May 2023, pp. 11–15.
Freedom of speech and expression4 is not an absolute right in any country. There are limitations imposed. In some Constitutions they are clearly and explicitly defined. In some, like the United States of America, they are recognized later on a case-to case basis keeping in mind the compelling state interests . So, whenever one speaks about freedom of speech and expression, one must know that what is protected is the freedom to speak freely and not carelessly. One must always respect the limits imposed on the freedom guaranteed. 5 The Press, which is furthermore considered as the 'Fourth Pillar of Democracy'' wouldn't have had the capacity to work properly and legitimately, had there not been this Freedom to practice uninhibitedly.
Accordingly, it has dependably been an urgent key, to keep a check of Government, in this way empowering democracy, as the word itself signifies, 'to the people, for the people and, by the people'. 6 The framers of India’s Constitution were primarily concerned with three broad themes relating to free speech and expression Firstly, Whom should the right be given to, only citizens or non-citizens as well? Secondly, Should the right to free press be specifically recognised? Thirdly, and perhaps most importantly, what restrictions ought to be imposed on it? 7 In recognition of freedom of Press, Deshbandu Gupta in Constituent Assembly quoted Thomas Jefferson and emphasised on mentioning of freedom of press “Mr.
Jefferson, a great American Constitutionalist said: “Were it left to me to decide whether we should have Government without newspapers or newspapers without Government I should not hesitate a moment to prefer the latter. But I should mean that every man should receive these papers and be capable of reading them“. After the American Constitution was framed the article regarding the Freedom of Press was inserted in the Constitution as an amendment. I want that there should be a mention of the Freedom of Press in our Constitution also in specific terms. I am sure that time will come when the Members of our Parliament will also consider this issue and will not 4 “A realistic view of our freedom of expression requires the recognition that right of expression is somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers.
The freedom of speech, if it has to fulfil its historic mission, namely, the spreading of political truth and the widest dissemination of news, must be a freedom for all citizens in the country”. (Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 Para 158 ) 5 Puneeth, P. "Freedom of Speech and Expression in the Age of Social Media: Preliminary Thoughts on Challenges of Regulating Online Falsehoods. " Kamkus Law Journal 4 (2020): 41-57. 6 Mishra, Samarth, and Aditya Kumar Shukla. "Balancing freedom of expression and hate speech: Case of India. " Pramana Research Journal 9. 6 (2019): 1409-1419. 7 Chandrachud, A. (2017). Republic of rhetoric: Free Speech and the Constitution of India. Penguin Random House India Private Limited. hesitate in inserting an amendment regarding this and our Press will also acquire the status which it deserves in our Constitution.
”8 The original Constitution, while enumerating various rights under Article 19(1), when it referred to the right of freedom of speech in Article 19(1)(a), laid down in Article 19(2) that any law abridging the right to freedom of speech could only pass constitutional muster if it related to any of the subjects laid down in clause (2). What was conspicuous by its absence was the phrase “reasonable restriction”, which was only brought in by the first amendment to the Constitution. 9 The phrase “reasonable restriction” connotes that 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. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
10 Freedom to express and speak is the most important condition for political democracy. Law and policies are not democratic unless they have been made and subjected to democratic process including questioning and criticism. Dissent and criticism of the elected Government's policy, when puissant, deceptive, or even false would be ethically wrong, but would not invite penal action. 11 The Constitution of India confers under Article 19(1)(a), the right to freedom of speech and expression to all its citizens. The State has a correlative duty to abstain from interference with such right except as provided in Article 19(2) of the Constitution which are reasonable restrictions on the right conferred under Article 19(1)(a). The extent of such duty depends upon the content of speech.
For instance, in respect of speech that is likely to be adverse to the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, dis; or speech that constitutes contempt of court, defamation or is of such nature as would be likely to incite the commission of an offence, the duty of the State to abstain from interference, is nil. This principle is constitutionally reflected under Article 19(2) which enables
8 CAD Volume 11, 25th Nov 1949
9 Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC 703
10 Chintamanrao v. State of M.P., 1950 SCC 695
11 Amish Devgan v. Union of India, (2021) 1 SCC 1. “Article 19(1)(a) serves as a vehicle through which dissent can be expressed. The right to dissent, disagree and adopt varying and individualistic points of view inheres in every citizen of this Country. In fact, the right to dissent is the essence of a vibrant democracy, for it is only when there is dissent that different ideas would emerge which may be of help or assist the Government to improve or innovate upon its policies so that its governance would have a positive effect on the people of the country which would ultimately lead to stability, peace and development which are concomitants of good governance” ( Kaushal Kishor v. State of U. P.
, (2023) 4 SCC 163 Para 198) the State to enact law which would impose reasonable restrictions on such speech as described under the eight grounds listed hereinabove which are the basis for reasonable restrictions. 12 There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the US First Amendment—Congress shall make no law which abridges the freedom of speech. Second, whereas the US First Amendment speaks of freedom of speech and of the press, without any reference to “expression”, Article 19(1)(a) speaks of freedom of speech and expression without any reference to “the press”.
Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subjectmatters—that is, any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject-matters set out in Article 19(2). 13 The phrase “reasonable restriction” connotes that 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. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality. 14 the test of reasonableness should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. 15 In Romesh Thappar 16 while highlighting that the freedom of speech is the foundation of all democratic organisations, held that the said freedom would also include the right to freedom of the press. This judgment highlighted that the free flow of opinion and ideas is
12 Kaushal Kishor v. State of U.P., (2023) 4 SCC 1
13 Shreya Singhal v. Union of India, (2015) 5 SCC 1
14 Chintamanrao v. State of M.P., 1950 SCC 695
15 State of Madras v. V.G. Row, (1952) 1 SCC 410
16 Romesh Thappar v. State of Madras AIR 1950 SC 124
necessary to sustain collective life of the well-informed citizenry which is a sine qua non for effective governance. In Rangarajan17, which was concerned with grant of universal certificate to Tamil film, which was challenged in a single judge and later in division bench, which revoked the certificate. The court and the standard to be applied by the board or courts for judging the film should be that for an ordinary man of common sense and prudence and not that out of ordinary or hyper sensitive man. 18 In State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools19, held child or on his behalf his parent or guardian, has a right to freedom of choice with regard to the medium of instruction in which he would like to be educated at the primary stage in school.
The right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the freedom of a child to be educated at the primary stage of school in a language of the choice of the child and the State cannot impose controls on such choice just because it thinks that it will be more beneficial for the child if he is taught in the primary stage of school in his mother tongue. The Supreme Court questioning the denial of security clearance to operate a news channel held that such a restriction on the freedom of press is constitutionally permissible only on the grounds provided in Article 19(2) of the Constitution. The Court in Madhyamam Broadcasting Ltd20 opined “The freedom of the press which is protected as a component of Article 19(1)(a) can only be restricted on the grounds stipulated in Article 19(2) of the Constitution.
The grounds stipulated in Article 19(2) include the “sovereignty and integrity of
17 Rangarajan v P Jagjivan Ram (1989) 2 SCC 574
18 In context of this case, the learned author Sudhish Pai in ‘75 Years of the Constitution - Supreme Court's Role in Promoting Constitutionalism’, opines “In a democracy, It is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has fundamental right to form his opinion on any issue of general concern democracy and neither work not proper unless people go out and share their use. The truth is a public discussion on issues related to administration as positive value. Open criticism of the government policies and operations is not a grown for restricting expressions. ” “In S. Rangarajan it was held that the freedom of speech under Article 19(1)(a) means the right to express one's opinion by word of mouth, writing, printing, picture or in any other manner.
It would thus include the freedom of communication and their right to propagate or publish opinion. The communication of ideas could be made through any medium — newspaper, magazine, or movie. But this right is subject to reasonable restrictions in the larger interests of the community and the country set out in Article 19(2). These restrictions are intended to strike a proper balance between the liberty guaranteed and the social interests specified in Article 19(2). ” (Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161 Para 15) 19 State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools, (2014) 9 SCC
20 Madhyamam Broadcasting Ltd. v. Union of India, (2023) 13 SCC 401
2023 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” Eminent jurist and the author of commentary on constitutional law of India, H. M. Seervai opines that once a law is passed and the matter is concerned with article 19 (2). It must be presumed that the law is constitutionally valid and due weight must be given to legislative judgment. 21 The Supreme Court of the United States of America in Beauharnais v. State of Illinois22 while upholding conviction for hate speech, had emphasised that such speech should amount to group defamation which though analogous to individual defamation has been traditionally excluded from free speech protection in America.
Loss of dignity and self-worth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It affects an individual as a member of a group. It is however necessary that at least two groups or communities must be involved; merely referring to feelings of one community or group without any reference to any other community or group does not attract the “hate speech” definition. 23 In Amish Devgan’s case24 a distinction between ‘free speech’ an ‘hate speech’ was drawn. The Court held that the word ‘free speech’ includes the right to comment, favour or criticise government policies which is primarily concerned with political, social, economic issues and policy matters and “hate speech” is creating or spreading hatred against a targeted community or group.
This would not focus on the subject-matter but on the substance of the message which is to cause humiliation and alienation of the targeted group. The law of Sedition as codified in India represents in substance the English law of Sedition. The use of the sedition law has led to polarising debates as sedition charges are increasingly filed against journalists, activists, and students. Challenges to the validity of the 21 Exact words extracted from the author’s commentary“Article 19 to authorizes the imposition of reasonable restrictio, and in the end, the question of reasonableness is a question for a court to decide. However, law made in respect of the matters referred to in article 19(2) must Prima facie presumed to be constitutionally valid and due weight must be given to the ladies relative judgement on the question of reasonableness. The judgement is subject to judicial review.
It is difficult if not impossible to read into the words, reasonable restriction. ”
22 1952 SCC OnLine US SC 56
23 Amish Devgan v. Union of India, (2021) 1 SCC 1
24 ibid
sedition law typically draw on arguments of individual rights, particularly highlighting how the law impedes rights of ‘freedom of speech and expression to all citizens’ outlined in Article 19(1)(a) of the Indian Constitution. In contrast to this language of the citizen and their individual rights, defences of the sedition law rely on arguments of protecting the nation. 25 The first recorded state trial for sedition is that of Queen empress v. Jogendra Chunder Bose. The Court, in its much debated judgment, laid down the distinction between ‘disaffection’ and ‘disapprobation’. Disaffection was defined as the use of spoken or written words to create a disposition in the minds of those to whom the words were addressed, not to obey the lawful authority of the government, or to resist that authority.
26 In Balwant Singh,27 the Court refused to penalize casual raising of slogans few times against the State by two individuals like [Khalistan Zindabad, Raj Karega Khalsa etc. ]. It was opinioned that raising of lonesome slogans, a couple of times by these two people, without any action, did not constitute any threat to the Government of India as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religions or other groups. 28 In a charge under section 124-A29 of Penal Code, the prosecution must prove that intention of the writer or the speaker, whoever he may be, is to bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection to government established by law. 30 The decisive ingredient in offence of Sedition is doing of certain acts which would bring the Government into hatred etc.
The word ‘obscene’ is not defined in the penal code however as understood in context, the test of obscenity is whether the tendency of the element charged for being obscene is to deprave the minds of those minds which are open to such immoral influences. 25 Pattnaik, Ayesha. "Loyalty, Liberty, and the Law: Analysing the Juxtaposition of Nation and Citizen in the Indian Sedition Law. " Social & Legal Studies 31. 6 (2022): 829-846. 26 Saksena, Nivedita, and Siddhartha Srivastava. "An analysis of the modern offence of sedition. " NUJS L. Rev. 7 (2014): 121.
27 Balwant Singh v. State of Punjab, AIR 1995 SC 1785.
28 Sharma, Manu. "Striking a Balance between Sedition Law and Right to Freedom of Speech &
Expression." Supremo Amicus 15 (2020): 183. 29 124ASedition.--Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 2the Government established by law in 3[India], 4*** shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
30 Ratanlal & Dhirajlal, The Indian Penal Code (33rd ed, LexisNexis 2016)
In its 1965 judgement in Ranjit Udeshi31, the Supreme Court had adopted the Victorianera English test in R vs Hicklin: material was obscene if it tended to deprave or corrupt the people into whose hands it was likely to fall. There were three problems with the Hicklin test as it stood: the broadness of the terms “deprave or corrupt”; its acontextuality (prosecutions under the Hicklin test would focus on pointing out specific words or phrases that were supposedly obscene); and its focus on looking at the text from the point of view of the people who, in the opinion of the Court, were most likely to be corrupted or depraved. 32 Sex and nudity per se and essentially are not obscene, indecent or immoral. This is the reason; exceptions have been engrafted in the clause 2 of Section 292.
It becomes obscene only if it incites depravity or corruption of thoughts in the mind and excite lustful sexual passion. A nude or semi-nude picture, thus, has to be viewed in the background in which it is shown and the message it has to convey to the public at large. 33 In Roth v. United States Justice Brennan held that sex and obscenity are not synonymous. The principles laid down in Ranjit Udeshi were reiterated in Chandrakant Kalyandas Karodkar34whereby the court opined that in considering the obscenity of article or story book, an overall view of entire work ought to be considered and whether such passage constitutes obscenity is tested on the basis of likelihood of depriving those minds who are open to such influences and in doing so, the Court must not overlook influence of book or such obscene material on the social morality of contemporary community standard.
The Supreme Court has held that nudity, sex or vulgarity, by itself is insufficient to constitute obscenity. If a work propagates an idea or conveys a social message, the fact that it contains sexual or nude scenes, descriptions of human anatomy, or even abusive language, is not enough for it to be considered obscene. Bad taste is not obscenity. 35 The internet has data that is useful to international corporations, also information and home delivery services. The old age pensioners can take benefit from the information available on the internet, in summation to adults and youth. Thank you to the internet, people may
31 Ranjit Udeshi vs State of Maharashtra, AIR 1965 SC 81
32 https://indconlawphil.wordpress.com/2015/05/14/historically-respectable-personalities-the-supreme-courtinvents-a-new-exception-to-free-speech/
33 Singh, Ananya. "Obscenity Law
The Changing Prescriptions." Available at SSRN 4643296 (2023).
34 Chandrakant Kalyandas Karodkar V. State of Maharashtra, AIR 1970 SC 1390
35 Chandrachud, A. (2017). Republic of rhetoric
Free Speech and the Constitution of India. Penguin Random House India Private Limited. express their viewpoints on any platform. Many opportunities for freedom of speech and expression have been granted to people. 36 The internet's influence on free speech has a twopronged effect, providing enormous opportunities for expression and connectedness but also posing enormous difficulties. Stakeholders will need to work together continuously to strike a balance between defending free speech and tackling harmful information. Societies may use the internet's potential to ensure a thriving environment for free expression in the digital era by properly embracing technological breakthroughs and encouraging ethical practices.
37 In Shreya Singhal 38, there was a challenge to Section 66-A of the Information Technology Act, 2000, which was struck down as being violative of Article 19(1)(a) and was not saved under Article 19(2) on the ground of vagueness and not providing manageable standards and clear guidance for citizens, authorities and courts for drawing a precise line between allowable and forbidden speech, expression or information. When a law uses vague expressions capable of misuse or abuse without providing notice to persons of common intelligence to guess their meaning, it leaves them in a boundless sea of uncertainty, conferring wide, unfettered powers on authorities to curtail freedom of speech and expression arbitrarily. The fact that right to online speech and expression needs to be checked is irrefutable and the existence of the provisions which have been discussed are necessary.
However, we can also very evidently see that these provisions are like a double edged sword, and apart from rendering benefit to the people, it is also infringing in their right. The best alternative to striking down these provisions would be that these provisions are reconsidered and amended vis-à-vis the current relevance of online freedom of speech and expression. 39 In ‘X’ Corp v. Union of India40, A single Judge bench of Karnataka High court dismissed a writ petition by ‘X’ Corp which argued that the Information Technology rules of 2021 allowed censorship and overstepping the constitutional limits of restrictions engrafted under Article 19 (2) of Constitution.
‘X’ Corp, challenging the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) rules, 2021, argued that Section 79 (3)(b) is not an empowering provision and such cannot be used for blocking information.
36 https://juriscentre.com/2024/02/14/internet-censorship-freedom-of-speech/
37 Freedom of Speech in India and Outside
Internet's Unyielding Influence, 3.4 JCLJ (2023) 639 at page 649
38 Shreya Singhal v. Union of India, (2015) 5 SCC 1
39 Online Freedom of Speech and Expression
A Critical Analysis, 3 KIIT Student L Rev 33 (2016)
40 X Corpn. v. Union of India, 2025 SCC OnLine Kar 19584
A recurring theme in the judgment was the limitation of free speech under the law.
Justice Nagaprasanna made clear that Article 19(1)(a) rights belong only to Indian citizens. He observed that "Article 19 of the Constitution of India, noble in its spirit and luminous in its promise, remains nevertheless a charter of rights conferred upon citizens only. " By contrast, X Corp. - an American company "faceless in the nation" - had standing only as an intermediary under Section 79, not as a rights-holder under Article 19. The implication is stark: foreignowned platforms may host speech on an Indian forum, but they cannot claim Indian constitutional speech guarantees. 41 The court held that it is not a correct reading of provision, which will lead to censorship, which is unconstitutional per se. The court opined that Rule 3 (1)(d) mandates due diligence and cascading effects of information does not happen by itself.
The platform cannot say that once the information is uploaded, the platform is not responsible. 41 https://theleaflet. in/digital-rights/law-and-technology/an-exhaustive-takedown-of-karnataka-hcs-decisionupholding-sahyog-portal-in-x-corp-v-union-of-india