Freedom of Speech Article 19(1)(A): Background, Scope & Restrictions

Freedom of speech and expression is the backbone of any democracy. It allows every citizen to express opinions freely without any restrictions imposed. Article 19 of the Indian Constitution provides this right as a fundamental right to all citizens. It ensures liberty of thought, belief, and opinion. Yet, this freedom is not absolute. It is subject to reasonable restrictions for maintaining social order and national integrity. Freedom of speech empowers citizens to hold those in power accountable.

Right to Freedom of Speech & Expression (Article 19) is one of the most important topics for the UPSC IAS exam. It covers a significant part of the polity subject in the General Studies Paper-2 syllabus and for UPSC prelims. In this article, we will understand freedom of speech, as mentioned in article 19. 

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Article 19(1)(a) of the Indian Constitution guarantees all citizens the fundamental right of freedom of speech and expression. Some key points regarding this right are: It includes the right to express views and opinions through various means. Citizens have the freedom to impart and receive information through any media. The freedom of the press is an essential part of this. It ensures the dissemination of information and opinions widely. This right also implies the freedom not to speak. No one can be forced to speak or express opinions against their will. 

Freedom of speech is a fundamental right, but it is subject to reasonable restrictions under Article 19(2). This is for the sake of sovereignty, public order, decency, etc. The SC has held that freedom of speech includes the right to take part in sports, hoist the national flag, and access information. Social media platforms are also covered under this right. However, hate speech and other unlawful content is not allowed. Restrictions are imposed on certain forms of expression. This includes obscenity, defamation, and contempt of court.

Historical Background of Freedom of Speech and Expression

The history of free speech and expression as one of the fundamental rights is very rich. One may certainly trace it back to significant documents, for instance, the English Bill of Rights (1689). It also finds an echo in the French Declaration of the Rights of Man-and the Citizen (1789). Its surer covenants are the United Nations' Universal Declaration of Human Rights (1948) as inalienable. Article 11 of the French Declaration emphasizes "the free communication of ideas and opinions, every citizen may, accordingly, speak, write and publish freely, save in such cases as shall be provided by law." Freedom of expression and opinion has been recognized within humankind as a natural right by Article 19 of the UDHR. Freedom to speak is also guaranteed in the International Covenant on Civil and Political Rights. 

In India, Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. The preamble speaks of liberty in thought and expression. However, subject to 'reasonable restrictions' in Article 19(2) relating to grounds like sovereign integrity and public order, this freedom is granted. The essence of free speech lies in thinking, talking, and having access to information without fear of government retaliation. This empowers citizens to question their government, criticize policies, and hold the powerful accountable. Ultimately, such public discourse strengthens democracy itself.

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According to Article 19(1)(a), all citizens can freely express their thoughts. This right includes the freedom to express views through any medium. This includes words, writing, pictures, gestures, signs, etc. It also covers press freedom since the dissemination of information is involved. The free flow of information and exchange of ideas is essential. This can happen through platforms and the press. The circulation of information is as important as publishing it. If not published, the material would be worthless. Thus, the right to freedom of speech includes the ability to spread not just one's own ideas but also the ideas of others. It encompasses the freedom to publish the views of others. Without this, there would be no press freedom.

Freedom of expression comes along with many purposes:

• realization of self-fulfillment of the individual;
• enabling the quest for truth and knowledge;
• enhancing the decision-making ability of people;
• striking a balance between stability and change in society.
• All members of society are free to form and share their own beliefs.

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This right is available solely to Indian citizens and not to foreign nationals. Only Indian citizens have the right to free speech and expression.

• It is guaranteed not only by the Indian constitution but also by many international treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
• It encompasses the freedom of the press, the freedom of commercial speech, the right to broadcast, the right to information, the right to criticise, the right to express oneself outside national limits, the right not to speak, or the right to quiet. This right is subject to reasonable limitations as mentioned in Article 19 (2) and clarified and declared by several Supreme Court decisions.
• Public order is distinct from Law and order as a premise for acceptable limitation. 6. The right to information, a key legislation, is the consequence of a series of progressive court decisions concerning Article 19 (1). (a).
• It is fundamental to a healthy, open-minded, and vibrant democracy.
• According to Article 19(1)(a), freedom of expression includes the right to express one’s ideas and opinions on any matter using any medium, such as word of mouth, writing, printing, image, film, movie, and so on.
• This is not an absolute right. It empowers the government to pass laws that impose reasonable constraints in the interests of India’s sovereignty and integrity, security, cordial relations with other governments, public order, decency, morality, contempt of court, defamation, and incitement to an offense.

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The freedom of speech and expression is subject to reasonable constraints, and the Supreme Court of India has defined reasonable restrictions as including the following characteristics.

Security of the State

Reasonable limits on freedom of speech and expression can be imposed for the sake of state security. The concepts of “state security” and “public order” must be distinguished. Security of the state refers to severe and aggravated public unrest, such as revolt, war against the state [entire state or portion of the state], insurgency, etc.

Friendly ties with foreign states

The Constitution (First Amendment) Act of 1951 included this basis. The state may impose reasonable limits on freedom of speech and expression if it jeopardises India’s good ties with other countries or states.

Public order

The term “public order” refers to a state of public peace, safety, and calm. Anything that upsets public order is a violation of public peace [Om Prakash v. Emperor, AIR 1948 Nag, 199]. However, just criticising the government does not inevitably disrupt public order. A regulation that punishes intentional comments that offend the religious emotions of any class has been deemed a fair and reasonable limitation aimed at protecting public order. The Constitution (First Amendment) Act of 1951 inserted this ground in response to the circumstances created by the Supreme Court’s ruling in Romesh Thapar’s case. According to the Supreme Court, public order is distinct from law and order and state security.

Morality and decency Sections 292 to 294 of the Indian Penal Code are examples of limits on freedom of speech and expression based on decency and morality, prohibiting the sale, distribution, or exhibition of obscene phrases. The moral norm shifts with the passage of time.

Contempt of court

A person’s fundamental right to free expression does not permit him or her to contempt the courts. Section 2 of the Contempt of Courts Act, 1971 defines the term “contempt of court.” Under the Act, “contempt of court” relates to civil or criminal contempt.

Defamation

Article 19 clause (2) prohibits anybody from making any comment that defames the reputation of another. Defamation is a felony in India, as enshrined in Sections 499 and 500 of the Indian Penal Code. The right to free expression is not absolute. It does not imply the freedom to harm another’s reputation, guaranteed under Article 21 of the constitution. Although the truth is considered a defense against defamation, it would only be effective if the statement was made ‘for the public benefit.’ And that is a factual matter for the courts to decide.

Incitement to commit an offense

The Constitution (First Amendment) Act of 1951 also included this reason. A person is likewise prohibited under the Constitution from making any comment that incites others to commit a crime.

Indian sovereignty and integrity

This ground was introduced later by the Constitution (Sixteenth Amendment) Act, 1963. This is intended to make it illegal for anybody to make remarks that undermine India’s integrity and sovereignty.

The Indian judiciary has played an important role in the interpretation and protection of the right to freedom of speech and expression as laid down in Article 19(1)(a) of the Constitution of India.

1950 Romesh Thappar v. State of Madras 

In the Romesh Thapar case, the Supreme Court declared press freedom a component of free speech and expression. Patanjali Sastri, J., correctly remarked that ‘freedom of speech and press lay at the core of all democratic organizations, for without open political discussion, no public education, so necessary for the effective functioning of the process of government, is conceivable.’

Brij Bhushan vs. State of Delhi 1950

The validity of an order imposing pre-censorship on an English Weekly of Delhi, which directed the editor and publisher of a newspaper to submit for scrutiny, in duplicate, before publication, all communal matters, all matters, and news and views about Pakistan, including photographs and cartoons, on the grounds that it was a restriction on the freedom of the press, was upheld by the court in this case. The right not to speak, sometimes known as the right to quiet, is contained in the right to free expression.

Three pupils were dismissed from school for refusing to sing the national anthem in the case of the National Anthem. When the national anthem played, the youngsters stood up in reverence. The legitimacy of the students’ expulsion was contested before the Kerala High Court, which maintained the expulsion on the grounds that it was their basic obligation to sing the national anthem. However, the Supreme Court ruled in an appeal filed against the Kerala High Court’s judgment that the students did not commit any offense under the Prevention of Insults to National Honour Act, 1971.

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The Supreme Court expanded the scope and extent of the right to free speech and expression by ruling that the government has no monopoly on electronic media and that a citizen has the right under Art. 19(1)(a) to telecast and broadcast any important event to viewers/listeners through electronic media, television, and radio. The government may restrict such a right only for the reasons indicated in clause (2) of Art. 19 and not for any other reason. A citizen has the basic right to use the best methods of communicating and receiving communication, including access to television for that purpose.

Commercial Advertisements

The court ruled that commercial expression or advertisement is precluded by the right to free expression. Yet, the government can restrict it if it is deceptive, unfair, misleading, or untruthful. Instead, the court emphasized that the general public has a right to access "Commercial Speech". Article 19(1)(a) secures the freedom to speak and hear such speech. Telephone tapping is considered an invasion of privacy and a violation of Art. 19(1)(a) unless it meets the conditions in Art. 19(1)(b)(2). As per the court's guidelines, only the Home Secretary of federal and state governments can authorize telephone tapping. The order for telephone tapping is subject to review by a higher authority committee, and its duration cannot exceed two months unless extended by the review authority.

Freedom of Speech in Art

The Constitution guarantees freedom of speech and expression to Indian citizens in any form, including art. The SC has held that art should be judged on the context and significance of the artistic expression. Obscenity in art will be ignored if it is trivial or overshadowed by the overall art. There are restrictions on what can be shown in movies and cinemas as per the Cinematograph Act of 1952. The CBFC regulates and certifies movies.

Freedom of Speech on Social Media

The High Courts have upheld that posting on social media is a fundamental right. Government employees also enjoy this freedom. They can express political opinions on social media subject to certain service rules.

Sedition vs. right to Free Speech and Expression

Section 124A of the Indian Penal Code penalizes those who use words, written or spoken, visual representation, or other means to promote disaffection, hatred, or contempt against the legally constituted government.

• This colonial-era sedition law has faced significant criticism for curbing freedom of speech and expression.
• While the section specifies that only attempts to incite hate, contempt, or disaffection qualify as sedition, legitimate criticism for the purpose of reform has often been misinterpreted as sedition.
• To be deemed seditious, an act must intend to incite public unrest or disturb public peace.
• In the Kedarnath Singh v. State of Bihar case, the Supreme Court narrowed the scope of Section 124A to those who used free speech to incite violence and break the law.
• In the Shreya Singhal v. Union of India case, the court emphasized that there should be a close connection between the expressed words and public disturbance.

These legal clarifications notwithstanding, there exists a tradition of government critics being charged with sedition. Such abuse has led to calls for the section's repeal to protect the facet of free speech and expression.

Hate Speech

The SC had asked the Law Commission to empower the EC to restrict hate speeches irrespective of when they are made. However, the Law Commission recommends considering certain factors before restricting a speech. This includes the context, speaker, victim, and impact.

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