THE NEW DIMENSIONS OF

FREEDOM AND SPEECH

EXPRESSION
An Analysis
The New Dimensions Of Freedom of Speech and Expression

OBJECTIVES:

In the present treatise the author attempts to extoll the virtues of free speech,tries to advocate about
the insidousness that is censorship and critically analyze various other liberatine ideas

The author tries to decipher what will be the result of this freedom when even the restrictions are
removed, is that state even attainable or unrestricted freedom of speech and expression is just a
mirage… deluding,contradicting,a Shangri Ri La never to be attained?

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The New Dimensions Of Freedom of Speech and Expression

CONTENTS:

INTRODUCTION:

1.The curious case of India:

2.Decency, morality as grounds of restriction

3.Public order, public safety and security of the state as an excuse for art 19(1) (a):

4.Friendly relations with foreign states:

5.Sovereignty and Integrity of India:

6.Contempt of court:

7.Noise pollution:

8.SC on how to determine the reasonableness of a restriction:

9.Now we shall analyse the main art i.e. 19 (1) (a):

10.Artificial and natural persons Right within territory:

11.Right to Know, Silence and the Freedom of Press:

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The New Dimensions Of Freedom of Speech and Expression

INTRODUCTION:

As we are talking about dimensions than it is quite evident from the word “dimension” that the
subject onwhich we are talking about has an organism like exixtence because the very essence of the
word dimension relates to the “change” .Now whether that change could be constructive one or
destructive well as a destructive one it depends on several factors.

If we are to succeed as a Nation and a society and we try to seek a pancea to our plethora of
problems that is plaguing our society we need to “embrace change” for as Charles Darwin has said in
his famous theory of evolution that it is not the fittest species which survives but rather it is the one
which adapts best to change,not the one which clings on to redundant ideologies.We would also do
our best to remember the Apex court’s view in Shreya Singhal vs Union of India affirmed on the need
to tolerate unpopular views and reaffirmed that “Right to descent is a fundamental right”.

We would be well reminded to learn a lesson from history,when Hitler and his third reich where
engaged in one of the worst crimes against mankind ,if the voices of the dissidents had not been
curtailed probably the ignominity of the crime would have been lessened.It is also to be
remembered that often the greatest crimes have been commited due to the insidious silence of a
few,Dantes has has also said”the hottest places are reserved in hell for those ,who maintain their
silence in times of moral turpitude”

In this treatise I talk about various Supreme court judgements upholding liberatine values ,the need
for drawing the line between “reasonable restriction and stifling and pernicious restriction”

This is the reason for the continuous, incessant relaxation of arms of freedom of speech and
expression.

This situation reminds me of some important remarks by J. Patanjali Shashtri, while deciding on A.K
Gopalan’s1 case that: Man as a rational being desires to do many things but in a civil society his
desires have to be controlled, regulated, and reconciled with the desires by other individuals.

To find out this we will make a parallel universe in which the society is at it’s the very beginning, a
state where everyone is equal, there are no needs, everyone work the same way; we will analyse
how this universe evolves and we will replicate its findings to our world accordingly.

For this we will initially borrow the “Rawlian” concept of “original position” in which there is a “veil
of ignorance” on every individual and he is unaware of his state; I took this as my benchmark for
evaluation because under such veil nobody is aware of his/her state (gender, class etc.) thus resulting
in an ideal state in which there is no greed, disparity and all are equal. Here onwards I will talk about

1 A.K. Gopalan v. State of Madras, AIR 1951 SC 21.

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how society evolved, progressed and how those evolutions resulted in some prejudices resulting in a
need for putting restrictions on person.

In the “rawlian” universe people are free of all disparities but as they come into each other’s contact
and start to communicate and work together their capabilities, limitations were left open to
everyone. Initially these differing capabilities did not hinder any status quo but as the rawlian people
started to expand their ambits of thinking it came to them that there is a difference between them
that was till now not thought about. So this was the first division that was seen and that lead to
create differences amongst the folks. As a result some become superior and remaining inferiors.

In the primitive society the only strength that existed was the physical strength; stronger the person
is greater was his status. The word of the powerful became the law of land, slowly communities
grew with a ruler having his own morals, ethics, philosophies, beliefs; and because of he being
superior his conduct, beliefs became the conducts of the community as a whole. And different
community got different beliefs and whose centre was the intelligent political superior. People
blindly followed what was said to them but this phase did not last long as “Education” was
introduced in the societies and this education gave man power to reason, question what he was
asked for. “Education” in this context is synonymous to “knowledge”. But till this change started to
come the society was already filled with many beliefs, standards, conducts, that were playing a
major role in its working.

Because, it is a well-tested theory what goes around comes around.

The curious case of India:

India is placed in a precarious position,on one hand we have our citizens who are playing a stellar
role in the Global order of things and on the other hand some of our leaders can put a whole rogue
of scums gallery to shame, on one hand we have a India which seems to be burgeoning,growing
ready to take on the world while on the other hand we have a nation steeped in parochial notions
of caste and communalism. We need censorship to maintain some semblance of “order” lest we
descend into chaos,on the other hand we must not allow our artists to be fettered by chains of
“insidious censorship” for it is when the individual is left unbridled it is then that the artistic
imagination soars and takes wonderfull ascents into dizzying heights of creative freedom.

Decency, morality as a tool of restriction:

We certainly have come a long way from where we began i.e. the time when even keeping the book
lady Chatterley's Lover (unexpurgated edition) was decided by the supreme court of land as an
offense2 under sec3. 292 to the time when actress S. khushboo was acquitted 4.

2 Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881.

3 Indian penal code.
4 S.Khushboo v. kanniammal &othr. AIR 2010 SC 913.
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We passed the test of Bandit queen case 5 in which the court observed an important point that
“Nakedness does not always arouse the baser instinct”.

These are the terms of variable context having no fixed meaning, for ideas about decency or morality
vary from society to society and time to time depending on the standards of morals prevailing in that
society.

The IPC in sec. 292 to 294 lists some of the offences like selling obscene books, things to young
persons, committing an obscene act, or singing an obscene song in a public place. Sec.292 has been
held valid because the law against obscenity seeks no more than to promote public decency and
morality6.

The test of obscenity is whether the tendency of the matter charged as so obscene is to deprive and
corrupt those whose minds are open to such immoral influences, and into whose hands a
publication of this sort is likely to fall7.

Again, the court has observed in Chandrakant 8: “what we have to see is that whether a class, not an
isolated case, into whose hands the book, article, or story falls; suffer in their moral outlook or
become depraved by reading it or might have impure and lecherous thoughts aroused in their
minds. The charge of obscenity must, therefore be judged from this aspect”

On the question of obscenity, the court has laid emphasis on the importance of art to a value
judgement by the censors. Art should be preserved and promoted in any scheme of censorship for,
as the court observed,” the artistic appeal or presentation of an episode robs it of its vulgarity and
harm… “In short what the court means is that there is a distinction between artistry and
pornography”.

In Ramesh Prabhoo9, the SC has given somewhat wider meaning to the term decency and morality.
The court has maintained that decency or morality is not confined to sexual morality alone. The
ordinary dictionary meaning of decency indicates that the action must be in conformity with the
current standards of behaviour or property.

Ajai Goswami v. union of India10: a petition was filled to seek protection from the court to ensure
that minors are not exposed to sexually exploitative materials, whether or not the same is obscene
and prohibited by law. The real objective is to restrain freedom of press or any censorship prior to
the publication of article or other materials. The court held that in order to shield minors and
children’s should not forfeit that same content cannot be offensive to the sensibilities of adult men
and women. Where art and obscenity are mixed what must be seen is whether the artistic, literary
or social merit of the work in question outweighs its obscene content. The test for judging a work

5 Bobby art international v. Om pal Singh hoon 1996 4 SCC 1.

6 Ranjit D. Udeshi v. State of Maharashtra, ibid.
7 R. V. Hicklin, L.R. 3 Q.B. 360; Ranjit D. Udeshi v. State of Maharashtra, ibid.
8 Chandrakant Kalyandas Kakodkar v. State of Maharashtra, AIR 1970 SC 1390
9 Ramesh yashwant prabhoo v. prabhakar kashinath kunte, AIR 1996 SC 1113
10 AIR 2007 SC 493.
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should be that an ordinary man of common sense and prudence and not an out of ordinary or
hypersensitive man. The blanket ban on publication of obscene materials or article in order to shield
juvenile innocence cannot be imposed.no news items should be viewed in isolation, publication
should be judged as a whole, fictitious imagination of anybody especially of minors should not be
agitated in court of law.

Censorship of films:

In K.A Abbas v. union of India,11 The SC has upheld censorship of films under art. 19(1)(a) on the
ground that films have to be treated separately from other forms of art and expression because a
motion picture is able to stir up emotions more deeply than any other product of art. A film can
therefore be censored on the grounds mentioned in art. 19(2).

Another case on film censorship is Rangarajan 12 which came before the SC by way of appeal from the
Madras HC. The court justified pre-censorship of a film because it caters for mass audience, it has
unique capacity to disturb and arouse feelings and has as much potential for evil as it has for good. A
film therefore cannot be allowed to function in a free market place just as the newspapers and
magazines do.

Here was a film which criticised the reservation policy of the Tamil Nadu govt. while the board of
film censors certified the film as fit for showing and granted it U certificate, the Madras HC banned
the film from being exhibited and cancelled the certificate as there was some public protest against
the film. So the matter came before the SC in appeal and the court reversed the HC and accepted the
appeal, the court stated: “our commitment of freedom of speech and expression demands that it
cannot be suppressed unless the situations created by allowing the freedom are pressing and the
community interest is endangered. The anticipated danger should not be remote or far-fetched. It
should have proximate and direct nexus with the expression.

A film producer is entitled to project his own message which others may not approve of. Everyone
has a F.R to form his own opinion on any issue of general concern. The state cannot prevent open
discussion and open expression of views, however critical its own views are.

At another place in the judgement, the court has observed:

“In a democracy it is not necessary that everyone should sing the same song. Freedom of Speech and
expression is a rule that is often taken for granted. The democracy is a government by the people by
open discussion.

● Odyssey communications pvt. Ltd. V. lokvidyan sanghathan 13: The respondents, a

registered social organisation of pune filed a PIL under art 226 to restrain the union of

11 AIR 1971 SC 481.

12 Rangarajan v. P. jagjivan Ram, 1989 2 SCC 574.
13 1988 1 SCC 133.
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India Ministry of information and broadcasting and the state of Maharashtra from
telecasting the serial “hony anhoni” on the ground that it was likely to spread false or
blind beliefs and superstition amongst the members of the public. It was however held
that the rights of a citizen to exhibit films on doordarshan, on the terms and conditions
imposed by the doordarshan is a part of the fundamental right of freedom of expression
guaranteed under article 19(1)(a), which can only be curtailed on grounds mentioned
under article 19(2).
● K.A. Abbas v. Union of India14: This was the first case in which the question whether prior
censorship of films included in article 19(2) came for the consideration of the SC. The
petitioner had challenged the validity of censorship as violative of his FR of speech and
expressions according to him it imposed unreasonable restriction. Under the
cinematographic act, 1952 films are divided into two categories, i.e. U films and A films.
The petitioners film was refused U certificate, he also contended that there other forms
of speech and expression besides the films and none of them were subjected to any
prior restraint in the form of pre censorship and claimed equality of treatment with
such other forms, the court however held that the precensorship of the films was
justified under art 19(2) on the ground that films have to be so treated separately from
other forms of art and expression because a motion picture was able to stir up emotions
more deeply than any other product of art. Hence classifications of films in A and U was
held to be valid.

Public order, public safety and security of the state as an excuse for art 19(1) (a):

Article 19(2) uses two concepts: public order and security of the state. The concept of public order is
wider than security of state15. As the SC points out, in art. 19(2) there exist two expressions public
order and security of state. Thus, security of state have been specifically and expressly provided for,
public order cannot include the security of state, though in its widest sense it may be capable of
including the said concept.

The term public order covers a small riot, an affray, breaches of peace, or acts disturbing public
tranquillity. But public order and public tranquillity may not always be synonymous. For example a
man playing loud music in his home at night may disturb public tranquillity but not public order.
Therefore, such acts as disturbs only the serenity of others may not fall under the term public order.

An aggravated form of disturbance of peace which threatens the foundation of, or threatens to
overthrow, the state will fall within the scope of the phrase security of the state, the expression
overthrowing the state is covered under security of state, therefore a sedition is punishable 16.

14 AIR 1971 SC 481.

15 Romesh Thapar v. state of madras, AIR 1950 SC 124.
16 Santokh singh v. Delhi administration, AIR 1973 SC 1091.
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Under art. 19(2), a restriction can be imposed in the interests of public order, etc. The expression in
the interests of gives a greater leeway to the legislature to curtail freedom of speech and expression,
for a law penalising activities having a tendency to cause, and not actually causing public disorder,
may be valid as being in interests of public order. However the restriction imposed must have a
reasonable and rational relation with the public order, security of state, etc. if the nexus between
restriction and public order is farfetched than the restrictions cannot sustain as being in the interests
of public order.

The term reasonable restriction in art 19(6) connotes that the limitation imposed on a person in the
enjoyment of his right should not be arbitrary or of an excessive nature beyond what is actually
required in the interests of the public .the word reasonable implies intelligent care and deliberation ,
that is the choice of course which the reason dictates ,the expression seeks to strike a balance
between the individual rights guaranteed under art 19 and the social control permitted by clauses (2)
to (6) of art 19. Therefore the restriction must have a reasonable relation with the object which the
legislation seeks to achieve and must never exceed it 17.

The court has lucidly explained the effect of the clause “in the interest of” in O.K. Ghosh v. E.X.
Joseph18 as follows: This clause again cannot be interpreted to mean that even if the connection
between the restriction and the public order is remote and indirect, the restriction can be said to be
in the interests of public order. A restriction can be said to be in the interest of public order only if the
connection between the restriction and the public order is proximate and direct. Indirect or far-
fetched or unreal connection between the restriction and public order would not fall within the
purview of the expression in interests of public order.

In Ram Manohar Lohia,19 SUBBA Rao, J., speaking for the court, pointed out that the expression “in
the interests of public order” though wider than the phrase for the maintenance of public order still
could not mean that the existence of any remote or fanciful connection between the impugned act
and public order would be sufficient to sustain the validity of the law. The connection between the
act prohibited or penalised and public order should be mate.

In Kedar Nath20, the court took the position that when a provision of law is capable of two
interpretations, one of which make sit constitutional and the other unconstitutional, the
interpretation which make sit constitutional should be accepted . Accordingly the court held that a
mere criticism of the government action, however strongly worded, would be consistent with the F.R
of freedom of speech and expression. Only the words having pernicious tendency, or intended to
create disturbance of law and order would be penal in the interests of public disorder. The gist of the
offence the SC said is incitement to disorder or tendency or likelihood of public disorder or the
reasonable apprehension thereof.

17 Chintamani Rao v. state of M.P, AIR 1951 SC 118.

18 AIR 1962 SC 814.
19 Central prison v. Ram Manohar Lohia
20 AIR 1962 SC 955.
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● Union of India v. Cinema Art Foundation21: the managing trustee of the respondents
trust had produced a documentary film on Bhopal gas tragedy titled “beyond genocide”.
The film was awarded the golden lotus being the first non-feature film of 1987. At the
time of the presentation of the awards the minister for information and broadcasting
had made a declaration that the award winning short films would be telecast on
doordarshan. The respondent submitted for telecast his film on doordarshan but it
refused to telecast the film on the ground that its contents were outdated and did not
have relevance for the telecast. The respondent than filed a writ petition challenging the
refusal on the ground of violating of his FR under art 19(1) (a) of the constitution, the HC
held that the respondents right under art 19(1) (a) obligated doordarshan to telecast the
film since the refusal was based purely on an executive order and not law within the
meaning of art 19(2) and directed the doordarshan to telecast the film.
● Communist party of India v. bharat Kumar & others 22: a three judge bench of the SC,
upholding the full bench judgement of the Kerala HC held that calling for and holding for
BUNDH by a political party or organisation is unconstitutional and is hence illegal as it
violates the FR of the citizens guaranteed under art 19(1) (a) and 21 of the constitution
in addition to causing national loss.
● Peoples union for civil liberties v. union of India 23: the Petitioner, peoples union for civil
liberties a voluntary organisation filled a petition under art.32 of the constitution by way
of PIL highlighting the incidents o telephone tapping in recent years .the petitioner
challenged the validity of section 5(2) of the Indian telegraph act 1885.section 5(2)
permits the interception of messages in accordance of the provisions of the said
section.” Occurrence of any public emergency or in interest of public safety” are the sine
qua non for the application of the provision of the section 5(2) unless these two
conditions are satisfied the govt. cannot exercise its power under said section. The
expression “public safety” means the state or condition of freedom from danger or risk
for the people at large unless these two conditions are in existence the govt. cannot
resort to telephone tapping.
● Brij Bhushan v. state of Delhi 24: the imposition of censorship on a journal previous to its
publication would amount to an infringement of article 19(1) (a). in that case the chief
commissioner of Delhi in pursuance of section 7 of the east Punjab safety act 1949,
issued an order against the printer, publisher, editor of an English weekly of Delhi, called
the organiser, directing them to submit for scrutiny in duplicate before publication till
further orders, all communal matters and news and views, about Pakistan including
photographs and cartoons other than those derived from official sources or supplied by
the news agencies. The court struck down the order observing: the imposition of
precensorship of a journal is a restriction on the liberty of the liberty of the press which
is an essential part of the freedom of the speech and expression declared by art. 19(1)
(a). Similarly prohibiting newspaper from publication of its own views or the views of

21 AIR 1992 SC 637.

22 AIR 1998 SC 184.
23 AIR 1997 SC 568.
24 AIR 1950 SC 129.
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correspondents about the burning topic of the day is a serious encroachment on the
valuable right of freedom of speech and expression.

Friendly relations with foreign states:

The idea behind imposing restrictions on the freedom of speech and expression in interests of
friendly relations with a foreign country is that persistent and malicious propaganda against a
foreign power having friendly relations with India may cause considerable embarrassment to India,
and accordingly, indulging in such a propaganda may be prohibited. The ground however, is of broad
import and is susceptible of supporting legislation which may even restrict legitimate criticism of the
foreign policy of the govt. of India.

Under art. 367(3). A foreign state means any state other than India. President, however, may subject
to law made by parliament, by order declare any state not to be a foreign state for such purposes
may be specified in the order.

Sovereignty and Integrity of India:

Section 2 of the criminal law amendment act, 1961, makes penal the questioning of the territorial
integrity or frontiers of India in a manner in which safety of India is prejudiced.

Contempt of court:

Charging the judiciary as an instrument of oppression, and the judges as guided and dominated by
class hatred instinctively favouring the rich against the poor has been held to constitute contempt of
court as these words weaken the authority of law and law courts and has the impact of lowering the
prestige of judges and courts in the eyes of the people.

SC on how to determine the reasonableness of a restriction:

1. Chintamani Rao v. State of M.P25:

● A law which arbitrarily or excessively invades the right of a person cannot be said to
contain the quality of reasonableness and unless it strikes a proper balance between
the right guaranteed in article 19(1) and the social control in article 19(6), it must be
held in wanting that quality.
● If the courts are of the opinion that a particular restriction is not reasonable then it
will declare it void. The word reasonable thus widens the scope of judicial review
and the determination by the legislature as to what constitutes as reasonable
restriction is not final and conclusive but subject to supervision by the Supreme
Court.

25 AIR 1951 SC 118.

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● It is the courts and not the legislature which has to judge finally whether a
restriction is reasonable or not.
● the term reasonable restriction in art 19(6) connotes that the limitation imposed on
a person in the enjoyment of his right should not be arbitrary or of an excessive
nature beyond what is actually required in the interests of the public .the word
reasonable implies intelligent care and deliberation , that is the choice of course
which the reason dictates ,the expression seeks to strike a balance between the
individual rights guaranteed under art 19 and the social control permitted by clauses
(2) to (6) of art 19. Therefore the restriction must have a reasonable relation with
the object which the legislation seeks to achieve and must never exceed it.

2. N.B. Khare v. state of Punjab26: The restriction must be reasonable from the substantive as
well as procedural stand point.

3. State of Bombay v. F.N Balsara27, Hanif Qureshi v. state of Bihar28: A Restriction that is
imposed for securing the objects and laid down in the DPSP may be regarded as a
reasonable restriction.

4. State of Madras v. V.G Row29: The court must determine the reasonableness of a restriction
by objective standard and not by substantive one. In other words the question is not if the
court feels the restriction to be reasonable but where a normal reasonable ma would regard
the restriction to be reasonable. It is this need of objectivity which prompted the Supreme
Court to warn the judges not to be guided by their own economic and social philosophy. It
said: In evaluating such elusive factors and forming their own conceptions of what is
reasonable in all the circumstances of a given case, it is inevitable that the social philosophy
and the scales of values of the judges participating in the decision should play an important
part , and the limit to their reference with legislative judgments in such cases can only be
dictated by their sense of responsibility and self-restraint and the sobering reflection that
the constitution is meant not only for the people of their own way of thinking but for all,
and that the majority of the elected representatives of the people have, in authorising the
imposition of the restriction, considered them to be reasonable.

5. Arunachal Nadir v. State of Madras30:

● A restriction to be reasonable must have a rational relation with the object which
the legislature seeks to achieve and must not be in excess ti that object.
● It is the reasonableness of the restriction which is to be determined by the court and
not the reasonableness of the law. The court has only to see whether the
restrictions imposed on the citizens’ rights are reasonable. The question whether a
provision of the act provides adequate safeguards against the abuse of the power

26 AIR 1960 SC 211 (217).

27 AIR 1951 SC 318.
28 AIR 1958 SC 731.
29 AIR 1952 SC 166.
30 AIR 1959 SC 300.
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given to the executive authority to administer the law, is not at all relevant. Mere
possibility of the abuse of the power by the executive authority is not test for
determining the reasonableness of the restriction.

6. Narendar Kumar v. Union of India31: Restriction may also amount to prohibition under
certain circumstances, but where a restriction reaches the stage of prohibition, special care
has to be taken by the court to see that test of reasonableness is satisfied.

Now we shall analyse the main art i.e. 19 (1) (a):

● Romesh Thapar v. state of Madras32: J. Patanjali shashtri; freedom of speech and of the
press lay at the foundation of all the democratic organisations, for without political
discussions no public education, so essential for the proper functioning of the process of
popular govt. is possible.
● Lowell v. griffin33: freedom of speech and expression means the right to express one’s own
convictions and opinions freely by words of mouth, writing, painting, printing, pictures or
any other mode.it thus includes the expression of one’s ideas through any communicable
medium or visible representation such as gestures signs and the like.
● Srinivas v. state of madras34: the freedom of speech and expression includes liberty to
propagate not one’s views only, it also includes the right to propagate the views of others.

Article 19 (1) (a) says that all citizens shall have the right to freedom of speech and
expression. Freedom of speech and expression means the right to express one’s view, opinions
freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the
expression of ones ideas through any communicable medium.

Dr. B.R Ambedkar:

“When an cannot freely convey their thoughts to one another , no freedom is secured where
freedom of expression exists the beginning of free society and means for every retention of
liberty are already present, free expression is therefore , unique among liberties”.

31 AIR 1960 SC 430.

32 AIR 1950SC 124.
33 (1939) 303 US 444.
34 AIR 1931 Mad 70.
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Artificial and natural persons Right within territory:

● Louis de raedt v. Union of India35: The rights granted by the art 19 are available only to
the citizens and not to an alien or a foreigner, a foreigner is not a citizen thus he cannot
claim a right under art 19, also a corporation or a company cannot claim a right under
art 19 because they are not natural persons.
● Banks nationalisation case and newspapers case: the court held that though a company
cannot claim a right under art 19, but its shareholder can claim the rights under art 19.

● Maneka Gandhi v. Union of India36: the union of India contended that the FR guaranteed
by the constitution were available only within the territory of India, how could the FR be
intended to be operative outside the territory of India when their exercise cannot be
protected by the state? The SC rejected these contentions and held that the right to
freedom of speech and expression has no geographical limits. The freedom of speech
and expression carries with it the right to gather information as also to speak and
express oneself at home and abroad and to exchange thoughts and ideas with others
not only in India but also outside.

Right to Know, Silence and the Freedom of Press:

● Indian Express Newspaper v. Union of India 37: It is on account of this special interest which
society has in the freedom of speech and expression that the approach of the govt. should
be more cautious while levying taxes on matters of concerning newspaper industry than
while levying taxes on other matters.
● Secretary General, Supreme Court of India v. Subhash Chandra Aggarwal38: the HC held that
the source of the RTI does not emanate from RTI act but from constitutional guarantee
under article 19(1) (a) as held by SC in catena of decisions. RTI act is not the repository to of
the RTI, its repository is the constitutional right guaranteed under Article 19(1) (a).
● Union of India V. Association for Democratic Reforms 39: A three judge bench comprising
justice M.B Shah P.V Reddy and D.M Dharamadhikari held that the amended electoral
reforms law passed by the parliament is unconstitutional as being violate of citizens right to
know under art 19(1)(a) of the constitution. In this case the petitioners for the democratic
reforms filed a PIL and requested the court for a direction to implement the
recommendation of the law commission in its 170 th report. On May 2, 2002 the SC delivered

35 (1991) 3 SCC 554.

36 AIR 1978 SC 597.
37 1985 1 SCC 641.
38 AIR 2010 Del. 159 (FB).
39 AIR 2002 SC 2112.
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a judgement and directed the election commission to issue a notification making it

compulsory for those who contest elections to make available information about their
education, assets, liabilities, and criminal antecedents for the benefit of voters. The election
commission acted accordingly and issued notification making it compulsory to provide above
information before filing their nominations for contesting elections, thereafter the
parliament amended the electoral law (representation of peoples act) and negative the
courts judgement and election commission notification, the court again struck down the
amended provisions. Justice Shah said that the judgement was aimed at cleansing the
democracy of unwanted elements and give the country a competent legislature, also the
court asked whether there was a necessity to keep the voters in dark about any murder,
dacoity or rape committed by a candidate or about his ill-gotten money which could be used
for elections.
● State v. Charita: the Supreme Court has held that the press does not have an unfettered
right to interview an under trial prisoner in jail. Thus where the trial of the accused was
pending before the additional session judge he had authority to grant permission to the
press to interview the under trial inside the jail. However the permission to the press to
interview an under trial cannot be granted mechanically without application of mind .the
court while granting permission , will have to weigh the competing interest between the
right of the press and the right of the authorities prohibiting such interview in the interest of
administration of justice. The permission granted by the court would be subject to the
relevant rules and regulations contained in the jail manual.
● M Hasan v. govt. of AP40: it has been held that the denial by the jail authorities to journalist
and videographer to interview the condemned prisoners in jail amounts to deprivation of a
citizens FR to speech and expression under art 19(1)(a) of the constitution. Every citizen has
a right propagate his ideas and views on many aspects of prisoner’s life through available
media without any fear or favour as long as they stand a test for reasonable restriction. The
reasons given by the jail authorities for refusing permission for interviewing prisoners
sentenced to death were: 1. it will give opportunity to public to campaign for reducing their
sentence. 2. It may lower the position of the court.3. Prisoner has not expressed their desire
to interview. It cannot be allowed for safety and security purposes. The court held that these
restrictions are not mentioned in art 19(2) of the constitution and is unconstitutional.
● Indian express newspapers v. union of India 41: speaking about the utility of freedom of press
the court observed: the expression freedom of press has not been used in art 19 but it is
comprehended within art 19(1) (a).the expression means freedom from interference from
authority which would have the effect of interference with the content and circulation of
newspapers. There cannot be any interference with that freedom in the name of public
interest. The purpose of the press is to advance the public interest by publishing facts and
opinions without which a democratic electorate cannot make responsible judgement.
Freedom of the press is the heart of social and political inter- course, it is the primary duty of
the courts to uphold the freedom of the press and invalidate all laws or administrative
actions which interfere with it contrary to the constitutional mandate.

40 AIR 1998 AP 35 (FB).

41 Ibid.
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● Lowell v. griffin42: the liberty of the press as defined by Lord Mansfield consists in printing
without any licence subject to the consequences of law, thus the liberty of the press means
liberty to print and publish what one pleases, without previous permission. The freedom of
press is not confined to newspapers and periodicals. It includes also the pamphlets and
circulars and every sort of publication which affords a vehicle of information and opinion.
● Printers Mysore ltd. V. asst. commercial tax officer 43: the SC has held that no sales tax can be
imposed on sale of newspapers in the country. However the court clarified that this does not
mean that press is immune either from taxation or from general law relating to industrial
relations or from the state regulation of condition of service of its employees.

● Express newspapers v. union of India 44: the SC held that a law which imposes precensorship
or curtails the circulation or prevents newspapers from being started or require the govt to
seek govt. aid in order to survive was violative of article 19(1)(a).in this case the
constitutionality of the working journalists act, 1955 act was challenged, the act was enacted
to regulate conditions of service of persons employed in the newspaper industry.it was
contended that the act would adversely affect financial position of newspaper which might
be forced to close down and would curtail circulation and thereby narrow the scope for
dissemination of information and hence violative of art 19(1)(a). The court held the act valid.
It said that press was not immune from laws of general application or ordinary forms of
taxation, or laws of industrial relations.
● Romesh thapar v. state of madras45: a law banning entry and circulation of journal in a state
was held to be invalid. The petioner was a printer, publisher and editor of a weekly journal in
English called cross road printed and published in Bombay. The govt. of madras in exercise of
their powers under section 9(1-A) of the maintenance of public order act, 1949, issued an
order prohibiting the entry into or the circulation of the journal in that state. The court held
that there cannot be any doubt that freedom of speech and expression includes freedom of
circulation. Liberty of circulation is an essential to that freedom as the liberty of publication,
indeed without circulation the publication would be of little value. Restrictions on freedom
of speech and expression can only be imposed on grounds mentioned in article 19(2) of the
constitution , a law that imposes restrictions on the grounds of public safety or the
maintenance of public order falls outside the scope of authorised restrictions under
clause(2) and therefore void and unconstitutional.
● Bennet Coleman and co. v. union of India 46: the validity of the newsprint control order which
fixed the maximum no. of the pages which a paper could publish was challenged as violative
of FR guaranteed under art 19 (1) (a) and article 14 of the constitution. The govt. defended
the measure on the ground that it would help small newspapers to grow and to prevent
monopolistic combination of big newspapers. The court held that the newsprint policy was

42 Ibid.
43 1994 2 SCC 434.
44 Ibid.
45 Ibid.
46 AIR 1973 SC 106.
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not reasonable restriction within the ambit of article 19(2). The newsprint policy abridges
petitioner’s right of freedom and speech and expression.
● Mohammed ajmal Muhammad Amir kasab alias Abu mujahidin v. state of Maharashtra 47:
the SC in an important observation, although by way of obiter, regarding the role of media in
live electronic coverage of terrorists attack on taj hotel, hotel oberoi and nariman house and
shown on TV screens stated-the terrorists attacks at all the places , in the goriest details
were shown live on the indian TV from the beginning to end nonstop in which almost all the
channels were competing with each other in showing the latest details on minute to minute
basis. This reckless coverage gave rise to a situation where on one hand terrorists were
completely hidden from the security forces and they had no means to know their exact
location or even the kind of arms, ammo or explosives that they possessed on the other
hand the location, weapons were easily available to terrorists by way of the media channels,
the way the operations of security forces were freely shown, made their task not only
exceedingly difficult but also dangerous and risky. Any attempt to justify the conduct of the
TV channels by citing the right freedom of speech and expression would be totally wrong
and unacceptable in such a situation.it is in such extreme cases that the credibility of an
institution is tested. The coverage of Mumbai terror attacks by the mainstream electronic
media has done much harm to the argument that any regulatory mechanism for the media
must only come from within.
● National anthem case48: the SC held that no person can be compelled to sing the national
anthem, “If he has genuine conscientious objections based on his religious faith”. Freedom
of speech includes freedom of silence.

47 AIR 2012 SC 3565.

48 Bijoe Emmanuel v. state of Kerala, 1986 3 SCC 615.
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