Freedom of speech and expression

Also called: Article 19(1)(a), Freedom of expression · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Class 7, Ch 9 "From the Rulers to the Ruled: Types of Governments"; Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 11, Ch 2 "Freedom"; Class 11, Ch 5 "Rights"; Class 11, Ch 2 "Rights in the Indian Constitution"; Class 11, Ch 10 "The Philosophy of the Constitution"

Meaning

Freedom of speech and expression (Article 19(1)(a)) is the right of every citizen to share views by speech, writing, print, pictures, film or any other medium. The State can limit it only by "reasonable restrictions" based on the eight grounds listed in Article 19(2). The right matters because a democracy depends on open debate and criticism of the government. The courts have also read other rights into it, such as freedom of the press and the right to know.

Explanation

How it works

• Part of the Right to Freedom (Arts. 19-22). This group of Articles weighs one person's liberty against other people's liberty and against public order (peace and safety in society).
• Only for citizens. Art. 19 rights belong only to citizens of India. Foreigners cannot claim them.
• Each freedom has its own limit clause. Art. 19(1)(a) is limited by Art. 19(2). The other freedoms are limited by 19(3) to 19(6).
• Art. 19 had seven freedoms in 1950 and has six today.
• 19(1)(f), the right to property, was removed by the 44th Amendment, 1978. Property is now only a legal right under Art. 300A.
• 19(1)(c) was widened to include cooperative societies by the 97th Amendment, 2011.

Rights the courts have read into Art. 19(1)(a)

The text is short. Judicial review (the courts' power to test laws and government actions against the Constitution) has given it these parts:

• Freedom of the press. Newspapers and other media can publish without government control. It is not written in the text; it is implied.
• Romesh Thappar (1950): the freedom to circulate a journal is part of free speech.
• Sakal Papers (1962): a rule linking a newspaper's page count to its price was struck down. Cutting pages cuts speech.

• Bennett Coleman (1973): limits on newsprint were struck down. The Court looked at how much a rule actually hurts speech, not just at its stated purpose.

• Right to know. People have a right to know about the public acts of the government (Raj Narain, 1975). This idea later supported the Right to Information Act, 2005.

• Right to fly the national flag with respect and dignity (Naveen Jindal, 2004).
• Right to stay silent, meaning the freedom not to speak (Bijoe Emmanuel, 1986).

Limits: reasonable restrictions under Art. 19(2)

• Reasonable restrictions are limits the State may impose only on grounds the Constitution lists. Courts check whether each limit is fair, needed and proportionate (no harsher than the problem requires).
• Art. 19(2) allows laws that restrict speech "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" [7].

• The eight grounds: 1. Sovereignty and integrity of India 2. Security of the State 3. Friendly relations with foreign States 4. Public order 5. Decency or morality 6. Contempt of court (disrespecting or obstructing courts; the Supreme Court and High Courts can punish it under Arts. 129 and 215) 7. Defamation (harming a person's reputation with false statements) 8. Incitement to an offence (urging people to commit a crime)

• The list is complete. In Kaushal Kishor (2023), a Constitution Bench held that courts cannot add new grounds by relying on another right, such as Art. 21.

How a court tests a limit (step by step)

1. Find the Art. 19(2) ground that the State relies on.
2. Ask whether the limit is proportionate to the harm.
3. Apply the three levels of speech from Shreya Singhal (2015): - Discussion is protected. - Advocacy, even of an unpopular cause, is protected. - Only incitement, which is closely linked to public disorder, can be restricted.

• Examples from NCERT (Class 11, Ch 2):
• A documentary that criticises the government is protected.
• A ban on loudspeakers after 9 pm is usually a reasonable public order limit.

In the Constitution and practice

Where it sits. It is in Article 19(1)(a), Part III (Fundamental Rights), and is limited by Art. 19(2).

How the grounds grew

• Original Art. 19(2) (1950) allowed limits only for speech that undermined the security of the State or tended to overthrow it, plus a few other grounds.
• Two 1950 cases showed that this was too narrow:
• Romesh Thappar v. State of Madras: Madras banned the journal Cross Roads under a public safety law. The Court struck the ban down because "public safety" was not a ground in Art. 19(2).

• Brij Bhushan v. State of Delhi: an order made the weekly Organiser show its material to the government before printing (pre-censorship). The Court struck the order down for the same reason.

• 1st Amendment, 1951:

• It added public order, friendly relations with foreign States and incitement to an offence [6].
• It added the word "reasonable" before "restrictions", so courts can test every limit.

• It let the new clause apply to earlier laws [6].

• 16th Amendment, 1963: it added sovereignty and integrity of India. This came after the 1962 war with China and during demands for secession.

Sedition

• IPC s.124A punished bringing hatred, contempt or disaffection against the government set up by law. It was a colonial-era crime.
• Kedar Nath Singh v. State of Bihar (1962): the Court upheld s.124A but read it down (narrowed its meaning to keep it constitutional).
• Only words that incite violence or tend to create public disorder count as sedition.

• Strong criticism of the government is not sedition.

• S.G. Vombatkere v. Union of India (May 2022): s.124A was put in abeyance (on hold). No new cases could be filed, and pending trials were paused.

• Law Commission Report No. 279 (17 April 2023): the 22nd Law Commission, chaired by Justice Ritu Raj Awasthi, wrote it at the request of the Ministry of Home Affairs. It recommended keeping sedition with safeguards [5].
• Bharatiya Nyaya Sanhita (BNS), 2023:
• It is Act No. 45 of 2023, passed on 25 December 2023 [3]. It came into force on 1 July 2024 and replaced the IPC.
• Sedition is no longer an offence [4].
• s.152 punishes anyone who purposely or knowingly excites secession, armed rebellion or subversive activities, encourages feelings of separatist activities, or endangers India's sovereignty, unity and integrity [2].
• It covers words, signs, electronic communication and financial means [2].
• Punishment is life imprisonment or up to 7 years, plus a fine [2].

Criminal defamation

• Criminal defamation treats harm to reputation as a crime (jail or fine), not only as a civil wrong (paying damages). It was in IPC ss.499-500 and is now BNS s.356.
• Subramanian Swamy v. Union of India (2016): it was upheld.
• Reputation is part of the right to life and dignity under Art. 21.
• Defamation is itself an Art. 19(2) ground.

Online speech: Shreya Singhal v. Union of India (2015)

• IT Act s.66A was struck down. It punished "grossly offensive" or "annoying" messages. The Court found it:
• vague: no one could know what "annoying" means
• overbroad: it caught lawful speech too

• not linked to any 19(2) ground

• s.69A was upheld. It is the government's power to block online content. It has safeguards: reasons must be written down, and a committee reviews each order.

• s.79 was read down. It gives safe harbour (platforms are not liable for what users post). Platforms must take content down only on a court order or a government notice.
• Afterwards: in 2021-22 the Supreme Court found that police were still filing cases under s.66A. It ordered that no one be prosecuted under it.

Other cases and current issues

• Bijoe Emmanuel v. State of Kerala (1986):
• Three Jehovah's Witness students stood respectfully during the national anthem but did not sing it, and they were expelled. The Court reinstated them.
• No law forced anyone to sing, and a government circular alone could not limit the right.

• The case also protected their freedom of religion under Art. 25.

• Naveen Jindal (2004) and the flag:

• Flying the flag with dignity is expression under Art. 19(1)(a).

• The Flag Code of India, 2002 was changed in 2022. It now allows machine-made and polyester flags, and flying the flag day and night if it is flown in the open.

• Hate speech (speech that attacks a group because of religion, caste, race and similar traits):

• It is punished under BNS s.196 (formerly IPC s.153A).
• Amish Devgan (2020): courts look at the content, the speaker's intent and the likely harm. Speakers with influence carry more responsibility.

• Tehseen Poonawalla (2018): the Court gave guidelines to prevent lynching, such as a nodal officer in each district.

• IT Rules 2021 and the fact-check unit:

• An amendment on 6 April 2023 made platforms remove content that a Central government fact-check unit marked as false about government business. Otherwise the platforms would lose legal protection [8].
• In March 2024, MeitY notified the PIB Fact Check Unit as this unit [9].

• The Bombay High Court (Kunal Kamra case, 2024) struck the rule down as vague and as going beyond the 19(2) grounds.

• Takedowns: critics say blocking orders are not made public. The government has amended Rule 3(1)(d) of the IT Rules 2021 to add transparency, accountability and safeguards [10].

• Contempt of court remains a ground under the Contempt of Courts Act, 1971. Streaming platforms and digital news fall under the Code of Ethics in the IT Rules, 2021.

Don't confuse with

• Freedom of the press vs. the text of Art. 19: press freedom is not written anywhere in Art. 19. Courts read it into Art. 19(1)(a). Unlike some other constitutions, India has no separate press clause.
• Art. 19 vs. Art. 21: Art. 19 freedoms belong only to citizens. Art. 21 (life and personal liberty) protects every person. Kaushal Kishor (2023) held that Art. 21 cannot be used to add new limits on speech beyond Art. 19(2).
• Sedition (IPC s.124A) vs. BNS s.152: s.124A punished disaffection against the government. s.152 punishes endangering India's sovereignty, unity and integrity and does not use the word "sedition". Critics still call it sedition under another name.
• Criminal defamation vs. civil defamation: criminal defamation (BNS s.356) can lead to jail or a fine. Civil defamation only leads to paying damages to the person harmed.

Prelims Hooks

• 1st Amendment, 1951 added three grounds to Art. 19(2): public order, friendly relations with foreign States and incitement to an offence. It also added the word "reasonable". The 16th Amendment, 1963 added sovereignty and integrity of India.
• Trap: "security of the State" was in the original Art. 19(2). It was not added in 1951.
• Art. 19(2) has 8 grounds, and the list is complete. Courts cannot add more (Kaushal Kishor, 2023).
• Shreya Singhal (2015): s.66A struck down, s.69A upheld, s.79 read down. Trap: the blocking power was not struck down.
• Kedar Nath Singh (1962) upheld sedition but limited it to incitement to violence. S.G. Vombatkere (2022) put it on hold. BNS s.152 now carries life imprisonment or up to 7 years, plus a fine [2], and the BNS came into force on 1 July 2024.
• Bijoe Emmanuel (1986): right to stay silent during the national anthem. Naveen Jindal (2004): flying the flag with dignity is expression. Subramanian Swamy (2016): criminal defamation upheld because reputation is part of Art. 21.

Mains Points

• Liberty versus order:
• The 1st Amendment came only about 18 months after the Constitution began. It shows the early State's fear of disorder.
• The word "reasonable" and judicial review balance this fear.

• The Shreya Singhal line between discussion, advocacy and incitement is the best test of whether a limit is proportionate.

• Unfinished sedition reform and the chilling effect (people staying silent out of fear of being prosecuted):

• BNS s.152 uses broad words like "subversive activities" and does not write in the Kedar Nath incitement-to-violence test.
• Criminal defamation, and s.66A cases filed after the law was struck down, turn the slow trial itself into the punishment.

• Reforms: put the incitement test into the law, require approval before police file a case, make defamation a civil wrong only, and train the police.

• Who decides what is true online:

• The fact-check unit, s.69A orders that are not made public, and platform takedowns let the government judge truth.
• Better options: independent oversight, publishing blocking orders, giving users notice and a right to appeal, and keeping every rule within the eight Art. 19(2) grounds.

Related concepts

• Right to freedom
• Freedom of the press
• Reasonable restrictions
• Restrictions on freedom of speech
• Romesh Thappar case
• Kedar Nath Singh case
• Sedition
• Criminal defamation
• Shreya Singhal case
• Bijoe Emmanuel case

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• Freedom of speech and expression