Restrictions on freedom of speech

Also called: Article 19(2) · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Beyond NCERT

Meaning

Restrictions on freedom of speech are the limits that the State may place, by law, on the freedom of speech and expression under Article 19(1)(a). Article 19(2) allows these limits only if they are reasonable and based on one of eight grounds: sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, and incitement to an offence [6].

Free speech is not absolute. Article 19(2) sets out when the State may curb it and how far. This clause sits behind every debate on sedition, hate speech, defamation and online censorship.

Explanation

How Article 19(2) works

• The right: Article 19(1)(a) lets citizens share their views through speech, writing, print, pictures, film or any other medium. Only citizens have this right. Foreigners cannot claim it.
• The limit: Article 19(2) lets the State make a law that puts reasonable restrictions on this right [6].
• Reasonable restrictions are limits the courts check for fairness. Each limit must be needed and in proportion to the problem.

• The limit must come from a law. An executive order alone is not enough. In Bijoe Emmanuel (1986), a government circular could not stop students from staying silent during the national anthem.

• Judicial review: the courts can test whether a limit is valid. Judicial review is the power of courts to strike down laws that break the Constitution. The courts ask two questions: 1. Which Article 19(2) ground does the State rely on? 2. Is the limit in proportion to the harm?

The eight grounds

1. Sovereignty and integrity of India: protecting India's unity and its power to govern itself.
2. Security of the State: protecting against serious threats such as rebellion or war.
3. Friendly relations with foreign States: speech that could harm India's ties with other countries.
4. Public order: peace and safety in society.
5. Decency or morality: for example, obscene material.
6. Contempt of court: disrespecting or blocking the work of courts. Articles 129 and 215 let the Supreme Court and the High Courts punish contempt.
7. Defamation: harming a person's reputation with false statements.
8. Incitement to an offence: urging people to commit a crime.

Conditions and limits

• The list is complete. In Kaushal Kishor v. State of U.P. (2023), a Constitution Bench held that courts cannot add new grounds. They cannot do so even by relying on another right, such as Article 21.
• There must be a close link to the ground. In Shreya Singhal (2015), the Court described three levels of speech:
• Discussion is protected.
• Advocacy is protected, even for an unpopular cause.

• Only incitement that is closely linked to public disorder can be curbed.

• Vague or overbroad laws fail. A law is vague when no one can tell what it bans. It is overbroad when it catches lawful speech along with harmful speech.

• The real effect counts. In Bennett Coleman (1973), the Court looked at how much a rule actually hurt speech, not only at what the rule claimed to be about.
• Applying the test:
• 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

How the grounds grew

• Original Article 19(2), 1950: the clause was narrow. On security, it allowed limits only on speech that undermined the security of the State or tended to overthrow it.
• Romesh Thappar v. State of Madras (1950): 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 Article 19(2).
• Brij Bhushan v. State of Delhi (1950): an order forced the weekly Organiser to show its material to the government before printing. This is called pre-censorship. The Court struck the order down for the same reason.
• 1st Amendment, 1951:
• It added three grounds: public order, friendly relations with foreign States and incitement to an offence [5].
• It added the word "reasonable" before "restrictions".

• It allowed the new clause to apply to earlier laws as well [5].

• 16th Amendment, 1963:

• It added sovereignty and integrity of India.
• It came after the 1962 war with China, at a time of demands for secession.

Grounds in action: key cases and laws

• Sedition (IPC s.124A):
• Kedar Nath Singh v. State of Bihar (1962): the Court upheld s.124A but read it down. Reading down means the court narrows a law's meaning so that it stays constitutional. After this case, only words that incite violence or public disorder counted as sedition.
• S.G. Vombatkere v. Union of India (May 2022): the Court put s.124A 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, recommended keeping sedition with safeguards against misuse [4].
• Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023) [2]: it came into force on 1 July 2024. Sedition is no longer an offence under it [3].

• BNS s.152 punishes acts that endanger the sovereignty, unity and integrity of India. These include exciting secession, armed rebellion or subversive activities, including through electronic communication or financial means. The punishment is life imprisonment, or prison for up to 7 years, plus a fine [1].

• Criminal defamation (IPC ss.499-500, now BNS s.356):

• Subramanian Swamy v. Union of India (2016) upheld it.
• Reputation is part of the right to life and dignity under Article 21.

• Defamation is also a ground listed in Article 19(2).

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

• s.66A of the IT Act was struck down for being vague and overbroad, and for not being tied to any Article 19(2) ground.
• s.69A (the power to block online content) was upheld because it has safeguards.
• s.79 was read down.

• In 2021-22, the Court noted that police were still filing cases under s.66A and ordered them to stop.

• Hate speech:

• BNS s.196 punishes promoting enmity between groups. It was formerly IPC s.153A.

• Amish Devgan (2020): courts look at the content of the speech, the speaker's intent and the likely harm. Speakers with influence carry more responsibility.

• The fact-check unit:

• The IT Rules, 2021 were amended on 6 April 2023. Platforms had to remove content that a Central government fact-check unit marked as false about government business [7].
• The PIB Fact Check Unit was notified as this unit in March 2024 [8].
• The Bombay High Court (Kunal Kamra case, 2024) struck down the rule as vague and beyond the Article 19(2) grounds.

Don't confuse with

• Article 19(3)–19(6): these clauses limit the other Article 19 freedoms, such as assembly, association, movement and profession. Only Article 19(2) applies to speech, and its eight grounds cannot be borrowed from the other clauses.
• Sedition (old IPC s.124A) vs BNS s.152: sedition punished "disaffection" against the government. BNS s.152 punishes acts that endanger sovereignty, unity and integrity [1]. Critics say s.152 is sedition by another name because it does not write in the Kedar Nath limit.
• Criminal vs civil defamation: criminal defamation (BNS s.356) can bring jail or a fine. Civil defamation only makes the speaker pay damages. Both rest on the same Article 19(2) ground.
• Freedom of the press: the press has no separate article. Its freedom is read into Article 19(1)(a), so the same eight Article 19(2) grounds apply to it.

Prelims Hooks

• 1st Amendment, 1951 added public order, friendly relations with foreign States and incitement to an offence, plus the word "reasonable". 16th Amendment, 1963 added sovereignty and integrity of India.
• Trap: "security of the State" was in the original Article 19(2). It was not added in 1951.
• Romesh Thappar (1950): "public safety" was not a ground in the original clause. This case led to the 1st Amendment.
• Kaushal Kishor (2023): the eight grounds form a complete list. Courts cannot add new ones.
• 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) limited sedition to incitement to violence. BNS s.152 now carries life imprisonment or up to 7 years, plus a fine [1]. The BNS came into force on 1 July 2024.

Mains Points

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

• Shreya Singhal's line between discussion, advocacy and incitement is the best test of whether a limit is in proportion.

• The chilling effect: a chilling effect means people stay quiet out of fear. It comes from:

• BNS s.152's broad terms, such as "subversive activities", and the missing Kedar Nath limit.
• Criminal defamation, which brings long and costly trials.
• Cases still filed under the struck-down s.66A.

Possible reforms: write the incitement-to-violence test into the law, require approval before police file a case, make defamation a civil wrong only, and train police.

• Digital speech governance:
• The fact-check unit and secret s.69A blocking orders raise one question: should the government decide what is true?
• Better options include independent oversight, publishing blocking orders, giving users notice and a right to appeal, and keeping every rule within the eight Article 19(2) grounds.

Related concepts

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

Read more

• Freedom of speech and expression