Freedom of speech and expression

Detail

1. The Right to Freedom (Arts. 19-22)

• Right to freedom is the group of Articles 19 to 22. It balances one person's liberty against the liberty of others and against public order (peace and safety in society).
• Art. 19 at the start (1950) gave citizens seven freedoms. Two changes came later:
• 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) now covers forming cooperative societies as well as associations and unions. This was added by the 97th Amendment, 2011.

• The six freedoms under Art. 19 today:

Clause	Freedom	Clause that allows limits
19(1)(a)	Speech and expression	19(2)
19(1)(b)	Peaceful assembly without arms	19(3)
19(1)(c)	Associations, unions, cooperatives	19(4)
19(1)(d)	Move freely throughout India	19(5)
19(1)(e)	Live and settle anywhere in India	19(5)
19(1)(g)	Any profession, trade or business	19(6)

• Art. 19 rights belong only to citizens. Foreigners cannot claim them.

2. What Art. 19(1)(a) covers

• Freedom of speech and expression means citizens may share their views through speech, writing, print, pictures, film or any other medium.
• The courts have read several rights into these few words.

Freedom of the press. This means newspapers and other media can publish without control by the government. It is not written in the text, but it is implied in Art. 19(1)(a).

• Romesh Thappar v. State of Madras (1950): a ban on circulating the journal Cross Roads was struck down. Freedom to circulate is part of free speech.
• Sakal Papers v. Union of India (1962): a government order fixed how many pages a newspaper could print at a given price. The Court struck it down. Cutting the pages a paper can print cuts its speech. The State cannot curb the press to help some other goal, such as helping smaller papers.
• Bennett Coleman v. Union of India (1973): limits on newsprint (the paper newspapers are printed on) were struck down. The Court looked at how much a rule actually hurts speech, not just at what the rule is formally about.

Right to know. In State of U.P. v. Raj Narain (1975), the Court held that people have a right to know about public acts of the government. This idea later supported the Right to Information Act, 2005.

Right to fly the national flag. In Union of India v. Naveen Jindal (2004), the Court held that a citizen may fly the national flag with respect and dignity. Doing so is a form of expression under Art. 19(1)(a), within reasonable limits (NCERT: Class 7, "Let's Explore").

• The Flag Code of India, 2002 was changed in 2022. Flags made by machine and from polyester are now allowed. The flag may also be flown day and night if it is flown in the open.

Right to stay silent. In Bijoe Emmanuel v. State of Kerala (1986), three Jehovah's Witness students stood respectfully during the national anthem but did not sing it. They had been expelled from school. The Court reinstated them.

• Free speech also includes the freedom not to speak.
• No law forced anyone to sing. A government circular alone could not limit the right.
• The case also protected their freedom of religion (Art. 25).

3. Reasonable restrictions: Art. 19(2)

• Reasonable restrictions are limits that the State may place on a right only on the grounds listed in the Constitution. The courts decide whether each limit is fair, needed and in proportion to the problem.
• Art. 19(2) today lets the State make laws that put reasonable restrictions on free 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. Arts. 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)

• Kaushal Kishor v. State of U.P. (2023): a Constitution Bench held that this list is complete. Courts cannot add new grounds by using some other right, such as Art. 21.

4. How the grounds grew: the 1st and 16th Amendments

Why the 1st Amendment came. Two court cases in 1950 showed that the original Art. 19(2) was too narrow.

• Romesh Thappar (1950): Madras banned Cross Roads from entering the state under a public safety law. The Court struck the ban down because "public safety" was not a ground in Art. 19(2). The original clause allowed limits only for things that undermined the security of the State or tended to overthrow it.
• Brij Bhushan v. State of Delhi (1950): an order forced the weekly Organiser to show its material to the government before printing (pre-censorship). The Court struck the order down for the same reason.

What the 1st Amendment, 1951 did.

• It rewrote Art. 19(2) to add public order, friendly relations with foreign States and incitement to an offence [6].
• It added the word "reasonable" before "restrictions", so the courts can test every limit.
• It also allowed the new clause to apply to earlier laws [6].

What the 16th Amendment, 1963 did.

• It added "sovereignty and integrity of India" as a ground.
• It came after the 1962 war with China and during demands for secession from India.

The test in practice. The NCERT exercises (Class 11, Ch 2) ask whether these acts are protected:

• making a documentary that criticises the government (Ex. 3b)
• a ban on a book, a ban on loudspeakers after 9 pm, and making a speech (Ex. 5)

The method is the same each time:

• First, find the 19(2) ground the State relies on.
• Then ask whether the limit is in proportion to the harm.
• Criticising the government is protected. A curfew on loudspeakers at night is usually a reasonable public order limit.

5. Sedition

• Sedition was a crime from colonial times: bringing or trying to bring hatred, contempt or disaffection against the government set up by law. It was punished under IPC s.124A.

Kedar Nath Singh v. State of Bihar (1962): a Constitution Bench upheld s.124A but read it down.

• To "read down" a law means the court narrows its meaning so that it stays constitutional.
• Only words that incite violence or tend to create public disorder are sedition.
• Strong criticism of the government is not sedition.

S.G. Vombatkere v. Union of India (May 2022): the Supreme Court put s.124A in abeyance (on hold) while the government reconsidered the law.

• No new cases were to be filed under it.
• Pending trials were paused.

Law Commission Report No. 279, "Usage of the Law of Sedition" (17 April 2023):

• It was written by the 22nd Law Commission, chaired by Justice Ritu Raj Awasthi, at the request of the Ministry of Home Affairs [5].
• It recommended keeping sedition but adding safeguards against misuse.

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 under the BNS [4].
• s.152, "Act endangering sovereignty, unity and integrity of India" is a new offence. It punishes anyone who purposely or knowingly excites or tries to excite secession, armed rebellion or subversive activities, encourages feelings of separatist activities, or endangers India's sovereignty, unity and integrity [2].
• This covers acts done through words, signs, visible representation, electronic communication or financial means [2].

• Punishment: life imprisonment, or prison for up to 7 years, plus a fine [2].

• Criticism: s.152 does not use the word "sedition", and it does not write the Kedar Nath limit (incitement to violence) into the law. Critics call it sedition by another name.

6. Criminal defamation

• Criminal defamation means harming someone's reputation is treated as a crime (with jail or a fine), not only as a civil wrong (where the person pays damages). It was in IPC ss.499-500 and is now BNS s.356.
• Subramanian Swamy v. Union of India (2016): the Court upheld criminal defamation.
• Reputation is part of the right to life and dignity under Art. 21.

• "Defamation" is itself a ground in Art. 19(2), so the limit is valid.

• Criticism: the law can be used against journalists and critics through long, costly trials. This is called a chilling effect: people stay quiet out of fear.

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

• IT Act, 2000, s.66A punished sending "grossly offensive" or "menacing" messages, or false messages that cause "annoyance" or "inconvenience".
• The Court struck s.66A down because it was:
• vague: no one could know what "annoying" means.
• overbroad: it caught lawful speech as well as harmful speech.

• not linked to any 19(2) ground.

• Three levels of speech:

• Discussion is protected.
• Advocacy, even of an unpopular cause, is protected.

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

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

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

8. Current issues

Hate speech means speech that attacks a group because of its religion, caste, race and similar traits, or stirs up hatred against it.

• BNS s.196 punishes promoting enmity between groups (formerly IPC s.153A).
• Amish Devgan v. Union of India (2020): the Court said that, to judge hate speech, courts look at the content, the speaker's intent, and the harm the speech is likely to cause. Speakers with influence carry more responsibility.
• Tehseen Poonawalla v. Union of India (2018): the Court gave guidelines to prevent and punish lynching, such as a nodal officer in each district, and asked Parliament to make a separate law.

IT Rules, 2021 and the fact-check unit:

• The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were amended on 6 April 2023 [8].
• Under the amendment, platforms had to remove content that a fact-check unit of the Central government marked as false or fake about government business. Otherwise they 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 down the fact-check-unit rule as vague and as beyond the 19(2) grounds (verify current).

Takedowns and blocking:

• The government issues blocking orders under s.69A and takedown notices to platforms.
• Critics say these orders are not open to the public.
• The government has amended Rule 3(1)(d) of the IT Rules 2021 (the rule on takedown notices to platforms) to add transparency, accountability and safeguards [10].

Contempt of court:

• This remains a 19(2) ground under the Contempt of Courts Act, 1971.
• The debate is how to keep courts respected without silencing fair criticism of judges.

Broadcasting and OTT:

• Streaming platforms and digital news are covered by the Code of Ethics in the IT Rules, 2021.
• The rules for TV broadcasting are being revised (verify current).

Prelims Hooks

• Freedom of the press is not written in Art. 19; it is read into Art. 19(1)(a) (Romesh Thappar 1950, Sakal Papers 1962, Bennett Coleman 1973).
• 1st Amendment, 1951 added three grounds to Art. 19(2): public order, friendly relations with foreign States, 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 Art. 19(2). It was not added in 1951.
• Art. 19(2) has 8 grounds, and the list is complete (Kaushal Kishor, 2023).
• Bijoe Emmanuel (1986): the right to stay silent during the national anthem. Naveen Jindal (2004): flying the flag with dignity is free expression.
• Kedar Nath Singh (1962) upheld sedition (IPC 124A) but limited it to incitement to violence. S.G. Vombatkere (2022) put it on hold.
• BNS s.152 replaced sedition: punishment is life imprisonment or up to 7 years, plus fine. The BNS came into force on 1 July 2024.
• Law Commission Report No. 279 (2023), under the 22nd Law Commission (Justice Ritu Raj Awasthi), recommended keeping sedition with safeguards.
• Shreya Singhal (2015): s.66A struck down, s.69A upheld, s.79 read down. Trap: blocking power was not struck down.
• Subramanian Swamy (2016): criminal defamation (now BNS s.356) upheld, because reputation is part of Art. 21.

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 are the balance. Shreya Singhal's line between discussion, advocacy and incitement is the best test for whether a limit is in proportion.
• Sedition reform is unfinished: the BNS dropped the word "sedition", but s.152 uses broad terms like "subversive activities" and "separatist feelings", and it does not write in the Kedar Nath limit. Possible reforms: put the incitement-to-violence test into the law itself, require police to get approval before filing a case, and track conviction rates.
• Chilling effect: criminal defamation, s.66A cases filed after it was struck down, and laws used as punishment through slow trials all discourage speech. Possible reforms: make defamation a civil wrong only (it is in many democracies), take quick action against cases based on invalid laws, and train police.
• Digital speech governance: the State's fact-check unit, opaque s.69A orders and takedowns by platforms raise one question: should the government decide what is true? Better options are independent oversight, publishing blocking orders, giving users notice and a right to appeal, and keeping rules within the eight Art. 19(2) grounds.