CONSTITUTIONAL FRAMEWORK OF FREE

SPEECH IN INDIA

SATYA PRAKASH
ADJUNCT FACULTY
Symbiosis Law School, NOIDA
Article 19

 Protection of certain rights regarding freedom of speech etc

 (1) All citizens shall have the right
a) to freedom of speech and expression;
b) to assemble peaceably and without arms;
c) to form associations or unions;
d) to move freely throughout the territory of India;
e) to reside and settle in any part of the territory of India; and
f) omitted
g) to practise any profession, or to carry on any occupation, trade or business
 (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause 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
 Article 19 contd..
 (3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity
of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause
 (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity
of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said
sub clause
 (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of
any of the rights conferred by the said sub clauses either in the interests of the general public or for the
protection of the interests of any Scheduled Tribe
 (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular,
nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,
 (i) the professional or technical qualifications necessary for practising any profession or carrying on any
occupation, trade or business, or
 (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
Constituent Assembly Debate on Art. 19
 Draft Constitution of India, 1948
 13. (1) Subject to the other provisions of this article, all citizens shall have the
right-
 (a) To freedom of speech and expression;
 (b) To assemble peaceably and without arms;
 (c) To form associations or unions;
 (d) To move freely throughout the territory of India;
 (e) To reside and settle in any part of the territory of India;
 (f) To acquire, hold and dispose of property; and
 (g) To practise any profession, or to carry on any occupation, trade or business.
 (2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation
of any existing law, or prevent the State from making any law, relating to libel,
slander, defamation, sedition or any other matter which offends against decency.
or morality or undermines the authority or foundation of the State.
Constituent Assembly Debate on Art. 19
 (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law, or prevent the State from making
any law, imposing in the interests of public order restrictions on the exercise of the right conferred by the said sub-clause.
 (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law, or prevent the State from making
any law, imposing, in the interests of the general public, restrictions on the exercise of the right conferred by the said sub-
clause.
 (5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law, or prevent the State
from making any law, imposing restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the
interests of the general public or for the protection of the interests of any aboriginal tribe.
 (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law, or prevent the State from making
any law, imposing in the interests of public order, morality or health, restrictions on the exercise of the right conferred by the
said sub-clause and in particular prescribing, or empowering any authority to prescribe, the professional or technical
qualifications necessary for practising any profession or carrying on any occupation, trade or business
 Draft Article 13 (Article 19, Constitution of India 1950) was debated on the 1 December 1948, 2nd of December 1948, 16th
October 1949 and 17th of October 1949.
 While the Constituent Assembly was unanimous on the incorporation of the rights to freedom in the Constitution, conflicts
emerged.
 The Assembly saw skirmishes primarily around the clauses that allowed existing and future laws to restrict the rights to
freedom on certain grounds. While some members were convinced rights could not be absolute, others were concerned that
restrictions effectively nullified the rights.
 It was suggested that the term ‘reasonable restrictions’ be introduced into the Article - this allowed the Courts to review
legislation and strike down restrictions that were arbitrary.
 The Article was adopted with amendments.
Free Speech in India & the US
 Article 19(1)(a) of the Constitution says, “All citizens shall have the right to
freedom of speech and expression.”
 But this freedom is not absolute and can be subjected to “reasonable
restrictions” as mentioned in Article 19(2) of the Constitution.
 First Amendment of the US Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.”
 Difference between free speech in India and the US:
 US expressly guarantees free speech to the press
 There are no restrictions on free speech in the US
 First amendment also includes right to religion
 But US courts have evolved doctrine of “imminent danger”
Framework of Law on Free Speech in India

 The purpose of reasonable restrictions is three fold:

 First, it authorises the State to use pre-Constitution laws to restrict free speech.
 Second, it authorises the state to make laws imposing reasonable restrictions on free speech in the interests
of the sovereignty and integrity of India, 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.
 Third, it also places limitations on the state that cannot restrict a citizen’s free speech on any grounds
other than those specifically mentioned in Article 19(2) – an often-overlooked implication of the provision.
 In May 1951, Nehru piloted the first amendment to the Constitution. The statement of objects and reasons
of the amendment bill read: “The citizen’s right to freedom of speech and expression…has been held by
some courts to be so comprehensive as not to render a person culpable even if he advocates murder and
other crimes of violence. In other countries with written constitutions, freedom of speech and of the press
is not regarded as debarring the state from punishing or preventing abuse of this freedom.”
 This gave more teeth to Article 19(2) that provides a licence to the government to curb free speech.
 Among other things, the amendment added “pubic order” to the list. It was on this point that the SC upheld
the validity of sedition law – now being invoked against activists.
 His government further strengthened the restrictions in 1963, when it brought in the 16th amendment that
added “the sovereignty and integrity of India”.
 Since then, Article 19(2) has been used to justify laws on defamation, contempt of court, obscenity, official
secrets and hate speech.
SC Verdicts on Article 19 in 1950s

 Romesh Thappar vs The State Of Madras

 It involved a challenge against an order issued by the Government
of Madras under section 9(I-A) of the Madras Maintenance of Public
Order Act 1949 imposing a ban on the entry and circulation of
‘Cross Roads’, a journal published by the petitioner.
 The Supreme Court struck down the provision holding that the
right to freedom of speech and expression was paramount and
nothing short of a danger to the foundations of the State or a
threat to overthrow it, could justify curtailment of the right to
freedom of speech and expression. The court said the restriction
in question fell outside the scope of reasonable restrictions
permissible under Article 19(2) of the Constitution and hence
unconstitutional.
SC Verdicts on Article 19 in 1950s

 Brij Bhushan And Another vs The State Of Delhi

 In this case the authorities had passed an order against the publishers of
the ‘Organiser’ under section 7(i)(c) of the East Punjab Safety Act 1949. It
authorised pre-censorship on the ground that it was “necessary for the
purpose of preventing or combating any activity pre-judicial to the public
safety or the maintenance of public order.”
 The Supreme Court ruled that section 7(i)(c) that authorised such pre-
censorship was unconstitutional as it did not fall within the ambit of
reasonable restrictions under Article 19(2) of the Constitution.
 Impact of the two verdicts
 It forced the Nehru government to introduce the First Amendment to the
Constitution barely a year after it came into force. The government felt
handicapped in dealing with challenges to a nascent State in terms of
exercise of free speech which could potentially incite violence.
THE CONSTITUTION (FIRST AMENDMENT) ACT, 1951
 Statement of Objects and Reasons appended to the Constitution (First Amendment) Bill, 1951 which was enacted as the
Constitution (First Amendment) Act, 1951
 STATEMENT OF OBJECTS AND REASONS
 During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial
decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen's right to freedom of speech
and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person
culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of
speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen's
right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to
reasonable restrictions which the laws of the State may impose "in the interests of general public". While the words cited are
comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place the
matter beyond doubt by a clarificatory addition to article 19(6). Another article in regard to which unanticipated difficulties
have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the last three years has,
in spite of the provisions of clauses (4) and (6) of article 31, formed the subject-matter of dilatory litigation, as a result of
which the implementation of these important measures, affecting large numbers of people, has been held up.
 The main objects of this Bill are, accordingly to amend article 19 for the purposes indicated above and to insert provisions fully
securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. the
opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise.
 It is laid down in article 46 as a directive principle of State policy that the State should promote with special care the
educational and economic interests of the weaker sections of the people and protect them from social injustice. In order that
any special provision that the State may make for the educational, economic or social advancement of any backward class of
citizens may not be challenged on the ground of being discriminatory, it is proposed that article 15(3) should be suitably
amplified. Certain amendments in respect of articles dealing with the convening and proroguing of the sessions of Parliament
have been found necessary and are also incorporated in this Bill. So also a few minor amendments in respect of articles 341,
342, 372 and 376.
 New Delhi; JAWAHARLAL NEHRU. The 10th May, 1951.
What changed in Article 19
 Amendment of article 19 and validation of certain laws.-
 (1) In article 19 of the Constitution,-
 (a) for clause (2), the following clause shall be substituted, and the said clause shall be deemed always to have
been enacted in the following form, namely:---
 "(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the
said sub-clause in the interests of 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.";
 (b) in clause (6), for the words beginning with the words "nothing in the said sub-clause" and ending with the
words "occupation, trade or business", the following shall be substituted, namely:-
 "nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent
the State from making any law relating to-
 (i) the professional or technical qualifications necessary for practising any profession or carrying on any
occupation, trade or business, or
 (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete or partial, of citizens or otherwise".
 (2) No law in force in the territory of India immediately before the commencement of the Constitution which is
consistent with the provisions of article 19 of the Constitution as amended by sub-section (1) of this section shall
be deemed to be void, or over to have become void, on the ground only that, being a law which takes away or
abridges the right conferred by sub-clause (a) of clause (1) of the said article, its operation was not saved by
clause (2) of that article as originally enacted.
 Explanation.-In this sub-section, the expression "law in force" has the same meaning as in clause (1) of article 13 of
the Constitution.
THE CONSTITUTION (SIXTEENTH AMENDMENT) ACT, 1963
 Statement of Objects and Reasons appended to the Constitution (Sixteenth Amendment)
Bill, 1963 which was enacted as the Constitution (Sixteenth Amendment) Act, 1963
 STATEMENT OF OBJECTS AND REASONS
 The Committee on National Integration and Regionalism appointed by the National
Integration Council recommended that article 19 of the Constitution be so amended that
adequate powers become available for the preservation and maintenance of the integrity,
and sovereignty of the Union. The Committee were further of the view that every
candidate for the membership of a State Legislature or Parliament, and every aspirant to,
and incumbent of, public office should pledge himself to uphold the Constitution and to
preserve the integrity and sovereignty of the Union and that forms of oath in the Third
Schedule to the Constitution should be suitably amended for the purpose.
 It is proposed to give effect to these recommendations by amending clauses (2), (3) and
(4) of article 19 for enabling the State to make any law imposing reasonable restrictions
on the exercise of the rights conferred by sub-clauses (a), (b) and (c) of clause (1) of that
article in the interests of the sovereignty and integrity of India. It is also proposed to
amend articles 84 and 173 and forms of oath in the Third Schedule to the Constitution so
as to provide that every candidate for the membership of Parliament or State Legislature,
Union and State Ministers, Members of Parliament and State Legislatures, Judges of the
Supreme Court and High Courts and the Comptroller and Auditor-General of India should
take an oath to uphold the sovereignty and integrity of India.
What changed in Article 19 after 16th Amendment
 Amendment of article 19-
 In article 19 of the Constitution,-
 (a) in clause (2), after the words "in the interests of", the words "the
sovereignty and integrity of India," shall be inserted;
 (b) in clauses (3) and (4), after the words "in the interests of", the words
"the sovereignty and integrity of India or" shall be inserted.
 The political background of 16th Amendment-
 The amendment came in the backdrop of India’s debacle in the 1962 Sino-
Indian war.
 No wonder the amendment added “sovereignty and integrity of India” as
one of the grounds for imposing reasonable restrictions on right to free
speech under Article 19(1)(a), (b) and (c) of the Constitution.
Implications of 1st & 16th Amendments
 The 1st Amendment which added several expressions, including public order, to the restriction clause i.e.
Article 19(2) impacted the Supreme Court’s verdict in many important cases.
 In Kedarnath Singh vs. State of Bihar 1962, the SC upheld the validity of Sedition law.
 Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid. Though the
section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the
interest of public order and are within the ambit of permissible legislative interference with the fundamental
right. There is a conflict on the question of the ambit of s. 124A between decision of the federal Court and of
the Privy Council.
 The Federal Court has held that words, deeds or writings constituted an offence under s. 124A only when they
had the intention or tendency to disturb public tranquility. to create public disturbance or to promote disorder,
whilst the Privy Council has taken the view that it was not an essential ingredient of the offence of sedition
under s. 124A that the words etc, should be intended to or be likely to incite public disorder. Either view can
be taken and supported on good reasons. If the view taken by the Federal Court was accepted s. 124A would be
constitutional but if the view of the Privy Council was accepted it would be unconstitutional.
 It is well settled that if certain provisions of law construed in one way would make them consistent with the
constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of
the former construction. Keeping in mind the reasons for the introduction of s. 124A and the history of sedition
the section must be so construed as to limit its application to acts involving intention or tendency to create
disorder, or disturbance of law and order; or incitement to violence.
 It also upheld the validity of Section 505(b) of IPC.
Important Cases

 Sakal Papers (P) Ltd. vs Union of India 1962 (Right to Circulate)

 Bennett Coleman & Co. vs Union of India 1972
 Indian Express Newspapers (Bombay) (P) Ltd. vs Union of India
 Hamdard Dawakhana (Wakf) Lal ... vs Union Of India And Others
https://indiankanoon.org/doc/591481/
 Tata Press Limited vs Mahanagar Telephone-Nigam Limited
https://indiankanoon.org/doc/752455/
 Shreya Singhal vs Union of India
https://indiankanoon.org/doc/110813550/
THANK YOU