FINAL DRAFT

SUBJЕCT : Law of Constitution

TOPIC : " A STUDY OF ARTICLE 19 1(A) "

Submittеd To : Submitted By :
Mahender Singh Paswan Akshayvat Kislay
Asstt. Prof. (Law) Roll No. : 10
Dr. RMLNLU, Lucknow Section- A
3rd Sеmеstеr, 2nd Yеar
B.A. LL.B. (Hons.)
Dr. RMLNLU, Lucknow
 Table of Contents

1. Introduction

2. Citizenship

3. Reasonable restrictions

4. Freedom of Speech and Expression

 Burden of proving reasonableness

 Press and pre-censorship
5. Dimensions of free speech under Article 19(1)(a)

 Sovereignty and integrity of India

 Security of the State
 Friendly relation with foreign state
 Public Order
 Contempt of Court
6. Practical constraints and curtailments

 Sedition
7. Conclusion

8. Bibliography
 Introduction

Article 19(1) of the constitution guarantees six fundamental rights to the citizens of
India which are exercisable by them throughout and in all parts of the territory of
India. The rights enumerated in Article 19(1) are those great and basic rights which
are recognized as the natural rights inherent in the status of a citizen. But none of
these rights is absolute and uncontrolled, for each is liable to be curtailed by laws
made or to be made by the state to the extent mentioned in Article 19. Clauses (2)
to (6) of Article 19 recognizes the power of the state to make laws imposing
reasonable restrictions for reasons set out in them.

Article 19(1)(a) of the Indian constitution guarantees right to freedom of speech and
expression to the citizens of India. Article 19(2) states that the state has the authority
to make a law, insofar 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. The Constitution (1st
amendment) Act, 1951 inserted the word “reasonable” before the word “restrictions”
in clause (2) also. Hence a law restricting the exercise of any of the rights
guaranteed by clause (1) of Article 19 to be constitutionally valid must satisfy two
conditions:
1. The restriction must be for the particular purpose mentioned in the clause
permitting the imposition of the restriction on that particular right, and
2. The restriction must be reasonable.

The requirement that a restriction should be reasonable is of great constitutional

significance, for it acts as a limitation on the power of the legislature, and therefore,
widens the scope of judicial review of laws restraining the exercise of freedoms
guaranteed by Article 19.
Though Article 19(1) of the Indian constitution guarantees six fundamental rights to
the citizens of this country, but the scope of our discussion will be limited only to
Article 19(1)(a) which mentions the right to freedom of speech and expression.
 Citizenship

Rights in Article 19(1)(a) are available only to citizens. Determination of citizenship

is therefore, a condition precedent for the availability of rights in this article. A

foreigner has no rights under this article because he is not a citizen of India. Juristic

persons such as companies are not citizens within the meaning of Article 19.

“Citizens” under this article mean only natural persons who have the status of

citizenship under the law. Registered companies and societies are, therefore, not

treated as citizens for the purpose of this article.

 Reasonable Restrictions

The Constitution does not define the expression “reasonable restrictions”. Nor can an
abstract standard or general pattern of reasonableness be laid down for all cases and
situations. The test may vary from right to right restricted by the impugned law.
Subject to the conditions that no absolute definition of the expression is possible, we
may here summarize some of the principles which the Supreme Court has affirmed in
ascertaining the reasonableness of restrictions on the rights secured under this article.

1. Reasonableness demands proportionality - The phrase “reasonable restrictions”

signifies that the limitation imposed upon a person in the enjoyment of a right
should not be arbitrary or of an excessive nature. Legislation which arbitrarily
or excessively invades this right cannot be said to contain the quality of
reasonableness, and unless it strikes a proper balance between the freedom
guaranteed under Article 19(1)(a) and the social control permitted by clause (2)
of Article 19, it must be held to be wanting in reasonableness.

2. Reasonableness: Both substantive and procedural – In determining the

reasonableness of a statute, the court would see both: the nature of the
restriction and procedure prescribed by the statute for enforcing the restriction
on the individual freedom. Not only substantive but procedural provisions of a
statute also enter into the verdict of its reasonableness.

3. Reasonableness an objective concept – The reasonableness of a restriction has

to be determined in an objective manner and from the standpoint of the
interests of the general public and from the point of view of the persons upon
whom the restrictions are imposed or upon abstract considerations. It is the
need of the objectivity that promoted the Supreme Court judges to warn the
judges not to bring in their own predilections in ascertaining the reasonableness
of restrictions. Reasonableness of restriction has to be viewed not only from
the point of view of the citizen but also from the point of view of problem
before the legislature and the object sought to be achieved.
4. Reasonableness of restriction and not of law – The court is called upon to
ascertain the reasonableness of the restriction and not of the law which permits
the restriction. A law may be reasonable, but the restriction imposed by it on
the exercise of freedom may not be reasonable.

5. Reasonableness includes prohibition – The word “restriction” also includes

cases of total prohibition and the state can establish that a law, though
purporting to deprive a person of his fundamental right, under certain
circumstances amounts to a reasonable restriction only.

6. Reasonableness and US “due process” – Though the test of reasonableness in

clause (2) of Article 19 might coincide with that of “due process” under the
US constitution, it must not be assumed that they are Identical. As the
constitution framers deliberately avoided in this context the use of the
expression “due process”, caution must be exercised before the literal
application of the US decisions.

7. Reasonableness and directive principles of state policy – Imposition of a

restriction for the implementation of the directive principles of state policy is a
point in favor of the reasonableness of the restriction.
 Article 19(1)(a) : Freedom of Speech and Expression

Article 19(1)(a) secures to every citizen the right of freedom of speech and
expression. Freedom of speech and expression has a well recognized connotation
which means the liberty to express one’s views, opinions and beliefs. It does not
mean the right to say whatever, wherever and whenever one likes. The difference
between clause (a) and other clauses of Article 19(1) is notable in this regard. While
other clauses grant the right to do something, clause (a) grants the right to freedom
to do something. The right secured under Article 19(1)(a) is the bulwark of a
healthy, progressive and democratic society. It leads to the creation of new ideas and
knowledge, finding of truth, building tolerance and receptivity and is essential for self
rule.
The freedom of speech and expression means the right to express one’s convictions
and opinions freely by word of mouth, writing, printing, pictures or any other mode.

 Burden of proving reasonableness

Once the invasion of a right under Article 19(1)(a) is ex facie proved, the state must
prove that such invasion is justified under the relevant clause (2) of Article 19. The
onus is upon the state of proving to the satisfaction of the court that the restriction
is reasonable. It is surely not for the petitioner to prove negatively that the legislation
was not reasonable. The harsher the restriction the heavier the onus to prove the
reasonableness.

 Press and Pre-censorship

Unlike the US constitution, Article 19(1)(a) does not expressly mention the liberty of
the press, i.e. the freedom to print and to publish what one pleases without previous
permission. But it is settled law that the right to freedom of speech and expression
in Article 19(1)(a) includes the liberty of the press. The freedom of press is not
confined to newspapers and periodicals, but includes also pamphlets, leaflets, circulars,
and every sort of publication which affords a vehicle of information and opinion.
The liberty of the press implicit in the freedom of speech stands on no higher
pedestal than the freedom of speech and expression of a citizen and no privilege is
attached to the press as such distinct from the ordinary citizen. Thus the press is also
subject to the general law of the land and is liable to taxation.
 Dimensions of free speech under Article 19(1)(a)

The freedom of speech and expression does not confer an absolute right to speak or
publish, without responsibility, whatever one may choose or an unrestricted license
that gives immunity for every possible use of language and does not prevent
punishments for those who abuse this freedom. Clause (2) of the Article 19 specifies
the grounds on which the freedom of speech and expression may be restricted.
Article 19(2) enables the state to impose reasonable restrictions on the exercise of the
right conferred by Article 19(1)(a) 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. The aforesaid reasonable restrictions can be imposed only by a duly
enacted law and not by executive action. The reasonable restrictions mentioned above
have been described in detail as the following:

 Sovereignty and integrity of India

This ground has been added by the Constitution Act, 1963. The present amendment is
made to guard against the freedom of speech and expression being used to assail the
territorial integrity and sovereignty of the union. Thus, it will be legitimate for the
parliament under this clause to restrict the right of free speech if it preaches
secession of any part of the territory of India from the union. It may be noted here
that the restriction is with to the territorial integrity of India and not about the
preservation of the territorial integrity of the constitution states.

 Security of the state

The security of the state may well be endangered by crimes of violence intended to
overthrow the government , waging of war and rebellion against the government,
external aggression of war etc. All utterances intended to have the above effects may
properly be restrained in the interests of the security of the state. Serious and
aggravated forms of public disorder are within the expression “security of the state”.
Every public disorder can’t be regarded as threatening the security of the state. In
1
Romesh Thappar , The Supreme Court definitely point out that the expression

1
AIR 1950 SC 124
doesn’t refer to ordinary breaches of public order which don’t involve any danger to
the state itself.
Incitement to commit violent crimes like Murder would endanger the security of the
state. Thus in State of Bihar V. Shailabala Devi2 the law which made penal words or
visible representation which incited to or encouraged, tended to incite or encourage
any offence of Murder or any cognizable offence involving Violence held by Supreme
court to fall within Art.19(2).

 Friendly Relations with Foreign State

This ground was added by the Constitution(1st Amendment Act)1951. The State can
impose reasonable restriction on the freedom of speech in the intrest of friendly
relations with the foreign state. The justification is obvious, unrestrained malicious
propaganda against a foreign friendly state may jeopardize the maintenance of good
relations b/w India and that state.

Relations with other state are responsible for acts Commited by persons within their
jurisdiction. In accordance with this principle, most modern systems of law made
provisions for the punishment of liable against the heads of foreign States. The
English Common law punishes such liable on the ground that they imperil the
peaceful relations of Her Majesty with foreign states. Accordingly, a law which
makes it an offence to punish any liable tending to degrade or expose to hatred or
contempt any foreign prince, ambassador, or other foreign dignitaries, will fall within
this expression and will be held valid, provided that restrictions are reasonable.

 Public order
This ground was added by the Constitution (First Amendment) Act, 1951 in order to
meet the situation arising from the Supreme Court's decision in Romesh Thapar3,
This ground was added by the Constitution (First Amendment) Act. 'Public order' is
an expression of wide connotation and signifies "that state of tranquility which
prevails among the members of political society as a result of internal regulations
enforced by the Government which they have established."

2
AIR 1952 SC 329
3
AIR 1950 SC 124
Public order is something more than ordinary maintenance of law and order. 'Public
order' is synonymous with public peace, safety and tranquility. The test for
determining whether an act affects law and order or public order is to see whether
the act leads to the disturbances of the current of life of the community so as to
amount to a disturbance of the public order or whether it affects merely an individual
being the tranquility of the society undisturbed.

Anything that disturbs public tranquility or public peace disturbs public order. Thus
communal disturbances and strikes promoted with the sole object of acausing unrest
among workmen are offences against public order. Public order thus implies absence
of violence and an orderly state of affairs in which citizens can peacefully pursue
their normal avocation of life. Public order also includes public safety. Thus creating
internal disorder or rebellion would affect public order and public safety. But mere
criticism of government does not necessarily disturb public order. In its external
aspect 'public safety' means protection of the country from foreign aggression. Under
public order the State would be entitled to prevent propaganda for a state of war
with India.

The words 'in the interest of public order' includes not only such utterances as are
directly intended to lead to disorder but also those that have the tendency to lead to
disorder. Thus a law punishing utterances made with the deliberate intention to hurt
the religious feelings of any class of persons is valid because it imposes a restriction
on the right of free speech in the interest of public order since such speech or
writing has the tendency to create public disorder even if in some case those
activities may not actually lead to a breach of peace. But there must be reasonable
and proper nexus or relationship between the restrictions and the achievements of
public order.

In Kishori Mohan v. State of West Bengal4 the Supreme Court explained the
differences between three concepts: law and order, public order, security of State.
Anything that disturbs public peace or public tranquillity disturbs public order. But
mere criticism of the government does not necessarily disturb public order. Om
Prakash v. Emperor5. A law punishing the utterances deliberately tending to hurt the

4
AIR 1972 SC 1749
5
AIR 1948 Nag 199
religious feelings of any class has been held to be valid as it is a reasonable
restriction aimed to maintaining the public order.

It is also necessary that there must be a reasonable nexus between the restriction
imposed and the achievement of public order. In Superintendent, Central Prison v.
Ram Manohar Lohiya6 the Court held the Section 3 of U.P. Special Powers Act,
1932, which punished a person if he incited a single person not to pay or defer the
payment of Government dues, as there was no reasonable nexus between the speech
and public order. Similarly, the court upheld the validity of the provision empowering
a Magistrate to issue directions to protect the public order or tranquillity.

Interestingly – and unusually – the Court began with providing a philosophical

justification for the public order exception. Public order, it held, was essential in
creating and maintaining an environment in which fundamental rights in general – and
the freedom of speech in particular – could be effectively enjoyed (paragraph 9). This
lends support to our argument against any statistical test, outlined in the first
paragraph of this post; an environment in which public order disruptions are used as
a tool to restrict free speech is clearly anything but conducive to the enjoyment of
the right. It also provides us with a principled yardstick to judge governmental
interference stated to be on the grounds of public order: the ultimate objective must
be to secure and maintain fundamental rights by securing and maintaining an
environment in which they are neither stifled nor suppressed.

 Decency and Morality

The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of
the Indian Penal Code provide instances of restrictions on the freedom of speech and
expression in the interest of decency or morality. These sections prohibit the sale or
distribution or exhibition of obscene words, etc. in public places. No fix standard is
laid down till now as to what is moral and indecent. The standard of morality
shifted from time to time and place to place.

The word 'obscenity' is identical with the word 'indecency' of the Indian Constitution.
In an English case of R. v. Hicklin,7. the test was laid down according to which it is
seen 'whether the tendency of the matter charged as obscene tend to deprave and

6
AIR 1960 SC 633
7
LR 3 QB 360 (1868)
corrupt the minds which are open to such immoral influences'. This test was upheld
by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra8 . In this case the
Court upheld the conviction of a book seller who was prosecuted under Section 292,
I.P.C., for selling and keeping the book Lady Chatterley's Lover. The standard of
morality varies from time to time and from place to place.

 Contempt of court
The constitutional right to freedom of speech would not allow a person to contempt
the courts. The expression Contempt of Court has been defined Section 2 of the
Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt
or criminal contempt under the Act. But judges do not have any general immunity
from criticism of their judicial conduct, provided that it is made in good faith and is
genuine criticism, and not any attempt to impair the administration of justice. In In
re Arundhati Roy9the Supreme Court of India followed the view taken in the
American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida 10 in which the
United States Supreme Court observed: “If men, including judges and journalists, were
angels, there would be no problem of contempt of court. Angelic judges would be
undisturbed by extraneous influences and angelic journalists would not seek to
influence them. The power to punish for contempt, as a means of safeguarding judges
in deciding on behalf of the community as impartially as is given to the lot of men
to decide, is not a privilege accorded to judges. The power to punish for contempt of
court is a safeguard not for judges as persons but for the function which they
exercise”. In E.M.S. Namboodripad v. T.N. Nambiar11 the Supreme Court confirmed
the decision of the High Court, holding Mr. Namboodripad guilty of contempt of
court. In M.R. Parashar v. Farooq Abdullah12, contempt proceedings were initiated
against the Chief Minister of Jammu and Kashmir. But the Court dismissed the
petition for want of proof.

8
AIR 1965 SC 881
9
(2002) 3 SCC 343
10
(328 US 331 (1946))
11
(1970) 2 SCC 325
12
AIR 1984 SC 615
  Sovereignty and integrity of India
This ground was also added subsequently by the Constitution (Sixteenth Amendment)
Act, 1963. This is aimed to prohibit anyone from making the statements that
challenge the integrity and sovereignty of India.

Practical constraints and curtailments

Freedom of speech and expression which enable an individual to participate in public

activities. The phrase, "freedom of press" has not been used in Article 19, though
freedom activists, as well as most scholars and industrialised jurisdictions throughout
the world recognise that freedom of expression includes freedom of press. Reasonable
restrictions can be imposed in the interest of public order, security of State, decency
or morality.

According to the estimates of Reporters Without Borders, India ranks 120th

worldwide in press freedom index (press freedom index for India is 39.33 for 2007).
The Indian Constitution, while not mentioning the word "press", provides for "the
right to freedom of speech and expression" (Article 19(1) a). However this right is
subject to restrictions under sub clause (2), whereby this freedom can be restricted for
reasons of "sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, preserving decency, preserving morality, in
relation to contempt of court, defamation, or incitement to an offence". Laws such as
the Official Secrets Act and Prevention of Terrorism Act have been used to limit
press freedom. Under POTA, person could be detained for up to six months before
the police were required to bring charges on allegations for terrorism-related offences.
POTA was repealed in 2004, but was replaced by amendments to UAPA. The
Official Secrets Act 1923 remains in effect.

For the first half-century of independence, media control by the state was the major
constraint on press freedom. Indira Gandhi famously stated in 1975 that All India
Radio is "a Government organ, it is going to remain a Government organ..." On 26
June 1975, the day after the so-called emergency was declared in violation of the
natural rights of Indian citizens, the Mumbai edition of The Times of India in its
obituary column carried an entry that read "D.E.M O'Cracy beloved husband of
T.Ruth, father of L.I.Bertie, brother of Faith, Hope and Justica expired on 26
June"13.With the liberalisation starting in the 1990s, private control of media has
increased, leading to increasing independence and greater scrutiny of government.
Organisations like Tehelka and NDTV have been particularly influential, e.g. in
bringing about the resignation of powerful Haryana minister Venod Sharma. In
addition, laws like Prasar Bharati act passed in recent years contribute significantly to
reducing the control of the press by the government.

 Sedition

According to the English Law, sedition embraces all the practices whether by word
or writing which are calculated to disturb the tranquillity of the State and lead an
ignorant person to subvert the Government 14 . , (1868)) Basic criticism of the
government is not seen as sedition unless the Government believes that it was
calculated to undermine the respect for the government in such a way so as to make
people cease to obey it15.( ) Section 124A of the Indian Penal Code defines the
offence of sedition as follows: “Sedition. Whoever by words, either spoken or written,
or by signs, or by visible representation, or otherwise, brings or attempts to bring
into hatred or contempt, or excites or attempts to excite disaffection towards, the
Government established by law in India, shall be punished with imprisonment for life,
to which fine may be added, or with imprisonment which may extend to three years,
to which fine may be added, or with fine”.16 (ipc ) But Explanation 3 says "Comments
expressing disapprobation of the administrative or other action of the Government
without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section".In Kedar Nath v. State of Bihar17 (), the
court upheld the constitutional validity of the Section 124A of I.P.C and also upheld
the view taken in Niharendu’s case.

13
Austin, Granville , “Working a democratic constitution: the Indian experience”, Oxford University
Press. p. 295.
14
R v Sullivan [ 1984] AC 156
15
Niharendra v. Emperor, AIR 1942 FC 22
16
Sec. 124A of Indian Penal Code
17
AIR 1962 SC 955
Conclusion
From this article it can be easily concluded that right to freedom of speech and
expression is one of the most important fundamental right. It includes circulating
one's views by words or in writing or through audiovisual instrumentalities, through
advertisements and through any other communication channel. It also comprises of
right to information, freedom of press etc. Thus this fundamental right has a vast
scope.

From the above case law analysis it is evident that the Court has always placed a
broad interpretation on the value and content of Article 19(1)(a), making it subjective
only to the restrictions permissible under Article 19(2). Efforts by intolerant
authorities to curb or suffocate this freedom have always been firmly repelled, more
so when public authorities have betrayed autocratic tendencies.

It can also be comprehended that public order holds a lot of significance as a ground
of restriction on this fundamental right. But there should be reasonable and proper
nexus or relationship between the restriction and achievement of public order. The
words 'in the interest of public order' include not only utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder.

In the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of
censorship previous to the publication of an English Weekly of Delhi, the Organiser
was questioned. The court struck down the Section 7 of the East Punjab Safety Act,
1949, which directed the editor and publisher of a newspaper “to submit for scrutiny,
in duplicate, before the publication, till the further orders , all communal matters all
the matters and news and views about Pakistan, including photographs, and cartoons”,
on the ground that it was a restriction on the liberty of the press. Similarly,
prohibiting newspaper from publishing its own views or views of correspondents
about a topic has been held to be a serious encroachment on the freedom of speech
and expression.

In India, the press has not been able to exercise its freedom to express the popular
views. In Sakal Papers Ltd. v. Union of India,] the Daily Newspapers (Price and
Page) Order, 1960, which fixed the number of pages and size which a newspaper
could publish at a price was held to be violative of freedom of press and not a
reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co.
v. Union of India, the validity of the Newsprint Control Order, which fixed the
maximum number of pages, was struck down by the Court holding it to be violative
of provision of Article 19(1)(a) and not to be reasonable restriction under Article
19(2). The Court struck down the plea of the Government that it would help small
newspapers to grow.
 Bibliography

1. J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency, Allahabad.

2. Singh, M. P., Constitution of India, 10th ed. (2001), Eastern Book Co., Lko.

3. Tiwari, Dr. Mahendra, Freedom of press in India: Constitutional Perspectives, (2006),

4. Rajak, Brajesh, Pornography Law; XXX Must not be Tolerated, (2011) Universal

Law Publishing Co. Pvt. Ltd. New Delhi.