Bharati Law Review, July – Sept.

, 2016 144

FREEDOM OF SPEECH AND EXPRESSION AND THE OBLIGATION

OF STATE TO PROTECT RIGHTS OF INDIVIDUAL
Mr. Kush Kalra
Mr. Bhanu Tanwar

Abstract
In today's world, new generation of film makers born in the 80s
has entered the scene. We cannot expect that they will present
current and live issues and problems in the same manner as the
older or earlier generation. They want to chart a course of their
own, uninfluenced by earlier works. A certain degree of freshness,
a change of attitude and a different way of looking at the same
medium by itself and without anything more should not result in
bringing about disruptions or creating hurdles and obstacles in
their way. To stop them abruptly and by extreme responses will
not only discourage them but may kill creativity. If they are
allowed to go ahead in their own way but with timely cautioning
and warning, they may respond positively and take the same in
proper spirit. However, to interfere with their work again and
again, mindlessly will only invite extreme reactions. That would
not be conducive to the growth of the medium. Eventually, it
must march with the times and compete with the best of the
works made locally and globally. That apart, the appeal of the
social media, the advent of television which operates on a multi
channel basis 24X7 resulting in large scale production and
distribution of tele serials, tele dramas, telefilms presents a
enormous challenge and is virtually threatening the existence or
efficacy of a celluloid1 film. A full length feature film needs to hold
the audience to the seat for certain hours. Its story line, theme,
script and the overall content should have that capacity and
potency. Else, the audience interest will wane and vanish. Hence,
filmmakers, producers, directors of today have changed their
strategies.
The filmmakers of today are direct, forthright, attacking,
aggressive and even brutal in their presentation. It is not only in


Assistant Professor. Delhi Metropolitan Education, Delhi.

Student, National Law University, Delhi.
1 Meaning of celluloid:
1. A colorless flammable material made from nitrocellulose and camphor and
used to makephotographic film.
2.a. Motion-picture film.
b. The cinema; motion pictures.
Bharati Law Review, July – Sept., 2016 145

the technical departments but in the story telling as well they

have set their own standards. There is a marked deviation from
the earlier genre2 and an attempt to create a unique style on par
with film making and presentation internationally. Just because
they are not soft, subtle in their approach, one cannot be unduly
strict and harsh. Holding up the certificates or suggesting cuts
and excisions in virtually every alternate scene would not be
counterproductive.
Introduction
"I may not agree with what you say, but will defend to the death,
your right to say it", said the author Voltaire (Attributed to
Voltaire by S.G. Tallentyre in The Friends of Voltaire, 1907).
India has the benefit of one of the most modern and liberal
constitutions. It is reflective of its rich and diverse heritage, yet
enunciating the modern principles of democracy, as distinguished
from a feudal society. One of the most cherished rights under our
Constitution is to speak one's mind and write what one thinks. No
doubt, this is subject to reasonable restrictions, but then the
ambit of what one can do is wide.
Whether the society is ready to read a particular book and absorb
what it says without being offended, is a debate which has been
raging for years together. Times have changed. What was not
acceptable earlier became acceptable later. "Lady Chatterley's
Lover" is a classical example of it. The choice to read is always
with the reader. If you do not like a book, throw it away. There is
no compulsion to read a book. Literary tastes may vary-what is
right and acceptable to one may not be so to others. Yet, the right
to write is unhindered3. If the contents seek to challenge or go
against the very Constitutional values, raise racial issues,
denigrate4 castes, contain blasphemous5 dialogues, carry
unacceptable sexual contents or start a war against the very
existence of our country, the State would, no doubt, step in.

2 Meaning of genre:
a. A category of artistic composition, as in music or literature, marked by a dis
tinctivestyle, form, or content.
b. A realistic style of painting that depicts scenes from everyday life.
3 Meaning of unhindered: Not slowed or blocked or interfered with.
4 Meaning of denigrate:
1. To attack the character or reputation of; speak ill of; defame.
2. To disparage; belittle.
5 Meaning of blasphemy:
The crime committed if a person insults, offends, or vilifies the deity.
Bharati Law Review, July – Sept., 2016 146

The very heart of democracy is the freedom to think and act

differently. Implicit therein is a freedom to react and respond to
same situations differently and distinctly. The very charm of
democracy is that there are multiple views, thoughts and
expressions. One cannot expect everybody to express themselves
in the same manner. There is fresh blood injected in
thefilm industry. This fresh blood is definitely enthusiastic and
wants to set its foot in the industry. Such fresh blood has been
welcomed by the film industry and the viewing public. Their
works have been accepted, applauded6 and even rewarded by the
State. These works are based on certain thinking and which is of
their own. They hold independent views and thoughts not only on
how the film industry must function, but the medium as a whole
should be handled. They feel that film is a powerful and strong
medium and its potential has remained unutilized or under-
utilized. Thefilm makers of today may feel that their predecessors
sold dreams and seldom dared to portray reality. They created an
audience loyal to them by churning out love stories or such
stories which had no connection with the common man's day-
today existence and life. The stories of Kings and Queens, the
stories of those wealthy and rich who never faced the pangs of
hunger nor suffered because of unemployment and poverty,
therefore, occupied most of the screen time. Thus, pure
entertaining and escapist stuff was thrown at the viewing public
without any variety and for years together. There were few
noteworthy exceptions to this unwritten rule. The audience was
cultivated and made to accept this work which in the opinion of
today's film makers hardly did credit to the worth of the medium
nor brought any laurels to the industry. Of course today's youth
admire, appreciate and respect some of the yesterday icons and
their work. They are aware that even during the times when
the films were unreal, mere fantasies, there were film makers who
presented the other side. All such film makers were respected and
are noteworthy for they opened up our mind to "Bharat" and not
concentrated only on "India". The poor, the lower middle class
and the middle class found place and voice in their work. Yet,
according to the present-day film makers, earlier work was not
complete and does not deserve to be carried forward in the same
way. It is such ideology which has influenced today's film making.
Therefore, a direct depiction7, without fun and frolic, but brazen
and bold, of the reality in the society is their focal theme. They do

6 Meaning of applaud: To express approval, especially by clapping the hands.

7 Meaning of depict:
1. To represent in a picture or sculpture.
2. To represent in words; describe.
Bharati Law Review, July – Sept., 2016 147

not wish to beat around the bush and hide problems like
alcoholism, crime and terrorism prevalent in today's world. These
makers are of the view that a serious, somewhat glory and
detailed depiction of the vices in and threats to the society may
open up the eyes of, not only the public, but public officials and
the State. It is this desire as well which drives them to present
their work in the manner currently presented by some of them.
There is a contrary view in the society. Men and women in
administration or otherwise, teachers, professors, critics, writers,
thinkers and experts in the field of science, medicine, technology,
humanities etc. may feel that today's films have a temporary and
short-term impact. Burning social, psychological problems and
behavioral issues are not handled with enough sensitivity,
maturity, compassion and conviction. At times, commerce and
trade control the medium of films is the view expressed. This
contrary perception of the medium must be welcomed because
that is how an audience for films is developed and nurtured.
Eventually, all wise men leave the fate of the film to the public.
Freedom of speech and expression
The State is obliged to create an atmosphere congenial for the
development and promotion of art and culture consistent with the
Constitutional mandate as enshrined in our Preamble8. The
Constitution aims at securing to all its citizens liberty of thought,
expression, belief, faith and worship. All its provisions are
intended to uphold these fundamental values and when it secures
its citizens justice, social, economic and political, equality of
status and opportunity and to promote among them all fraternity9
assuring the dignity of the individual and the unity and integrity
of the Nation, then, not only the Board officials but even
the film makers ought to realize that true democracy does not
mean a licence to dictate and foist10 one's views and ideas on

8 Meaning of preamble:
1. A preliminary statement, especially:
a. The introduction to a formal document that explains its purpose.
b. A statement accompanying a law or regulation specifying its purpose or rea
son forenactment.
2. An introductory occurrence or fact; a preliminary.
9 Meaning of fraternity:
1. A body of people associated for a common purpose or interest
such as a guild.
2. A group of people joined by similar backgrounds, occupations, interests, or
tastes.
10 Meaning of foist:
1. To pass off as genuine, valuable, or worthy.
2. To impose (something or someone unwanted) upon another by coercion or
trickery.
Bharati Law Review, July – Sept., 2016 148

others. Equally it gives no licence to nudity, vulgarity, indecency

and immorality. The film makers also need to realize that a
repetitive and one-sided depiction and exposure would generate
nausea11 and aversion. The audience expects a package. If it does
not get it in that form and measure, it would walk out. At times it
may not only like to know about the defects and infirmities in the
working of the Police or State machinery, but would expect some
solutions as well. Therefore, it is for the film makers to decide and
take a call on whether they need to mould themselves and their
ideas in the changing times. Surely, the State and particularly
the Central Board of Film Certification cannot, in the garb of
alleged public interest or audience taste, try to mould, shape and
control public opinion. That would be disastrous and would strike
at the very root of the democracy and the fundamental freedom so
dearly cherished by all. A balance and blend in right measure, of
entertainment and message, may be required so that the
objectives of film certification are achieved. According to it (CBFC)
the objectives, particularly of ensuring that the medium of film
remains responsible and sensitive to the values and standards of
society, the medium of films provides clean and healthy
entertainment and as far as possible, the film is of aesthetic12
value and cinematically of a good standard may enable
the Board to certify films with cuts and deletions, but it must not
overlook or brush aside equally important objectives of not
unduly curbing artistic expression and creative freedom and its
certification being responsive to social change. Thus, the
objectives of film certification cannot be applied ignoring the
Constitutional guarantee or to defeat and frustrate it completely.
The Board certifies films for exhibiting them to the members of
public or restricted sections or classes of the same and not
necessarily censors them.
If the creative freedom as guaranteed by Article 19(1)(a) to the
makers and of choosing any theme and selecting characters to
indicate as to how any issue concerning the society has assumed
serious proportions, then, within the four corners of the
Cinematograph Act, 1952, the authorities must decide as to
whether the work/film is fit to be certified not for universal public
viewing but by the adults. True it is that some cuts can be made.

11 Meaning of nausea:
1. A feeling of sickness in the stomach characterized by an urge to vomit.
2. Strong aversion; disgust.
12 Meaning of aesthetic:
1. Relating to the philosophy or theories of aesthetics.
2. a. Of or concerning the appreciation of beauty or good taste.
b. Attractive or appealing.
Bharati Law Review, July – Sept., 2016 149

Meaning of the term "defamation":

i. Salmond & Heuston on the Law of Torts, 20th Ed.13 define a
defamatory statement as under:
A defamatory statement is one which has a tendency to injure
the reputation of the person to whom it refers; which tends,
that is to say, to lower him in the estimation of right-thinking
members of society generally and in particular to cause him to
be regarded with feelings of hatred, contempt, ridicule, fear,
dislike, or disesteem. The statement is judged by the standard
of an ordinary, right thinking member of society...
ii. Halsburys Laws of England, Fourth Edition, Vol. 28, defines
'defamatory statement' as under:
A defamatory statement is a statement which tends to lower a
person in the estimation of right thinking members of the
society generally or to cause him to be shunned or avoided or to
expose him to hatred, contempt or ridicule, or to convey an
imputation on him disparaging or injurious to him in his office,
profession, calling trade or business.
iii. Defamation, according to Chambers Twentieth Century
Dictionary, means to take away or destroy the good fame or
reputation; to speak evil of; to charge falsely or to asperse.
According to Salmond:
The wrong of defamation, consists in the publication of a false
and defamatory statement concerning another person without
lawful justification. The wrong has always been regarded as one
in which the Court should have the advantage of the personal
presence of the parties if justice is to be done. Hence, not only
does an action of defamation not survive for or against the
estate of a deceased person, but a statement about a deceased
person is not actionable at the suit of his relative14.
iv. Winfield & Jolowics on Torts15 defines defamation thus:
Defamation is the publication of a statement which tends to
lower a person in the estimation of right thinking members of

13 Bata India Ltd. v. A.M. Turaz and Ors., 2013 (53) PTC 586; Pandey
SurindraNath Sinha v. Bageshwari Pd., A.I.R. 1961 Pat. 164.
14 GATLEY'S LIBEL AND SLANDER, 6th ed., 1960;alsoODGER'S LIBEL AND
SLANDER, 6th Ed. 1929.
15 (17th Ed. 2006).
Bharati Law Review, July – Sept., 2016 150

society generally; or which tends to make them shun or avoid

that person.
vi. In the book The Law of Defamation16, the term defamation has
been defined as below:
Defamation may be broadly defined as a false statement of
which the tendency is to disparage the good name or reputation
of another person.
vii. In Parmiter v. Coupland, (1840) 6 MLW 105, defamation has
been described as:
A publication, without justification or lawful excuse, which is
calculated to injure the reputation of another, by exposing him
to hatred, contempt, or ridicule.
viii. The definition of defamation by Fraser was approved by Mc
Cardie, J. in Myroft v. Sleight, (1921) 37 TLR 646.
It says:a defamatory statement is a statement concerning any
person which exposes him to hatred, ridicule or contempt or
which causes him to be shunned or avoided or which has a
tendency to injure him in his office, profession or trade.
ix. Carter Ruck on Libel and Slander17 has carved out some of the
tests as under:
(1) a statement concerning any person which exposes him to
hatred, ridicule, or contempt, or which causes him to be
shunned or avoided, or which has a tendency to injure him in
his office, professional or trade.
(2) a false statement about a man to his discredit.
(3) would the words tend to lower the plaintiff in the estimation
of right thinking members of society generally.
Concept of reputation
What constitutes reputation? The allusions would clearly exposit
the innate universal value of "reputation" and how it is a
cherished constituent of life and not limited or restricted by time.
The description may be different, but the crucial base is the same.

16 Richard O' Sullivan, QC and Roland Brown.

17 Manisha Koirala v. Shashi Lal Nair and Ors., 2003 (2) Bom. CR 136.
Bharati Law Review, July – Sept., 2016 151

Vision of ancients on reputation

i. In Bhagawat Gita, it has been said:
The English translation of aforequoted shloka is:
Non-violence in thought, word and deed, truthfulness and
geniality of speech, absence of anger even on provocation,
disclaiming doership in respect of actions, quietude or
composure of mind. Abstaining from malicious gossip,
compassion towards all creatures, absence of attachment to
the objects of senses even during their contact with the senses,
mildness, a sense of shame in transgressing against the
scriptures or usage, and abstaining from frivolous pursuits.
ii. In Subhashitratbhandagaram, it has been described:
Sa jeevtiyashoyashyakirtiyashyasajeevti,
Ayashokirtisanyuktojeevannipemritoopamma
Translated into English it is as follows:
One who possesses fame alone does live. One who has good
praise does alone live. Who has no fame and negative praise is
equal to one who is dead while alive.
iii. The English translation of Surah 49 Aayaat 11 of the Holy
Quran reads as follows:
Let not some men among you laugh at others: it may be that
the (latter) are better than the (former): nor defame nor be
sarcastic to each other, nor call each other by (offensive)
nicknames, ill-seeming is a name connoting wickedness, (to be
used of one) after he has believed: and those who do not desist
are (indeed) doing wrong.
iv. Proverb 15 of the Holy Bible reads as under:
A soft answer turns away wrath, but a harsh word stirs up
anger. The tongue of the wise dispenses knowledge,
but the mouths of fools pour out folly.
The eyes of the LORD are in every place,
keeping watch on the evil and the good. A gentle tongue is a
tree of life, but perverseness in it breaks the spirit.
Though the aforesaid sayings have different contexts, yet they lay
stress on the reputation, individual honour and also the need of
gentleness of behavior on the part of each one.
Bharati Law Review, July – Sept., 2016 152

Thoughts of the creative writers and thinkers on reputation

William Shakespeare in Othello expressed his creative thoughts
on character by the following expression:
Good name in man and woman, my dear lord,
is the immediate jewel of their souls
Who steals my purse steals trash; 'tis something, nothing;
'T was mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
The said author in Richard II, while enhancing the worth of
individual reputation, achieved his creative heights, and the
result in the ultimate is the following passage:
The purest Treasure mortal times afford
Is spotless reputation; that away,
Men are but gilded loam or painted clay.
A jewel in a ten-times-barr'd-up chest
Is a bold spirit in a loyal breast.
Mine honour is my life, both grow in one;
Take honour from me and my life is done.
The famous Greek philosopher and thinker Socrates taught:
Regard your good name as the richest jewel you can possibly
be possessed of-for credit is like fire; when once you have
kindled it you may easily preserve it, but if you once extinguish
it, you will find it an arduous18 task to rekindle it again. The
way to gain a good reputation is to endeavour to be what you
desire to appear.
The philosopher in Aristotle inspired him to speak:
Be studious to preserve your reputation; if that be once lost,
you are like a cancelled writing, of no value, and at best you do
but survive your own funeral.
While speaking about reputation, William Hazlitt had to say:
A man's reputation is not in his own keeping, but lies at the
mercy of the profligacy19of others. Calumny requires no proof.

18 Meaning of arduous:
1. Demanding great effort or labor; difficult.
2. Testing severely the powers of endurance; strenuous.
19 Meaning of profligacy:
Bharati Law Review, July – Sept., 2016 153

The throwing out of malicious imputations against any

character leaves a stain, which no after-refutation can wipe
out. To create an unfavourable impression, it is not necessary
that certain things should be true, but that they have been
said. The imagination is of so delicate a texture that even
words wound it.
The international covenants20 and reputation
Various international covenants have stressed on the significance
of reputation and honour in a person's life. The Universal
Declaration on Human Rights, 1948 has explicit provisions for
both, the right to free speech and right to reputation. Article 12 of
the said Declaration provides that:
No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon
his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
The International Covenant on Civil and Political Rights (ICCPR)
contains similar provisions. Article 19 of the Covenant expressly
subjects the right of expression to the rights and reputation of
others. It reads thus:
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers,
either orally, in writing or imprint, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of
this Article carries with it special duties and
responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order
(order public), or of public health or morals.

1. Given to or characterized by licentiousness or dissipation.

2. Given to or characterized by reckless waste; wildly extravagant.
20 Meaning of covenant:
a. A condition in a contract such as a deed or lease, nonperformance or
violation of which gives rise to a cause of action for breach.
b. A contract.
Bharati Law Review, July – Sept., 2016 154

Articles 8 and 10 of the European Convention for the Protection of

Human Rights and Fundamental Freedoms (ECHR) provide:

Article 8. Right to respect for private and family life

1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests
of national security, public safety or the economic wellbeing
of the country for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.
Article 10. Freedom of expression
1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, maybe subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and
impartiality of the judiciary.
Reference to international covenants has a definitive purpose.
They reflect the purpose and concern and recognize reputation as
an inseparable right of an individual. They juxtapose21 the right to
freedom of speech and expression and the right of reputation
thereby accepting restrictions, albeit22 as per law and necessity.
That apart, they explicate that the individual honour and
reputation is of great value to human existence being attached to

21 Meaning of juxtapose:
To place side by side, especially for comparison or contrast.
22 Meaning of albeit:
Even though; although; notwithstanding.
Bharati Law Review, July – Sept., 2016 155

dignity and all constitute an inalienable part of a complete human

being. To put it differently, sans these values, no person or
individual can conceive the idea of a real person, for absence of
these aspects in life makes a person a non-person and an
individual to be an entity only in existence perceived without
individuality.
Judiciary and freedom of speech and expression:
In S. Rangarajan v. P. Jagjevan Ram and Ors.23, while interpreting
Article 19(2) High Court borrowed from the American test of clear
and present danger and observed:
"Our commitment to freedom of expression demands that it
cannot be suppressed unless the situations created by
allowing the freedom are pressing and the community interest
is endangered. The anticipated danger should not be remote,
conjectural or far-fetched. It should have proximate and direct
nexus with the expression. The expression of thought should
be intrinsically dangerous to the public interest.”
Public decency and morality is outside the purview of the
protection of free speech and expression, and thus a balance
should be maintained between freedom of speech and expression
and public decency and morality but the former must never come
in the way of the latter and should not substantially transgress
the latter.
Freedom of expression & duty of the State to protect rights:
1) S. Rangarajan v. P. Jagjivan Ram24, the case related to the
revocation25 of the 'U Certificate'26 granted to the film 'Ore
OruGramathile27, which was an anti-reservation film.
There were protests against this film.

23 (1989) 2 S.C.C. 574.

24 (1989) 2 S.C.C. 574.
25 Meaning of revocation:
The act or an instance of revoking.
26 U (Unrestricted Public Exhibition).
Films with the U certification are fit for public exhibition, and are often family
friendly. These films can contain universal themes like education, family,
drama, romance, sci-fi, and action etc. Now, these films can also contain some
mild violence, but it should not be prolonged. It may also contain very mild
sexual scenes (without any traces of nudity or sexual detail).
27 Ore OruGramathile is a 1989 Tamil Indian feature film directed by K. Jyothi
Pandian. The film stars Lakshmi and Nizhalgal Ravi in the lead roles. The film
was banned for criticizing caste based reservations. The Supreme Court of
India later allowed its release.
Bharati Law Review, July – Sept., 2016 156

It was held therein that the effect of the so called offending

words must be judged from the standards of reasonable,
strong minded, firm and courageous men and not those of
weak and vacillating minds. It was further held that the
State cannot plead its inability to handle the problem of
hostile audience. It is its obligatory duty to prevent it and
protect the freedom of expression.
2) Prakash Jha Productions v. Union of India28, case involved
the suspension of the Hindi film Aarakshan by the State of
Uttar Pradesh even after the Censor Certificate was issued
on grounds that it would cause a 'law and order' issue.
The Supreme Court held that the film was to be allowed to
be screened. 'Law and order' maintenance was the duty of
the State. The Court held that it is the duty of the State to
maintain law and order and therefore, the State shall
maintain it effectively and potentially.
3) Srishti School of Art, Design & Technology v. Chairperson,
Central Board of Film Certification29, in this case, the
makers of the documentary called Had Anhad were asked
to carry out cuts, which the petitioner protested against.
It was held that the cuts proposed were violative of the
petitioner's right to free speech and expression and was
allowed.
The Court observed that the Indian Constitution provides a
democratic space to voice views unacceptable to others but
for the reason it is unacceptable, it cannot be prevented
from being expressed.
It was thus held that a book must be read as a whole and
the context must not be ignored and it is reasonable to see
what would be the reaction of a common reader.
4) LYCA Productions Pvt. Ltd. v. Government of Tamil Nadu30, in
this case, the producers of the popular Tamil commercial
feature film Kathiwere Sri Lankans and the film was
objected to owing to the nationality of its producers. They
were forced to sign an agreement to remove their names
from the movie hoardings, which the police attempted to
enforce against them.

28 (2011) 8 S.C.C 372.

29 2011 (123) D.R.J.
30 2014 S.C.C. Online Mad. 1448.
Bharati Law Review, July – Sept., 2016 157

High Court held agreement not valid and cannot be

enforced. It was observed that the letter of undertaking
cannot be relied upon by the Police, which cannot grant a
seal of approval to such letters of undertaking, as the same
tant amounts to the creation of a super-censor Board. It
was further observed that the police should not permit
attempts of such blackmails to succeed, which if allowed,
would automatically lead to extortion and the surrender of
power of governance and the rule of law to a few intolerant
people.
5) Ajay Gautam v. Union of India31, the movie PK32 was sought
to be banned on the grounds that it hurt the religious
sentiments of the Hindus and violated the rights of the
Hindus under Article 19(2).
Holding that no one is captive audience and it is a
conscious choice of a viewer, who is free to avoid watching
the film, the case was dismissed.
6) S. Khushboo v. Kanniammal33, this case pertained to the
quashing of cases filed against the petitioner34 for remarks
made by her on pre-marital sex.
High Court observed that a culture of responsible reading
is to be inculcated amongst the prudent readers. Morality
and criminality are far from being co-extensive. An
expression of opinion in favour of non-dogmatic and non-
conventional morality has to be tolerated as the same
cannot be a ground to penalize the author.
7) Sony Pictures v. State35, in this case, the ban imposed by
the State of Tamil Nadu on the English film The Da Vinci
Code was challenged.
A learned single Judge of High Court observed that when the
State has a duty to prevent all threats of demonstrations and

31 2015 S.C.C. Online Del. 6479.

32 PK is a 2014 Indian satirical science fiction comedy film. The film was directed
by RajkumarHirani, produced by Hirani and Vidhu Vinod Chopra, and written
by Hirani and Abhijat Joshi. The film stars Aamir Khan in the title role
with Anushka Sharma, Sushant Singh Rajput, BomanIrani, Saurabh Shukla,
and Sanjay Dutt in supporting roles. It tells the story of an alien who comes to
Earth on a research mission. He befriends a television journalist and
questions religious dogmas and superstitions.
33 2010 (5) S.C.C. 600.
34 Meaning of petitioner:
A person who presents a petition.
35 2006 3 L.W. 728.
Bharati Law Review, July – Sept., 2016 158

processions which amount to intimidating the right of freedom of

expression, it cannot plead its inability to handle breach of peace
if and when it arises. The order imposing the ban on the film was
thus quashed.
Right of the freedom of speech and expression and reasonable
restriction:
To appreciate the range and depth of the said right, it is essential
to understand the anatomy of Articles 19(1)(a) and 19(2) of the
Constitution. Be it noted here that Article 19(2) was amended by
the 1st Amendment to the Constitution on 18th June, 1951 w.e.f.
26.01.1950. Article 19(1)(a) has remained its original form. It
reads as under:
19. (1) All citizens shall have the right-
(a) To freedom of speech and expression;
...............
Article 19(2) prior to the amendment was couched in the following
words:
Nothing in sub-clause (a) of clause (1) shall affect the operation
of any existing law in so far as it relates to, or prevents the
state from making any law relating to, libel, slander,
defamation, contempt of Court or any matter which offends
against decency or morality or which undermines the security
of, or tends to overthrow, the State.
After the amendment, the new incarnation36 is as follows:
(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.
Freedom of speech and expression in a spirited democracy is a
highly treasured value. Authors, philosophers and thinkers have
considered it as a prized asset to the individuality and overall

36 Meaning of incarnation:
1. The act of manifesting or state of being manifested in bodily form, esp. hum
an form.
2. A bodily form assumed by a god, etc.
Bharati Law Review, July – Sept., 2016 159

progression of a thinking society, as it permits argument, allows

dissent to have a respectable place, and honours contrary
stances. There are proponents who have set it on a higher
pedestal than life and not hesitated to barter death for it. Some
have condemned compelled silence to ruthless treatment. William
Dougles has denounced Regulation of free speech like regulating
diseased cattle and impure butter. The Court has in many an
authority having realized its precious nature and seemly glorified
sanctity has put it in a meticulously structured pyramid. Freedom
of speech is treated as the thought of the freest who has not
mortgaged his ideas, may be wild, to the artificially cultivated
social norms; and transgression thereof is not perceived as a folly.
Needless to emphasise, freedom of speech has to be allowed
specious castle, but the question is should it be so specious or
regarded as so righteous that it would make reputation of another
individual or a group or a collection of persons absolutely
ephemeral, so as to hold that criminal prosecution on account of
defamation negates and violates right to free speech and
expression of opinion.
Bury in his work History of Freedom of Thought (1913) has
observed that freedom of expression is "a supreme condition of
mental and moral progress" [p. 239]. In the words of American
Supreme Court, it is "absolutely indispensible for the preservation
of a free society in which government is based upon the consent
of an informed citizenry and is dedicated to the protection of the
rights of all, even the most despised minorities". (See Speiser v.
Randall, (1958) 257 U.S. 513 (530)). In Yates v. U.S., (1958) 354
US 298 (344) the court held that "the only kind of security system
that can preserve a free Government-one that leaves the way wide
open for people to favor discuss, advocate, or incite causes and
doctrines however obnoxious and antagonistic such views may be
to the rest of us." In Stromberg v. California, (1931) 283 U.S. 359
(369) the Court remarked "The maintenance of the opportunity for
free political discussion to the end that government may be
responsive to the will of the people and that changes may be
obtained by lawful means... is a fundamental principle of our
constitutional system." In Palko v. Connecticut, (1937) 302 US
319 the right to freedom of speech and expression has been
described as the "touchstone of individual liberty" and "the
indispensable condition of nearly every form of freedom”.
The significance of freedom of speech has been accentuated in
Ramlila Maidan incident37, whereby the court observed that the

37 (2012) 5 S.C.C. 1.
Bharati Law Review, July – Sept., 2016 160

freedom of speech is the bulwark of a democratic Government.

This freedom is essential for proper functioning of the democratic
process. The freedom of speech and expression is regarded as the
first condition of liberty. It occupies a preferred position in the
hierarchy of liberties, giving succor and protection to all other
liberties. It has been truly said that it is the mother of all other
liberties. Freedom of speech plays a crucial role in the formation
of public opinion on social, political and economic matters. It has
been described as a "basic human right", "a natural right" and the
like.
Article 19(2) envisages "reasonable restriction". The said issue
many a time has been deliberated by this Court. The concept of
reasonable restriction has been weighed in numerous scales
keeping in view the strength of the right and the effort to scuttle
such a right. In Chintaman Rao v. State of M.P.38, Supreme Court,
opined as under:
The phrase "reasonable restriction" connotes that the limitation
imposed on a person in enjoyment of the right should not be
arbitrary or of an excessive nature, beyond what is required in the
interests of the public. The word "reasonable" implies intelligent
care and deliberation, that is, the choice of a course which reason
dictates. Legislation which arbitrarily or excessively invades the
right cannot be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom
guaranteed in Article 19 (1) (g) and the social control permitted by
clause (6) of Article 19, it must be held to be wanting in that
quality.
Conclusion
In today's world, new generation of film makers born in the 80s
has entered the scene. We cannot expect that they will present
current and live issues and problems in the same manner as the
older or earlier generation. They want to chart a course of their
own, uninfluenced by earlier works. A certain degree of freshness,
a change of attitude and a different way of looking at the same
medium by itself and without anything more should not result in
bringing about disruptions or creating hurdles and obstacles in
their way. To stop them abruptly and by extreme responses will
not only discourage them but may kill creativity. If they are
allowed to go ahead in their own way but with timely cautioning
and warning, they may respond positively and take the same in
proper spirit. However, to interfere with their work again and

38 A.I.R. 1951 S.C. 118.

Bharati Law Review, July – Sept., 2016 161

again, mindlessly will only invite extreme reactions. That would

not be conducive to the growth of the medium. Eventually, it
must march with the times and compete with the best of the
works made locally and globally. That apart, the appeal of the
social media, the advent of television which operates on a multi
channel basis 24X7 resulting in large scale production and
distribution of teleserials, teledramas, telefilms presents a
enormous challenge and is virtually threatening the existence or
efficacy of a celluloid39 film. A full length feature film needs to
hold the audience to the seat for certain hours. Its story line,
theme, script and the overall content should have that capacity
and potency. Else, the audience interest will wane and vanish.
Hence, filmmakers, producers, directors of today have changed
their strategies.
The filmmakers of today are direct, forthright, attacking,
aggressive and even brutal in their presentation. It is not only in
the technical departments but in the story telling as well they
have set their own standards. There is a marked deviation from
the earlier genre40 and an attempt to create a unique style on par
with film making and presentation internationally. Just because
they are not soft, subtle in their approach, one cannot be unduly
strict and harsh. Holding up the certificates or suggesting cuts
and excisions in virtually every alternate scene would not be
counterproductive.
Suggestions
"(i) There is bound to be a presumption in favour of free speech
and expression as envisaged under Article 19(1)(a) of the
Constitution of India unless a court of law finds it
otherwise as falling within the domain of a reasonable
restriction under Article 19(2) of the Constitution of India.
This presumption must be kept in mind if there are
complaints against publications, art, drama, film, song,
poem, cartoons or any other creative expressions.

39 Meaning of celluloid:
1. A colorless flammable material made from nitrocellulose and camphor and
used to makephotographic film.
2. a. Motion-picture film.
b. The cinema; motion pictures.
40 Meaning of genre:
a. A category of artistic composition, as in music or literature, marked by a dis
ti-nctivestyle, form, or content.
b. A realistic style of painting that depicts scenes from everyday life.
Bharati Law Review, July – Sept., 2016 162

(ii) The State's responsibility to maintain law and order would

not permit any compulsion on the artistes concerned to
withdraw from his/her stand and non-State players cannot
be allowed to determine what is permissible and what is
not.
(iii) It is high time the Government constitutes an expert body
to deal with situations arising from such conflicts of views,
such expert body to consist of qualified persons in the
branch of creative literature and art so that an
independent opinion is forthcoming, keeping in mind the
law evolved by the judiciary. In such matters of art and
culture, the issue cannot be left to the police authorities or
the local administration alone, especially when there is a
spurt in such conflicts.
(iv) The State has to ensure proper police protection where
such authors and artistes come under attack from a
section of the society.
(v) Regular programmes need to be conducted for sensitizing
officials over matters dealing with such conflicts of artistic
and literary appreciation."

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