Freedom Of Speech And Expression Final.docx

Topic: Freedom of Speech and Expression

Submitted to:

Submitted by:

Prof. Samraggi Chakraborty

Jatin Bakshi BALLB 3rd Year URN No:-2016-B-27051998

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TABLE OF CONTENTS 1. INTRODUCTION………………………………………………………….03 2. OBJECTIVE……………………………………………………………….05 3. Freedom of Speech and Expression- Meaning & Scope…………………..05 4. ARTICLE 19(1)(a) OF INDIAN CONSTITUTION……………………….07 a. Right to receive information…………………………………………….08 b. Right to Silence………………………………………………………….09 c. Freedom of Press…………………………………………………………09 d. Some other aspects of Freedom of Press…………………………………10 5. PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH……..11 6. Constitutional Regulation of Freedom of Expression……………………….14 i.

During Normal Times: Reasonable Restrictions .……………………14

ii.

During Emergency……………………………………………………17

7. Conclusion…………………………………………………………………..19

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Freedom of Speech and Expression as a Fundamental Right in India: The Constitutional Perspective INTRODUCTION “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” ― George Washington

Freedom of speech is the bulwark of democratic government. This freedom is essential for the proper functioning of democratic process. The freedom of speech and speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succour and protection to all other liberties. It has been truly said that it is the mother of all liberties. 1 In a democracy, freedom of speech and expression opens up channels of free discussion of issues. Freedom of speech plays a crucial role in formation of public opinion on social, political and economic matters. Freedom of speech and expression, just as equality clause and guarantee of life and liberty has been very broadly construed by the Supreme Court right from 1950s. It has been variously described as a “basic human right”, “a natural right”. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation. Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and 1

Report of the Second Press Comm, Vol 1, 34-35

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political rights etc. These declarations expressly talk about protection of freedom of speech and expression. In Maneka Gandhi v UOI2, Bhagwati J, has emphasized on the significance of the freedom of speech and expression in these words: Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democracy set up. If democracy means government of people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters to absolutely essential. In 1927, Whiteny v California3, Louis Brandeis J, made a classic statement of freedom of speech in the context of US Constitution: Those who won our independence believed that the final end of the state was to make men free to develop their faculties. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that the freedom to think as you will and to speak as you think are indispensible to the discovery and spread of political truth- that without free speech and assembly and discussion would be futile… that public discussion is a political duty and i.e. should be a fundamental principle of the American government. Talking about the first amendment to the US Constitution which guarantees freedom of speech in USA. The US Supreme Court has observed: “it is the purpose of the first amendment to preserve an uninhibited market place of ideas in which truth which ultimately prevail rather than to countenance monopolization of that market whether it be by the government itself or a private licensee.”4

2

AIR 1978 SC 597: (1978) 1 SCC 248 247 US 214 4 Associated Press v US, 326 US 1 3

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OBJECTIVE 1. To understand the concept of freedom of speech and expression in India under Indian Constitution. 2. Restrictions on freedom of freedom of speech and expression. 3. Parliamentary privileges and freedom of speech.

Freedom of Speech and Expression- Meaning & Scope Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Article 19(1) (a) not falling within the four corners of Article 19(2) cannot be valid. The freedom of speech under Article 19(1) (a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc. It thus includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary.5 It is important to note that a restriction on the freedom of speech of any citizen may be placed as much by an action of the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens irrespective of their circumstances and the class to which they belong, the fundamental right to freedom of speech and expression would constitute a violation of Article 19(1) (a). The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. In fact, the freedom of speech and expression gives

5

Radha Mohan Lal v. Rajasthan High Court,(2003) 3 SCC 427

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greater scope and meaning to the citizenship of a person extending the concept from the level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence. In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizen liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart information. The Indian State is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy the aforesaid rights. In Romesh Thappar v State of Madras, the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation. Patanjali Sastri, J., rightly observed that“Freedom of Speech and of Press lat at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible.” However Article 19(2) of the Constitution provides that this right is not absolute and ‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes. The right to freedom of expression includes the right to express ones views and opinions on any issue and through any medium whether it is in writing or by word of mouth. The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation. This right includes the right to communicate, print and advertise the information. In India, freedom of the press is implied from the freedom of speech and expression guaranteed by Article 19(1) (a). The freedom of the press is regarded as a “species of which freedom of expression is a genus”. On the issue of whether ‘advertising’ would fall under the scope of the Article, the Supreme Court pointed 6

out that the right of a citizen to exhibit films is a part of the fundamental right of speech and expression guaranteed by Article 19(1)(a) of the Constitution.6 Freedom of Speech and Expression also includes artistic speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1) (a) because the common basic characteristic of all these activities is freedom of speech and expression. Under the provisions of the Constitution of India, an individual as well as a corporation can invoke freedom of speech arguments and other fundamental rights against the State by way of a Writ Petition under Articles 32 and 226 of the Constitution of India subject to the State imposing some permissible restrictions in the interests of social control.

ARTICLE 19(1)(a) OF INDIAN CONSTITUTION Out of the several rights enumerated in clause (1) of Article 19, the right in sub clause (a) is not merely a freedom of speech and expression but a right of freedom and expression. The enumeration of other rights is not by reference to freedom.7 Article 19(1)(a) guarantees to all citizens ‘freedom of speech and expression’. Under article 19(2), ‘reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid. The freedom of speech in Article 19(1)(a) includes the right to express one’s views and opinions at any medium, eg, by words of mouth, writing, printing, picture, movies, etc. It thus includes the freedom of communication and right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2). Freedom of expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary.8

6

Odyssey Communications Pvt.Ltd. V. Lok Vidyayan Sanghatana AIR 1988 SC 1642 Dharam Dutt v UOI, (2004) 1 SCC : AIR 2004 SC 1295 8 Radha Mohan Lal v Rajasthan High Court, (2003) 3 SCC 427: AIR 2003 Sc 1467 7

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Right to receive information: The expression “freedom of speech and expression” in Article 19(1) (a) has been held to include the right to acquire information and disseminate the same. This freedom of includes the freedom to communicate or circulate one’s opinion without interference to as large population in the country as well as abroad as is possible to reach. In PUCL v UOI9, the Supreme Court dealt with this aspect of freedom elaborately. The right of citizens to obtain information on matters relating to public acts flows from the Fundamental Right enshrined in Article 19(1)(a). Securing information on the basis details concerned the candidates contesting for elections to Parliament or State legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1) (a). Right to information is not absolute and is restricted to certain restrictions under Article 19(2) and is further limited by right to privacy under Article 21(though right to privacy is not so absolute).10 But the right does not carry unrestricted rights to gather information. A reasonable restriction on the exercise of the right to know or right to information is always permissible in the interest of the security of the State. Generally, the exemptions/exemption under the laws referred to in Article 19 (2) entitled the government to withhold information relating to the following matters: i.

International relations;

ii.

National security (including defense) and public safety;

iii.

Investigation, detection and prevention of crime;

iv.

Internal deliberations of the government;

v.

Information received in confidence from a source outside the government;

vi.

Information, which is disclosed, would violate the privacy of the individual;

vii.

Information of an economic nature, (including trade secrets) which, if disclosed, would confer an unfair advantage on some persons or concern, or, subject some person or government to an unfair disadvantage;

viii.

Information about scientific discoveries;11

9

(2003) 4 SCC 399 : AIR 2003 SC 2363 Thalappalam Ser Cooperative BanK Limited v State of Kerala, (2013) 16 SCC 82 : 2013 (12) SCALE 527 11 Peoples’ Union for Civil Liberties v UOI, (2004) 2 SCC 476 : AIR 2004 SC 1442 10

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Right to Silence: The right to speech implies the right to silence. It implies freedom, not to listen and not to be forced to listen. The right comprehends the freedom to be free from what one desires to be free from. A loudspeaker forces a person to hear what he wishes not hear. The use of speaker may be incidental to the exercise of the right but, its use is not a matter of right, or part of the rights guaranteed by Article (1).12

Freedom of Press: Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press implicit in the right the freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India13 court observed the importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the heart of social

and political intercourse. The press has now assumed the role of the public

educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.” The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.

12

Re Noise Pollution(V), (2005) 5 SCC 733 : AIR 2005 SC 3136

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(1985) 1 SCC 641

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The imposition of censorship on a journal previous to its publication would amount to an infringement of Article 19(1)(a). The question of validity of censorship came up for consideration in the case of Brij Bhushan v. State of Delhi,14 the court observed, “…the imposition of pre-censorship of a journal is a restriction on the liberty of the press which is an essential part of the freedom of the speech and expression declared by Article 19(1)(a).” In Sakal Papers Ltd. v. Union of India15, the Daily Newspapers (Price and Control) Order, 1960, which fixed a minimum price and number of pages which a newspaper was entitled to publish was challenged as unconstitutional by the petitioner on the ground that it infringed the liberty of the press. The Court said, the right of freedom of speech and expression cannot be taken away with the object of placing restrictions on the business activity of a citizen. Freedom of speech can only be restricted on the grounds mentioned in clause (2) of Article19. It cannot, like the freedom to carry on business, be curtailed in the interests of the general public.

Some other aspects of Freedom of Press: In M Hasan v State of Andra Pradesh,16 the Andhra Pradesh High Court has held that denial of permission to a press reporter to interview a willing condemned prisoner on a ground not falling within Article 19(2) is not valid. “Any such denial is deprivation of a citizen’s Fundamental Right of freedom of speech and expression.” In a landmark judgment in Bharat Kumar K Palicha v State of Kerala17 a full Bench of the Kerala High Court has declared “Bandhs” organized by political parties from to time as unconstitutional being violative of the Fundamental Rights of the people. The Court refused to accept it is an exercise of the freedom of speech and expression by the concerned party calling for bandh. When a bandh is called people are expected not to travel, not to attend their work. A threat is held out either expressly or impliedly that any attempt to go against the call for bandh may result in physical injury.

14

AIR 1950 SC 129

15

AIR 1962 SC 305

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AIR 1998 AP 35 AIR 1965 SC 311 : (1964) 7 SCR 403

17

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Voting at an election is a form of expression.18 A citizen as a voter is the master of his vote. He must have necessary information so that he can intelligently decide in favor of a candidate who satisfies his criterion of being elected as an MP or MLA.

PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH The essence of parliamentary democracy is a free, frank and fearless discussion in Parliament. For a deliberative body like House of Parliament, freedom of speech within the House is of utmost significance. To enable members to express themselves freely in the House, it is essential to immunize them from any fear that they can be penalised for anything said by them within the House. The rule of freedom of speech and debate in Parliament became established in Britain in the 17th century in famous case of Sir John Eliot.19 In India, the freedom of speech in Parliament has been expressly safeguarded by articles 105(1) and (2). Article 105(1) says “subject to provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.” The Rajya Sabha held in its XII report that a parliament member cannot be questioned in any court or any place outside the parliament for any disclosure he made since it will amount to interference with the freedom of speech. Subsequently Lok Sabha has also held that it will amount to contempt of court or breach of privilege if any suit is filed in court for what is said on the floor of the house. The Supreme Court in the case of Tej Kiran Jain v Sanjeeva Reddy20 held that “once it is proved that parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceeding in any court”. Article 105, clause(1), expressly safeguards freedom of speech in parliament. It says: there shall be freedom of speech in parliament. Clause (2) further provides that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in parliament or any committee thereof. No action, civil or criminal, will therefore lie against a member for defamation or the like in respect of things said in parliament or its committees. The

18

PUCL v UOI, (2003) 4 SCC 399 : AIR 2003 SC 2363 3 State Trials, 294 20 1970 AIR 1573 19

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immunity is not limited to mere spoken words; it extends to votes, as clause (2) specifically declares, viz. any vote given by him in parliament or any committee thereof. Though not expressly stated, the freedom of speech would extend to other acts also done in connection with the proceedings of each House, such as, for notices of motions, questions, reports of the committee, or the resolutions. It may be noted that clause (1) of Article 105 is made Subject to the provisions of this constitution and to the rules and standing orders regulating the procedures of Parliament. The words regulating the procedures of Parliament occurring in clause (1) should be read as covering both the provisions of the Constitution and the rules and standing orders. So read, freedom of speech in Parliament becomes subject to the provisions of Constitution relating to the procedures of Parliament, i.e., subject to the articles relating to procedures in Part V including Articles 107 and 121. Thus for example, freedom of speech in Parliament would not permit a member to discuss the conduct of any judge of the Supreme Court or of a High Court. Likewise, the freedom of speech is subject to the rules of procedures of a House, such as use of unparliamentarily language or unparliamentarily conducts. The freedom of speech guaranteed under clause (1) is different from that which a citizen enjoys as a fundamental right under Article 19 (1) (a). The freedom of speech as a fundamental right does not protect an individual absolutely for what he says. The right is subject to reasonable restrictions under clause (2) of Article 19. The term freedom of speech as used in this article means that no Member of Parliament shall be liable to any proceedings, civil and criminal, in any court for the statements made in debates in the Parliament or any committee thereof. The freedom of speech conferred under this article cannot therefore be restricted under Article 19 (2). Clauses (1) and (2) of Article 105 protect what is said within the house and not what a member of Parliament may say outside. Accordingly, if a member publishes his speech outside Parliament, he will be held liable if the speech is defamatory. Besides, the freedom of speech to which Article 105 (1) and (2) refer, would be available to a member of Parliament when he attends the session of Parliament. Therefore, if an order of detention validly prevents a member from attending a session of parliament, no occasion arises for the exercise of the right of freedom of speech, and no complaint can be made that the said right has been invalidly invaded. Article 105 (2) confers immunity, inter alia, in respect of anything said in Parliament the word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament, which means during the sitting of Parliament and in the course of business of Parliament. Once it was proved that Parliament was sitting and its business was transacted, anything said during the course of that business was immune from proceedings in any 12

court. This immunity is not only complete but it is as it should be. It is one of the essence of parliamentary system of government that people’s representative should be free to express themselves without fear of legal expenses. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the speaker. The courts have no say in the matter and should really have none. In a much publicized matter involving former Prime Minister, several ministers, Members of Parliament and others a divided Court, in P.V. Narsimha Rao v. State (JMM Bribery Case)21 has held that “the privilege of immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the Members of Parliament for the purpose of voting in a particular manner in Parliament”. The majority (3 judges) of the Apex Court did not agree with the minority (2 judges) and explained that expression “in respect of” in Article 105(2) must be given a wide meaning so as to comprehend an act having a nexus or connection with the speech made or a vote given by a member in parliament or any committee thereof. So interpreted, it would include within its ambit, acceptance of bribe by a member in order to make a speech or to cast his vote in parliament or any committee thereof in a particular manner. Therefore, the bribe taker MPs, who had voted in parliament against noconfidence motion was held entitled to protection of Article 105(2) and was not answerable in a court of law for alleged conspiracy and agreement. The court further held that the bribe taker MP, who did not vote on the no- confidence motion, was not entitled to protection under Article 105(2). To the bribe giver MPs it was held, the protection under Article 105(2) was not available. The court further ruled that the Lok Sabha could take action for breach of privileges or contempt against the alleged bribe givers and against the alleged bribe takers, whether or not they were members of parliament. The court was however unanimous that the members of Parliament who gave bribes, or who took bribes but did not participate in the voting could not claim immunity from court proceeding’s under Article 105(2). The decision has invoked so much controversy and dissatisfaction that a review petition is pending in the court.

21

AIR 1998 SC 2120

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Constitutional Regulation of Freedom of Expression It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some curbs on this freedom for the maintenance of social order. No freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) 358 and 359, the state may make a law imposing restrictions on the exercise of the right to freedom of speech and expression „in the interest of‟ the security of state.

(i)

During Normal Times: Reasonable Restrictions

During normal times freedom of expression con be restricted, under Article 19(2), only in the interest of security of the Stare, friendly relations with foreign States, public order, decency or morality, in relation to contempt of court defamation or incitement as an offence. These restrictions intend to strike a proper balance between the liberty guaranteed under Article 19(1) (a) and the social interest specified under Article 19(2). The court’s commitment to the 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. It is settled law that the anticipated danger should not be remote, conjectural or far-fetched. It should have a direct nexus with expression. It should be intrinsically dangerous to the public interest. There is a heavy burden in the State to prove that the restriction is reasonable. Of these restrictions, the one most habitually used by the State to justify curtailing the liberty of its citizens is the ground of decency or morality.22Very often, artistic depictions of the human body or sexuality, showing two men kissing each such art to be indecent or obscene other or M. F. Hussain‟s paintings, have come under the frenzied hand of the State claiming. Similarly, the State has also justified legislating on banning dances in bars, as in the opinion of the State they are obscene, vulgar, and indecent. The hypocrisy of the State is exposed when they allow dances in movies that are viewed by a huge audience, but shun same dances in bars performed in front of a restricted adult audience, and when the State allows movie posters or fashion shows with women wearing skimpy clothes but shuns paintings of art that depict nudity or sexuality on the grounds or religion, morality and obscenity. The pertinent question is that how and who decides what is vulgar indecent, lewd, obscene and not acceptable by society, thereby justifying a „reasonable democracy? 23

22

Dr. D.D. Basu, Constitutional Law of India, 8th ed. 2009, Lexisnexis Butterworth Wadhwa, p.92

23

Ibid p.93

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The eight grounds of restriction which are mentioned in clause (2) of Article 19 are: a.

Security of the State

b.

Friendly Relations with Foreign State.

c.

Public Order.

d.

Decency or Morality.

e.

Contempt of Court.

f.

Defamation.

g.

Incitement of an offence.

h.

Sovereignty and integrity of India.

“Security of the State” means ‘the absence of serious and aggravated forms of public disorder’, as distinguished from ordinary breach of ‘public safety’ or ‘public order’ which may not involve any danger to the State itself. Thus, security of the state is endangered by crime of violence intended to overthrow the government.24 “Friendly relations with foreign states” the object of this expression to the freedom of speech and expression is to prevent libels against foreign states in the interest of maintaining friendly relations with them. “Public order” this ground was added by the Constitution (1st Amendment) Act, 1951, in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapper’s case. 25 In this case, it was held that ordinary or local branches of public order were no grounds for imposing restriction on the freedom of speech and expression guaranteed by the Constitution. The Supreme Court said that ‘public order’ is an expression of wide connation 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.” Law and order, public order and security of State are different and could not be understood synonymous. In Kishori Mohan v. State of W.B.26 the Supreme Court explained the differences between three concepts and Court said, it can be explained by three functional concentric circles, the largest representing law and order, the next public order, and the smallest, the security of State. Every infraction of law and order but not necessarily public order and an act may affect public 24

Santosh Singh v. Delhi Administration, AIR 1973 SC 1093 AIR 1950 SC 124 26 AIR 1973 SC 1794 25

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order but not necessarily security of State and an act may fall under two concepts at the same time affection public order and security of State. “Decency and morality” the words “morality and decency” are words of wide meaning. The word “obscenity” of English law is identical with the word “indecency” under the Indian Constitution. The test of obscenity is “whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences” and into those hands a publication of this sort is likely to fall. Thus a publication is obscene if it tends to produce lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that public into whose hands the book is likely to fall. This test was laid down in an English case of R. v. Hicklin.27 Section 292 to 294 of Indian Penal Code provides instances of restrictions on the freedom of speech and expression in the interest of decency and morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. But the Indian Penal Code does not lay down any test to determine obscenity. In Ranjit D. Udeshi v. State of Maharashtra,28 accepted the test laid down in English case of R. v. Hicklim to judge he obscenity of a matter. In P.K. Somnath v. State of Kerala it was held that even a nude body, whether male or female, cannot be regarded as an object of obscenity without something more. That ‘something more’ is in facial expression or the pose in which it is photographed. It is to the subjective tastes of the viewer and does not base it on an objective criteria or an artful depiction or just as an expression. The word ‘morality’ too has not been defined. The conception or morality differs from places to places and time to time. Therefore, it is imperative that the freedom of speech and liberty should not be curtailed unless it causes harm to others only that should be prevented by law. The law should aim to establish minimum and not maximum standards of behavior, showing respect for tolerance and privacy. ‘Contempt of Court’ in the exercise of his rights of freedom of speech and expression, nobody can be allowed to interfere with the due course of justice or to lower the prestige or authority of the court, even in the grab of criticizing a judgment. ‘Defamation’ just as every person possesses the freedom of speech and expression, every person also possesses a right to his reputation which is regarded as property. Hence, nobody can so use

27 28

LR 3 QB 360 AIR 1965 SC 881

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his freedom of speech or expression as to injure another’s reputation. Laws penalizing defamation do not, therefore, constitute infringement of freedom of speech. ‘Incitement to an offence’ this ground will permit legislation not only to punish or prevent incitement to commit serious offences like murder which lead to breech of public order, but also to commit an ‘offence’, which according to the General Clauses Act, means ‘ any act or omission made punishable by any law for the time being in force.’ Hence, it is not permissible to instigate another to do any act that which is prohibited and penalizing by any law. ‘Sovereignty and Integrity of India’ this ground has been added as a ground of restriction on the freedom of expression by the 16th Amendment of the Constitution. The object was to enable the State to combat cries for secession and the like from organizations such as the Dravida Kazhagam in the South and the Plebiscite Front in Kashmir, and activities in pursuance thereof which might not possibility be brought within the fold of expression ‘security of State’. It is to be noted that sedition is not mentioned in Article 19(2) as one of the grounds on which restriction on freedom of speech and expression may be imposed. But it has been held in Devi Saren v. State29 those Sections 124-A and 153-A of Indian Penal Code impose reasonable restriction in the interest of public order and is saved by Article 19(2). In Kedarnath v. State of Bihar30 the constitutional validity of Section 124-A I.P.C. was considered by the Supreme Court. The Court held that the gist of the offence of sedition is that the words written or spoken have tendency or intention of criterion public disorder and held the section constitutionally valid.

(ii).

During Emergency

Article 358 and 359 make provision for the suspension of fundamental right during declaration of emergency. Marginal note of Article 358 is “suspension of provision Article 19 during emergencies”. As soon as a Proclamation of Emergency has been issued under Article 352 and so long as it lasts, Article 19 is suspended [subject to new clause (2)] and the power to the legislatures as well as the executive is to that extent made wider. The suspension of article 19 during the pendency of proclamation of emergency removes the fetters created on the legislative and executive powers by article 19 and if the legislature enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted,

29 30

AIR 1954 Pat. 254 AIR 1962 SC 955

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article 19 which was suspended by the emergency is automatically revived and begins to operate. In other words, the suspension of article 19 is complete during the period in question and legislative and executive actions which contravene Article 19 cannot be questioned after the emergency is over.

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CONCLUSION Over the decades there have been many more amendments to the Constitution, not all of which have great historical significance. However, one thing is certain that every period of conflict in the history of India can almost be mapped alongside a history of moves to amend the Constitution, the constitutional history during the Emergency being a classic case. The first amendment, however, retains a significant space in this history, not merely because it was the first amendment but because in many ways it also signaled the kinds of battles that would take place between the projects of nation building and the sphere of the media. Marked the rather premature end of the vision of a seamless web, with the promotion of national security and sovereignty being prioritized over the promotion of democratic institutions. As with any project of state imagination, the impact of the first amendment is also fraught with contradictions and internal conflicts. While introducing the discourse of public order into constitutional restrictions on freedom of speech and expression, it also introduced the idea of reasonable restriction, and, as Nehru rightly predicted, “it proved to be the basis for future conflicts over the media, the Constitution and state formative practices.” The contradictions that arose between the three strands of the seamless web of the Constitution were seen as the disintegration of the whole, rather than as the inevitable process through which fragments work their way into monumentalist imaginations. It is also perhaps well worth looking at the crisis that precipitated the first amendment to understand our contemporary situation. In 1950, you had a situation where Nehru had to contend with speech and expression that were ideologically opposed to his liberal values, from that of the far left to that of the far right. Nehru’s response was a classical case of deferring of an exercise of a democratic right, or democratic practice in favor of the larger interest or abstract norm of a democratic state. Having assumed the greater common good, he could then determine, what was desirable and undesirable speech, and proceed to act with a democratic conscience. Rather than understanding the media as a perpetual site of politics and contestation over the form of the nation over what constitutes the public sphere, the media was seen to be an instrument/medium for the promotion of an assumed public interest. This perhaps also speaks to

some

contemporary

debates

where

progressive

intellectuals,

media

practitioners, etc, demand greater regulation against the „hate speech‟ of the right. We need to be a little cautious in our responses to forms of speech that offend our liberal sentiments.

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