ConstitutionJudicial ExamLegal Notes

PCS (J) Notes: Constitutional Law, Art 19, freedom of speech with relevant case laws

 

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Right to Freedom

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  1. Protection of certain rights regarding freedom of speech, etc.— (1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions 16[co-operative societies];

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; 17[and]

(f18[* * *]

(g) to practise any profession, or to carry on any occupation, trade or business.

19[(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 20[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.]

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 21[the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 22[the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in 23[sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 24[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise].

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CASE LAW

Constitutionality of.— Section 66-A of the Information Technology Act, 2000 declared unconstitutional for being violative of Article 19(1)(a) and not saved under Article 19(2) of the Constitution, Shreya Singhal v. Union of India, (2015) 5 SCC 1.

Freedom of Speech and Expression.— Free Speech is the foundation of a democratic society. A free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one’s own views and expressing them, are the basic indicia of a free society. This freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic and political rights in a free society in an informed manner. Restraints on this right, therefore, have been jealously watched by the courts. Article 19(2) spells out the various grounds on which this right to free speech & expression can be restrained, Union of India v. Motion Picture Assn., (1999) 6 SCC 150.

Basis of the right to know of a citizen about government decisions and actions has been derived from freedom of speech, it is a fundamental right which is subject to overriding interest of public security and secrecy, Dinesh Trivedi v. Union of India, (1997) 4 SCC 306.

Freedom of Speech & Expression guaranteed under Article 19 (1)(a) means the right to express one’s convictions and opinions freely by word of mouth, printing, picture, or in any manner. When a person is talking on telephone, he is exercising his right to freedom speech & expression. Telephone tapping unless it comes within grounds of restrictions under Article 19(2) would infract Article 19(1)(a), PUCL v. Union of India, (1997) 1 SCC 301.

Freedom of expression has four broad social purposes to serve: (i) it helps an individual to attain self-fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters, Indian Express Newspapers v. Union of India, (1985) 1 SCC 641.

In the name of artistic freedom or critical thinking or generating the idea of creativity, a poet or a writer cannot put into the voice or image of a “historically respected personality” like Mahatma Gandhi, such language, which may be obscene, Devidas Ramachandra Tuljapur v. State of Maharashtra, (2015) 6 SCC 1.

Freedom of Press.— Means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest, Indian Express Newspapers v. Union of India, (1985) 1 SCC 641.

Right of Broadcasting.— Right of broadcasting/telecasting include rights of listeners/ viewers, Min. of Information and Broadcasting v. Cricket Assn. of Bengal, (1995) 2 SCC 161.

Freedom of Trade.— Right of hawkers to ply trade on pavements included subject to regulation, Sodan Singhv. NDMC, (1989) 4 SCC 155 and (1992) 2 SCC 458; (1993) 3 SCC 178.

Reasonable Restrictions.— The expression “reasonable restriction” signifies 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 test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases. The restriction 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 Article 19(6), it must be held to be wanting in that quality, Bishambhar Dayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39, 62. See also (1986) 3 SCC 20.

Right to know.— Right to know and access information is implicit in right to free speech and expression guaranteed under Article 19(1)(a), M. Nagaraj v. Union of India, (2006) 8 SCC 212.

Voters have right to know about educational qualification of candidate contesting election, Mairembam Prithviraj v. Pukhrem Sharatchandra Singh, (2017) 2 SCC 487.

Right to Impart Education.— Right to impart education is a fundamental right under Article 19(1)(g), subject to control by Article 19(6), P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537.

Trade in Liquor.— Trade in liquor is not a fundamental right. It is a privilege of State, which it parts with for revenue consideration. Moreover, trade in liquor is considered inherently noxious, pernicious, and is res extra commercium, State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26.

Voting Right.— Right to vote is a statutory right and not a fundamental right, K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 : (2010) 2 SCC (L&S) 385.

Censorship.— Film certified by Censor Board for public exhibition cannot be subjected to further censorship by State Government because such power is not available to State Government, Prakash Jha Productions v. Union of India, (2011) 8 SCC 372.

Suspension cannot be ordered before a film is publicly exhibited. This is because suspension can be ordered in respect of a thing which is operational and not which is yet to be put into operation, Prakash Jha Productions v. Union of India, (2011) 8 SCC 372.

National Flag.— The right to fly the national flag is a fundamental right. The Flag Code provides guidelines to be observed for preservation of dignity and respect to the national flag. The national flag is both a benediction and a beckoning. In case a person shows any kind of disrespect to the national flag or does not observe the terms contained in the Code, legal action may be taken against him under the relevant statutory provisions, V.K. Naswa v. Union of India, (2012) 2 SCC 542.

Voters Participation.— Lesser voter participation is the rejection of commitment to democracy whereas larger participation is better for democracy. Voters’ participation in an election is participation in democracy itself. If introducing a NOTA button in EVMs can increase the participation in democracy then, nothing should stop it, People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1 : (2013) 3 SCC (Cri) 769 : (2013) 4 SCC (Civ) 587.

Criminal defamation.— Right under Art. 19(1)(a) has to be so balanced with that under Art. 21 that right of victim of defamation may not be jeopardized. Ss. 499 and 500 IPC are saved under Art. 19(2), are not violative of Art. 19(1)(a). Reputation being an inherent component of Art. 21, it should not be allowed to be sullied solely because another individual can have its freedom, Subramanian Swamy v. Union of India, (2016) 7 SCC 221 : (2016) 3 SCC (Cri) 1.

 

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