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Media And Law: Constitutional Position Of Freedom Of Speech And Expression, Freedom Of Press, Reasonable Restrictions

The freedom of speech and expression is a very important fundamental right under the Constitution. It is indispensable for the development of one's own individuality and for the success of parliamentary to democracy. It is said that in a democracy the right to free expression is not only the right of an individual but rather a right of the community to hear and be informed.

The freedom of speech and expression is not only guaranteed 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 Political Rights etc. These declarations expressly talks about freedom of speech and expression.

Origin of Freedom of Speech And Expression

The concept of freedom of speech originated long back. England's Bill of Rights 1689 adopted freedom of speech as a constitutional right and still in effect. The French Revolution in 1789 adopted the Declaration of Rights of Man and of Citizen. This further affirmed the Freedom of Speech as an undeniable right. The Declaration of Freedom of Speech in Article 11 states:
The free communication of ideas and opinions is one of the most precious of the right of man. Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.

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 Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.

Meaning of Freedom of Speech And Expression

The Constitution of India guarantees various fundamental rights to its citizens. One such important right is right to freedom under Article 19. This includes right to freedom of speech and expression, right to assemble peacefully and without arms, freedom to form associations and unions, right to move freely throughout the territory of India, right to reside and settle in any part of the territory of India and right to practice and profession or to carry on any occupation, trade or business.

Article 19(1)(a) says that:
All citizens shall have freedom of speech and expression.

Actually, this is the most important right amongst all rights. It is the right which helps in conversation. It is a medium of expression of thoughts.

Speech and expression means- expression your views by way of words, articles, signs, representation, etc.

There can also be other way of expression, and all such medium shall be deemed to be expression.

Lawell Vs Giffin [(1938) 303 U.S. 444]- numbers, signs, symbols, etc. were held to medium of expression.

Tata press Ltd. Vs Mahanagar Telephone Nigam Ltd. (A.I.R. 1995 S.C. 2438)- commercial speech and expression shall be deemed to be part of speech and expression under Article 19(1) (a).

Romesh Thappar v State of Madras (AIR 1950 SC 124), 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.

Indian Express Newspapers (Bombay) P. Ltd v. Union of India (86) A.SC. 515, are of great significance. In these cases, the corporations filed a writ petition challenging the constitutional validity of notifications issued by the Government. After much deliberation, the Courts held that the right to freedom of speech cannot be taken away with the object of placing restrictions on the business activities of citizens.

However, the limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of 19(2) is not valid.

State of Uttar Pradesh v. Raj Narain has held that Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information regarding matters of public concern.

Freedom of Press:
Freedom of speech and expression includes freedom of press- Any person may express his views by articles, cartoons, advertisements, etc. in a newspaper. To preserve the democratic way of life it is essential that people should have the freedom of express their feelings and to make their views known to the people at large. The press, a powerful medium of mass communication, should be free to play its role in building a strong viable society. Denial of freedom of the press to citizens would necessarily undermine the power to influence public opinion and be counter to democracy.

Freedom of press is not specifically mentioned in article 19(1) (a) of the Constitution and what is mentioned there is only freedom of speech and expression. In the Constituent Assembly Debates it was made clear by Dr. Ambedkar, Chairman of the Drafting Committee, that no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as their right of expression was concerned. The framers of the Indian constitution considered freedom of the press as an essential part of the freedom of speech and expression as guaranteed in Article 19 (1) (a) of the Constitution.

Sriniwas Vs State of Madras (A.I.R 1951 Madras 79): Madras High Court held that the freedom of speech and expression is not limited to the publicity of views. It includes the publicity of views of others also which is possible by freedom of press only.

Whether freedom of press can be restricted?

This question has been in discussion from the beginning:
Virendra Vs State of Punjab (A.I.R. 1957 S.C. 896):
The Supreme Court has said that, Preventing any newspaper from publishing any article of current importance is encroachment of the freedom of speech and expression.

Ramesh Thappar Vs State of Madras (A.I.R. 1950 S.C. 124):
It was held that, A newspaper published in one state cannot be prevented to be delivered in another state, because freedom of press includes its publicity also.

Similarly, Maneka Gandhi Vs union of India (A.I.R. 1973 S.C. 597):
it was said that if the passport of any journalist is withdrawn to avoid him from expressing views in foreign, then it violates the Article 19(1)(a).

Express Newspaper Pvt. Ltd. Vs Union of India (A.I.R. 1958 S.C. 578):
The following activities diminishing the freedom of Press were held unconstitutional:
  1. Pre-censorship of newspaper,
  2. Prohibition on circulation of Newspaper,
  3. Prohibition in start of newspaper
  4. Government aid to be compulsory for the continuity of newspaper, etc

Grounds of Restrictions

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of the public on the following grounds:
Clause (2) of Article 19 of the Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed:
  1. Security of State:
    Security of state is of vital importance and a government must have the power to impose a restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of the security of State. However, the term security is a very crucial one. The term security of the state refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.
  2. Friendly relations with foreign states:
    In the present global world, a country has to maintain a good and friendly relationship with other countries. Something which has the potential to affect such relationship should be checked by the government. Keeping this thing in mind, this ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India and that state.
  3. No similar provision is present in any other Constitution of the world:
    In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government. However, it is interesting to note that member of the commonwealth including Pakistan is not a foreign state for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.
  4. Public Order:
    Next restriction prescribed by constitution is to maintain public order: This ground was added by the Constitution (First Amendment) Act. Public order is an expression of wide connotation and signifies that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.

    Here it is pertinent to look into meaning of the word Public order. Public order is something more than ordinary maintenance of law and order. Public order is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order.

    Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order.

    The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order
  5. Decency or morality:
    The way to express something or to say something should be a decent one. It should not affect the morality of society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.
  6. Contempt of Court:
    In a democratic country Judiciary plays a very important role. In such situation, it becomes essential to respect such an institution and its order. Thus, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' But now, Indian contempt law was amended in 2006 to make truth a defense.

    However, even after such amendment, a person can be punished for the statement unless they were made in public interest. Again in Indirect Tax Practitioners Assn. vs R.K.Jain, it was held by court that, Truth based on the facts should be allowed as a valid defense if courts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or article. The qualification is that such defense should not cover-up to escape from the consequences of a deliberate effort to scandalize the court.
  7. Defamation:
    Ones' freedom, be it of any type, must not affect the reputation or status of another person. A person is known by his reputation more than his wealth or anything else. Constitution considers it as ground to put restriction on freedom of speech. Basically, a statement, which injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law relating to defamation is still uncodified in India and subject to certain exceptions.
  8. Incitement to an offense:
    This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offense. The word 'offense' is defined as any act or omission made punishable by law for the time being in force.
  9. Sovereignty and integrity of India:
    To maintain the sovereignty and integrity of a state is the prime duty of government. Taking into it into account, freedom of speech and expression can be restricted so as not to permit anyone to challenge sovereignty or to permit anyone to preach something which will result in threat to integrity of the country.

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