Article 19: Different Aspects of Freedom of Speech and Expression

admin
By admin June 17, 2019 15:14

Download PDF


Provisions

Article 19 guarantees to all citizens the six rights. These are:

  1. Right to freedom of speech and expression.
  2. Right to assemble peaceably and without arms.
  3. Right to form associations or unions or co-operative societies.
  4.  Right to move freely throughout the territory of India.
  5. Right to reside and settle in any part of the territory of India.
  6. Deleted
  7. Right to practice any profession or to carry on any occupation, trade or business.

Article 19(2) of the Indian constitution enables the government to impose certain restrictions on free speech for issues –

  • Security of the State,
  • friendly relations with foreign States,
  • public order,
  • decency and morality,
  • contempt of court,
  • defamation,
  • incitement to an offense, and
  • sovereignty and integrity of India.

Clause 3 Restrictions on Right to assemble peaceably and without arms
à  Only two grounds: Sovereignty & Integrity and Public Order.

Clause 4 Restrictions on Right to form associations or unions:
àSovereignty & Integrity and Public order & Morality.

Clause 5 Restrictions on Freedom to move freely
à In the interest of the general public and Scheduled Tribes[only]

Clause 6: Restrictions on freedom of profession
à professional or technical qualifications necessary for practicing; Monopoly of State

Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of the property was deleted by the 44th Amendment Act of 1978 and added as a legal right under Article 300A.

Reasonable restrictions on these grounds can be imposed only by a duly established law and not by executive action.

What is the test for determining whether a restriction is reasonable within the meaning of Art.19? The test of reasonableness as laid down by Sastri C.J. in Madras v. V.G. Row has generally been accepted as correct.

For adjudging reasonableness of a restriction, the courts consider such factors as:

  • the nature of the right alleged to have been infringed,
  • the underlying purpose of the restrictions imposed,
  • the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition,
  • the prevailing conditions at the time,

should all enter into the judicial verdict.

Read Also: The Article 22 Protection Against Arrest and Detention

Analysis of Freedom of speech

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.

This right is available only to a citizen of India and not to foreign nationals.

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 right to freedom of expression includes the right to express one’s views and opinions on any issue and through any medium whether it be in writing or by word of mouth.

Some of the rights explained by case studies

Right to receive and disseminate information: It includes the right to communicate and circulate information through any medium including print media, audio, television broadcast or electronic media.

Right to Information: This right as provided by RTI act, 2005 is the codification of important fundamental right under article 19.  in the case State of U.P. v Raj Narain SC held that the Right to Information is implicit in the right to freedom of speech and expression explicitly guaranteed in Article 19 of the Indian Constitution.

Freedom of the press: In 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 the publication is of little value without circulation. 

Criminal defamation case

In a most recent case, the Supreme Court ordered the release of journalist Prashant Kanojia, who was arrested by UP police under criminal defamation law. SC also held that this arrest was a violation of rights and freedom provided under article 21 and 19.

Criminal defamation law

Section 499 and 500 of IPC deals with the offense of criminal defamation.

Section 499 defines what activities constitute to criminal defamation.

Section 500 provides for the punishment for this offense.

Supreme Court’s judgment

Article 19(2) provides, freedom of speech is not an absolute right, and certain reasonable restrictions can be enforced upon it. Defamation is one of the restrictions provided.

But term ‘reasonable’ here requires striking a balance between rights and restrictions.

This issue was settled by Supreme Court in the case of R Rajagopal versus the State of Tamil Nadu, wherein the Supreme Court had adopted the “Sullivan test”, which makes the accused liable for defamation only if he had made the statements with reckless disregard for the truth. However, this does not apply for criminal defamation cases

Are criminal defamation laws unconstitutional?

This question was answered by the Supreme Court in the case of Subramaniam Swamy versus the Union of India.

In this case, the Supreme Court has ruled “the provisions are valid and do not violate the Constitution and right to freedom of speech and expression is not an absolute right. A person’s right to freedom of speech has to be balanced with the other person’s right to reputation.”

Rafael case

In a recent case against the newspaper, Supreme Court held that Publication of Rafale documents by The Hindu is part of the newspaper’s fundamental right to freedom of speech.

The court referred to its past judgment in Romesh Thapar and Brij Bhushan, both of which had held that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2).

Read Also:  The Article 22 Protection Against Arrest and Detention

Section 377

  • The Supreme Court struck down Article 377 of the Indian Penal Code and said, “The sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression.
Section 66A of IT act
  • In the case of Shreya Singhal v. Union of India, section 66A of the Information and Technology Act, 2000, was declared unconstitutional on the ground that it was in direct conflict with the fundamental right of freedom of speech and expression.
  • The Supreme Court held that under the Constitutional scheme, for the democracy to thrive, the liberty of speech and expression ―is a cardinal value and of paramount importance.
  • Court distinguished between “advocacy” and “incitement”, and held that only the latter could be constitutionally prohibited.

The Court further held that the Section was not saved by virtue of being ‘reasonable restrictions’ on the freedom of speech under Article 19(2).

Sedition and freedom of speech
  • In the case of Sanskar Marathe v. the State of Maharashtra, a cartoonist Aseem Trivedi was booked under section 124A IPC for defaming the Parliament, the Constitution of India and the National Emblem and attempting to spread hatred and disrespect against the Government through his cartoons.
  • The court distinguished between strong criticism and disloyalty observing: … disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies.
  • Court held that Freedom of speech cannot be encroached upon if there is no incitement to violence or intention of disrupting public order.
  • Section 124A IPC must be read in consonance with Article 19(2) of the Constitution and the reasonableness of the restriction must be carefully scrutinized on the basis of facts and circumstances of the case.
Case studies on Right to assembly
  • SC on a plea by Gorkha Janmukti Morcha leader in 2018 held that Public demonstrations resorting to violence, including stone-throwing, are not protected by the fundamental right to free speech and expression or the fundamental right to assemble peacefully.
  • In another judgment, SC lifted a blanket ban on rallies and protests at the iconic Jantar Mantar and Boat Club areas.
  • SC bench in this case held “Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under article 19(1)(a) and 19(1)(b) of the Constitution of India,”
  • In Kameswar Prasad vs. the State of Bihar, the Supreme Court had to consider the validity of Rule 4A of the Bihar Government Service Conduct Rules which provided that no government servant shall participate in any demonstration in connection with any matter pertaining to his condition of service.
  • SC held that, as Article 19 applies to all citizens, government servants in common with other citizens enjoy the protection of fundamental rights and the prohibition on government servants of participation in any demonstrations invalid with some reasonable restrictions.

Read More Articles:

Article 17: Abolition of Untouchability & Related Supreme Court Rulings

The Article 18 of the Indian Constitution: Abolition of Titles

admin
By admin June 17, 2019 15:14