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Subject: Constitutional Law-II

Study Material on Topic: Article 19(2)- Reasonable Restriction Freedom of Speech and

Expression, Unit-II(C)

B.A.LL.B-4th sem

Subject Teacher: Akhlaqul Azam

Article 19(2): Reasonable Restriction on Freedom of Speech and Expression

Article 19(2) provides that

Nothing in sub clause (a) of clause ( 1 ) of Article 19 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

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.

Reasonable restrictions as provided under Article 19(2) imply that the freedom of speech and

expression is not absolute but are subject to regulation. At the same time it also imposes a

limitation on the power of legislature to restrict this freedom. The Freedom of speech and

expression can only be limited on the grounds that are mentioned in Article 19(2) and not on any

other ground that is not specified.

For a restriction to be reasonable following elements must be present:

1. The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirement of felt need of society and object sought to be achieved.

2. There must be a direct and proximate nexus/reasonable connection between the

restriction imposed and the object sought to be achieved.

3. The reasonableness has to be tested both from the procedural and substantive aspect.

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The first pre-requisite for curtailment of the freedom of speech and expression is that the

restriction imposed must have the authority of some law to support it. Law means a valid law -

be it a statute, a statutory rule or a statutory notification or regulation. It is only thereafter that the

question arises whether the restrictions imposed are reasonable and permissible. Fundamental

rights cannot be restricted by a mere executive order or an administrative instruction or a circular

or a resolution which is without any statutory basis. Orders or regulations or instructions which

purport to restrict any fundamental right must have been made in the exercise of the legislative

power of the State and not in the exercise of its executive power. Furthermore, not only the law

restricting the freedom should be reasonable but rules or orders made on the basis of that law

should also be reasonable.

‘In the interest of’

The expression used in clause 2 ‘In the interest of’ give a wide amplitude to the permissible law

which can be enacted to impose reasonable restriction on the right guaranteed by Article 19(1)(a)

under one of the head mentioned in Article19(2). No restriction can be placed on right to speech

and expression on any ground other than those specified in clause 2.

The Supreme Court has explained the effect of the clause “in the interest of’ in O.K. Ghosh vs.

E.X. Joseph as follows: “This clause again cannot be interpreted to mean that even if the

connection between the restriction and the public order is remote and indirect, the restriction

can be said to be in the interests of public order. A restriction can be said to be in the interests of

public order only if the connection between the restriction and the public order is proximate and

direct. Indirect or far-fetched or unreal connection between the restriction and public order

would not fail within the purview of the expression ‘in the interests of public order.”

Grounds of Reasonable Restriction

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

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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.

In Ramesh Thapper vs. State of Madras, the Supreme Court has occasion to interpret the

meaning of the words ‘security of the State’. The Court said that there are different grades of

offences against ‘public order’. Every public disorder cannot amount to be regarded as

threatening the security of the State. The term ‘security of the State’ refers only to serious and

aggravated forms of public disorder, 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 the State.

People’s Union for Civil Liberties v. Union of India

In this case Public interest litigation (PIL) was filed under Article 32 of the Constitution of India

by PUCL, against the frequent cases of telephone tapping happening throughout the nation. And

thus the validity of Section 5(2) of The Indian Telegraph Act, 1885 was challenged. It was then

observed that “occurrence of public emergency” and “in the interest of public safety” is the sine

qua non for the application of the provisions laid down under the Section 5(2). If any of these

two conditions are absent from the case, then the government of India has no right to exercise its

power under this section. Telephone tapping, therefore, will be violative of Article 19(1) (a)

unless it comes within the grounds of reasonable restrictions under Article 19(2).

1. 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.

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Under Article 367(3), a foreign State mean other than India. The President, however, may,

subject to any law made by Parliament, by order declare any State not to be a foreign State for

such purposes as may be specified in order. The Constitution (Declaration as to Foreign State)

Order, 1950, directs that a Commonwealth country is not to be a foreign State for the purposes of

the Constitution. The question, therefore, arises whether a restriction can be imposed on the

freedom of speech on the ground of its being prejudicial to a Commonwealth country. The

Supreme Court has stated in Jagan Nath vs. Union of India that a country may not be regarded as

a foreign State for the purpose of the Constitution, but may be regarded as a foreign power for

other purposes. The affairs amongst the Commonwealth countries are foreign affairs and they are

foreign powers in relation to each other. Therefore, a Commonwealth country is a foreign

country for purposes of Article 19(2).

2. Public Order

The expression “public order” is synonymous with public safety and tranquility. It is the absence

of disorder or internal disturbance, but not disruptive in dimensions. Instigation to civil law

break; non-violent disobedience; satyagraha is not breaking public order. It does not have a

wider connotation. It means the orderly state or society or community in which citizen can

peacefully pursue their normal activities. It is equated with public peace and safety. In its

comprehensive sense it includes public safety, public security and maintenance of law and order.

It is descriptive of absence of disorder involving breaches of peace, safety and tranquility.

However, the expression has been taken to bear a narrower connotation.

In Kishori Mohan vs. State of W.B., the Supreme Court explained the differences between three

concepts: law and order, public order, security of State. The difference between these concepts,

the Court said, can be explained by three functional concentric circles, the largest representing

law and order, the next public order, and the smallest, the security of the State. Every infraction

of law must necessarily affect law and order but not necessarily public order and an act may

effect public order but not necessarily security of the State and an act may fall under two

concepts at the same time affecting public order and security of the State. One act may affect

individual in which case it would affect law and order while another act though of a similar kind

may have such an impact that it would disturb even the tempo of the life of the community in

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which case it would be said to affect public order, the test being the potentiality of the act in

question.

In Superintendent, Central Prison vs. Ram Manohar Lohia , Section 3 of U.P. Special Powers

Act, 1932, which punished a person if he incited a single person not to pay or defer the payment

of Government dues was held to be invalid because there was no proximate nexus between the

speech and public order. The Court said that fundamental right cannot be controlled on such

‘hypothetical and imaginary considerations'. The Court rejected the argument that instigation of a

single individual not to pay tax would itself destroy public order.

In Kedar Nath v. State of Bihar, the Court look the position that when a provision of law is

capable of two interpretations, one of which makes it constitutional and the other

unconstitutional, the interpretation which makes it constitutional should be preferred.

Accordingly, the Court ruled that a mere criticism of government action, however strongly

worded, would be consistent with the Fundamental Right of freedom of speech and expression.

Only the words having the pernicious tendency, or intended to create disturbance of law and

order would be penal in the interests of public order.

4. Decency and Morality

Clause (2) of Article 19 expressly authorizes the legislature to impose reasonable restrictions on

the ground of “decency” or “morality”. The word ‘obscenity’ of English law is identical with the

word ‘indecency’ under the Indian Constitution. The words ‘indecent’ and ‘obscenity’ are used

in the English statutes in the same sense, such as Obscene Publications Act, 1959; Indecent

Advertisements Act. Though both the words are used synonymously, there is a difference in

degree between the two expressions. The English Court says “indecent is at the lower end of the

scale and obscene at the upper end of the scale.... an indecent article is not necessarily obscene,

whereas an obscene article must almost certainly be indecent”. The correct interpretation,

according to the legal meaning of the two words, is that obscenity is a graver form of indecency.

According to the Oxford Dictionary obscenity means “offensive to modesty or decency;

expressing or suggesting unchaste or lustful ideas, impure, indecent lewd”, etc.

In Sukanta Haider vs. The State,

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The Court held “The idea as to what is to be deemed to be obscene has varied from age to age,

from region to region, dependent upon particular social conditions. There cannot be an

immutable standard of moral values”.

The scope of indecency or obscenity under the existing law is illustrated in Section 292 to 294 of

the Indian Penal Code. These sections prohibit the sale or distribute or exhibition of obscene

matter or the doing or obscene acts or singing of obscene songs or uttering obscene words, etc.,

in public places. Books, pamphlets, writings or paintings used for bonafide religious purposes or

paintings in any temple are exceptions to Section 292. Although the Indian penal Code prohibits

and punishes the test to determine obscenity. In Ranjit D. Udeshi vs. State of Maharashtra, the

Supreme Court accepted the test laid down in the English case R. V. Hicklin to judge the

obscenity matter. That test runs as follows: “The test of obscenity is this, whether the tendency of

the matter charged as obscenity is to deprive and corrupt those whose minds are open to such

immoral influences, and into whose hands a publication of this sort may fall”. The question

whether Section 292 of I.P.C. is consistent with Article 19(1) (a) of the Constitution and what is

obscene were discussed in detail by the Supreme Court in the Udeshi case. Inthis the book Lady

Chatterley’s Lover written by D.H. Lawrence was held to be obscene. It was argued by the

publisher that Section 292 violated the right to free speech guaranteed under Article 19(1) (a) of

the Constitution. This argument was rejected by the Court. The Supreme Court in Udeshi case

has followed Hiclin's test and modified the test in certain respects. Justice Hidayatullah, who

wrote the judgment, found Lady Chatterley’s Lover obscene “ass it treated sex in a manner

offensive to public decency and morality judged of by our national standards and considered

likely to pander to lascivious prurient or sexually precocious minds”.

In Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, the Supreme Court has given

somewhat wider meaning to the term decency and morality. The court maintained that ‘decency’

or ‘morality’ is not confined to sexual morality alone. Decency indicates that the action must be

in conformity with the current standards of behavior or propriety.

5. Contempt of Court

‘Contempt of Court’ is another category that entitles the State to restrict the right to freedom of

speech and expression. Such a provision is necessary in order to enable the judiciary to function

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effectively without fear or favour. The ground contempt of court was included in Art. 19(2) to

ensure the independence and dignity of the judiciary and the due administration of justice. The

Supreme Court under Art. 129 and the High Courts under Art. 215 have been vested with the

power to punish a person for contempt of the Supreme Court or the High Courts, as the case may

be

Barada Kanta Mishra vs. Bhimsen Dixit

In this case the SC explained the concept of the contempt of Court as follows, “Contempt of

Court is disobedience to the Court, by acting in opposition to the authority, justice and dignity

thereof. It signifies a willful disregard to disobedience of the Court’s order, it also signifies such

conduct as tends to bring the authority of the Court and administration of justice into disrepute”.

The Contempt of Court Act, 1971, defines the expression ‘Contempt of Court’ as follows:

According to Section 2, ‘Contempt of Court’ may be either ‘civil contempt’ or ‘criminal

contempt’. ‘Civil contempt’ means of a Court or willful breach of an undertaking given to a

Court. ‘Criminal contempt’ means the publication (whether by words spoken or written, or by

signs or by visible representations or otherwise) or any matter or the doing of any other act

whatsoever, which –

(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any

Court;

(ii) prejudices, or interferes or tends to interfere with the due course of any judicial

proceedings; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner.

In C.K. Daphtary v. O.P. Gupta, the respondent, party to an appeal pending before the Supreme

Court, published and circulated a pamphlet in public purporting to ascribe bias and dishonesty to

Justice Shah. It read as saying that Justice Shah had made up his mind to give judgment against

him, that he did not listen to the arguments. The Supreme Court held the respondent guilty of

committing gross contempt of court and the judges.

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In E.M.S. Namboodiripad v. T.N. Nambiar the facts of the case were as follows. The appellant

who was the Chief Minister of Kerala at the time, made at a press conference various critical

remarks relating to the judiciary referring to it, inter alia as “an instrument of oppression” and

stating that the judges were “guided and dominated by class hatred, class interests and class

prejudices”, instinctively favoring the rich against the poor. He also stated that as part of the

ruling class, the judiciary worked against the workers, peasants and other sections of the working

classes. These remarks were reported in the newspapers. On a charge of the contempt of court,

the appellant was convicted by the Kerala High Court and sentenced to a fine of Rs. 1000 and in

default to undergo imprisonment of one month. On appeal the Supreme Court observed that it

was an attack upon judges calculated to raise in the minds of the people a general dissatisfaction

with, and distrust of all judicial decisions. It weakened the authority of law and law courts and

constituted contempt of court especially because the statements were made in a press conference

and the man was Chief Minister of a state with the belief of the people in his word as a Chief

Minister. The law punishes not only acts which do in fact interfere with the courts and

administration of justice but also those which have that tendency, that is to say, are likely to

produce a particular result.

In A. K. Gopalan v. Noordeen, the case was that the first appellant had made a statement

charging one group of persons being guilty of conspiracy to commit a murder. Some persons

were arrested subsequently in connection with the case of murder referred to above. The said

statement was also published in a newspaper edited by the second appellant. The Supreme Court

held that it would be undue restriction on the liberty of free speech to lay down that even before

any arrest had been made there should be no comments on the facts of any particular case and

accordingly acquitted the first appellant. The conviction of the second appellant who had

published the statement with the knowledge of the arrest of the accused was however confirmed.

In a recent case, Indirect Tax Practitioners’ Association v. R. K. Jain, the respondent was the

editor of a law journal, ‘Excise Law Times’. A contempt petition was filed by the petitioner

association against the respondent on the ground that he wrote an editorial in the issue dated

1.6.2009 which amounted to criminal contempt under Sec. 2(c) of the Contempt of Courts Act,

1971. In the editorial the respondent had highlighted the irregularities in the functioning of a

judicial tribunal.

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The Supreme Court held that a person like the respondent can aptly be described as

a whistleblower for the system who has tried to highlight the malfunctioning in the judicial

system and there is no reason to silence such a person.

6. Defamation

The Freedom of Speech and expression can not be used to transgress the law relating to

defamation. The word “defamation” covers both the crime and the tort and in Article 19(2) it

means the entire law of defamation, civil and criminal. Every person possesses a right to his

reputation and therefore no body can so use his freedom of speech and expression as to injure

another’s reputation. Section 499 of the Indian penal Code, 1860 defines the offence of

defamation. It recognizes no distinction between defamatory statement addressed to the ear or

eyes and thus includes both slander and libel. Defamatory matter put in writing is a libel while in

spoken words or gestures, it amounts to slander.

Hence, nobody can so use his freedom of speech or expression as to injure another’s reputation.

Laws penalizing defamation do not, therefore, constitute infringement of freedom of speech and

expression.

In the case of Dr. D.C. Saxena v. Hon’ble the Chief Justice of India, the Supreme Court held: “If

maintenance of democracy is the foundation for free speech, society equally is entitled to

regulate freedom of speech or expression by democratic action.”

Interest of the people involved in the acts of expression should be looked at not only from the

perspective of the speaker but also the place at which he speaks, the scenario, the audience, the

reaction of the publication, the purpose of the speech and the place and the forum in which the

citizen exercises his freedom of speech and expression. The State has legitimate interest,

therefore, to regulate the freedom of speech and expression which liberty represents the limits of

the duty of restraint on speech or expression not to utter defamatory or libelous speech or

expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled

to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or

reputation.

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Where publication is defamatory, the persons jointly liable are the writer of the article, the

proprietor of the newspaper, its editor and printer. Malice on the part of anyone makes the others

jointly responsible. The printers and distributors should not be liable if they did not know that the

publication contained the libel and the want of knowledge was not due to any negligence on their

part.

Thus, a newspaper stands in matter of defamation, in the same position as members of the public

in general. The publisher of the newspaper shall be liable for published defamatory matter

whether he was aware of that or not. But an editor’s position is somewhat different. He can

escape his liability by proving that defamatory matter was published in his absence and without

his knowledge and he had in good faith entrusted the temporary management of the newspaper

during his absence to a competent person.

In civil action truth is a defence, but in a criminal action the accused in addition has to prove that

the publication was for the public good. It is suggested that the position in regard to civil action

be put at par with criminal action. The law should require that publication must be proved to be

for public good if it is to be immune from civil liability. No social interest is involved in

allowing publication of a truthful statement which harms the reputation of a person without

bringing about any good to the society.

In the case Kokan Unnati Mitra Mandal & Ors. v. Bennet Coleman & Co. Ltd. & Ors.the

defendant newspaper published a news article stating that illegal allotment of cement was done

to various parties in rationed era of cement during tenure of plaintiff as Chief Minister. The

publication of the said fact was not based upon hearsay but was made after proper investigation

by the journalists of defendant newspaper by actually going to site and taking photographs of

storage and movement of cement. Thus, no malice could be shown on part of the defendant. The

Bombay High Court held that the publication was made in public interest and hence there was no

defamation of the plaintiff. Court said that it would be reluctant to put fetters upon an

apprehended and expected libel if it could be justified and was not untrue.

7. Incitement to an Offence

This ground was added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of

speech and expression cannot confer a licence to incite people to commit offence. The word

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‘offence’ used here is not defined in the Constitution. It is, however, defined in the General

Clauses Act as meaning “Offence shall mean any act or omission made punishable by any law

for the time being in force". What constitutes incitement will, however, have to be determined by

the Court with reference to the facts and circumstances of each case. What would amount to an

incitement would be a question of fact and will have to be decided in each and every case by the

Courts. The Courts, it is expected, will always take into consideration the condition of the

contemporary society.

This is a broad concept and so it is possible for the Legislature to create an offence and make

incitement thereto punishable. In this way, the freedom of speech can be effectively

circumscribed as any subject can be precluded from public discussion by making it an offence.

In Indulal K. Yagnik v. State Sec. 3 of the Police (Incitement to Disaffection) Act 1922 was

challenged under article 19 (1)(a). The section made it penal; inter alia, to induce or to attempt to

induce any member of a police force to withhold his services or to commit a breach of discipline.

Sec. 4, however, exempted such acts if done in good faith for promoting the welfare of any such

member. The Bombay High Court while ascertaining the validity of the impugned section cited

Sec. 145 of the Bombay Police Act 1951, which declared it an offence on the part of a police

officer of whatever rank to withhold his services or to commit a breach of discipline. The court

said that to induce or to attempt to induce a police officer would amount to incitement to an

offence punishable under Sec. 3. It, therefore, held that this section was saved under the ground

“incitement to an offence” and that the restriction imposed by it on the freedom was reasonable

in view of its circumscribed scope.

8. Sedition:

Sedition is not mentioned in Art. 19(2). Sec. 124-A of the IPC defines the offence of sedition as

follows: “Whoever by words either spoken or written, or by signs or by visible representation or

otherwise, brings or attempts to bring into hatred or contempt or excites or attempts to excite

disaffection towards the government established by law in India shall be punished…”

In Kedar Nath v. State of Bihar, the Supreme Court held that Sec. 124-A was limited to acts

involving an intention or a tendency to create disorder or disturbance of law and order or

incitement to violence and was not violative of Art. 19(1)(a) read with Art. 19(2).

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9. Integrity and Sovereignty of India

This ground was added to Clause (2) of Article 19 by the Constitution (Sixteenth Amendment)

Act, 1963. Under this clause freedom of speech and expression can be restricted so as not to

permit to any one to challenge the integrity or sovereignty of India or to preach cession of any

part of India from the Union. Sedition: As understood in English law, sedition embraces all those

practices whether by word, or writing which are calculated to disturb the tranquility of the State

and lead ignorant persons to subvert the Government.

In Niharendra vs. Emperor, the Federal Court held that mere criticism or even ridicule of the

Government was no offence unless it was calculated to undermine respect for the Government in

such a way as to make people cease to obey it an obey the law, so that only anarchy can follow.

Public disorder is the gist of the offence. But the Privy Council overruled this decision and held

that the offence of sedition was not confined to only incitement to violence or disorder.

Probable Questions

1. “A Restriction on Fundamental Right to speech and expression must always be a

Reasonable Restriction”. Comment

2. Explain in detail the grounds of restriction on freedom of speech and expression.

3. Critically evaluate the grounds of restriction on freedom of speech and expression.

4. Discuss relevance of reasonable restriction on freedom of speech and expression.