Posted on: November 7, 2020 Posted by: admin Comments: 0
Author: Ayushi Jaryal, Army Institute of Law, Mohali

Freedom of speech and expression is arguably the most debatable fundamental right in today’s India. It has largely become the most sought after defense in the court of law. While this Article has been a savior against violation of Fundamental Rights[1], when twisted, it can also be misused and to the benefit of only some.  A Bench headed by Chief Justice of India SA Bobde, remarked along the same lines when it was said that ‘Freedom of speech is one of the most abused freedoms in the recent times’ while hearing a petition filed by the Jamiat Ulema-e-Hind[2].


The concept of freedom of speech can be traced back to the ancient Greek society.  “Parrhesia”[3], the Greek word which means “free speech,” or “to speak candidly” went on to become more popular and a fundamental part of the democracy of Athens during the classical period. But even then this right wasn’t absolute and exercised only in some settings.

On December 15, 1791, the first constitution that was drafted by the Americans, adopted the first amendment as part of the Bill of Rights. Although, it was not defined clearly the First Amendment gave the citizens freedom of speech for the very first time.

In India, before independence the British took every possible step so as to curtail freedom of speech in Colonial India. To ensure that the voice the people was quelled, the English introduced Sedition laws in 1870, therefore, penalized everyone who spoke against their authority. After the long drawn freedom struggle, while drafting the constitution the framers were greatly inspired by the American constitution and the fundamentals rights enshrined in it. Hence, the provision of freedom of speech and expression was placed in our constitution in the form of Article 19.


Article 19 of the Indian constitution, which came into force on the 26th of January, grants to all citizens the following freedoms:-

19(1) All citizens shall have the right

  • to freedom of speech and expression;
  • to assemble peaceably and without arms;
  • to form associations or unions;
  • to move freely throughout the territory of India;
  • to reside and settle in any part of the territory of India; and
  • to practise any profession, or to carry on any occupation, trade or business

Idea behind this article was that it gives freedom to the citizens to voice their opinions unequivocally without the fear of their voices and dissent, which is an important part of democracy, being quashed. Along with freedom of speech and expression in any form, the above enumerated rights in this article also provide freedom of symbolic speech to citizens. Symbolic speech refers to an action that conveys or expresses an idea, for example; people have the right to assemble peacefully for a protest or a dharna. In this case they may not directly convey something through medium of words but through their actions it becomes clear that they are opposed or in favour of something happening in the country. Having given enough freedom of conveying one’s thought and ideas in speech and action, the constitution framers were prudent enough to have clauses of reasonable restriction as well. The subsequent clauses of article 19 ensure that this right is not absolute to maintain order.


The laws and statues of our country are drafted in such a way that each cannot be read and applied in isolation, they have to be studied and in tandem with each other. Therefore, any law that curtails the fundamental rights of an individual can be held invalid. However, there are eight grounds that keep a check on the exercise of freedom of speech which are covered under Article 19(2), they are as follows:-

  1. Defamation: Covered under civil[4] as criminal law[5], it refers to statements or spoken words that harm someone’s reputation.
  2. Contempt of Court: the Contempt of Court Act[6] institutes restrictions on freedom of speech in legal proceedings.
  3. Decency or morality: Indian Penal Code[7] provides for Section 292 to 294, which limit exercise of Article 19 in the interest of the public at large.
  4. Security of the state: No person is given this freedom in the matter of the Security and integrity state.
  5. Friendly relations with other states: This is to prevent cultivating malicious relations with countries India has or have had good relations.
  6. Incitement to an offence: This provision was added through the first amendment act in 1950 that prevents from citizens to incite people of committing an offence of a crime.
  7. Sedition: Sedition refers to those actions/ activities that lead to disruption in functioning of a country by instigating the public against the government.
  8. Public Order: Along with ‘incitement to an offence’, this provision was also introduced in the First Amendment act in 1950. It refers to anything due to speech or actions of an individual that perturbs public order.

Besides the above mentioned grounds, this Article is also suspended during a National Emergency[8].


Since India has been independent and instituted the constitution; the various justice dispensing instruments have given various landmark judgments so as to clarify the various aspects or dimensions that entail freedom of speech and expression in a reasonable measure. The most prominent are the following:-


Unless it comes under Article 19(2), no person’s right to privacy can be invaded by means of telephone tapping. An order of telephone tapping can only be issued by the Home secretary of the centre and the state and even in such a case the order shall be subject to review by a higher power review committee.


It is often regarded as the backbone of political freedom and the functioning of a democratic nation. In cases such as Romesh Thappar v. State of Madras[9] and Indian Express Newspapers v. Union of India[10] the court confirmed that freedom of press is an essential part of freedom of speech and expressions and derives its roots from Article 19(1)(a).


With the advent of technology, the courts have also recognized the right to broadcast and advertise. In the case of Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana[11], the Supreme Court clarified the right to broadcast and stated that a person has the privilege to display films on a channel as long as it was not in contravention with any law. Another aspect of it is right to advertise which means that the public has the right to receive ‘Commercial Speech’ which in turn protects their right to read, listen and receive the said speech.


Since, democracy is founded on the principle of checks and balances which is achieved through open discussions and policy criticism, the same was reaffirmed the case of S. Rangarajan v. P. Jagjivan Ram[12]. The court also stated that it is deemed fit to form opinion and convey it in a fashion that does not defame the person it is addressed to.


In the landmark judgment of Bijoe Emmanuel v. State of Kerala[13], the Supreme held that an individual does reserve the right to remain silent and being penalized for doing so would violate that individual’s right to freedom of speech and expression.


While freedom of speech and expression is the most important feature of a democracy, today’s it is being used as a very potent weapon to disrupt the tranquility of the society. Under the garb of freedom of speech many “peaceful” protest have turned into riots, the most recent example being the protests against the Citizenship Amendment Act in 2019 across numerous parts of the country wherein the efforts of Police to maintain law and order were seen as attempts to quash the dissent. Besides that, there have also been various student protests that have incited hatred and anti-India sentiments in the minds of the youth and when there is an action taken against the accused, the defense of freedom of speech in its twisted form comes to their rescue.

Furthermore, the social media trials and trolling that have been in fashion lately are also a result of misconstrued freedom of speech and expression. The very recent case in point is of 17 year old Manav, who ended up taking his own life after being caught in controversial group chat on instagram. Any person who has the access to the internet can say whatever they want about whoever they want, while this can be useful, this power that have been given to the public has needs to be exercised with due diligence, caution and responsibility or else we will keep seeing accused that have been pronounced guilty even before they are actually place before the eyes of the law.

Moreover, in order for a society to make use of this privilege it has to be civilized, educated and adherence to a common goal of a progressive society and nation. Whereas, in India there are people who still haven’t reconciled to the territorial integrity of the nation and do not respect the very constitution that gives them the right to speak their mind. Therefore, to such people with a criminal and anti-national bent of mind this right serve as weapon to tear apart the fabric of our country.


As George Washington once said, taking about the importance of freedom of speech, “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” We must also not forget that living in a democracy, a person is granted a number of fundamental rights including freedom of speech and expression to ensure that one leads a safe and respectful life. Moreover, it is the duty of the state to ensure that these rights are not violated but, since, each right has a corresponding duty, it also becomes the responsibility of the citizens to ensure that this right is not misused ad doesn’t go against the well being of the public at large.


[1] Part III of the Constitution of India

[2]  Organizations of Islamic scholars


[4] Law of Tort

[5] Section 499 of Indian Penal Code

[6] Contempt of Courts Act, 1971

[7] Indian Penal Code, 1921

[8] Article 352 of Constitution of India

[9] 1950 AIR 124, 1950 SCR 594

[10] 1986 AIR 515, 1985 SCR (2) 287

[11] 1988 AIR 1642, 1988 SCR Supl. (1) 486

[12] 1989 SCR (2) 204, 1989 SCC (2) 574

[13] 1987 AIR 748, 1986 SCR (3) 518

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