Article 19(1)(a): freedom of speech and expression - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two halves. Every question on this topic has a right half and a restriction half. Article 19(1)(a) states the freedom; Article 19(2) states the grounds on which it may be limited. An answer that gives only the first is half an answer.

1. The freedom

Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. Note that it is a citizen's right: a foreigner or a foreign company cannot claim it, though a company may sometimes assert the rights of its shareholders.

The words are short, and almost everything of interest has been read into them.

Dimensions read into Article 19(1)(a)

Freedom of the press. Not separately mentioned, unlike the United States First Amendment, but held from the beginning to be included. In Romesh Thappar v. State of Madras, 1950 INSC 14, AIR 1950 SC 124, a ban on the entry and circulation of a journal in Madras was struck down, the Court holding that freedom of circulation is as much a part of the freedom as freedom of publication — without circulation the publication is of little value.
Right to know and to receive information, which underlies the statutory right to information and the disclosure requirements imposed on electoral candidates.
Right to silence — the freedom to speak includes the freedom not to speak.
Commercial speech, subject to regulation.
Right to fly the national flag as an expression of allegiance, within the limits of the flag code.
Freedom of expression through the internet, and the right to carry on trade through it, recognised as within Articles 19(1)(a) and 19(1)(g).

2. The eight grounds of restriction: Article 19(2)

The State may impose reasonable restrictions by law 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;
contempt of court;
defamation;
incitement to an offence.

Two of these were added by the First Amendment, 1951 — public order and friendly relations with foreign States — precisely because Romesh Thappar had exposed the narrowness of the original clause, which spoke only of undermining the security of the State. The sovereignty and integrity ground came with the Sixteenth Amendment, 1963.

Three features of the clause matter. The restriction must be imposed by law, not by executive fiat. It must be reasonable, which is for the court and not the legislature to judge. And it must fall within one of the eight enumerated grounds — the list is exhaustive, so a restriction in the interests of something not named, however worthy, is bad.

3. The cases that define the limits

Indirect restrictions count

In Bennett Coleman & Co. v. Union of India, 1972 INSC 268, (1972) 2 SCC 788, a newsprint control policy limiting the number of pages a newspaper could publish was challenged. The Court held that the effect of the measure, not its form or stated object, determines whether Article 19(1)(a) is infringed. A restriction on the volume of newsprint directly restricted circulation and therefore speech. The principle is that the State cannot do indirectly what it may not do directly.

Vagueness and overbreadth

Shreya Singhal v. Union of India, 2015 INSC 257, (2015) 5 SCC 1, is the leading modern authority. Section 66-A of the Information Technology Act, 2000, which punished sending information that was “grossly offensive” or caused “annoyance” or “inconvenience”, was struck down. The reasoning repays learning:

The Court distinguished discussion, advocacy and incitement. The first two are protected however unpopular; only incitement may be restricted.
The section was vague — its terms had no definite meaning, so a citizen could not know what was forbidden — and overbroad, sweeping in protected speech along with any unprotected speech.
Restrictions must fall within the eight grounds of Article 19(2); causing annoyance is not one of them.

The test of reasonableness generally

Chintaman Rao v. State of Madhya Pradesh, 1950 INSC 27, AIR 1951 SC 118, though decided under Article 19(1)(g), supplies the standard formulation: a restriction is reasonable only if it strikes a proper balance between the freedom and the social control, and legislation that arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness. A total prohibition where a lesser measure would serve is the usual example of excess.

4. Sedition and the wider debate

Questions sometimes ask whether penal restrictions on speech survive Article 19(2). The framework is the one above: the restriction must be by law, reasonable, and within an enumerated ground, and under Shreya Singhal it must target incitement rather than advocacy. Where a provision punishes disaffection generally, its constitutionality turns on whether it can be read down to reach only speech that incites violence or public disorder.

How this is examined

Among the most frequently set topics in the paper. As an essay: discuss the freedom of speech and expression and the reasonable restrictions on it. As short notes: freedom of the press, or the grounds of restriction under Article 19(2).

Three habits that improve the answer. Reproduce all eight grounds — marks are given for completeness and they are easy to lose. Say that the press is not separately mentioned and is protected as part of 19(1)(a), citing Romesh Thappar. And use Shreya Singhal for the modern tests of vagueness, overbreadth and the advocacy-incitement line, which is what distinguishes a current answer from one written thirty years ago.

Now go and read the questions themselves: Constitutional Law I past question papers.