Article 19 (1) (a).pptx article 19 constitution

freedom of speech and expression

1. Article 19 (1) (a)

2. Romesh Thappar   v.  State of Madras   1950 AIR 124 This was the first important case on free speech, the constitutionality of S. 9(1-A) of the Madras Maintenance of Public Order Act was challenged before a Constitution Bench of the Supreme Court. The section allowed the state government, for the purpose of securing public safety and maintaining public order, to control and regulate the entry and circulation of any set of documents (primarily, newspapers) in the state. The Court, therefore, had to clarify the meanings of “public order”, “public safety” and “undermines the security of…”

3. What all is included in 19(1)(a): Right to speak also includes Right not to speak/Right to remain SILENT: The National Anthem Case:- Bijoe Emmanuel v. State of Kerela (1986) 3 SCC 615 The Supreme Court upheld the right of silence of Jevovah’s witnesses both as a part of their religious freedom and their right to speech and expression.

4. Symbolic Speech Wearing Black Arm Band as a protest against something? Burning of Flags? Bandh / Dharna /Silent Protest/ Demostrations Burning of Effigies Etc.???

5. Texas v. Johnson 491 U.S. 397 (1989) Burning the National Flag was held to be a symbolic speech. Very Liberal and Tolerant Approach of U.S. Supreme Court

6. Bandh – Not a FR Bharat Kumar v. State AIR 1997 Ker. 291. Calling a Bandh was not speech but a coercive act which even if not vilolent , but compelled the entire population to accept the total disruption and stoppage of all kinds of activities. It is totally unconstitutional and impermissible.

7. Communist Party of India (M) v. Bharat Kumar (1998) 1 SCC 201 A Three Judge Full bench of the Supreme Court upheld the Kerala High Court’s Judgment.

8. Flying of National Flag Union of India v. Naveen Jindal (2004) 2 SCC 510, AIR 2004 SC 1559 The Supreme Court held that the flying of National Flag is a symbolic speech and is protected under Article 19(1)(a).

9. COMMERCIAL SPEECH Advertisement Endorsement Is it a Fundamental Right?

10. Hamdard Dawakhana v. Union of India AIR 1960 SC 554 A constitution bench of the Supreme Court held that commercial advertisements were not protected under Article 19(1)(a) The advertisements by Hamdard commended on the efficacy, value and importance of certain goods and medicines in the treatment of certain diseases.

11. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 with a view to prevent self medication of certain diseases, prohibited the publication of advertisements of drugs and medicines which were used for self medication of those diseases.

12. Though the law was found to be a reasonable restriction in view of Article 19(6), but commercial advertisements were held to be not a part of Freedom of Speech and Expression. Commercial advertisements/speeches are speech but not in the context of the intention and purpose of 19(1)(a). (Not for social, economic,political /human rights purpose).

13. Tata Press Ltd. V. MTNL (1995) 5 SCC 139; AIR 1995 SC 2438 Supreme Court departed from its view taken in Hamdard Dawakhana . A full bench of the Supreme Court held that the decision in Hamdard Dawakhana is limited to the facts of the case. A Commercial Speech which is not illegal, false, misleading or deceptive was protected under 19(1)(a).

14. Facts of the Tata Press Case: The facts of the case is regarding Yellow Pages by Tata press v. Directory by MTNL (Through Pvt. Contractors). Court said that Yellow Pages is not a part of the directory and is a commercial advertisement protected under 19(1)(a).

15. Commercial Speech/Advertisement do have profit motive/purpose but also have social purpose/interest as it also protects the interests of the listener/reader.

16. Other Inclusions: Right to Know and Right to be Informed/Right to Information – RTI Act 2005.

17. The 4 th Pillar of Democracy Right of the Media and Press to Know and to Inform: Covered as a Fundamental Right under Article 19(1)(a).

18. In  Romesh Thaper vs State of Madras ( A.I.R. 1950 SC 124)  and  Brij Bhushan vs State of Delhi ( A.I.R. 1950 SC 129), the Supreme Court recognized the fact that the freedom of the press was an essential part of the right to freedom of speech and expression. It was observed by Patanjali Sastri J. in Romesh Thaper that freedom of speech and expression included propagation of ideas, and that freedom was ensured by the freedom of circulation. It is clear that the right to freedom of speech and expression carries with it the right to publish and circulate one’s ideast , opinions and other views with complete freedom and by resorting to all available means of publication.

19. Romesh Thapar v/s State of Madras In  this case Chief Justice Patanjali Shastri , observed that “Freedom of speech & of the press lay at the foundation of all democratic organization, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” In this case, entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of little value”.

20. Union of India v/s Association for Democratic Reforms (2002) 5 SCR 294 The Hon’ble Supreme Court observed that, “One-sided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.

21. Indian Express Newspapers v/s Union of India (1985)1SCC 641 In this case, it has been held that the press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements. They are : 1. Freedom of access to all sources of information, 2. Freedom of publication, and 3. Freedom of circulation.

22. Sakal Papers v/s Union of India A.I.R . 1962 SC 305 There are many instances when the freedom of press has been suppressed by the legislature. In this case, the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2).

23. Bennett Coleman and Co. v/s Union of India A.I.R. 1973 SC 106 T he validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court also rejected the plea of the Government that it would help small newspapers to grow.

24. Reasonable Restrictions under 19(2) Total 8 grounds for imposing restrictions on Freedom of Speech and Expression. Can be discussed under 4 heads: Internal and External Security and Maintenance of Public Order Administration of Justice Reputation and Privacy Decency and Morality

25. 1. Internal and External Security and Maintenance of Public Order Should the Citizens be allowed to speak/express even at the cost of National Security/Public Order?

26. Public Order – Added through THE   CONSTITUTION  ( FIRST AMENDMENT )  ACT ,  1951 After the case of Romesh Thaper vs State of Madras ( A.I.R. 1950 SC 124). In this case a distinction was drawn between : Security of the State & Public Order

27. Public Order as a ground used for the 1 st time in: The Superintendent, Central Prison F atehgarh v. Ram Manohar Lohia 1960 AIR 633 Public order is synonymous with public peace, safety and tranquility.

28. Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 Public order can also include law and order. For Example: Preventive Detention to maintain either public order or law and order, is valid and a reasonable restriction.

29. Sedition Section 124A:   .— 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 with    [ imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]

30. Q.E. v. Balgangadhar Tilak (1898) 22 Bom . 112 Disaffection used in this section means just absence of affection and any overt act of disorder needn’t to be proved for punishing. In criminal  law , an  overt act  is the one that can be clearly proved by evidence and from which criminal intent can be inferred, as opposed to a mere intention in the mind to commit a crime.

31. Kedar Nath Singh v. State of Bihar AIR 1962 SC 955 Section 124-A of IPC (sedition) is constitutional and is a reasonable restriction under Article 19(2) only if any person is booked to sedition if his/her act/speech/expression incites violence and disorder or intends to/is capable of inciting violence and disorder.

32. Blasphemy – Section 295-A of IPC 295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.— Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

33. Blasphemy is the act of insulting or showing contempt or lack of reverence to a deity, or sacred objects, or toward something considered sacred or inviolable. Some religions consider blasphemy to be a religious crime.

34. BLASPHEMY IN PAKISTAN

35. Ramji Lal Modi v. State of UP AIR 1957 SC 620 Supreme Court held section 295A of IPC as constitutionally valid and a reasonable restriction under Article 19(2) because of the following reasons: 1. The ambit and purview of 19(2) is very wide and broad to cover all those acts which have a tendency to cause disorder.

36. 2. Section 295A doesn’t punishes all sort of insults to religion of religious beliefs, but only those speeches/acts which are deliberate, intentional and malicious with a view to outrage the religious feelings of any class of citizens. The court said that this section allows the freedom of speech and expression subject to reasonable restrictions.

37. HATE SPEECH – Section 153-A and 153-B of IPC 153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or crates disharmony or feelings of disintegrity , hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties

38. Prabhoo v. Kunte (1996) 1 SCC 130 Article 19(2) mentions sovereignty and integrity of India as one of the reasonable grounds to restrict freedom of speech and expression. Section 153-A and 153-B punishes such speeches which are likely to create disintegration amongst the citizens. So these sections are constitutionally valid.

39. Contempt of Court Article 129 and Article 215 of the Constitution of India. Contempt of Court Act, 1971 Lowers the authority, malign the image of judiciary, interference in the process of justice, etc.

40. E. M. Sankaran Namboodiripad v. T . Narayanan Nambiar AIR 1970 SC 2015 The CM of Kerala E.M. Sankaran spoke against the judiciary that the judges come from the upper strata of the society, they have a class character, etc. Was held liable for contempt, both by HC as well as SC.

41. P.N. Duda v. P. Shivshankar AIR 1988 SC 1208 P. Shivshankar was the law minister of India. He said that the judges come from the elite society and have a sympathy for the capitalists and big zamindars . The SC didn’t make him liable for contempt. Liberal view of the apex court. The statement of the Law Minister was unfortunate but it didn’t posses a threat or danger for the administration of justice – so not contempt.

42. In Re Arundhati Roy Case (2002) 2 SCC 342 She was highly critical of the judgment of the Supreme Court of India in the case of Narmada Bachao Andolan v. Union of India A case of contempt of court was filed against her, she got notice from the Supreme Court and in the reply affidavit also she was highly criticizing the Supreme Court even through loud slogans, etc.

43. The court found this to be Contempt of Court as against the administration of justice and punished her for contempt. The court said that such an act or speech can’t be protected under freedom of speech and expression in Article 19(1)(a).

44. Freedom of Speech v. Decency and Morality Obscenity: Section 292 of Indian Penal Code 1860 Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 Appellant convicted for selling uncensored edition of the novel Lady Chaterley’s Lover.

45. Hicklin Test Propunded in the case of Regina v. Hicklin ((1868) L R (3) Q B 360 By Chief Justice Cockburn of UK. “The Obscene Publications Act allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall .“ Hicklin  therefore allowed portions of a suspect work to be judged independently of context. If any portion of a work was deemed obscene, the entire work could be outlawed .”

46. It was contended that the book be interpreted in the modern context as in US and UK. SO section 292 should be interpreted in the modern context. If not so, then Section 292 will be inconsistent to Article 19(1)(a). The court held him liable and didn’t accept these contentions. Judgment was given by Justice Hidayatullah on behalf of the Constitution bench.

47. Samaresh Bose v. Amal Mitra (1985) 4 SCC 289 One novel Prajapati had paras and content describing female body, certain other things related to sexual acts but not in obscene sense, but in educational perspective. Court distinguished between Vulgarity and Obscenity.

48. Booby Art International v. Om Pal Singh Hoon

49. It was not considered to be obscene. A women’s front portion and some other depictions for showing a rape scene describing actual scenario or incident is not obscene