What are Rights to Freedoms? How has the Right to Freedom of Speech and Expression fared in India?

Article 19(1) contains the freedoms every citizen has the right to enjoy -

1. Right to speech and expression

2. Peaceful assembly without arms

3. Form associations or unions

4. Move freely throughout Indian territory

5. Reside and settle anywhere in India
   (g) Practice any profession, trade or business

   Article 19(1)(f) - the right to acquire property was removed by the 44th Constitutional Amendment in 1978.

   The freedoms come with “reasonable restrictions” listed in Articles 19(2) to 19(6) for each right.

Free Speech & Expression - Press Freedom

There are eight grounds for restricting free speech and expression under Article 19(2):

i) Sovereignty and integrity of India
ii) Security of the State
iii) Friendly relations with foreign states
iv) Public order
v) Decency or morality
vi) Contempt of court
vii) Defamation
viii) Incitement to an offence

Government’s muzzling of the press in the early years of the Constitution and the criminalisation or takedowns of online content in the era of information technology and social media have been ongoing. Supreme Court’s interpretation of constitutional rights ranged from landmark upholdings of rights to abdication and deference to the powers that be. Let’s look at how the freedom of speech and expression has evolved in India through State action and judicial response.

Cases: Two judgements of the Supreme Court in the very year the Constitution took effect read press freedom into Article 19(1)(a) [Romesh Thappar v State of Madras (1950) & Brij Bhushan v. State of Delhi (1950)]. In Romesh Thappar, the Madras government had issued an order prohibiting entry, sale and circulation of a journal critical of the then Prime Minister, Jawaharlal Nehru, on the grounds of “public safety” and “public order”. The Court held that freedom of speech includes the right to propagate ideas, which would be meaningless without the freedom to circulate those ideas. In Brij Bhushan, the Court held that the government order requiring a magazine to submit its content to authorities for prior scrutiny before publication on “public safety” grounds was unconstitutional, as it amounted to pre-censorship directly affecting free speech. “Public safety” could not be used to imply “reasonable restrictions” of “security of the State”. In Bennett Coleman & Co. v Union of India (1972), the Court struck down as unconstitutional the government’s Newsprint Control Order, which fixed the maximum number of pages a newspaper could print. The Court said freedom of the press is both qualitative and quantitative. Freedom lies in both circulation and content, and imposing a page limit on a newspaper curtails free speech and expression.

First Amendment to Constitution (1951):

In 1950, Article 19(2) only permitted “reasonable restrictions” on free speech if it related to “libel, slander, defamation, contempt of court, or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State”. In its rulings in the two 1950 cases, the Supreme Court found the grounds of “public safety” and “public order” used to restrict press freedom were very broad concepts and could not be equated as a threat to “security of the State”. So the government’s response was to carry out the First Amendment to the Constitution in 1951, adding new “reasonable restrictions” to Article 19(2): “public order”, “incitement to an offence”, and “friendly relations with foreign states”.