RENAISSANCE UNIVERSITY, INDORE

SCHOOL OF LAW

ONE YEAR LL.M COURSE IN

CONSTITUTIONAL LAW

DISSERTATION ON

“FREE SPEECH IN THE VIRTUAL WORLD AND THE

INDIAN CONSTITUTION”

UNDER THE SUPERVISION OF

SUBMITTED BY

NAINA SOLANKI

ROLL NO:2201275

SESSION:2022-2023

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 DECLARATION

I, NAINA SOLANKI,, student of LLM Final Semester, hereby declare that the Dissertation
titled “FREE SPEECH IN THE VIRTUAL WORLD AND THE INDIAN
CONSTITUTION” which is submitted by me to the Department of Law, RENAISSANCE
UNIVERSITY, INDORE in the partial fulfilment of requirement for the award of the degree
of Master of bachelor (LL.M) by the RENAISSANCE UNIVERSITY, INDORE, is my
original research work. It is further declared that all the sources of information used in the
dissertation have been duly acknowledged.

PLACE: NAINA SOLANKI

DATE: …………………

(Signature of the student)

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 CERTIFICATE

This is to certify that NAINA SOLANKI, is submitting her dissertation entitled “FREE
SPEECH IN THE VIRTUAL WORLD AND THE INDIAN CONSTITUTION” for the
award of the Degree of Master of Law to the RENAISSANCE UNIVERSITY, INDORE
and has worked under my guidance and supervision. The present study is a result of his
genuine and bonafide research on the subject. He has carried out of this work carefully,
diligently and sincerely. As the work is complete and he fulfils the requirements for the
submission of the dissertation. It is hereby recommended that it may be accepted for
evaluation by the university.

Renaissance University, Indore

Place: ……………….

Date: ………………..

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 ACKNOWLEDGEMENT

I am thankful to FACULTY OF LAW, RENAISSANCE UNIVERSITY, INDORE for

providing me an opportunity to write a dissertation and providing me with the appropriate
guidance and material to convert my ideas into this dissertation.

I am fortunate to be provided with an opportunity to write my dissertation under the kind

supervision of , FACULTY OF LAW, RENAISSANCE UNIVERSITY, INDORE This
dissertation would not have been possible without her valuable inputs, honest remarks and
earnest efforts and support to guide me throughout the drafting of the dissertation. I would
like to extend my sincere gratitude to her for giving me her valuable time to view my
research.

I would like to thank my family, whose life-long love and support, encouragement, patience,
and belief in me ultimately made this dissertation possible. I owe my loving and caring
parents who always stood by me to recognize my potential. Their silent prayers, aesthetic
love, and affection, support, and steel belief in my capabilities have enabled me to make this
endeavour a successful one.

I would like to extend my sincere thanks to my friends and seniors for their review and
honest remarks given to me regarding the dissertation.

Above all, I sincerely acknowledge my gratitude to almighty God for his compassion and his
bountiful blessings to complete this venture.

Working on the dissertation has been one of the most enriching experiences for me and has
resulted in amassment of the bulk of highly relevant and functional information.

Dated: NAINA SOLANKI

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 LIST OF CONTENT

Title Page i
Certificate ii
Declaration iii
Acknowledgement iv
List of abbreviations viii

CHAPTER 1
INTRODUCTION 1-8
1. Introduction 1
2. Research questions 6
3. Research objectives 6
4. Hypothesis 7
5. Research methodology 7
6. Tentative chapterization 7
7. Review of Literature 8

CHAPTER 2
HISTORY OF FREEDOM OF SPEECH AND EXPRESSION 9-38
2.1 Introduction 9
2.2. Origin and Development 10
2.3. Contribution of Jurist to the Evaluation of Right to
Freedom of Speech and Expression 13
2.4. International Instruments: Freedom of Expressions 13
2.4.1. International Agreements 13
[Link] Universal Declaration of Human Rights 13
[Link] International Covenant on Civil and Political Rights, 1966 14
2.4.2 Regional Agreements 15
[Link] The European Convention on Human Rights, 1950 15
[Link] The American Convention on Human and People’s Rights and
American Declaration of Rights and Duties of Man 16
[Link] The African Charter on Human and People’s Rights 17
[Link] The Middle East and North Africa (MENA) 17
[Link] Asia 18
[Link] European Community 18
[Link] Conference on Security and Cooperation in Europe 19
2.5. Affirmative Action by Countries throughout World 20
2.6. Right to Freedom of Speech and Expression in India 24
2.6.1. Historical Background 25
2.6.2. Constitutional Safeguard: Right to Freedom of Speech and Expression 26
[Link] Nature of the Right in General 28
[Link] Nature of Limitations in General 29
[Link] Reasonableness of Restrictions Imposed on Rights to Freedoms U/A 19 29
[Link] Grounds of Restriction on Freedom of Speech and Expression 29
2.7. Expanding horizons of freedom of Speech and Expression 32

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2.7.1. Freedom of Press 32
2.7.2. Right to Information 33
2.7.3. Telecasting or Broadcasting Rights 33
2.7.4. Commercial Advertisements 34
2.7.5. Right to Reply or Answer the Criticism against One’s Views 35
2.7.6. Right to Exhibition of Films etc. 36
2.7.7. Right to Fly National Flag 37
2.7.8. Right to Remain Silent 38

CHAPTER 3
LAWS RELATED TO THE FREEDOM OF SPEECH AND
EXPRESSION IN VIRTUAL WORLD 39-57
3.1. Introduction 39
3.2 Historical Perspective 40
3.3 Freedom of Speech in India 41
3.3.1 Article 19(1)(a) of the Constitution of India 41
3.4 Need to Protect Freedom of Speech & Expression 42
3.5 CONSTITUTIONAL PROVISIONS IN RELATION TO FREEDOM
OF SPEECH 43
3.6 Limitation on the Freedom of Speech and Expression 55

CHAPTER 4
CONSTITUTIONAL APPROACH TOWARDS THE
FREEDOM OF SPEECH 57-76
4.1 Introduction 57
4.2 Freedom of speech and expression and the media regulation 57
4.3 Electronic media constitutional remedy 59
4.4 Freedom of speech and expression and the media regulation 60
4.5 Freedom to broadcast and observation of the courts 61
4.6 Constitutional restrictions on freedom of speech and expression 64
4.6.1 Restrictions in the interest of sovereignty and integrity 65
4.6.2 Contempt and electronic media 65
4.6.3 Constitutional remedies on bureaucratic exegesis 66
4.6.4 Restrictions in the interest of security of the state 67
4.6.5 Electronic media and religious feeling 67
4.6.6 Violation of public mischief 68
4.6.7 Restrictions in the interest of friendly relations with foreign states 68
4.6.8 Restrictions in the interest of public order 68
4.6.9 Restrictions in the interest of decency or morality 69
4.6.10 Protection of women 70
4.6.11 Humiliation in the electronic media 70
4.6.12 Restrictions in relation to contempt of court 71
4.6.13 Scandalisation in the electronic media 72
4.6.14 Publishing in the electronic media contempt 72
4.6.15 Restrictions in relation to defamation 72
4.6.16 Restrictions in relation to incitement to an offence 73
4.7 Specific laws on electronic media in relation to incitement to an offence 73
4.7.1 The state as mentioned in the fundamental rights 74
4.7.2 Specific laws relating to the state and electronic media 74
4.7.3 The term State in other laws 75

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4.8 Reasonableness theory of regulation and restrictions 75
4.8.1 Regulation of electronic media through law 76
4.9 Conclusion 76
CHAPTER 5
JUDICIAL APPROACH TOWARDS THE FREEDOM OF SPEECH
IN VIRTUAL WORLD 77-89
5.1 Introduction 77
5.2 Freedom of speech and expression as stated in the Indian Constitution 77
5.3 Effect of the IT Rules, 2021 78
5.4 Importance of the internet in upholding the right to information 80
5.4.1 Facts in Case 81
5.4.2 Petitioner’s arguments 82
5.4.3 Respondent’s arguments 82
5.4.4 Judgement of Shreya Singhal Case at a glance 83
5.5 Precedents used in the case 84
5.6 Conclusion 88

CHAPTER 6
CONCLUSION AND SUGGESTIONS 90-105

BIBLIOGRAPHY 106

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 LIST OF ABBREVIATIONS
AIR: All India Reporter
All ER: All England Law Reports
ALJ: Allahabad Law Journal
ALT: Andhra Law Times
BARC: Broadcast Audience Research Council
BBC: British Broadcasting Corporation
BCCC: Broadcasting Content Complaints Council
BEREC: Body of European Regulators for Electronic Communication
CrPC: Criminal Procedure Code
CrLJ: Criminal Law Journal
CWN: Calcutta Weekly Notes
CTIA: Cellular Telecommunications Industry Association
EPW: Economic & Political Weekly
FAIR: Fairness and Accuracy in Reporting
FCC: Federal Communications Commission
Guj: Gujarat
IBF: Indian Broadcasting Foundation
ICCPR: International Covenant on Civil and Political Rights
IPC: Indian Penal Code
ILR: Indian Law Reports
IMPRESS: Independent Monitor for the Press
IPSO: International Press Standards Organisation
KB: King’s Bench
NBA: News Broadcasters Association
NBSA: News Broadcasting Standards Authority
NCAC: National Coalition Against Censorship
NSWLR: New South Wales Law Reports
OFCOM: Office of Communication
PRESSBOF: Press Standards Board of Finance
QB: Queen’s Bench
SCC: Supreme Court Cases
SCJ: Supreme Court Journal
SCW: Supreme Court Weekly
Supp: Supplementary
TRAI: Telecom Regulatory Authority of India
TLR: The Literary Review
UDHR: Universal Declaration of Human Rights
UK: United Kingdom
USA: United States of America

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 CHAPTER 1

INTRODUCTION

1. Introduction

“Freedom of speech and expression means that one has the right to express one's ideas
and opinions freely through speech and other forms of media communication but not at the
cost of causing damage to reputation of others and not being against the law by means of
false, misleading or mischievous statements. The print, radio television and film medias have
been in existence for quite some time but there has emerged the global media of cyberspace
in recent times due to great advancements in technology. We are now in an age of
Information where the technology is challenging established legal institutions, social
practices, and human rights of an individual including freedom of speech and expression.
Cyberspace is not a physical space which can be identified and regulated by a State but it is a
virtual world created by the combined use of communication and computers. It is a notional
environment in which communication over computer network occurs. It is an imaginary place
where electronic messages, pictures etc. exist while they are being sent between computers
located at different places in the world. With growth of technologies the cyberspace is
becoming very complex and very different as compared to other public domains like land, sea
etc.”

“Cyberspace is virtual world and based on advancing technologies like internet, e-

mail, smartphone, personal digital assistants and computers, it is witnessing complex
activities and brings unforeseen challenges including threat to freedom of speech in
cyberspace. The cyberspace is an electronic media which is global, borderless, inexpensive,
easily accessible and providing uncomplicated anonymity. There are various legal challenges
posed by the creation of cyberspace which include the exercise of jurisdiction, sovereignty,
choice of law applicable and varying social, cultural and legal standards in different
countries. The State as well as private citizens use cyberspace for various activities like
freedom of speech and expression, e-commerce, e-governance, e-communication. In India,
first internet service was started by VSNL (Videsh Sanchar Nigam Limited), a Govt of India
enterprise, on 15 Aug 1995. The total broadband subscribers as on 31st January 2018 was
378.10 million. These figures will only increase in the future thus making computer and

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internet available in almost every home in India and affecting basic human rights and
fundamental rights including freedom of speech and expression in cyberspace.”

“In 1948 the United Nations proclaimed the Universal Declaration of Human Rights
(UDHR), a milestone document in the history of human rights which was drafted by
representatives from different legal and cultural backgrounds. It set out, for the first time,
fundamental human rights to be universally protected. Article 19 of UDHR states that
everyone has the right to freedom of opinion and expression which right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers. In December 2013 the United Nations adopted
draft resolution to the effect that the same rights people have offline must be protected online
which included right to freedom of speech and expression. In December 2016 the United
nations adopted the above mentioned draft resolution. The United Nations Human Rights
Council (UNHRC) in it’s report dated 24th March 2017 has recognizing that the effective
exercise of the right to freedom of opinion and expression, is essential for the enjoyment of
other human rights and freedoms and constitutes a fundamental pillar for building a
democratic society and strengthening democracy, bearing in mind that all human rights are
universal, indivisible, interdependent and interrelated. However, there is no effective
protection to an individual against misuse of cyberspace by others.”

“A citizen’s personal opinions, expressed in a print media or television media or film

media is subject to public & State scrutiny and the author of such opinion is also subject to
civil and criminal liabilities. However, this is not possible in the case of freedom of
expression on the internet or electronic media due to factors like anonymity, jurisdiction and
varying cultural and social standards. Internet denotes an inexpensive social media for
exchange of information & communication. It implies freedom to express one’s thoughts &
views on the internet but this freedom can also be misused. After the public distribution of
US governments communications relating to various political & other activities in different
countries in world, Julian Assange, editor in chief of Wikileaks started a website & used
internet to exercise his right of free speech by way of disclosing such world- wide sensitive
information. USA is extremely liberal where the freedom of expression of an individual is
protected with great vigour. However, in India, the freedom of expression is not absolute and
is subject to certain State restrictions. In India, Section 69A of the Information Technology
Act, 2000 empowers the Central Government to block from public access information which

10
it considers necessary to do in the interest of sovereignty & integrity of India, security of
State, friendly relations with foreign states or disturbance to public order. While some may
say that this amounts to censorship by the State and is contrary to the guaranteed freedom of
expression to the citizens of India there are others who feel that the State should ensure that
such Internet platform should not be permitted to be misused by anti-social elements who
wish to create disharmony amongst various sections of the society.”

“Recently in Shreya Singhal case, the Supreme Court of India discussed Indian,
English & US jurisprudence on free speech and struck down Section 66 A of the IT Act, 2000
as being violative of freedom of speech & expression on the internet. Section 66A of The IT
Act which laid down criminal liability of a person who sends offensive message or e mail on
internet or other electronic media. Recently, the Indian Govt has found the speeches of Dr
Zakir Naik, a Muslim preacher on the internet, to be offensive in nature and creating
incitement to anti national elements. His preachings are banned in India, Bangladesh, UK and
Canada. The issue of freedom of speech and expression in cyberspace and its possible misuse
is very scantily covered under the provisions of The IT Act which was enacted primarily to
facilitate e-commerce and Electronic Governance. The statement of objects and reasons
mentioned therein stated that there was a need for bringing in suitable amendments to
facilitate e-commerce. It further stated that to prevent misuse over transactions in electronic
medium, it was proposed to create civil and criminal liabilities for contravention of
provisions of the IT Act. Section 79 of The IT Act contained provisions for liabilities of
intermediaries only under certain circumstances. Later The IT Act was amendment, 2008 was
passed (notified in 2009) to keep pace with the changing online scenario with technological
advancements but the issue of protection of individual’s reputation or defamation on the
internet was still not adequately addressed due to certain limitations of State control over
cyberspace. The new section 69A of the IT Act empowers the Govt. to issue directions for
blocking public access to any information through any computer resource. If an intermediary
fails to comply with Govt. directions, then such intermediary can be subjected to
imprisonment for seven years and fine. Govt. of India has framed The Information
Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules,
2009 whereby any program or information on internet or other social media can blocked.
However, in cases of defamation or hate speeches on internet the existing police structure, the
Criminal Procedure Code and Civil procedure Code are totally ineffective due to complex

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nature of cyberspace. It is difficult to define even the cause of action in the case of internet
and its resultant issue of jurisdiction in the matter.”

Freedom of Speech in Cyberspace

“At present, cyberspace is also a platform for current affairs and issues all over the
globe. Everyone can access it and will be allowed to have an opinion and share it with rest of
the world. Finland being the first country to give the legal status to access of the internet. It
was by the year 2016 the UNHRC had recognized access to the internet as one of the basic
human rights. In India, it is relatively a new concept though in the case of PUCL v. union of
India, the right to speech and expression is guaranteed to all kinds of speeches by word, by
pictures by or in any other manner. A petitioner named Faheema Shirin RK moved the court
regarding the restrictions of using mobile phones in the UG hostel in which the outcome
came to be access to the internet is the vital part of the education and part of Article 21 this
was the first case where the legal status for the use of Cybernet was also a part of
fundamental right for Indians. It was in the first amendment the reasonable restrictions for
Article 19(1)(a) were imposed.”

“In the case of Anuradha Bhasin v/s Union of India, the reasonable restrictions on the
use of cyberspace imposed by the President’s rule during the public emergency were held
valid. The focus on the social networking sites is very huge these days, the political high
drama, propagation of different ideologies, promotions of lot of cinema, such being the case,
the Twitter wars are also being closely monitored and some might even be brought down,
stating the reason that those tweets violate the rules and regulation or the privacy policy of
their respective platforms.”

“Cyberspace is also a home for lot of web gaming sites, these gaming websites too
have their own privacy policies and yet might be misused by many of their users. There are
circumstances where the privacy policy is applicable to their country origin languages viz.
English but their monitoring will not turn out to be that effective for the vernacular
languages. For example, some of the games might have an option for either for voice or chat
there are many an instance where the hate speeches or the abusive words might be used by
the players while playing maybe even to just distract the other players, there might be even an
instance to promote any kind of negative propaganda through these platforms though there

12
only aim was to provide recreation. Thus, these restrictions are to protect public safety yet
might be ineffective at times.”

“Human rights are those which are necessary to lead a dignified life. These rights
being amalgamated, no discrimination to whom it should apply, being universal in nature is
protected by the States law as well. The international covenant of human rights i.e. UNHRC
strives for the upliftment and protection of human rights in developing and developed
countries. The UDHR document i.e. General Assembly resolution 217 A is the most
imperative document to be passed by the General Assembly. This document recognizes
human rights which also provides provision for freedom of speech and expression.”

“Article 1 of the UDHR talks about the dignity of life but, the cyberspace treats
people as mere object level rather than as an individual or a being. Right to privacy is a myth
under cyberspace, how much ever the privacy policy we abide by yet there are certain
loopholes and breach of privacy is for sure. Article 19 of the document talks about the right to
expression as a human right, which is being immeasurably used. Though the right to fair trail
is a human right yet during these contemporary times these social media trails become
exhaustive and might defame the victim as well as the accused. We are the witness to a lot of
social media trails, yet we choose to remain silent which is another human right which is also
an implied right under Article 19(1)(a) of the Indian constitution.”

“Right against discrimination is a human right, which is being battered these days,
even if there is not any direct discrimination there is a certain amount of discrimination on the
ideology a person portrays over the social networking sites. Where that discrimination is
ensconced under freedom of expression or under political participation. Right of children to
special protection, being protected by numerous of legislations yet the child pornography an
issue these days recently, a huge child pornographic website was brought down with the
developers as well. That is a huge achievement in the field of cyberspace where the same
source of nourishment i.e., the internet is also a problem solver.”

“Cyberbullying, cyber racism, sexual harassment, cyber homophobia are certain cons
that one must face while working over cyberspace. Though there are certain stringent laws to
protect yet the same is being still carried out due to the advantage being the anonymous
identity for a very long time. The digital world is doing an immense favor for the better
administration of the countries as digitalizing all the documents is obliging and made easily

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accessible. A huge number of property disputes can be avoided via these digitalized
documents where the boundaries are crystal clear. Tax frauds can also be prevented through
these technologies and the transparency of the governance can also be maintained through
cyberspace. Thus, the effective use of cyberspace can cut down a huge loss of time and
resources as well as be a burden on the right to privacy as well and a restriction on the
freedom of discourse and expression.”

“Everything that is around us can be either be viewed as constructive or destructive. It

is for us to decide the way we use cyberspace, the so-called human-created freedom or
prison. We may never know we might be using cyberspace for watching simple videos yet
might have agreed on ourselves to their page policies and might have allowed the websites to
access our personal data which might turn into huge chaos if not utilized in a legitimate
manner. Thus, though being in the era of growing cyberspace is a boon yet a bane in many
ways. The only way we can protect ourselves is to be careful about the apps permission we
provide and the apps we use the encryptions of those apps and the texts or the speech we use
over the social networking sites.”

2. Research questions

1. “Does freedom of speech and expression has symbiotic relationship with

democracy?”

2. “What is the relationship between freedom of speech and expression, right to life,
right to equality, right to dignity and freedom of conscience in virtual world?”

3. “Is the existing free speech jurisprudence competent to tackle the issues of
contemporary society in virtual world?”

3. Research objectives

1. “Discuss that Freedom of Speech and Expression is being managed the right way in
the country and does not violate the Human Rights in the current era of virtual world.”

2. “Discuss about the steps taken by the legislative machinery to protect Freedom of
Speech and expression in virtual world.”

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3. “To study the relevant provisions of Constitutional Law, Indian Penal Code and other
laws in relation to freedom of speech and expression.”

4. “To study limitations of definition of reasonable restrictions.”

4. Hypothesis

1. “State responsibilities for the protection and enforcement of freedom of speech right
in the era of virtual world.”

2. “Constitutional protection towards the freedom of speech and expression on digital

platform.”

5. Research methodology

“The researcher has followed doctrinal method for the proposed research. Study will
be done with the help of different literature and library resources. Primary as well as
secondary data has been used from library sources. Information about cases of violation of
freedom of speech and expression provided under various books, journals, articles and
newspapers have been studied critically. Every possible library resources been used in the
research. The research is been based upon explanatory, theoretical analysis of various legal
concepts and provisions.”

6. Tentative chapterization

Chapter 1: Introduction

“Chapter deals with the background of the study, research questions, research
objectives, hypothesis, research methodology, review of literature and tentative
chapterization.”

Chapter 2: History of Freedom of Speech and Expression

“This chapter deals with the historical perspective of Freedom of speech and
expression in India and other countries from ancient time to present era.”

Chapter 3: Laws related to the Freedom of Speech and Expression in virtual world

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 “This Chapter discusses about the concept of freedom of speech on various digital
platforms and laws relating to the freedom of speech.”

Chapter 4: Constitutional approach towards the freedom of speech

“This chapter deals with the constitutional framework towards the freedom of speech.
This chapter gives a brief overview of the Article 19 of UDHR and Article 19(1)(a) of the
Constitution of India.”

Chapter 5: Judicial approach towards the freedom of speech in virtual world

“Present chapter discusses about the judicial approach towards the freedom of speech
on various digital platforms and cyberspace. This chapter also discussed about the
judgements given by the courts in recent incidents of freedom of speech cases like Shreya
Singhal etc.”

Chapter 6: Conclusion and suggestions

“Last chapter gives a brief overview of all the chapters followed by the few
suggestions.”

7. Review of Literature

“An E-book by the name of on ‘sides of Media law’ by way of Madhavi Divan deals
with constitutional issues and different topics like contempt of courtroom, privileges of
legislatures and the proper to records, which have large modern-day relevance. The views
expressed by using creator on diverse subjects are marked by way of originality and an
incisive have a look at of the ramifications of those subjects. The e-book very well discusses
topics like decency, morality and privacy in media age.”

“A book titled ‘law and the technology of the Twenty-First Century’ affords a
contextual account of the way in which law functions in a broader regulatory environment
across one-of-a-kind jurisdictions. It identifies and surely structures the four key challenges
that era poses to regulatory efforts, distinguishing between era as a regulatory target and as a
device, and guiding the reader through an emerging discipline that is subject to speedy
alternate. By way of large use of examples and extracts from the texts and materials that form

16
and form the scholarly and public debates over technology regulation, it affords complicated
cloth in a stimulating and tasty way.”

“A book titled ‘internet regulation and law’ by way of Graham J H Smith also
discusses approximately the internet regulation.”

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 CHAPTER 2

HISTORY OF FREEDOM OF SPEECH AND EXPRESSION

2.1 Introduction

Freedom of speech and expression is live wire of the democracy; it is integral to the
expansion and fulfilment of individual personality. Democracy being collective will of the
people, personality of individuals shape the society into a cohesive, well-knit and viable
administrative unit.

Milton in his Areopagitica says that without this freedom there can be no health in the
moral and intellectual life of either the individual or the nation freedom of speech and
expression is more essential in a democratic set up of state where people are the sovereign
rulers. In without freedom of speech says Ivor Jennings, the appeal to reason which is the
basis of democracy cannot be made.

Public discussion of political, economic and social problems being essential to the
proper functioning of a democratic government it is imperative that free society should keep
the channels of communication wide open to the free circulation of ideas and this is well
achieved by the guarantee of freedom of speech and expression.

Internal autonomy is very essence of freedom; there should not be any outside
intervention in the life of individual. An individual has to form his own opinions, thoughts
and ideas and must be entitled to express them as that alone will result in realization of his
character and potentiality as a human being.

Among all creatures, man alone has been endowed with reason, which can germinate
thoughts. It is necessary condition for self fulfilment that he should have uninhibited right to
express them. Personality can be developed only by self-expression by the right to form one’s
own beliefs and opinions. It is a privilege of every human being to use and interpret
experience in his own way and act of choosing between alternatives bring a man’s moral
faculties into play. Free speech is traffic in indispensable commodity namely ideas. There are
many instruments that came into existence at international level for laying down the
standards of freedom of speech and expression such as: Universal Declaration of Human
Rights, International Covenant on Civil and Political Rights, International Covenant on

18
Economic, Social and Cultural Rights, International Convention on the Elimination of All
Forms of Racial Discrimination, Convention on the Elimination of All Forms of
Discrimination against Women.

There are some regional attempts made for giving encouragement to the freedom of
speech and expression as American Convention on Human Rights, Declaration on Principles
of Freedom of Expression, African Charter on Human and Peoples' Rights, Declaration of
Principles on Freedom of Expression in Africa, Amsterdam’s Recommendations, Freedom of
the Media and the Internet, and Organization for Security and Co-operation in Europe. Right
to express is not only limited to speaking but also includes various forms, freedom of speech
and expression found its place in United Nations, Universal Declaration of Human Rights,
there are various countries throughout the world that have given the formal recognition in
their Constitutions, though practice approach to provide legal protection may differ nation to
nation, such nations include: Africa, Hon Kong, India, Japan, China, Philippines, Thailand,
Australia, Europe, Denmark, Finland, France, Germany, Greece, Hungary, Ireland,
Netherlands, Sweden, United Kingdom, Norway, Russia, Switzerland, Turkey, Canada,
United State, Brazil, etc.

It was in British regime rise that the demand for freedom of speech and expression on
various occasions rose: Nehru Committee (1928), Indian National Congress Karachi Session
(1931) Round Table Conference for the discussion over the Constitutional Reforms (1930-
32), the Government of India Act, (1935), and finally after the Indian Independence
Constitution of India incorporated Under Art. 19 (1)(a).

Freedom of speech considering the basic freedom by the Indian judiciary interpreted it
various facets and expand various horizons in various cases like freedom of speech and
expression under 19(1)(a) which includes freedom of press or media, right to know that is
right to information, Telecasting or Broadcasting Rights, Commercial Advertisements, Right
to Reply or Answer the Criticism against One’s Views, Right to Exhibition of Films, Right to
Fly National Flag Right to Remain Silent, etc.

2.2. Origin and Development

Freedom to express and disseminate one’s opinion is a demand of the European

understands on the State which took its root initially in England within the framework of

19
common law precedents.1 At the end of the 18th century, freedom of expression of opinion
extended through the first basic rights proclamations. In the context of English legal position,
section 12 of the Virginia Bill of Rights, 1776, declared that the freedom of the press is one
of the greatest walls of liberty and can never be restrained by dictatorial Governments. Unlike
the English tradition of Parliamentary supremacy, the 1st Amendment of the Constitution of
United States binds Parliament also. The Congress shall make no law curtail the freedom of
speech or of the press. In the Article II of the French Declaration of the Rights of Man and of
the Citizen, 1789, in the sense of enlightenment, the freedom of opinion was announced as a
human right the unlimited communication of thoughts or opinions being one of the most
precious rights of man. Every citizen may speak, write and publish freely, provided he will be
responsible for the abuse of this liberty, in the cases determined by law. In the 19th century,
German States guaranteed freedom of opinion in their Constitutions within the framework of
general criminal laws mostly by express prohibition of subjecting the press to censor. The
Federal Constitutional Court has held that for a free democratic State the basic right to
freedom of expression of opinion is an essential constituent right because only it enables
permanent intellectual discussion, i.e. combat of opinions which are its life breath. 2

According to Abraham Lincoln,3 the democracy is Government by the people, for the
people and of the people. But there can be no Government by the people if they are ignorant
of the issues to be resolved, the arguments for and against different solutions and the facts
underlying those arguments. Thus, it is the people who are the sovereign in a democracy.
Eleanor Roosevelt and the Universal Declaration of Human Rights (1949) Article 19 express 4
that Everyone has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart information and ideas
through any medium regardless of frontiers.

The right to freedom of expression is recognized as a human right under article 19 of

the Universal Declaration of Human Rights and recognized in International Human Rights
law in the International Covenant on Civil and Political Rights. (ICCPR). Article 19 of the
ICCPR states, that Everyone shall have the right to hold opinions without interference and
everyone shall have the right to freedom of expression; this right shall include freedom to

1
A.V. Dicey, Introduction to the Study of Law of the Constitution Macmillan, New York, 10th edit P.238 ff,
247 ff, (1959)
2
Luth Urteil case, 7 Bverfg, 198
3
The President of United States, (1809-1865)
4
[Link]/en/universal declaration human-rights

20
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.

Concept of freedom of speech can be found in early Human Rights documents.

England’s Bill of Rights 1689 legally confirmed the Constitutional right of freedom of speech
in Parliament which is still in effect. 5 During the French Revolution in 1789, the Declaration
of the Rights of Man and of the Citizen, adopted specifically affirmed freedom of speech as
an unchallengeable right. The Declaration furnished for freedom of expression in Article 11,
which declared the free communication of ideas and opinions is one of the most precious of
the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but
shall be responsible for such absence of this freedom as shall be defined by law.6

The Universal Declaration of Human Rights, adopted in 1948, in such declaration

Article 19 declared that: Everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.7

Today, freedom of speech or the freedom of expression is acknowledged in

international and regional human rights law. The right is incorporated in Article 19 of the
African Charter on Human and Peoples Right which is based on John Milton’s arguments
Freedom of Speech is understood as having different aspects of right that includes not only
the right to express, or disseminate information and ideas but three further distinct aspects:

1. The right to seek information and ideas;

2. The right to receive information and ideas;

3. The right to impart information and ideas.

International, national and regional slanders also recognize the freedom of speech, as
the freedom of expression, includes any method, be it orally, in written, in print, through the
internet or through art forms. This means that the protection of freedom of speech as a right
includes not only the content, but also the means of expression.8

5
Williams, E. N, The Eighteenth-Century Constitution, Cambridge University Press. pp. 26–29, (1960)
6
Arthur W, Diamond Law Library at Columbia Law School, (2008), Declaration of the Rights of Man and of
the Citizen, [Link] ([Link]), (2013)
7
United Nations,The Universal Declaration of Human [Link] ([Link]), (1948)
8
United Nations, The Universal Declaration of Human Rights, [Link], (1948)

21
2.3. Contribution of Jurist to the Evaluation of Right to Freedom of Speech and
Expression.

An English philosopher John Stuart Mill attempted to establish standards for the
relationship between authority and liberty. He has started his writing by discussing the
historical struggle between authority and liberty,9 describing the dictatorship of government,
which, according to him, needs to be controlled by the liberty of the citizens. He divides this
control of authority into two mechanisms: important rights belonging to citizens, and the
establishment of Constitutional checks by which the consent of the community, or of a body
of some sort, supposed to represent its interests, was made a necessary condition to some of
the more important acts of governing power10

2.4. International Instruments: Freedom of Expressions

This right to freedom of expression also has close similarity with different
international Conventions.

2.4.1. International Agreements

At the international level there are some agreements which focus and give the stress
on the freedom of speech and expression due to the importance of it in democratic flow of
democratic system, which is pointed in the different international agreement as:

[Link] Universal Declaration of Human Rights

Adopted unanimously by the General Assembly on 10 December 1948, the Universal

Declaration is the most important elaboration of the human rights obligations set forth in the
United Nations Charter, while at the time of adoption it was widely viewed as a Statement of
Principles, which has acquired legal significance over the decades.

The proclamation of Teheran, marking the Universal Declaration’s 20th Anniversary

endorsed by the UN General Assembly, declared that the Universal Declaration states
common understanding of the peoples of the world concerning the inalienable and inviolable

9
Mill, John Stuart (1859),On Liberty (2 ed.), London: John W. Parker & Son pp,7(1850)
10
Ibid

22
rights of all members of the human family and constitutes an obligation for the members of
the international community.11 In 1971 U.N. Secretary-General Observed:

During the years, since its adoption, the Declaration has come through its influence in
a variety of contexts, to have marked impact on the pattern and content of international law
and to acquire a status extending beyond the originally intended for it. In general, two
elements may be distinguished in this process: first, the use of the declaration as a yardstick
by which to measure the content and standard of human rights, and second, the reaffirmation
of the Declaration and its provisions in a series of other instruments. These two elements,
often to be found combined, have caused to gain a cumulative and pervasive effect.

The Universal Declaration was the first step in the formation of International Bill of
Human Rights, which was completed in 1976 with the entry into force of the two main
international human rights treaties, the International Covenant on Civil and Political Rights
and the International Covenant on Economic, social and Cultural Rights.

Article 19 of the Universal Declaration proclaims the right to freedom of expression,

which includes freedom Article 20 declares the right to peaceful assembly and association,
including the right not to be belonged to any association. These rights are limited by Article
29, which permits restrictions, solely for the purpose of securing … respect for the rights and
freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society. Moreover, the rights set forth in the Universal
Declaration may in no case be exercised contrary to the purpose and principles of United
Nations.

[Link] International Covenant on Civil and Political Rights, 1966

The international covenant is an extension of the civil and political rights set forth in
the Universal Declaration. As of February 1993, 116 countries had ratified or acceded to it.
The Human Rights Committee monitors compliance with the International Covenant’s First
optional protocol.12 The pronouncements of the Committee are among the most authoritative
Statements of the obligations imposed by the International Covenant. Art 19 sets forth the

11
Final Act of the International Conference on Human Rights 4 para 2 , UN Doc, A/CONF 32/41 endorsed by
the General Assembly in GA Res 2442 (XXIII 19 Dec. 1968 23 GAOR, Supp No 18 (A/7218) 49.
12
The Domestic application of International Human Rights Norms, in Developing Human Rights Jurisprudence:
the Domestic Application of International Human Rights, Report of a Judicial Colloquium in Bangalore
(Commonwealth Secretariat) (1988),

23
Right to freedom of opinion, expression and information. Paragraph 1 asserts the absolute
right to hold opinions without interference. Paragraph 2 States the positive content of
freedom of expression namely: the, freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.

Article 20 requires states parties to prohibit by law (though not necessarily to declare
criminal) any propaganda for war and any incitement to discrimination, hostility or violence
on national, racial or religious grounds.13

Article 21 protects the right of peaceful assembly, and Article 22 safeguards the right
to freedom of association, including the right to form and join trade unions.

2.4.2 Regional Agreements.

Along with the international level, at the regional level in the world there were
various attempts made for better and effective protection of the freedom of speech and
expression, such attempts could be discussed as follows.

[Link] The European Convention on Human Rights, 1950

The council of Europe has developed an extensive body of law, jurisprudence and
standards regarding freedom of expression, access to information, and the related rights to
freedom of peaceful assembly and association. The primary statement of law is the
convention for the protection of Human Rights and Fundamental Right.

Article.10 of the European Convention protests freedom of expression, and Art. 11

protect freedom of peaceful assembly and association. The European court of human rights
(established in January 1959) has issued more than two dozen judgments addressing Art. 10
issues and two judgments concerning Art 11. 14 Articles 10 and 11 have been further
elaborated by reports and decisions of the European Commission of Human Rights.
Decisions and recommendation of the Committee of Ministers (political and executive arm of
Council of Europe) add additional guidance, particularly concerning access to information.

13
Striking a Balance, Hate Speech, Freedom of Expression and Non-discrimination, Landon, (1992)
14
J. Polakiewicz, V. Jocob Foltzer, The European Human Rights Convention in Domestic Law: The Impact of
Strasbourg case-laws in States where Direct Effect is given to the Convention, 12Human Rights LJ (1991), As
of 31 Dec. 1990, the Court had delivered a total of 235 Judgments.

24
[Link] The American Convention on Human and People’s Rights and American
Declaration of Rights and Duties of Man

The General Assembly of the Organization of American States (OAS) adopted the
American Declaration of the Rights and Duties of Man on 2 May 1948, several months
before the UN adopted the Universal Declaration. The American Convention on Human
Rights, adopted in1969, elaborates and expands upon the obligations set forth in the
American Declaration, grants additional powers to the Inter-American Commission and
establishes the court of Human Rights. All 35 Members of the OAS are obliged (though not
legally bound) to comply with Declaration of those (but not United States or Canada) are
States parties to the Convention.

Art. 13 of the Convention set forth the positive protection of and permissible
restriction on, the right to freedom of expression in five subparagraphs. Paragraph 1 states the
positive right in terms nearly identical to those of the International Covenant. Although it
does not specify that everyone is entitled to hold opinion without interference, that the
protection is assumed to be implicit. Paragraph 2 explicitly prohibits prior censorship and sets
forth the grounds upon which subsequent liability may be imposed. In an advisory opinion,
the Inter-American Court ruled that a requirement that journalists be licensed violates the
prohibition of prior censorship.15

Art. 14 also has no parallel among the human rights treaties. It requires States parties
to ensure that anyone injured by inaccurate or offensive statements published by the mass
media has a right to reply or make correction using the same media organ. Art. 14(3) require
that every organ of mass communication shall have a person who may be held liable for
violations of honour or reputation. The Inter-American Court, in an advisory opinion, has
declared that Article 14 obliges States parties to adopt such legislative or other measures as
may be necessary to give effect to the right of reply.16

Article 15 and 16 of the American Convention protect the right to freedom of peaceful
assembly and association, subject only to restrictions which are prescribed by law necessary
in a democratic Society to protect national security, public safety or public order, public
health or morals, or the rights or freedom of others.

15
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory
Opinion (1985)
16
Enforceability of the Right of Reply or Correction, Advisory Opinion (1986)

25
[Link] The African Charter on Human and People’s Rights

The African Charter on Human and People’s Rights (African Charter) has been
adopted by the 53 countries of the Africa Union (which replaced the organization for African
Unity in 2002).17 The charter declares in Article: Every individual shall have the right to
receive information… (and) to express Disseminate his opinions within the law. As affirmed
by the African Commission on Human and People’s Rights, the plain language of this
provision establishes that the African Charter protects the full range of modes of
communication among people, including communication on the Internet, as well as the access
to information on the Internet.18 The African Charter also provides that the parties have the
duty to promote and ensure through teaching, education and publication, the respect of the
rights and freedoms contained in the (African Charter) and to see that these freedom and
rights as well as corresponding obligations and duties are understood. Finally, the African
Charter circumscribes any potential restrictions on the fundamental right to free expression;
instead, Article 27 provides that individuals should exercise protected freedoms with due
regard to the rights of others, collective security, morality and common interest.

[Link] The Middle East and North Africa (MENA)

The Arab Charter on Human Rights (Arab Charter) went into effect on March 15,
2008.19 It has been ratified by 10 of the 22 members of the League of Arab States. Article 32
States that that present Charter guarantees the right to information and freedom of opinion
and expression, as well as the right to seek, receive and impart information and ideas through
any medium, regardless of geographical boundaries. 20 This language echoes Article 19 of the
Universal Declaration. Similar to the European Convention, this right is subject to the
fundamental values of society and may be limited where required to ensure respect for the
rights or reputation of other or protection of national security, pubic order and public health
or morals.

17
[Link]
18
The adoption of the Declaration of Principles on Freedom of Expression in Africa (2002),
[Link]
19
Mervat Rishmawi, The Arab Charter on Human Rights, Arab Reform Bulletin, Carnegie Endowment for
International Peace, ( 2009)
20
League of Arab States, Arab Charter on Human Rights, (2004)
[Link]

26
 In addition, more than a dozen MENA countries are party to the ICCPR. 21
Additionally, the 1996 Declaration of Sana’a on promoting independent and Pluralistic Arab
Media, Adopted by the UNESCO General Conference, recognized the need to promote free
expression principles to expand information access and internet penetration in the region. The
Declaration Stated that Arab countries should enact and or revise laws with a view to:
enforcing the right to freedom of expression ad press freedom and legally enforceable free
access to information.22

[Link] Asia

Asia is only region of the world that does not have a regional human rights treaty.
Nevertheless, many Asian countries have begun to recognize the importance of adhering to
internationally accepted principles of freedom of expression and access to information. One
of the primary intergovernmental bodies in the region is the 10-member Association of
Southeast Asian Nations (ASEAN). Though it has been criticized for its approach to human
rights, in 2009 it created the Intergovernmental Commission on Human Rights (AICHR). 23
The Commission is make up one representative from each of the ASEAN countries. 24 One of
the commission’s purpose outlined in its foundational Terms of Reference, is to uphold the
Universal Declaration of Human Rights and other human rights instruments to which
ASEAN members are party. It remains to be seen whether the AICHR will be positive force
for human rights or live up to the predictions of its critics.

[Link] European Community

The treaty of Rome is the foundation of the European Community in 1957, Neither it,
nor any secondary legislation made under it which confers on individuals the right to freedom
of expression.

However, certain Treaty provisions, particularly those relating to the free movement
of goods, service and persons may indirectly protect the rights to freedom of expression
(particularly relating to commercial speech) insofar as such aright is a necessary corollary to
the exercise of those freedoms.

21
According to False Freedom, Algeria, Egypt, Iran, Iraq, Israel, Jordan, Lebanon, Kuwait, Libya, Morocco,
Syria, Tunisia, and Yemen have ratified.
22
UNESCO, Official Documents
23
ASEAN Intergovernmental Command on Human Rights
24
Terms of Reference, p, 4, (2009)

27
 Fundamental rights and freedoms, including freedom of expression, form an integral
part of community law which the European Court of justice (ECJ) will uphold. 25 The
European Convention on Human Rights, to which all 12 EC members are party, is of
particular significance. However, while the ECJ will apply fundamental rights in Assessing
national measures that implement community legislation, 26 it will not interfere where the
measure challenged as incompatible with the European Convention is a matter of purely
national law27 or does not in some way implicate commercial activity.

[Link] Conference on Security and Cooperation in Europe.

In 1975, representatives from 35 countries participated in the Conference on security

and cooperation in Europe (CSCE) and signed the Helsinki Final Act of 1975. The 35
included all of the countries of Europe except Albania, as well as Canada, the United States
and the Soviet Union since 1991, Albania, Croatia, Slovenia, and the independence States of
the former Soviet Union have also joined.28

The Helsinki Final Act and subsequent CSCE documents are political declaration, not
treaties, although they are thus not legally binding, this does not deprive them of all legal
significance.29 In practical terms, the political and moral strength of their obligations may be
even more important than their precise legal status.30

In the Vienna concluding Document issued in January 1989, the participating States
declared their commitment to make further efforts to facilitate the freer and wider
dissemination of information of all kinds for journalists. They further declared their
commitment, in accordance with the International Covenant and the Universal Declaration, to
ensure that individuals can freely choose their sources of Information.31

25
Nold v. EC Commission, Case No. 4/73, 1974 ECR 491.
26
Wachauf v. Germany, Case No. 5/88, 1989 ECR 2609
27
Cinéthèque S.A. v.Fédération National des Cinémas Français, Case Nos. 60-61/84, 1986 1 CMLR 365.
28
A list of the current members of the CSCE
29
J. A. Frowein, The Interrelationship between the Helsinki Final Act, the International Covenants on Human
Rights and the European Convention on Human Rights, in T Buergenthal (ed.), Human Rights, International
Law and the Helsinki Accord, New York, Montclair, (1977)
30
P Malanczuk, Freedom of Information and Communication: Recent Developments in the Helsinki Process,
Hague Yearbook of Int'l Law, (1990),
31
Vienna Concluding Document,

28
2.5. Affirmative Action by Countries throughout World

The concept of right to freedom of speech and expression considers natural right and
inherent to human right which means right to one’s opinion or expression of thoughts or an
idea publicly without any fear of censorship or unreasonable punishment.

Right to speech is not confined with public speaking only but it includes various form
of expression. Right to expression find it place in United Nations Universal Declaration of
Human Rights, and affirmative actions taken by most of nations and provide formal
recognition by their laws. However practical have approach to provide legal protection to
freedom of speech and expression is differ from nation to another. Freedom of speech and
expression is guaranteed by several Constitutions in the world they are: Africa: the most of
African countries in its Constitutions confer legal protection to right to freedom of speech and
expression but exercise of rights inconsistence in practice.

Section 16 of Constitution and chapter 2 of South Africa Bill of Rights provide legal
protection with certain limitations to freedom of speech and expression. South Africa is
country where more liberal in case of granting the freedom of speech and expression.

Asia: most of the Asian countries also provide legal as well as Constitutional
protection to the freedom of speech and expression.

Hong Kong: under the heading of Fundamental Rights and Duties of the Residence,
Chapter III of the Hong Kong Basic Law [Link] freedom of speech, of the press and
publication, with limitations of public security.

India: Art. 19 (1) (a) of the Indian Constitution guaranteed freedom of speech and
expression along with reasonable restriction can be imposed by the parliament on this right
on the ground mention clause (2) as the integrity of India, security of State, friendly relations
with foreign States, public order, decency or morality, contempt of court and defamation or
incitement to an offence. As freedom of press uphold by the Supreme Court of India as part
national policy, and different laws enacted by the Indian parliament for imposing reasonable
restriction on the freedom of speech and expression in different situation like Prevention of
Terrorism Ordinance of 2001, The Terrorist and Disruptive Activities (prevention) Act 1985.
Etc.

29
 Japan: In the developed country like Japan also in its Japanese Constitution chapter
III, Article 21 provides freedom of speech; press and all other forms of expression are
guaranteed.

Pakistan: Art. 19 of the Constitution of Pakistan, guaranteed freedom of speech and

press with certain limitations like blasphemy against Islam.

China: Art.35 of the Constitution of the People’s Republic of China. Deals with
citizens of China enjoy freedom of speech, of the press, of assemble, of association, of
procession and demonstration. Later on, various limitations imposed on the different grounds
in different Act like protection and Management Regulation.

Philippines: Under the Constitution of the Philippines 1987, Article III, section 4
guaranteed that no law shall be passed abridging the freedom of speech of expression.
However few laws impose limitations on this right of freedom of speech and expression, on
different grounds like offences against decency and good customs, public order established
policies, lawful orders etc.

Thailand: Thailand also not behind to give the place to the freedom of speech and
expression in its Thai Constitution which provide for freedom of expression, but in this
country also such right to freedom of expression not absolute, government may impose
reasonable restrictions on the freedom of expression to preserve national security, public
order, to preserve others right, to protect public morals, etc.

Australia: In Australia provisions for freedom of speech and expression not clear in
any Constitutional or statutory declaration on this freedom, however freedom of speech and
expression upheld implied freedom of speech which was recognized in the Lange v.
Australian Broadcasting Corporation32.

Europe: In the year 1950 European Convention on Human Right was signed on 9
November. In this convention much of human rights guaranteed to the citizens of member of
countries of the council of Europe. In this convention Art.10 deals with the citizen’s freedom
of speech and expression, which includes freedom to hold opinion and to receive and impart
information and ideas without interference by public authority.

32
(1997), 189, CLR, 520

30
 “Denmark: In Denmark also by Grundloven granted freedom of speech in sec. 77
which deals any person shall be at liberty to publish his ideas in print, in writing, and in
speech, subject to his being held responsible in a court of law. Hate speech is declared as
illegal according to Danish Penal code u/s 266(b) as restriction on freedom of speech and
expression.”

“Finland: Section 12 of the Constitution of Finland deals with freedom of expression

and right of access to information which means everyone has freedom of expression,
entailing the right to express, disseminate and receive information, opinions and other
communications without prior prevention by anyone. However, there are certain restrictions
imposed on the ground of defamation against private person, Disparagement of the flag of
Finland, Blasphemy and hate speech etc.”

“France: In the country of France declaration of the right of man and the Citizen,
having Constitutional value and, in this declaration its Article 11 deals with the free
communication of thoughts and of opinion is of the most precious rights of man: any citizen
thus may speak, write, print freely, save (if it is necessary) to respond to the abuse of this
liberty, in the cases determined by the law.”

“Not only declaration of France but also France adheres to the European Convention
of Human Rights and accept its jurisdiction.”

“Germany: Basic law of Federal Republic of Germany Art.5 which lays down that
there is no censorship and freedom of expression that may be limited by law, on the ground
which are Malicious gossip and defamation, Hate speech, insult of individuals etc.”

“Greece: Constitution of Greek provide guarantee of freedom of speech and

expression and of the press for all citizens. However, this freedom of speech and expression
is not absolute but government can put restrictions on various grounds like insult of religion,
insult of president of Greece, disclose information relating to the Greek Armed forces or to
various Aspects of Greece National securities etc.”

“Hungary: Fundamental law of Hungary established in its Article VII, VIII, IX, and
X right to freedom of expression, speech, press, thought, conscience, religion, etc. but these
rights are limited by the penal code u/s 269 on the ground of Incitement against a community
etc.”

31
 “Ireland: Constitution of the Italy guaranteed freedom of speech in Article 21 which
runs as anyone has the right to freely express their thoughts in speech, writing, or any other
form of communication. Italy could impose restrictions on the freedom of expression on the
ground of public morality, insult against the honour and prestige of the president, vilification
of a person’s religion, insults against the honour and decorum of others and defamation of
another person within the country.”

“Netherlands: Under the Dutch Grondwet, Article 7 guaranteed everybody the right
to make public ideas and feeling by printing them without prior censorship, however the
Dutch Criminal Code u/s 137 impose restrictions on the ground of intentionally gives public
expression to views insulting to a group of persons on account of their race, religion, or
conviction or sexual preference.”

“Sweden: In Constitution of Sweden, chapter 2 protects personal freedom of

expression whether orally, pictorially, in writing, or in any other way, whereas, in other part
of same Constitution mention the freedom of printed press as well as the principle of free
access to public records and provide and extent protections to those of other media including
television, radio and websites.”

“Restriction could be imposed on the ground of hate speech threats or expression of

contempt based on race, skin colour, nationality or ethical origin, religious belief or sexual
orientation.33”

“United Kingdom: In United Kingdom, Article 10 of the domestic law Human Right
Act, 1998 guaranteed the freedom of expression however in the common law and there were
no provisions for the freedom of expression for their citizens. Now it is incorporated in
domestic law along with certain exceptions like breach of peace, racist, incitement, insulting
word or behaviour intending or likely cause harassment, incitement to terrorism, abolish of
monarchy, etc.’

“Norway: In the country of Norway in its Constitution Article 100 guaranteed

freedom of speech and it exist since 1814 justification for it given that which are the seeking
of truth, promotion of democracy and individual freedom and limitations to this right may be
prescribed by the law to protect the privacy of the individual or for other weighty reasons.”

33
Piano, Ail, Freedom in the World 2009, The Annual Survey of Political Rights & Civil Liberties. p. 689(2009)

32
 “Russia: Russian Constitution also provides of freedom of speech and press however
government laws forced to regulate self-censorship Switzerland: Under the Article of 16 of
the Swiss Constitution guaranteed freedom of information for every citizen.”

“Turkey: The Constitution of Turkey guaranteed freedom of expression under Article

26 run as freedom of expression and dissemination of thought.”

North America

“Canada: Right to freedom of expression guaranteed by the Canadian charter of

rights and freedoms under the section 2(b) which run as everyone has the fundamental
freedoms like freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication and it is also mention that freedom of expression
and other rights under the charter are not absolute and can be limited under certain situation.”

“United State: In the United States Constitution by 1st amendment in the year 1791
guaranteed that congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the government for a redress of
grievances. However, there are several exceptions in common law like obscenity, defamation,
incitement, national security etc.”

South America

“Brazil: In Constitution of Brazil under the Article 5 guaranteed expression thought is

free and provide exceptions to like hate speech, racism, defamation, libel, etc.”

2.6. Right to Freedom of Speech and Expression in India

“Chapter III of the Indian Constitution guarantee fundamental right to citizens of

India, it is treated as the Magna Charta of India. Fundamental rights which are inviolable and
are to be guaranteed to him, the principle underlying such guarantee of fundamental rights
and the necessity for securing, these rights to the people are present in all modern
Constitutions. Right to freedoms which are very basic and necessary for the development of
individuals, out of these freedoms, freedom of speech and expression is the one of them as
fundamental right incorporated in u/Art. 19 (1)(a) , before to see this provision necessary to
historical back ground of freedom of speech and expression.”

33
2.6.1. Historical Background

“What we see the fundamental rights today in the Indian Constitution, it has long
struggle in British regime, for the first declaration of fundamental rights arose in the year
1928 at the all parties conference in which Nehru Committee incorporated these rights in its
report. The committee stated that:”

“Our first care should be to have our fundamental rights guaranteed in a manner
which will not permit their withdrawal under any circumstances.34”

“Indian National Congress Karachi Session held in the year 1931, in which Session it
was declared that any Constitution which might be proposed would be acceptable only, if it
contained certain fundamental rights as formulated by it.”

“The Constitution assembly adopted the objectives resolution moved, by Pandit

Nehru, stating that the object of the Constitution Assembly was to draw up a Constitution,
when the occasion arose to draft the Constitution for independent India.”

“The people of India gave to themselves, the Constitution of India, with a view make
it Sovereign, Democratic, Socialist, secular and Republic. In our democratic society, pride to
place has been provided to freedom of speech and expression, which is mother of all
liberties.”

“One of the main objectives of the Indian Constitution as envisages in the preamble,
is secure LIBERTY OF THOUGHT AND EXPRESSION to all the citizens. Freedom of
expression is among the foremost of human rights. It is the system of administration; various
Constitutions make a mention of the freedom of expression. While freedom of thought is a
personal freedom. Freedom of expression is collective freedom, whose character becomes
more and more pronounced as the technical methods of their diffusion multiply and
improve.”

“The right of free speech is absolutely requisite for the prevention of a free society in
which government is based upon the consent of an informed citizenry and is dedicated to the
protection of the rights of all, even the most despised minorities.35”

34
Report of Nehru Committee (1928)
35
Spenser v. Randall, 357 US 513.

34
 “By inserting the fundamental rights in the Constitution, India has consciously torn
herself from the British Tradition. British liberty was directly only against the executive to
capture, and tyranny while parliament was always held sacrosanct, above the scrutiny of the
court of justice. The American concept was the judicial supremacy making the congress
subject to the Supreme Court sphere of interpretation. The pattern adopted under the
Constitution of India is compromise between the parliamentary sovereignty of the U.K. and
the judicial supremacy of the U.S.A.”

2.6.2. Constitutional Safeguard: Right to Freedom of Speech and Expression.

“In the preamble, the people of India gave to themselves, the Constitution of India,
with a view to make it Sovereign, Democratic, Socialist, secular and Republic. In our
democratic society, pride to place has been provided to freedom of speech and expression,
which is mother of all liberties. One of the main objectives of the Indian Constitution as
envisages in the preamble, is secure LIBERTY OF THOUGHT AND EXPRESSION to all
the citizens. In order to give effect to these objectives mentioned in the preamble by our
Constitutional maker, freedom of speech and expression has been guaranteed as a
fundamental right under Article 19(1)(a) available to all citizens, subject only to restrictions
which may be imposed by the State under clause (2) of that Article. The relevant portion of
Article 19 read as follows:”

Art.19. (1) All citizens shall have rights

a) To Freedom of speech and expression;

b) To assemble peaceable and without arms,

c) To form association or union,

d) To move freely throughout the territory of India,

e) To reside and settle in any part of the territory of India,36

f) To acquire, hold and dispose of property37

g) To practice any profession or to carry on any occupation, trade or business.

36
And‟ inserted by the Constitution, (44th Amendment) Act, 1978, w.e.f. 20-6-1979
37
Sub-Cl. (f) omitted by the Constitution (44th Amendment) Act, 1978, w.e.f. 20-6-1979.

35
 “Art. 19 (2) nothing in sub clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making law, in so far as such law imposed reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interest of
sovereignty and integrity of India, 38 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.”

“Art. 19 (1) guarantees certain fundamental rights, subject to the power of the State to
impose restrictions on the exercise of those rights. The Article was thus intended to protect
these rights against State action other than in the legitimate exercise of its power to regulate
private rights in the public interest.39”

“Violation of the fundamental rights of one individual by another individual (without

support of State) is not within the purview of Art. 1975 The scope of this guarantee has
however been defined by the limitations incorporated in clause (2) to (6) of the Art. 19. Itself.
These clauses permit the State to impose reasonable restrictions for the purpose of any
objectives mentioned therein. The Article thus consists of two parts:”

(i) “the declaration of rights in clause (1) , comprising seven sub-Clauses,”

(ii) “The limitation contained in clauses (2) to (6).”

“The courts have to consider these questions, namely, whether the impugned law
imposes a restriction on any these rights, whether restriction imposed is for the purpose of
achieving any of the objects, mentioned in the relevant clause, and whether the restriction is
reasonable. There is no definite or positive test to adjudge the reasonableness of restriction.
Each case is to be judged on its own merit, and no abstract standard or general pattern of
reasonableness can be laid down as applicable to all cases. The impugned law may contain
substantive as well as procedural provisions and both must satisfy the test of reasonableness.
Patanjali Shastri C.J. formulated the following wing test for determining the reasonableness
of restriction:40”

“The nature of the right alleged to have been infringed, the underlying purpose of the
restriction imposed, the extent and urgency of the evil sought to be remedied thereby,

38
Inserted by the Constitution (16th Amendment) Act, 1963, w.e.f. 6-10-1963
39
Samdasani P.D. V. Central Bank of India, AIR 1952 SC 59: 1952 SCR 391
40
State of Madras V. V. G. Row, (1952) S.C.R. 597

36
 the disproportion of the imposition, the prevailing conditions at the time should all
enter into the judicial verdict.”

“Courts of India have wider discretionary powers U/Art. 19 for determination of

reasonableness of the restrictions imposed by the State on freedom speech and expression.”

[Link] Nature of the Right in General

“Certain rights to freedoms guarantee U/Art. 19. subject to the power of the State, to
impose restrictions on the exercise of those rights. The Article thus was intended to protect
these rights against State action other than in the legitimate exercise of its power to regulate
private rights in the public interest.”

(i) “It may be observed that Art. 19 are confined to what are known as civil rights as
distinguished from political rights.”

(ii) “Though the concept of natural rights is not relevant in India for ascertaining whether
these are any inviolable rights apart from those included in the Constitution, the
concept has nevertheless been utilized for determining the ambit of the fundamental
rights themselves, for determining how far the guarantee under Art. 19 will be
available. The Supreme Court has observed that Art. 19 refer to what are known as
natural or common law rights as distinguished from the right created by the statute.
The Supreme Court has observed that Art. 19 (1) Guarantees [Link] great and basic
rights which are recognized and guaranteed as the natural rights, inherent in the status
of a citizen of a free country.”

(iii) “Whatever a right is created by the statute, it can be exercised only subject to the
conditions imposed by the statute, and it can be restricted in any manner or taken
away by the legislature at any time.”

“Fundamental rights guarantees under the Constitution, it cannot be taken away by the
legislature. It can only be subjected to such restrictions as are permissible under the
Constitution, for example, the right to freedom of speech and expression in Art. 19 (1)(a) can
be subjected to reasonable restrictions only on any of the grounds specified in Art. 19 (2)”

41
State of West Bengal V. Subodh Gopal, (1954) S.C.R. 587.

37
(iv) “The right guaranteed by Art. 19 are different from contractual rights. The right to
carry on any business or to hold property and to enter into contracts as incidental to
such rights is a fundamental right, but these rights granted by a contract are not
fundamental rights,42 they are protected by the ordinary law of the land.43”

[Link] Nature of Limitations in General

“Unrestricted individual rights cannot exist in any modern political society. 44 In fact
there is no formal declaration of any fundamental rights in England. In the England prevails
the doctrine of the Sovereignty of parliament, which gives unlimited power on parliament to
abridge, modify or even abolish any of the rights of the people. The British concept does not
envisage a legal check on the power of parliament which theoretically is free to make any law
which pleases, even though it affects the basic civil rights and liberties of the people. 45”

[Link] Reasonableness of Restrictions Imposed on Rights to Freedoms U/A 19.

“In examining the reasonableness of a statutory provision whether it is infringement

of the fundamental rights guaranteed under Art. 19, The directive principles of State policy.”

“A just balance has to be struck between the restrictions imposed and the social
control anticipates by Art. 19(6). Current social values as also needs which are intended to be
satisfied by the restrictions.”

“Article 19 (1) (a) freedom of speech and expression”

“Right to freedom of speech and expression under Article 19 (1)(a) means the right to
express one’s thought and opinion freely by word of mouth, writing, printing, picture, or
electronic media,46 or in any other manner (addressed to the eyes or the ears) it would thus
include not only the freedom of the press, but the expression of one’s ideas by any visible
demonstration, such as gestures and the like. Expression naturally presupposes a second party
to whom the ideas are expressed or communicated.”

42
Secretary to the Gov‟t V. A.G. Factory, A.I.R. 1959, A.P. 538
43
State of Bihar [Link], A.I.R. 1952 S.C. 252
44
M.P. Jain, Constitutional Law, Tripathi, Bombay, P. 388.
45
Liversidge V. Anderson, (1942) A.C. 206.
46
L.I.C.V. Manubhai D. Shah, A.I.R. 1993, S.C. 171

38
[Link] Grounds of Restriction on Freedom of Speech and Expression

“Any restriction imposed upon the above fundamental right of freedoms is prima facie
unconstitutional, unless it can be legitimate under the limitation clause, i. e. Cl. (2)93 of the
Article 19 of the Indian Constitution. This clause authorized the State impose restrictions
upon the freedom of speech only on certain specified grounds so that, if any particular case,
the restrictive law cannot rationally94 be shown to relate to any of these specified grounds,
the law must be held to be void. 47 The right to freedom of speech and expression cannot rise
of above the national interest and the interest of the society which is another name for the
interest of general public. It is true that Article 19(2) does not use the word national interest,
interest of society or public Interest but the several grounds mentioned in Clause (2) are
ultimately referable to the interest of the nation and the society. 48 Cl. (2) of the Article 19 of
the Indian Constitution as amended, enable the legislature to impose restrictions upon the
freedom of speech and expression, on the following grounds.”

1. Sovereignty and Integrity of India

“This ground has been added as a ground of restriction on the freedom of expression
by the 16th Amendment of the Constitution with effect from October, 1963. The object was to
enable the State to combat cries for secession and the like from organization such as the
Dravida Kazhgam in south and the plebiscite front in Kashmir, and activities in pursuance
thereof which might not possibly be brought within the fold of the expression Security of
State.”

2. Security of the State

“Security of the State means the absence of serious and aggravated form of public
disorder as different from ordinary breaches of public safety or public order which may not
involve any danger to the State itself. Thus security of the State is endangered by crimes of
violence intended to overthrow the government, 49 levying of war and rebellion against the
government, external aggression or war, but not by minor breaches of public order or
tranquility, such as unlawful assembly, riot affray, rash driving, promoting enmity between

47
Romesh Thapper V. State of Madras, 1950, S.C.R, 594
48
Secretary M.I. &B.V. Cricket Association of Bengal, (1992),2 S.C.C. 161.
49
Santokh Singh V. Delhi Administration, A.I.R, 1973, S.C. 1091.

39
classes and the like.50 But incitement of violence crime like murder which is an offence
against public order may also undermine the security of the State.51”

3. Friendly Relations with Foreign States

“The object of this exception to the freedom of speech and expression is to prevent
libel against foreign State in the interest of maintaining friendly relations with them.”

4. Public Order

“This ground was introduced by the Constitution (1st Amendment) Act, 1951. In
order to meet the situation arising from the Supreme Court decision in Romesh Thapper’s 52
case, the ordinary or local breaches of public order were no ground for restriction the freedom
of speech guaranteed by the Constitution. Following this decision, it was held in some cases
that incitement to individual murder or promoting disaffection amongst classes did not tend
to undermine the security of the State and was not accordingly, punishable under the
Constitution.”

5. Decency or Morality

“This exception has been engrafted for the purpose of restricting speeches and
publications which tend to undermine public morals.53”

“Decency or morality is not confined to sexual morality alone. Decency indicates that
the action must be in conformity with the current standard of behavior or propriety.54”

6. Contempt of Court

“In the exercise of one’s right of freedom of speech and expression, nobody can be
allowed to interfere with due course of justice or to lower the reputation or authority of the
court.55”

“But in the contempt jurisdiction should not be used by judge to uphold their own
dignity. In the free market place of ideas, criticism about the judicial system or the Judges
50
Romesh Thapper V. State of Madras, 1950, S.C.R, 594
51
State of Bihar V. Shailaaba (Smt) A.I.R, 1952, S.C. 329
52
Romesh Thapper V. Stateof Madras, 1950, S.C.R, 594
53
Ramesh Yeshwant Prabhoo (dr.) V. Prabhakar Kashinath Kunte, A.I.R. 1996, S.C. 1113
54
Ranjit D. Udeshi V. State of Maharashtra, A.I.R. 1965, S.C. 881
55
Namboodripad E.M. Sankaran V. Narayan Nambiar T. A.I.R. 1970, S.C. 2015

40
should be welcomed, so long as criticisms do not impair or hamper the administration of
justice56.”

7. Defamation

“Just as every person possesses the freedom of speech and expression, every person
also possesses a right to his reputation which is regarded a property. Hence nobody can so
use his freedom of speech or expression as to injure another’s reputation. Laws penalizing
defamation do not, thereof, constitute infringement of the freedom of speech.57”

8. Incitement to an Offence.

“This ground will permit legislation not only punish or prevent incitement to commit
serious offences like murder which lead to breach of public order, but also commit any
offence,58 which according to the General Clauses Act, means any act or omission made
punishable by any law for the time being in force. Hence, it is not permissible to instigate
another to do any act which is prohibited and penalized by any law. But mere instigation do
not to pay a tax or may not necessarily constitute incitement to an offence.59”

56
Duda P.N. V. Shivshankar P. AIR. 1988, S.C. 1208.
57
Namboodripad E.M. Sankaran V. Narayan Nambiar T. A.I.R. 1970, S.C. 2015
58
Santokh Singh V. Delhi Administration, A.I.R 1973, S.C. 1091
59
Kedar Nath Singh V. State of Bihar A.I.R. 1962, S.C. 955

41