FACULTY OF JURIDICAL SCIENCES
COURSE: LL.M. 1st Semester
GROUP: Constitutional Law
SUBJECT: Media Law
SUBJECT CODE: LL.M. 110
NAME OF FACULTY: Ms. Anjali Dixit
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Lecture-12
LECTURE 12: Restrictions
Grounds of Restrictions
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so
also it is necessary to place some restrictions on this freedom for the maintenance of social order
because no freedom can be absolute or completely unrestricted. Accordingly, under Article
19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions”
on the exercise of the right to freedom of speech and expression “in the interest of” the public on
the following grounds: Clause (2) of Article 19 of the Indian constitution contains the grounds
on which restrictions on the freedom of speech and expression can be imposed:-
1) Security of State: Security of state is of vital importance and a government must have the
power to impose a restriction on the activity affecting it. Under Article 19(2) reasonable
restrictions can be imposed on freedom of speech and expression in the interest of the security of
State. However, the term “security” is a very crucial one. The term “security of the state” refers
only to serious and aggravated forms of public order e.g. rebellion, waging war against the State,
insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly,
riot, affray. Thus speeches or expression on the part of an individual, which incite to or
encourage the commission of violent crimes, such as, murder are matters, which would
undermine the security of State.
2) Friendly relations with foreign states: In the present global world, a country has to
maintain a good and friendly relationship with other countries. Something which has the
potential to affect such relationship should be checked by the government. Keeping this thing in
mind, this ground was added by the constitution (First Amendment) Act, 1951. The object
behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly
state, which may jeopardize the maintenance of good relations between India and that state.
3) No similar provision is present in any other Constitution of the world: In India, the
Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against
foreign dignitaries. Interest of friendly relations with foreign States, would not justify the
suppression of fair criticism of foreign policy of the Government. However, it is interesting to
note that member of the commonwealth including Pakistan is not a “foreign state” for the
purposes of this Constitution. The result is that freedom of speech and expression cannot be
restricted on the ground that the matter is adverse to Pakistan.
4) Public Order: Next restriction prescribed by constitution is to maintain public
order: This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an
expression of wide connotation and signifies “that state of tranquility which prevails among the
members of political society as a result of internal regulations enforced by the Government
which they have established.”
Here it is pertinent to look into meaning of the word “Public order. Public order is something
more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public
peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs
public order. Thus communal disturbances and strikes promoted with the sole object of accusing
unrest among workmen are offences against public order. Public order thus implies absence of
violence and an orderly state of affairs in which citizens can peacefully pursue their normal
avocation of life. Public order also includes public safety. Thus creating internal disorder or
rebellion would affect public order and public safety. But mere criticism of government does not
necessarily disturb public order.
The words ‘in the interest of public order’ includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law
punishing utterances made with the deliberate intention to hurt the religious feelings of any class
of persons is valid because it imposes a restriction on the right of free speech in the interest of
public order since such speech or writing has the tendency to create public disorder even if in
some case those activities may not actually lead to a breach of peace. But there must be
reasonable and proper nexus or relationship between the restrictions and the achievements of
public order.
5) Decency or morality: The way to express something or to say something should be a
decent one. It should not affect the morality of society adversely. Our constitution has taken care
of this view and inserted decency and morality as a ground. The words ‘morality or decency’ are
words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of
restrictions on the freedom of speech and expression in the interest of decency or morality. These
sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No
fix standard is laid down till now as to what is moral and indecent. The standard of morality
varies from time to time and from place to place.
6) Contempt of Court: In a democratic country Judiciary plays a very important role. In such
situation, it becomes essential to respect such an institution and its order. Thus, restriction on the
freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and
amounts to contempt of court. According to Section 2 ‘Contempt of court’ may be either ‘civil
contempt’ or ‘criminal contempt.’ But now, Indian contempt law was amended in 2006 to make
“truth” a defense.
However, even after such amendment, a person can be punished for the statement unless they
were made in public interest. Again in Indirect Tax Practitioners Assn. vs R.K.Jain, it was held
by court that, “Truth based on the facts should be allowed as a valid defense if courts are asked
to decide contempt proceedings relating to contempt proceeding relating to a speech or an
editorial or article”. The qualification is that such defense should not cover-up to escape from the
consequences of a deliberate effort to scandalize the court.
7) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status of
another person. A person is known by his reputation more than his wealth or anything else.
Constitution considers it as ground to put restriction on freedom of speech. Basically, a
statement, which injures a man’s reputation, amounts to defamation. Defamation consists in
exposing a man to hatred, ridicule, or contempt. The civil law relating to defamation is still
uncodified in India and subject to certain exceptions.
8) Incitement to an offense: This ground was also added by the Constitution (First
Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to
incite people to commit offense. The word ‘offense’ is defined as any act or omission made
punishable by law for the time being in force.
9) Sovereignty and integrity of India: To maintain the sovereignty and integrity of a state is
the prime duty of government. Taking into it into account, freedom of speech and expression can
be restricted so as not to permit anyone to challenge sovereignty or to permit anyone to preach
something which will result in threat to integrity of the country.
From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all
concerned with the national interest or in the interest of the society. The first set of grounds i.e.
the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States and public order are all grounds referable to national interest, whereas, the second set of
grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are
all concerned with the interest of the society.
Expression through speech is one of the basic guarantees provided by civil society. However in
modern world Right to freedom of speech and expression is not limited to express ones’ view
through words but it also includes circulating one’s views in writing or through audiovisual
instrumentalities, through advertisements and through any other communication channel. It also
comprises of right to information, freedom of press etc. It is a right to express and self
realization.
Two big democracies of world i.e. America and India have remarkably protected this
right. As far as India is concerned, this important right is mentioned in Article 19(1) (a), which
falls in fundamental right category. Indian courts have always placed a broad interpretation on
the value and content of Article 19(1) (a), making it subjective only to the restrictions
permissible under Article 19(2).
The words ‘in the interest of public order’, as used in the Article 19 include not only utterances
as are directly intended to lead to disorder but also those that have the tendency to lead to
disorder. There should be reasonable and proper nexus or relationship between the restriction and
achievement of public order.
Freedom of speech and expression is the bulwark of democratic government. This freedom is
essential for the proper functioning of democratic process and is regarded as the first condition of
liberty. It occupies a preferred position in the hierarchy of liberties giving protection to all other
liberties. It has been truly said that it is the mother of all other liberties. That liberty include the
right to acquire information and disseminate the same. It includes the right to communicate it
through available media without interference to as large a population of the country, as well as
abroad, as is possible to reach. Right to know is the basis right of the citizens of a free country
and Art. 19(1)(a) protects that right. Right to receive information springs from Art 19(1)(a).
The Censor Scissor
There is no provision in the Indian Constitution permitting or proscribing censorship. The sting
of censorship lies in prior restraint which affects the heart and soul of the freedom of press.
Expression is snuffed out before its birth. Suppression by a stroke of the pen is more likely to be
applied by the censoring authorities than by suppression through a criminal process, and thus
there is far less scope for public appraisal and discussion of the matter. This is the real vice of the
prior censor. In Express Newspapers v Union of India24 the Supreme Court held that a law
which imposes pre-censorship or curtails the circulation or prevents newspapers from being
started or require the Government to seek Government aid in order to survive was violative of
Art 19(1)(a). The Bombay High Court in its landmark judgment in Binod Rao v Masani25
declared that “Merely because dissent, disapproval or criticism is expressed in strong language is
no ground for banning its publication” The Guwahati High court in a path breaking judgment
laid down that the representation to any Government was not adequate because censorship was
often invoked against its own policies and in such a situation an appeal to the government would
be nothing short of an appeal from Caesar to Caesar.
REASONABLE RESTRICTIONS ON MEDIA
It is strange, unique and paradoxical that what is provided as a right by our Constitution on the
one hand is taken away by some sub-clause in the same situation. Mr. M. C. Chagla has given a
general reply to this paradox, which may be put in the following ways: It has been said that our
Constitution gives fundamental rights with one hand, and with other hand takes them away. It is
also said that, our Constitution circumscribes the given rights by numerable exceptions and
provisions. This is a very wrong criticism. Article 19 of our Constitution deals with the right to
freedom and it enumerates certain rights regarding individual freedom of speech and expression
etc. These provisions are important and vital, which lie at the very root of liberty. It is true that in
the sub-clauses that follow, certain limitations are placed upon these freedoms with regard to
freedom of speech and expression. In addition, there are many laws that relate 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. It can be seen that these limitations
are related to the objective standards laid down by the Constitution. Similarly, the legislature is
given the right to impose reasonable restrictions in the interest of public order on the right to
assemble peaceably and without arms. Whether a restriction is reasonable or not is not left to the
determination of the legislature, and of the executive. But it is again an objective consideration,
which has got to be determined by the Court of law. Only such a restriction would be reasonable
as the Court thinks as reasonable. It is clear therefore that the Constitution has not left the laws to
the mercy of the party in power or to the whims of the executive. No one is allowed to limit,
control or impair our fundamental rights by changing, amending, or introducing new laws that
easily. Any limitation of a fundamental right has to before a Court of law. Legislatures, indeed,
have been empowered to impose reasonable restrictions on freedom of speech and expressions
on the following grounds: o Integrity of India, o Security of the State, o Friendly Relations with
neighboring Countries, o Public order, o Decency or morality, o Contempt of Court and
Contempt of Legislature, o Defamation, and o Incitement to an offence.
By and large the necessity for imposing "reasonable restrictions" by the legislature has not been
seriously challenged by the newspaper world (and media world) where matters of state security
or the integrity of India are concerned. And where the superior judiciary is concerned, Justice
Mudholkar has remarked, there has been a long tradition of non-interference with the freedom of
the press (and other mass media) except where newspaper was found guilty of contempt of court.
Thus, it is evident that the freedom conferred by Article 19 (1) (a) in fairly general terms. It does
not for example, even refer specifically to the freedom of the Press (or mass media) as is
envisaged in the corresponding provision in the American Constitution. Judicial decisions have,
however, affirmed that Article 19 (1) is sufficiently wide to include the freedom of the Press and
implicitly, the freedom of other mass media. In addition to the provisions mentioned above, there
are several important laws, which a media person must know.
SELF-TEST QUESTIONS
S.NO Question Option (a) Option (b) Option (c) Option (d)
1 …………of the Constitution of India, the
State may make a law imposing “reasonable
Article Article Article
restrictions” on the exercise of the right to Article 19(4)
19(2) 19(3) 19(5)
freedom of speech and expression “in the
interest of” the public
2 Ramesh Hamdard Virender vs.
Kedarnath Thapar Dawakhana State of
The law of sedition under section 124A of vs. Union of Punjab
vs. State vs. State
the I.P.C. was also subjected to dispute India
of Bihar of
Madras
3 Under the Freedom of Speech and Ramesh Hamdard
Expression, there is no separate guarantee of Virender Kedarnath Thapar vs. Dawakhana
freedom of the press and the same is vs. State vs. State State of vs. Union of
included in the freedom of expression, of Punjab of Bihar Madras India
which is conferred on all citizens
4 Sakal Virender Hamdard Kedarnath
freedom of the press under the Indian
Papers vs. vs. State Dawakhana vs. State of
Constitution is not higher than the freedom
Union of of Punjab vs. Union of Bihar
of an ordinary citizen.
India India
5 Hamdard Ramesh Kedarnath vs. Virender vs.
It has been held by the Supreme Court that
Dawakhan Thapar State of Bihar State of
right of speech and expression includes right Punjab
a vs. vs. State
to acquire and import ideas and information
Union of of
about the matters of common interests India Madras
Answers: 1-(a),2-(a), 3-(a),4-(a),5-(a)
