- Absolute freedom (Articles105 & 194) .
2. Qualified Freedom Article 19(2) and 499 of IPC).
Article 19 – Leading Case, Four Amendments (1st,1951-Public order, Incitement to an offence, friendly relations with foreign states,& reasonable, 16th 1963 the sovereignty and integrity of India,44th omitted Article 19(1)(f)- Right to Property,1978, wef 26-06-1979 & 97th,2011, wef 2012 to form the co-operative societies, added in Article 19(1)(C).
USA & INDIA:-There are two difference between USA and Indian law regarding freedom of speech namely,
In USA, by first amendment, freedom of speech and press were expressly mentioned while in Indian Constitution, it is implicit and developed by Court.
In USA, there is no specific restrictions have been mentioned in Constitution. Restrictions have been developed by Courts. In India, eight (8) restrictions have been mentioned in Article 19(2).
(1)BRIJ BHUSHAN AND ANOTHER VS. STATE,DOJ,25-05-1950, Pre -censorship on journal is unconstitutional ( Name of journal – Organiser- News regarding Communal violence and Pakistan).
ROMESH THAPPER VS. STATE OF MADRAS, DOJ, 25-05-1950, Justice Patanjali ” Freedom of speech and of the Press lay at the foundation of all democratic organisations, for without free political discussions no public education, so essential for the proper functioning of the process of popular Government , is possible”. In this case Supreme Court said that public order is not the ground mentioned under Article 19(2) so on this basis restrictions can’t be imposed.
The Court said that circulation of ideas through journal or newspapers is a part of freedom of speech and expression. Imposition of a ban upon entry and circulation of a journal within a state is restriction of Article 19(1) (a).
Fact- “Cross Road” journal which was printed and published in Bombay. Madras Government banned this journal in Madras by using the power given under Madras Maintenance of Public Order Act, 1949 on the ground of “Public Order” In both the above cases freedom of press was recognized as fundamental rights. Both the cases were decided on the same date.
To overcome on these Judgments (and Champacam Dorairajan – related to reservation)
The Constitution (First Amendment) Act, 1951 was passed on 18-06-1951. By this Amendment, three new grounds namely- (Public Order, Incitement to an offence and friendly relation with foreign state and by 16th Amendment, 1963 sovereignty and integrity of nation was added) and reasonable (reasonable restrictions) were added.
SAKAL PAPERS LTD.VS UNION OF INDIA, 1962. Fact- The Newspaper (Price and Page) Act, 1956, & The Daily Newspaper (Price and Page) Order, 1960 sought to regulate number of pages according to the price charged and regulate the size and area of advertisement.
Supreme Court held that this Order is invalid. S C said Article 19(1) (a) guarantees not only what a person circulates but also the volume of circulation.
Reason of Judgement-. The Court said that curtailing of advertisement of area wd directly affect income of Newspaper, the person wd be bound to increase the price of newspaper, then circulation of newspaper wd be affected.
(4) BENNET COLEMAN AND CO. VS. UNION OF INDIA, 1973, An order which was 19 fixing maximum number of pages(10), was challenged. Supreme Court said that it’s direct effect is on circulation and growth of newspapers through pages and it wd cause financial loss. So such
HAMDARD DWAKHANA VS UNION OF INDIA,1960, Every advertisement is not part of speech for example effect of medicine is like a magic.
BIJOE EMMANUEL VS STATE OF KERALA,1986, (National Anthem Case) – Freedom of speech includes right to silence.
R. RAJAGOPAL VS. STATE OF TAMILNADU,( Auto Shankar case),1994, The Supreme Court has held that the Government has no authority in law to impose a prior restraint upon publications of defamatory material against its official.
(8)SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING VS CRICKET ASSOCIATION OF BENGAL,1995- Government has no Monopoly on electronics media.
TATA PRESS LTD. VS. MAHANAGAR TELEPHONE NIGAM LTD(MTNL),1995, Commercial advertisement is a part of freedom of speech and expression.
BOBBY ART INTERNATIONAL VS OM PAL SINGH HOON (Bandit Queen case, Phoolan Devi , a lady who took revenge of her rape,1996. Exhibition of Film- The Court said that from every nude seen, lust is not arisen.
(11) UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS,2002, Supreme Court held that Right to vote is a fundamental rights, so voters have right to know abouttheir candidate. So candidates are bound to submit affidavit regarding their education, income and crime cases etc.
(12) MD AJMAL MD AMIR KASAB STATE OF MAHARASHTRA( Taj Hotel Attack Case, 2008, DOJ, 2012- Live show of terrorist attack- Supreme Court criticized this trend and said that an action tending to violate another person’s right to life or putting the national security in jeopardy can never be justified by taking the plea of freedom of press.
CONDITIONS FOR RESTRICTIONS 19(2):-There are three conditions to apply Article 19(2)-
First- By law- The restrictions can beimposed only by or under the authority of law. No restriction can be improsed by executive action alone without their being a law to back up it. Second – Restriction must be related only to eight grounds mentioned in Article 19(2). Third- Restrictions must be reasonable.
Restrictions (8)- There are two types of restrictions-(1) Original Restrictions – 4 Security of State, Defamation, decency or Morality, Contempt of Court.
(2) Added – Friendly relations with foreign states, (1951), Public Order, (1951), Incitement of an offence (1951), sovereignty and integrity of the nation (1963),
(1) SECURITY OF STATE- Security of State means direct challenge of sovereignty, namely violence intended to overthrow the government, waging war, external aggression of war etc. Serious and aggravated form of public disorder are within the expression ‘ security of State.
In Romesh Thapper, DoJ 25-05-1951 Supreme Court said that the expression security of State does not refer to ordinary breaches of public order which do not involve any danger to the State itself.
PUBLIC ORDER- It was added by 1st Amendment after Romesh Thapper case. Public order is synonymous with public peace, safety, and tranquility. For example, rioting, affray etc.
Superintendent, Central Prison vs. Ram Manohar Lohia, 1960. In this case SC invalidated section 3 of U. P. Special Powers Act, 1932 which punished a person, even if he invited a single person not to pay or defer the payment of Government dues because there was no Nexus between speech and public order. The court said that FR cannot be curtailed on hypothetical grounds that this speech wd be grounds for revolution.
Third- Friendly relations with foreign states- Added by 1st Amendment- According to Article 51, State shall endeavour to promote international peace and security and maintain just and honorable relations with other country.
So to maintain good relationship with other nations it became necessary to control freedom of speech otherwise some people of nation may start hate speech against another state. Sometimes dignitary of other country comes into our country, to maintain their dignity, this ground is used.