| Article 19(1) | Article 19(2) |
|---|---|
| All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions or co-operative societies; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to practise any profession, or to carry on any occupation, trade or business. | It empowers the state to impose "reasonable restrictions" on this freedom on following grounds: • Sovereignty and integrity of India • Security of the state • Friendly relations with foreign states • Public order, decency, or morality • Contempt of court • Defamation • Incitement to an offense |
Amendments in Article 19
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- 1st Amendment Act, 1951: Added three more grounds of restrictions- public order, friendly relations with foreign states and incitement to an offence.
- 16th Amendment Act, 1963:Gave government the power to restrict free speech, peaceful assemblies, and forming groups, to safeguard India’s integrity and sovereignty.
- 44th Amendment Act of 1978:The right to acquire, hold, and dispose of property under Article 19 was deleted.
Expanding scope of Article 19
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- Romesh Thappar v. Madras (1950): freedom of speech as “ark of the covenant” for a democratic government.
- Kedar Nath Singh v. State of Bihar (1962): free speech to also include theright to silence and dissent
- Express Newspapers (Bombay) Private Ltd. v. Union of India (1984): struck down government’s attempts to curtail press freedom through import duty hikes on newsprint.
- Shreya Singhal v. Union of India (2015): declared Section 66A (arrest individuals for online content deemed “offensive,”) of the Information Technology Act unconstitutional.
Freedom of press and case laws
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- Romesh Thapar vs. State of Madras (1950): Article 19(1)(a) is basis for freedom of expression of media.
- Brij Bhushan vs. State of Delhi (1950): freedom of press cannot be curtailed except in case of imminent danger to public safety.
- Sakal Papers Ltd. vs. Union of India (1962): The restrictions on size and number of advertisements that newspapers could publish were considered a violation of freedom of speech and expression.
- Bennett Coleman & Co. vs. Union of India (1973):restriction on freedom of press in the interests of public order or morality must be exercised within clearly defined limits.
- Indian Express Newspapers vs. Union of India (1985): The expression freedom of press means freedom from interference from an authority in the name of public interest.
- Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal (1995): The right to receive information as a fundamental right and government had a duty to ensure that citizens had access to accurate and objective information.
- Sahara India Real Estate Corporation Ltd. vs. SEBI (2012):Media has a duty to act responsibly and in public interest butdoes not extend to defaming.
Issues in media:
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- Media itself sees declining status lacking journalistic sense.
- Commercialisation of press resulting in problem of paid news.
- Sensationalisation of news. For example-Jasleen Kaur Case
- Politicization of media houses due to cross holding in media by politicians and businesses.
- Weak regulatory mechanisms.
Way forward:
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- self-regulation codes to ensure responsible journalism.
- A culture of openness and transparency
- Stronger protections for whistleblowers are necessary to safeguard public-interest reporting.
- Promoting media literacy can help citizens discern reliable information and foster an informed society.
- Voltaire–“I cannot defend what one says, but I will go on defending freedom to say, even at the cost of death”.
Contempt of court
Contempt refers to the offence of showing disrespect to the dignity or authority of a court. Any act of disobedience of court order, scandalous criticism, disrespect or obstruction of administration of justice would amount to contempt of court.
| Provisions | • Article 19(2) provides contempt of court as one of the conditions behind reasonable restrictions. • Article 129, 142(2), 215 of the Constitution. • The Contempt of Courts Act 1971 categorizes contempt into two types:Civil and Criminal contempt.  |
| Rationale | • Keeping faith of people in judiciary • Ensure smooth functioning of Judiciary and independence • Imbibe a sense of decorum and standard quality of debate and discussions • Maintain its position as pillar of democracy and last resort for justice. |
| Related judgments | • Baradakanta Mishra vs. Registrar of Orissa High Court (1973)- necessary to maintain rule of law and maintain dignity and authority of courts. • P.N. Duda vs. P. Shiv Shanker (1988)- exercise of power only when it is real danger to administration of justice. • Prashant Bhushan and another (2020)- Tweets undermining dignity and authority of Supreme Court. • Vijay Kurle and others (2020)- Comment or criticism against court’s judgements must not challenge judge’s integrity and authority. |
| Criticism | • Against Civil Liberties (Article 19 & 21) • Fear of misuse of power • Broad and lacking clarity • Violation of press freedom |
| Way forward | • Balancing the right to freedom of expression with judicial legitimacy • Clear and well-defined rules • Fair and impartial proceedings to prevent abuse of power |
Sedition law
| Provisions | • Section 124A of the Indian Penal Code (IPC) • Article 19(2)- impose reasonable restrictions |
| Necessity | • MaintainingNational securityand sovereignty • Preventinganti-national activities • Preservingpublic order |
| Against | • Misused against dissenting voices, journalists, activists, and political opponentse.g.Vinod Dua case • Overly broad law and some vaguely defined termse.g. arrest of climate activist Disha Ravi. • Colonial legacyand incompatible with modern democratic values. • Criticism by Judiciaryin Kedarnath Singh v State of Bihar. • Chilling effect on free speech, discouraging citizens from criticizing the governmente.g.Aseem Trivediarrested in 2012. |
| Way forward | • Need for a re-examination of the sedition law (Kedarnath Singh v State of Bihar) • Simplify, modernizeand progressivelaw • Inclusive consultation • Technology integration • Restorative justice |
Defamation
Defamation in India refers to the act of damaging someone’s reputation through false and malicious statements. It is recognized as both a civil wrong and a criminal offense. Article 19(2) provides for foundation of defamation in India.
| Civil defamation | Criminal defamation |
|---|---|
| • Law of torts. • Punishment in form of monetary compensation. | • IPC section 499- defines defamation • IPC section 500- punishment for defamation mentioned (upto 2 years) • Crpc section 199- provides for prosecution for defamation. |
Section 354(2) of the Bharatiya Nyaya Sanhita Act, 2023: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both or with community service.”
| Case | • Subramanian Swamy v. Union of India (2016)- The Supreme Court upheld the validity of criminal defamation, stating that: The right to reputation is part of the "right to life" under Article 21. Reasonable restrictions on free speech under Article 19(2) include defamation. |
| Arguments for | • Criminal penalties serve as a stronger deterrent • Affirmation of public interestsafeguarding individual dignity and honor. • Safeguards for vulnerable groups |
| Arguments against | • Threat to freedom of expressionas individuals may refrain from voicing their opinions out of fear of legal repercussions. • Tool for suppression by powerful entities, hindering accountability and open dialogue. |
| Way forward: | • According to data published by UNESCO, 160 countries in the world criminalize defamation. • UN- it should be made a civil offence • Freedom of expression of media is essential for functional and vibrant democracy. |
Hate speech
| Legal provisions | • Article 19(2)- reasonable restrictions by state • Section 153A, 295A, 298, 505 of IPC • Section8 of Representation of the People Act, 1951 • Section 7 of Protection of Civil Rights Act, 1955 |
| Related Judgments | • Subramanian Swamy v. Union of India (1971)- need to balance free speech with the protection of public order and social harmony. • PravasiBhalai Sangathan v. Union of India (2014)- recognized the issue of hate speech and tried to define it using two terms- Marginalization Delegitimisation • Shreya Singhal v. Union of India (2015)-focus on online hate speech • Tahseen Poonawalla v. Union of India (2018)- hate speech cannot be justified andissued guidelines to prevent mob lynching • Kodungallur Film Society case (2018)-hate speech cannot be justified in the name of free speech. |
| Issues | • Lack of universal definition of hate speech • Balancing free speech and hate speech • Anonymity of social media makes it difficult to track • Inadequate sensitization among influential figures |
| Way forward | • Sections 196 and 197 of the Bharatiya Nyaya Sanhita (BNS), 2023deals with hate speech. • 267th Law Commission Report recommended elaborate definition of hate speech • Jeremy Waldron- distinguish hate speech from other forms of speech. • M.P. Bezbaruah Committee and T.K. Viswanathan Committee recommended separate provision for hate speech. |
Internet shutdowns and Right to internet as fundamental right
| Data | • India recorded 116 internet shutdowns in 2023, the country with the highest number of shutdowns for the sixth consecutive year. • Jammu and Kashmir experiencing the longest shutdown in a democracy, lasting 552 days. • India has accounted for approximately 58% of all worldwide shutdowns documented in Access Now’s Shutdown Tracker Optimization Project (STOP database). |
| Right to internet | • Anuradha Bhasin v. Union of Indiacase (2020):The freedom of speech and expression under Article 19(1)(a) and the right to carry on any trade or business under Article 19(1)(g) also include the right to access the internet. • Faheema Shirin v. State of Kerala case- Internet Shutdowns violate the Right to Internet under Article 21. • The United Nations human rights experts: “using communications ‘kill switches’ (i.e. shutting down entire parts of communications systems) can never be justified under human rights law.” |
| Implications | • Violation of Fundamental rights • Affects social engagements • Interrupts basic needs like access to telemedicine, e-learningetc. • According to a recent report, India incurred an economic cost of $585.4 million due to internet shutdown, in the year 2023. |
| Way forward | • Targeted restrictions without resorting to blanket shutdowns. • Adherence to doctrine of proportionality- necessary to achieve a legitimate aim and limited in scope and duration. • Conducting impact assessments • As an option of last resort • Good internet governance |
