75 Important Judgments Of Supreme Court: Part III | Celebrating 75 Years Of India's Supreme Court
In the last part of 75 important judgments of the Supreme Court, we look at another set of 25 judgments concerning the rights of free speech and expression.Freedom of propagation of ideas and freedom of circulation and narrow interpretation of restrictions on free speechRomesh Thappar v. The State of Madras (1950) was one of the first judgments of the Supreme Court holding that Article...
In the last part of 75 important judgments of the Supreme Court, we look at another set of 25 judgments concerning the rights of free speech and expression.
Freedom of propagation of ideas and freedom of circulation and narrow interpretation of restrictions on free speech
Romesh Thappar v. The State of Madras (1950) was one of the first judgments of the Supreme Court holding that Article 19(1)(a) includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. In this case, Romesh Thappar filed a petition challenging the validity of Section 9(1A) of the Madras Maintenance of Public Order Act, 1949 under which entry and circulation of his weekly journal in English, Cross Road was banned on grounds of “securing the public safety and the maintenance of public order” as being void under Article 13(1) for being inconsistent with his fundamental rights. The court stated that the order would be unconstitutional unless it is saved by restrictions under Article 19(2) which included a law that would 'undermine the security of, or tends to overthrow, the State'.
In 1950, Article 19(2) read: “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating 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.”
The court accepting the arguments of Thappar observed that 'very narrow and stringent limits' have been set to permissible legislative abridgment of the right to free speech and expression because the 'freedom of speech and the press lay at the foundation of all democratic organisation'. It held that 9(1A) may have intended to impose restrictions conceived for the wider pursuit of security public safety or maintenance of public order but it does not fall within the narrow restrictions of Article 19(2) and therefore, is unconstitutional. On the same day, another landmark judgment on free speech was pronounced in Brij Bhushan & Anr v. The State of Delhi (1950). In this, Section 7(1)(c) of the East Punjab Public Safety Act, 1949 allowed pre-censorship of newspapers to prevent activities prejudicial to public safety and preventing public disorder. However, the court held that these were not grounds relating to 'matters which undermined the security or tended to overthrow the State and therefore, unconstitutional.
'Reasonable' restrictions on free speech
Following the judgments in Romesh Thapar and Brij Bhushan, which narrowly interpreted restrictions on free speech, were diluted by bringing the First Amendment, 1951 broadening the scope of Article 19(2), which now reads as: “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 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” with retrospective effect. While grounds like 'public order', against which these judgments spoke had a wide connotation, the word 'reasonable' was also added to Article 19(2) as a safeguard. However, the term 'reasonable restriction' existed for Article 19(1)(g) (right to practise any profession, or to carry on any occupation, trade or business) in Article 19(6)."
In Chintaman Rao v. The State of Madhya Pradeshram (1950), the court was hearing a writ of mandamus against the statute prohibiting all persons residing in the notified villages from engaging in the manufacture of bidis during the agricultural season. The court held that the total prohibition was outside the purview of Article 19(6) because it does not stand the test of 'reasonableness'. It stated that the phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be 'arbitrary' or of an 'excessive nature', beyond what is required in the interests of the public.
In State of Madras v. V. G. Row (1952) the question of the reasonableness of restrictions which could be posed upon a fundamental right was considered. This Court has pointed out that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time should all be taken into consideration.
The court had held this in the context of the fundamental right to form associations or unions guaranteed by art. 19 (1) (c) of the Constitution "has such a wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic field this, that the vesting of the authority in the executive Government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects to be duly tested in a judicial inquiry, is a strong element which should be taken into account in judging the reasonableness of restrictions imposed on the fundamental right under art. 19(1)(c)."
Proximate v. Tendency test to disrupt public order
To this date, expressions like 'public order' have not been able to find a concrete meaning. Some judgments tried to either restrict the meaning of public order or establish tests of what speech could be reasonably restricted. However, it was not very successful in light of the broad drafting of Article 19(2).
For instance, in Ramji Lal Modi vs The State Of U.P (1957) the court upheld the conviction of one Ramji Lal Modi for publishing an article in his magazine 'Guarakshak' and it found that the speech was an aggravated form of insult on the religion or religious belief of a class of citizens which was perpetrated with the deliberate and malicious intention of outraging the religious feelings. The petitioner had argued that his speech could only be interfered with if it likely caused public disorder and, with the connection to the disorder being 'proximate'.
Rejecting this standard, the court said that the 'calculated tendency' of the aggravated form of insult can disrupt public order and therefore well within the protection of Article 19(2). Moreover, it noted that Article 19(2) uses the expression 'in the interests of' which had the effect of making the protection afforded by that clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tendency to cause public disorder.
Intersection between free speech and public order and chilling effect on free speech
The expression of 'public order' has widely intersected with the fundamental rights to protest and dissent, the right to the internet etc in modern times and continues to do so. For instance, Section 66A of the Information Technology, 2000, criminalised speech on the internet which is 'grossly offensive' or has a 'menacing character' or causes 'annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will' etc on the grounds of disturbing public order.
In Shreya Singhal v. UOI (2015) the court applied the American case of 'clear and present danger' or the test of 'calculated tendency' to disrupt public order and held that Section 66A has no element of any tendency to create public disorder. It further applied 'proximate connection' test and held that it has nothing to do with “incitement to an offence”. In this, the court categorised speech under Article 19(1)(a) into three concepts: discussion, advocacy and incitement. It held that “mere discussion or even advocacy of a particular cause, however, unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.”
The court held: “As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional.”
The court held that Section 66A was cast so widely that virtually any opinion on any subject could come within its purview and thereby its overreach sent chilling effects on free speech.
The Supreme Court in Dr. Ram Manohar Lohia v. State of Bihar & Ors (1965) tried to explain the difference between 'law and order', 'public order' and 'security of state'. The court said: “One has to imagine three concentric circles, the largest representing “law and order”, the next representing “public order” and the smallest representing “security of state”. An act may affect “law and order” but not “public order,” and just as an act may affect “public order” but not “security of the State”.”
Right to freedom of press
In Express Newspapers (Private) Ltd., v. The Union of India(1958), the Supreme Court observed that while there is no immunity to the press from the operation of the general laws it would not be legitimate to subject the press to laws which take away or abridge the freedom of speech and expression. Or adopt measures calculated and intended to curtail circulation and thereby narrow the scope of dissemination of information, or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid.
The right to freedom of the press was first stated in Sakal Papers (P) Ltd. versus Union of India (1961) where the constitutionality of the Newspaper (Price and Page) Act, 1956 was challenged for violating freedom of press and circulation by restricting the pages and sizes of newspaper and regulating the allocation of space for advertising matter. Under the 1956 Act, the Central Government made the Daily Newspapers (Price and Page) Order, 1960, thereby fixing the maximum number of pages that might be Published by a newspaper according to the price charged and prescribing the number of supplements that could be issued.
The court held that it violated Art. 19(1) (a) of the Constitution and was not saved by Art. 19(2). It held that the right to propagate one's ideas is inherent in the conception of freedom of speech and expression. For propagating ideas, a citizen has the right to publish them, to disseminate them and to circulate them, either by word of mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the volume of circulation.
The court laid down the test that when a law is intended against the circulation of a newspaper, it would have a direct interference with the right of freedom of speech and expression guaranteed under Art. 19(1)(a). It said: "Since the very object of the impugned law is to affect the circulation of certain newspapers which, are said to be practising unfair competition it is difficult to appreciate how it could be sustained. The right to freedom of speech and expression is an individual right guaranteed to every citizen by Art. 19(1)(a) of the Constitution. There is nothing in el. (2) of Art. 19 which permits the State, to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public. It is not open to the State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people unless its action could be justified under a law competent under el. (2) of Art. 19."
These judgments were further reiterated in Bennett Coleman & Co. v. Union of India (1976) to also include free of press under Article 19(1)(a).
Interestingly, in Bennett Coleman's case, the court adopted the 'effect test' of R.C. Cooper on violation of fundamental rights. It stated that the effect of the law and the action upon the right is which attraction the jurisdiction of the court on violation of fundamental rights. In this case, a newsprint policy was in question which restricted page limits, and prohibited new newspapers and new editions.
The court held that the “effect and the consequence of the impugned policy upon the newspaper is directly controlling the growth and circulation of the newspaper. The direct effect is the restriction upon the circulation of the newspaper. The direction effect is upon the growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed.”
Public decency and morality
In this case, a bookseller sold a copy of the unexpurgated edition of "Lady Chatterley's Lover". He was convicted under s. 292, Indian Penal Code for obscenity. He contended that the Section was void because it violated the freedom of speech and expression guaranteed by Art. 19(1)(a) of the Constitution of India. Alternatively, he argued even if the section was valid, the book was not obscene and it must be shown by the prosecution that he sold the book with the intention to corrupt the purchaser, that is to say, that he knew that the book was obscene.
The court held that section 292 embodies a reasonable restriction upon the freedom of speech and expression guaranteed by Art. 19 and does not fall outside the limits of restriction permitted by cl. (2) of the Article. The section seeks no more than the promotion of public decency and morality which are the words of that clause.
In Ranjit D. Udeshi vs State Of Maharashtra (1964), it said: "The word "obscene" in the section is not limited to writings, pictures etc. intended to arouse sexual desire. At the same time, the mere treating with sex and nudity in art and literature is not per se evidence of obscenity. The test given by Cockburn C.J., in Queen v. Hicklin, (1868) to the effect that the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far followed in India, is the right test. The test does not offend Art. 19(1) (a) of the Constitution."
In Aveek Sarkar & Anr vs State Of West Bengal And Anr (2014), the court applied the 'community standard' test on a publication of article with a picture of Boris Becker, a world-renowned Tennis player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress, which was photographed by none other than her father.
The court stated that for the semi-nude picture to be obscene under Section 292, it shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. It held: "A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards."
Sedition
It is the lack of any confined meaning to the expression 'public order' that the Supreme Court in Kedar Nath Singh v. State of Bihar (1962) was able to uphold the constitutionality of Section 124A (sedition) and Section 505 of the Indian Penal Code. The court stated that while sedition imposed restrictions on fundamental freedom of speech and expression, the restrictions were in the interest of 'public order' and therefore, within the ambit of permissible legislative interference with the fundamental rights. The 154-year-old sedition law's constitutionality continued to be challenged and only in 2022 was it kept in abeyance in S.G. Vombatkere v. UOI (2022). A challenge to its constitutionality is pending before a seven-judge bench of the Supreme Court.
Free speech and religion
In Bijoe Emmanuel & Ors vs State Of Kerala & Ors (1986), three children belonging to the sect called Jehovah's Witnesses were expelled from school because they refused to sing the National Anthem. The children however would stand up in respectful silence daily during the morning assembly when the Anthem was sung. The court found that the expulsion violated their right to freedom of conscience and freely to profess, practice and propagate religion.
Further, the court held that any law which may be made under clauses 2 to 6 of Article 19 as a reasonable restriction to rights under Article 19(1)(a) to (e) and (g) must be statutory and not merely an executive or departmental instructions. Since the circulars issued by the School had no statutory basis, they could not form the foundation for denying Article 19(1)(a).
Right to protest
In Re Ramlila Maidan Incident vs Home Secretary, Union of India & Others (2012), the Supreme Court recognised that citizens have a fundamental right to assembly and peaceful protest under Article 19(1)(b) which cannot be taken away by an arbitrary executive or legislative action.
Hate speech
Another form of speech that requires criminalisation for disrupting public order is 'hate speech'. The menace of hate speech can blur the distinction between constitutionally protected speech and speech that needs to be criminalised. In 2020, the Supreme Court in Amish Devgan v. UOI made a distinction between free speech and hate speech. It stated that the former includes the right to comment, favour or criticise government policies, whereas, hate speech intends to create or spread hatred against a targeted community or group.
Subsequently, Shaheen Abdullah versus Union of India (2021), directed police and authorities to immediately and suo moto register cases against hate speech in Delhi, Uttar Pradesh and Uttarakhand even if a complaint is not filed.
The Order highlighted that Sections 153A (promoting enmity between different groups on the ground of religion), 153B (imputations, assertions prejudicial to national integration), 505 (statement inducing to public mischief), 295A (deliberate and malicious acts intended to outrage religious feelings) of the Indian Penal Code (IPC) can be invoked to book hate mongers. Any violation of these directions will attract contempt, the court's Order stated.
Right to information
In 2003, the Supreme Court recognised in People's Union of Civil Liberties v UOI (2003) that Article 19(1)(a) included the right to seek information as a fundamental right including of electoral candidates. In this case, PUCL challenged the validity of Section 33B of the Representation of People Act, 1951 which stated that political candidates were not bound to disclose any information. Years later, this became the basis for the Supreme Court to hold the Electoral Bonds Scheme unconstitutional in Association for Democratic Reforms & Anr v. UOI (2024), in which the court held that non-disclosure of information on voluntary contributions to political parties violated the right to information.
Right to trade, occupation or profession
Right to internet
In Anuradha Bhasin v UOI (2019), where petitions were filed challenging the internet ban in Jammu & Kashmir, the court held that the right to freedom of speech and expression and the right to carry out any trade or business under Article 19(1)(g) using the internet as a medium is constitutionally protected.
The question in this case was also whether there could be a complete prohibition of the internet as a reasonable restriction. Answering in affirmative, the court “(1) restriction on free speech and expression may include cases of prohibition; (2) There should not be excessive burden on free speech even if a complete prohibition is imposed, and the Government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate; (3) whether a restriction amounts to a complete prohibition is a question of fact, which is required to be determined by the Court with regard to the facts and circumstances of each case.”
On the point of lessor alternatives, the court referred to the principle of proportionality.
Right to carry on any occupation, trade or profession depends on the availability of a safe working environment
In Vishakh v. State of Rajasthan (1997), the Supreme Court issued guidelines on the prohibition of sexual harassment in the workplace. In this case, an alleged brutal gangrape of a social worker took place in a village in Rajasthan. The court found that the incident violated Articles 14, 15, 19, 21 and specifically Article 19(1)(g) which protected the fundamental right to carry out trade or profession. It stated that the fundamental right to carry out any occupation, trade or profession was dependent on “safe” working environment the lack of which violated the fundamental right to human dignity under Article 21. The guidelines issued by the court were law until the Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
National Anthem in Cinemas
Acting on a public interest litigation filed by one Shyam Narayan Chouski hailing from Bhopal complaining of misuse of the anthem in TV shows or movies, the Supreme Court in 2016 made it mandatory for all cinema theatres to play the national anthem before a movie begins during which the national flag is to be shown on the screen. In Shyam Narayan Chouksey v Union of India, an interim order also ruled that the national anthem should not be commercially exploited or dramatized. In a major U-turn on the National anthem, the Government in 2018 filed an affidavit asking the Supreme Court to modify its November 30, 2016 order.
In a significant development in 2018, the interim order was modified to the extent that playing the national anthem before a movie screening is optional and not mandatory. The court referred to Bijoe Emmanuel and Others vs. State of Kerala and Others and stated that although one cannot be compelled to sing the national anthem, due respect must be shown when the national anthem is played. The court said: "A person who stands respectfully when the National Anthem is sung, is showing proper respect. Thus, the stress is on respect when the National Anthem is sung or played."
Live Streaming of court proceedings
In Swapnil Tripathi v. Supreme Court of India (2018), the Supreme Court held that Court proceedings shall be live-streamed in the larger public interest. In this, reliance was put on Article 19(1)(a) and 19(1)(g) of the Constitution which recognises the know and receive information and the right to carry out trade, occupation or profession respectively. This is clubbed with the right of access to justice flowing from Article 21 of the Constitution or be it the concept of justice at the doorstep. The Court said that it would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts and in particular, the opportunity to witness live proceedings in respect of matters having an impact on the public at large or on a section of people. This would educate them about the issues which come up for consideration before the Court on real-time basis.
Restriction of Public Official's free speech and horizontal application of fundamental rights
In 2023, a constitution bench of the Supreme Court in Kaushal Kishor v. The State of Uttar Pradesh held that additional restrictions, not found in Article 19(2), cannot be imposed on the exercise of the right to free speech under Article 19(1)(a) of Ministers, MPs and MLAs. It held that the grounds mentioned in Article 19(2) for restricting free speech are exhaustive.
The Court by a 4:1 majority added that statements made by the Minister, even if traceable to any affairs of the state or protecting the govt, cannot be attributed vicariously to the govt even applying the principle of collective responsibility. In her dissenting opinion, Justice B.V. Nagarathna agreed that greater restriction cannot be imposed on free speech, in addition to grounds under Article 19(2). However, she observed that in case a Minister makes disparaging statements in his "official capacity", then such statements can be vicariously attributed to the govt. However, if the statements of the Ministers are stray remarks not consistent with the stand of govt then they would be treated as personal remarks.
The case emanates from the Bulandshahar rape incident wherein the then Minister of the State of Uttar Pradesh and Samajwadi Party leader, Azam Khan had trivialised the act by dismissing the incident as a 'political conspiracy and nothing else'.
By majority, the Court had also held that fundamental rights enshrined in Articles 19 and 21 are enforceable even against persons other than the state or its instrumentalities. However, Justice Nagarathna stated that recognising a horizontal approach of fundamental rights between citizens inter se would render redundant, all the tests and doctrines forged by this Court to identify 'State' to entertain claims of fundamental rights violations.
Part 1 can be read here.
Part 2 can be read here.