Lecture 9: Fundamental Rights and Freedom of Speech – Key Terms

Article 19: Freedom of Speech and Expression

• Freedom of speech and expression is a fundamental right under Article 19(1)(a) for all citizens; not available to aliens. It is a natural right discussed as something not created by the Constitution but guaranteed by it. It enables you to express yourself through any medium (speeches, writings, cinema, theater, blogs, cartoons, etc.).
• The Supreme Court acts as the final interpreter and uses judicial creativity to expand the scope of this right beyond its original textual limits, creating inferred rights.
• Examples and illustrations of judicial creativity:
  • Navin Jindal v. Union of India: Right to hoist the national flag on private property and wear the national flag as a badge is a fundamental right under Article 19(1)(a).
  • Association for Democratic Reforms (ADR) v. Supreme Court: Right to information for voters to make an informed electoral choice (education about candidates, criminal cases, assets, etc.) is a fundamental right inferred from freedom of speech and expression.
  • ADR also established that the right to ask questions to candidates (educational qualification, pending criminal cases, assets) is protected to enable informed elections.
  • Right to know extends to information about electoral candidates; the Supreme Court recognized this as a fundamental right, even though not originally explicit in the Constitution.
  • Right to information inferred from 19(1)(a) also implies the right to stay silent (not speaking) as a corollary of free expression.
• Freedom of the press: Although not expressly written in the text of the Constitution, the Supreme Court has evolved freedom of press as part of Article 19(1)(a) through judicial interpretation. This applies to both print and electronic media (press, news channels).
• Restrictions on freedom of speech and expression (Reasonable Restrictions): Article 19(2) lays down eight broad grounds on which the freedom can be restricted. There are both original restrictions and those added later by constitutional amendments.
  • The eight grounds (as elaborated in the lecture):
  • ext{Sovereignty and integrity of India}
  • ext{Security of the State}
  • ext{Friendly relations with foreign States}
  • ext{Public order}
  • ext{Decency or Morality}
  • ext{Contempt of Court}
  • ext{Defamation}
  • ext{Incitement to an offense}
  • The lecture notes that some of these were added by amendments over time (public order, etc.).
  • The distinction between original and amended grounds is discussed toward the end of the lecture:
  • Public order, friendly relations with foreign states, and sovereignty and integrity of India were introduced or clarified via amendments (e.g., 1st Amendment Act, 1951; 16th Amendment Act, 1963).
  • The other grounds (decency/morality, contempt of court, defamation, incitement to an offense) have a longer historical presence in the discourse of restrictions.
• How the restrictions work in practice: Restrictions are meant to prevent harm to the larger public interest while allowing robust political discourse; they are not intended to suppress dissent but to prevent harm to public order, security, or morality.
• Public order and the “heckler’s veto” concept:
  • Public order is a broad, sometimes vague ground; if speech triggers a riot or mass unrest, it may be restricted. The lecture illustrates this with analogies about potential stampedes in a multiplex and the duty to prevent public chaos.
  • Heckler’s veto: protestors or hecklers can influence state action against speech (potentially chilling effect), leading to preemptive restrictions for public safety.
• Censorship vs. certification in film: CBFC (Central Board of Film Certification) role evolved from mere certification to imposing cuts in films; courts have treated cinema as a distinct form of expression with higher impact due to its visual nature. K.A. Abbas v. Union of India discusses why cinema is treated differently from print media.
• Decency/Morality and obscenity tests:
  • Hicklin test (historical): obscene if single passages arouse lust, overlooking wider context. It was rejected in favor of a more contextual approach.
  • Lady Chatterley’s Lover and Lolita narratives: debates over morality and obscenity led to evolving standards rather than rigid censorship.
  • Contemporary morality standards consider context, audience, and evolving societal norms. The dialogue includes debates on age, strong-minded vs. weak-minded audiences, and how morality is not uniform across space and time.
• Hate speech and protected speech:
  • Hate speech is not protected; speech that promotes hatred against minorities or creates a hostile environment can be restricted, especially when it crosses into violence or incitement.
  • The line between critique and hate speech is navigated through the lens of public policy, dignity, and protected rights.
• Commercial speech and the right to information:
  • The Supreme Court has treated some speech (including online and influencer content) as having protections, but commercialized speech can trigger additional restrictions when it harms others (e.g., hate against differently abled persons).
• Specific cases and topics discussed around censorship and morality:
  • Ranjit D. Udeshi v. State of Maharashtra: Hicklin test and the evolution toward a contemporary standard of morality.
  • Lolita and Lady Chatterley’s Lover: obscenity considerations and the shift away from the Hicklin test toward contextual morality.
  • Boris Becker nude photo case: a foray into whether nudity in media is obscene; context matters (campaign against racism vs. arousal).
  • Kamal Haasan and Janaki v. State of Kerala: name-change and religious sensibilities affecting release decisions; CBFC’s role and state protection of cinema releases.
• “Public order” as a ground has been central to debates about cinema, protests, and public safety. The speaker argues that while this restriction has raised concerns about excessive policing and censorship, it is deemed necessary to avoid violence and social disruption.
• Hate speech, incitement, and the line between robust dissent and criminalization:
  • The speaker discusses cases involving social media, YouTube content, and political commentary in which court scrutiny sought to balance free speech with respect for protected communities and public order.
• The speaker’s emphasis on the need for informed debate and responsible speech to sustain a healthy democracy, with emphasis on the role of media, public discourse, and the judiciary’s evolving interpretations.

Article 19(1)(a) Expanded: Inferred Rights and Press Freedom

• Freedom of press: Explicit protection is not in the text of the Constitution but has been recognized by the Supreme Court as part of 19(1)(a) due to judicial interpretation.
• Inferred rights under freedom of speech and expression include:
  • Right to fly the national flag on private property (Navin Jindal case).
  • Right to information for voters (informing voters about candidates) via ADR-inspired jurisprudence.
  • Right to stay silent (not speaking) as part of the freedom to express oneself.
• Private entities and 19(1)(a): The Court has suggested that private entities can also be constrained by fundamental rights when state action or state-like responsibilities are involved; the right to free speech can extend to non-state actors in some contexts.
• In practice, the Court’s flexible, evolving interpretation expands the reach of Article 19(1)(a) beyond its literal text to protect democratic processes and informed public discourse.

Right to Information (RTI) vs. Right to Information (Elections) and Statutory RTI

• Right to Information Act, 2005 (RTI Act 2005) is a statutory right, not a fundamental right, but it complements the 19(1)(a) freedom by enabling citizens to obtain information from public bodies about government spending and activities.
• The lecture distinguishes between general RTI (statutory) and the elections-specific information right inferred from 19(1)(a): the latter is about voters’ right to know the antecedents and background of electoral candidates to make an informed choice.
• Examples cited:
  • ADR’s mandate that voters can demand information about candidates’ educational qualifications, pending criminal cases, assets, and changes in the assets over time.
  • The Supreme Court’s view that information essential to electoral choice falls under the broader umbrella of the right to information that protects democratic governance.
• Distinctions between public interest and public fascination:
  • Public interest in information is aimed at governance and accountability.
  • Public fascination (personal curiosities) is not a valid basis for compelling disclosure.
• Privacy and personal details: Personal data (blood groups, health status) are excluded from RTI protections; public interest tests guide what can be disclosed.
• The lecture argues that the right to information for voters is a substantial expansion of 19(1)(a) rights and serves as a tool for holding elected representatives accountable.

Contempt of Court, Defamation, and Court-Centric Speech

• Contempt of Court (Contempt of Courts Act, 1971) covers civil and criminal contempt:
  • Civil contempt: willful disobedience of a court undertaking or order (e.g., skipping a scheduled appearance, failing to deposit court-ordered funds).
  • Criminal contempt: actions that scandalize or obstruct the court, or imply corruption of judges, thereby eroding public confidence in the judiciary.
• The lecture discusses notable instances: Prashant Bhushan (2020) for a tweet; Kunal Kamra comments; Arnab Goswami’s case; and the broader idea that criticizing the court must be grounded in facts and public interest, not based on pure scandal or inflammatory rhetoric.
• The approach to contempt changed after the Contempt of Courts Act amendments in February 2006:
  • Truth can be a defense if the statements are true and in the public interest and made in good faith.
  • The court can impose penalties (e.g., a fine or jail) for contempt, but defenses and procedural safeguards apply.
• The debate around criticizing judgments vs. scandalizing the judiciary: while criticism is protected, gratuitous attacks that undermine the court’s authority or disrupt justice can be punished.
• The 2015 Shriya Singhal v. Union of India decision clarified that advocacy is protected, but incitement to violence is not; the link between a speech and violence must be quick and direct for sedition or related offenses to apply.

Sedition: History, Evolution, and Current Framework

• Originally, sedition (IPC §124A) was enacted under British rule and was retained after independence as a tool to curb anti-government agitation. It was not initially part of Art. 19(2) (reasonable restrictions).
• Kedarnath Singh v. State of Bihar (1962): Supreme Court upheld sedition as constitutional in a pre-constitutional era context, arguing it was necessary to counter subversive activities by Naxalites, separatists, and others seeking to overthrow the government. This view effectively brought sedition within the permissible reach of free speech restrictions, though through a judicially elaborated lens rather than a direct constitutional amendment.
• The doctrine of “rarest of rare” (Manu) arose in cases involving death sentences and was used to justify harsh penalties in some criminal cases; the Supreme Court later faced criticism for how it applied this doctrine in capital cases.
• Parliament’s response: The sedition regime has been controversial, with debates about whether it constrains free speech too much or is a necessary tool to safeguard the state.
• Shriya Singhal v. Union of India (2015): The Court clarified that speech advocacy that does not incite violence is protected; the link to violence must be immediate for sedition to apply. This is a key modern constraint on sedition prosecutions.
• Introduction of Bharatiya Nyaya Sanita (BNS), replacing IPC’s sedition framework in principle: Section 152 of BNS defines crimes against the nation (Deshdrohi) with clear phrasing about disaffection against the nation rather than merely disaffection against the government. It includes: promoting disaffection against the nation, endangering sovereignty or unity, or engaging in subversive activities, with penalties including life imprisonment or up to seven years and fines. This marks a shift from Rajdro (against the government) to Deshdro (against the nation).
• Explanations under Section 152 of BNS: Even peaceful protests expressing disaffection against government policy can be permissible if they seek the government’s action and do not advocate secession or violence; the line between legitimate dissent and sedition remains a contested area.
• Notable modern debates on sedition include the suspension of many cases pending a final constitutional ruling on the legality of §124A and the newer §152 under the BNS, as well as ongoing judicial reviews in high courts and the Supreme Court.

The Legal Landscape: In Practice

• The article 19 framework is designed to balance free expression with public order, sovereignty, and national integrity. In practice, courts have expanded 19(1)(a) to include inferred rights (e.g., right to information for elections, right to protest with limits).
• The use of “inferred rights” and the extension of free speech protections to private actors illustrate the dynamic nature of constitutional rights in India.
• The question of who counts as “strong-minded” or “weak-minded” for obscenity and morality tests: courts assess the impact of speech on a hypothetical “strong-minded” individual; the standard is not purely empirical but contextual, reflecting evolving social norms.
• The relation between morality, culture, and law remains fluid; the judiciary’s role is to ground restrictions in constitutional morality rather than peremptory social norms, while considering the needs of a diverse and plural society.

Key Takeaways for Exam Preparation

• Article 19(1)(a): Core freedom of speech and expression; subject to eight reasonable restrictions under Article 19(2).
• Eight grounds for restrictions (as explained in class):
  • ext{Sovereignty and integrity of India}
  • ext{Security of the State}
  • ext{Friendly relations with foreign States}
  • ext{Public order}
  • ext{Decency or Morality}
  • ext{Contempt of Court}
  • ext{Defamation}
  • ext{Incitement to an offense}
• The major evolutions in practice: judicial creativity broadening 19(1)(a) to include inferred rights (e.g., right to information, right to protest, right to fly the flag).
• Censorship vs. certification: CBFC’s role has shifted from certification to imposing cuts; notable cases include K. A. Abbas v. Union of India and the broader treatment of cinema as a distinct form of expression.
• Obscenity and morality: Hicklin test historically; contemporary morality tests rely on contextual analysis, audience, and contemporary standards; significant cases include Lolita, Lady Chatterley’s Lover, and Ranjit D. Udeshi v. State of Maharashtra.
• Sedition: historical origin under IPC §124A; Kedarnath Singh (1962) and Shriya Singhal (2015) shape the modern view; the new framework under Bharatiya Nyaya Sanita §152 reframes the offense as Deshdrohi (offenses against the nation) with a clearer, more defined structure.
• Contempt of Court: civil vs. criminal contempt; procedural safeguards introduced in 2006 amendments; truth can be a defense if stated in public interest and in good faith.
• Public discourse and governance: the importance of informed voters (ADR framework) and responsible media conduct in sustaining a robust democracy.
• Real-world relevance: issues around freedom of expression intersect with media regulation, political campaigning, national security, and the integrity of elections; ongoing debates about hate speech, incitement, and the boundaries of protest.

Quick Case References (Memorandum Hooks)

• Navin Jindal v. Union of India: Flag and national symbols are protected as part of 19(1)(a) extensions.
• Association for Democratic Reforms v. Union of India (ADR v. India): Right to information for voters; informed electoral choices.
• Ranjit D. Udeshi v. State of Maharashtra: Hicklin test; shift toward contemporary morality standards.
• K.A. Abbas v. Union of India: Cinema as a distinct medium with special protections.
• Shriya Singhal v. Union of India (2015): Advocacy vs. incitement; need for rapid link to violence to criminalize speech.
• Maninder Singh v. State of Punjab and the “rarest of rare” discussions (capital punishment contexts) discussed in the parallels with sedition discourse.
• Prashant Bhushan and Kunal Kamra cases: contemporary contempt jurisprudence and media accountability.
• Abdul Guru (Parliament attack case) and the “collective conscience” debates; bail discussions in high courts and Supreme Court.
• Bharatiya Nyaya Sanita (BNS): Replacement of sedition-type discourse with Deshdrohi as a more defined offense.
• 46% statistic of MPs with criminal cases (Association for Democratic Reforms): illustrates the real-world impact of electoral information rights on democracy.

Note: The content above follows the lecture transcript and organizes the material into study-friendly sections with key concepts, cases, and examples. Where LaTeX formatting is requested, numerical and legal references are presented within … to denote mathematical or formal notation (e.g., ext{Article } 19(1)(a), and the eight grounds for restrictions).