By Apurva Rathee, Advocate

Article 19 (2):

Under Article 19(2) the state may make a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression. The expression used in Art. 19(2) “in the interest of” gives a wide amplitude to the permissible law which can be enacted to impose reasonable restrictions on the right guaranteed by Art 19(1)(a).[1] The reason behind this is that while it is necessary to maintain and preserve freedom of speech and expression in a democracy, it is also necessary to place some curbs on this freedom for the maintenance of social order

  • Reasonable Restriction:

Limitations imposed by Art. 19(2) serve a twofold purpose, viz., on the one hand, they specify that these freedoms are not absolute; on the other hand, they put a limitation on the power of the legislature to restrict these freedoms.

Three significant characteristics of clause 19(2) are:

  • The restrictions under this clause can be imposed only by or under the authority of law; no restriction can be imposed by executive action alone without there being a law to back it up.
  • Each restriction must be reasonable.
  • A restriction must be related to the purposes mentioned in Sec. 19(2).

There is thus a double test to adjudge the validity of a restriction:

  1. Whether it is reasonable; and
  2. Whether it is for a purpose mentioned in the clause under which the restriction is being imposed?
  • Test for Reasonableness:

It is difficult to give an exact definition to the word reasonable. There is no definite test to adjudge reasonableness of a restriction. However, the Courts have laid down a few broad propositions in this respect.

The Court shall first ask what is the sweep of the fundamental right guaranteed, then the next question to be asked would be, whether the impugned law imposes a reasonable restriction falling within the scope of clause (2). However, if the right sought to be canvassed does not fall within the sweep of the fundamental rights but is mere concomitant or adjunct of that right, then the test which it would be required to satisfy for its constitutional validity is one of reasonableness.[2]

Sovereignty and Integrity of India:

This ground has been added as a ground of restriction on the freedom of speech and expression by the Sixteenth Amendment of the Constitution, with effect from 6th October, 1963. The object was to enable the state to control crisis for secession and the like from organizations such as the Dravida Kazhagam in the South and the Plebiscite Front in Kashmir and activities in pursuance thereof which might not possibly be brought within the fold of the expression ‘security of the state’.[3]

Obviously the founding fathers did not leave any chance even for speculation to endanger the sovereignty of, or to disintegrate, the country in any way whatsoever. Accordingly, any expression prejudicial to the sovereignty and integrity of India may be punished by law.[4]

Security of the State:

However precious the freedom of speech may be in a democratic society, the means can never override the end itself. Since the object of freedom of speech is to “maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means”, that opportunity can hardly be maintained without the existence of an organized government having the power to ensure the exercise of that right and to prevent interference with that right which belongs to every citizen. No State can, therefore, tolerate utterances which threaten the overthrow of organized government by unlawful or unconstitutional means. The reason is that the security of the State organized government is the very foundation of the freedom of speech.[5]

“Security of State” is a much wider expression and includes economic security also. The expression “Security of State” refers to serious and aggravated forms of public disorder and not ordinary law and order problem and public safety. The speeches and expressions which encourage violent crimes are related to security of the State.[6] Thus, it is different from ordinary breaches of ‘public safety’ or ‘public order’ which may not involve any danger to the State itself. So, security of the State is endangered by crimes of violence intended to overthrow the government, rebellion against the government, external aggression etc. but the advocacy of revolutionary socialism as a panacea for the present-day evils cannot be restricted under the present ground, unless the use of violence is suggested.[7] There are two facets of the expression “security of the state”- external and internal.

  • From the standpoint of external security, the clause would enable the State to impose restrictions on the freedom of expression with a view to prevent advocacy of adhering to the enemies of the State or of giving them aid or of obstructing the successful operation of war activities.

Interference with the legitimate programme of the Government for the raising, of the forces or the conduct of the war, e.g. publication of information as to the movement of troops, incitement of mutiny or disaffection amongst members of the forces, may also come within the scope of this expression.[8]

  • From the internal standpoint, as we have a separate ground relating to “public order” since the Constitution First Amendment Act, 1951, the early controversy as to whether ‘security of the State’ would include the concept of ‘public order’ also, is no longer of any practical importance.

This matter came up before the Supreme Court in the case of Romesh Thapar v. State of Madras.[9] In this case, The ground of the “security of state” was invoked, along with its ally “the overthrow of the State” by the State of Madras for meeting the challenges to the constitutionality under article 19 (1) (a) of the Madras Maintenance of Public Order Act 1949. The material section 9(1A)—of the Act authorized the Provincial Government to prohibit or regulate the entry into, or the circulation, sale or distribution  in, the Province of Madras any document or class of documents for the purpose of securing the safety or the maintenance of public order in the province. 0n 1 March 1950 the Governor of the State of Madras issued an order under this section prohibiting the entry into, or the circulation, sale or distribution in, the state of a weekly, journal Cross Roads printed, published and edited by the petitioner in Bombay.

The majority of the court struck down the impugned Act as unconstitutional and void and quashed the order as well. The court said that the expression public order was of wide connotation signifying a state of tranquility prevailing among the members of a political society as a result of the internal regulations enforced by the government instituted by them.[10]

The Supreme Court further said that the Indian Penal Code classified offences against the State separately from the offences against the public tranquility, and that, accordingly, the concept of ‘security of the State’ could not include ordinary breaches of ‘public order’ as such, but would comprise, offences directed against the State itself.[11]

On the same date and on essentially the same reasoning, the same majority of the Supreme Court declared in Brij Bhushan v. State of Delhi[12] a similar enactment as unconstitutional and void, and also quashed the order issued under it.

The Constitution was, therefore, amended in 1951 to include ‘public order’ as an additional ground of restriction in Clause (2) of Art. 19. Subsequent to this amendment, in State of Bihar v. Sailabala,[13] the Court explained its observations in Romesh Thappar’s case by saying that it was never intended that an offence against ‘public order’ could in no case affect the security of the State itself. So observed the Court, “It is plain that speeches or expressions on the part of an individual which incite to or encourage the commission of violent crimes, such as murder, cannot but be matters which would undermine the security of the State.”

As already stated security of the State means ‘the absence of serious and aggravated forms of public disorder’, as distinguished from ordinary breaches of ‘public safety’ or ‘public order’ which may not involve any danger to the State itself. Thus, security of the State is endangered by crimes of violence intended to  overthrow the government,[14] levying of war and rebellion against the government, external aggression or war, but not by minor breaches of public order or tranquility, such as unlawful assembly, riot, affray, rash driving, promoting enmity better classes and the like.[15]

Friendly Relations with Foreign Nations:

It is imperative in the closed but disturbed world of today that friendly relations with foreign states should be cultivated and maintained in national as well as international interests. Therefore, legislative sanctions have got to be prescribed against “systematic diffusion of deliberately false and distorted reports which undermine friendly relations between peoples or States.” These considerations must have guided the framers of the first amendment which inserted in article 19 (2) this ground.[16] The object of this exception is to prevent libels against foreign state in the interest of maintaining friendly relations with them.

Under Article 367(3), a foreign State means any State other than India. The President, however, may, subject to any law made by Parliament, by order declare any State not to be a foreign State for such purposes as may be specified in the order. The Constitution (Declaration as to Foreign State) Order, 1950, directs that a Commonwealth country is not to be a foreign State for the purposes of the Constitution.[17]

The above Order came to be interpreted by the Supreme Court in Jagannath Sathu v. Union of India.[18] The petitioner was detained under the Preventive Detention Act 1950. The allegation against him was that he used to send for publication to a foreign newspaper dispatch of news and views containing false, incomplete, one-sided and misleading information about the State of Jammu and Kashmir. These dispatches were not only prejudicial to the Government of India vis-a-vis Pakistan but also to the relations of India with foreign powers in general. The detention was challenged, inter alia, on the ground that Pakistan being a member of the Commonwealth was not a foreign state within the terms of the order. While rejecting the argument the court observed that though, in view of the order, Pakistan was not a foreign state for the purposes of the Constitution; a distinction had to be made between a country not being regarded as a foreign state for the purposes of the Constitution and that country being a foreign power for other purposes.

In this context, Pakistan, though a member of the Commonwealth was a foreign power for the purposes of the Act. Accordingly the order of 1950 was not applicable in the case of the petitioner.[19]

Public Order:

Public order is an elemental need in any organized society and no association can flourish in a state of disorder. The phrase “is accordingly referable to public order of local significance as distinguished from national upheavals, such as revolution, civil strife and war. Equally, it is distinguishable from the popular concept of law and or­der and of security of State. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not neces­sarily affect security of State.[20]

This ground was introduced by the Constitutional (First Amendment) Act, 1951, in order to meet the situation arising from the Supreme Court decision in Romesh Thappar v. State of Madras[21] that ordinary or local beaches of public order were no ground for restricting the freedom of speech. Following this decision it was held in some cases that incitement to individual murder or promoting disaffection among classes did not tend to undermine the security of the state and was not, accordingly, punishable under the Constitution. It was to override the above judicial decisions that the ground ‘public order’ was inserted.[22]

The term public order covers a small riot, an affray, breaches of peace, or acts disturbing public tranquility. But ‘public order’ and ‘public tranquility’ may not always be synonymous. For example, a man playing loud music in his home at night may disturb public tranquility but not public order.[23]

In Ramji Lal v. State of Uttar Pradesh,[24] Sec. 295A of the I.P.C. was attacked. This section makes it penal to outrage the religious feelings of any class of citizens or to insult the religious beliefs of that class deliberately and maliciously.  The petitioner was editor, printer and publisher of a monthly magazine “Gaurakshak” devoted to cow protection. He was convicted under this provision for publishing an article in this maga­zine.

Upholding the constitutionality of the impugned section, the court said that as the fundamental right to freedom of religion was expressly subjected to public order, it had a bearing on the main­tenance of public order and a law of the nature of the impugned provision could be enacted in the interest of public order. Secondly, the section under attack penalized only those activities which had a tendency to disrupt public order; it only punished the aggravated forms of outrageous activity or insult committed with deliberate and malicious intention.[25]

The next case is that of Virendra v. State of Punjab[26] in which the constitutional validity of the Punjab Special Powers (Press) Act 1956, was at stake. The law was enacted to prevent and combat any activity prejudicial to the maintenance of communal harmony which was in jeopardy in the State of Punjab as a result of serious tension between the Hindus and the Akalis. Sec. 2(1) (a) of the Act empowered the State Government or any named authority to issue an order to a printer, publisher or editor prohibiting the printing or publishing of any matter in any document or class of documents relating to a particular subject or class of subjects for a specified period or in a particular issue or issues of a newspaper or periodical for the purpose of preventing and combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order.

Sometime around mid-1957 a “Save Hindi Agita­tion” was started in Punjab, and began publishing criticisms and news concerning the agitation in two newspapers, viz., Daily Pratap and Vir Arjun, published simultaneously from Jullundur and New Delhi. The first petitioner was editor, printer and publisher of these papers published from Jullundur and the second was editor, printer and publisher of those published from New Delhi. As the agitation gained momentum and assumed the pattern of a political agitation, some unwarran­ted incidents took place. As a result the Government of Punjab issued two notifications against the first petitioner prohibiting him from printing and publishing news and other matters relating to the agitation for two months.

In this context the crucial question was whether Sec. 2(1)(a) imposed reasonable restrictions on the freedom of press keeping in view the prevailing circumstances. Answering the questions in the affirmative, the court said that as the Government of Punjab was under an obligation to preserve law and order in the state and as the government alone possessed all material facts, it or its delegate was the best and the sole judge to determine the time when and the extent to which the restrictions should be imposed on the press. The conferment of wide powers with proper safeguards of time limit and opportunity of representation was nothing else but the imposition of permissible reasonable restriction on the freedom in the interest of public order in view of the surrounding circumstances and tension brought about or aided by the agitation in the press.[27]

The decision of the Supreme Court has been subjected to severe criticism. According to Shri H.M. Seervai, this decision clearly shows that “restrictions more stringent than pre-censorship could be imposed in the interest of public order and the publication of certain matters could be totally prohibited for a limited period of time.” In the view of Prof. D.K. Singh, “censorship should be resorted to only when the fabric of society is in jeopardy.”[28]

In Supdt Central Prison v. Ram Manohar Lohia, [29] Subba Rao, J., speaking for the Court, pointed out that the expression “in the interest of public order” though wider than the phrase “for the maintenance of public order” still could not mean that the existence of any remote connection between the impugned act and public order would be sufficient to sustain the validity of the law. In other words, the nexus should be proximate, not far-fetched.

In Kedar Nath v. State of Bihar, [30] the Court look the position that when a provision of law is capable of two interpretations, one of which makes it constitutional and the other unconstitutional, the inter­pretation which makes it constitutional should be preferred. Accordingly, the Court ruled that a mere criticism of government action, however strongly worded, would be consistent with the Fundamental Right of freedom of speech and expression. Only the words having the per­nicious tendency, or intended to create disturbance of law and order would be penal in the interests of public order.

Decency or Morality:

A society is bound to decay without maintaining high standards of decency and morality. It is imperative for its preservation that the base, carnal and low instincts of its members must be curbed. Hence, the need arose to include the ground “decency or morality” in Art. 19(2).[31] These terms are of variable content having no fixed meaning for ideas about decency or morality vary from society to society and time to time depending on the standards of morals prevailing in the contemporary society.[32] The ordinary dictionary meaning of decency indicates that the action must be in conformity with the current standards of behavior or propriety, etc.[33]

The Indian Penal Code in Ss. 292 to 294 lists some of the offences like selling obscene books, selling obscene things to young persons, committing an obscene act, or singing an ob­scene song in a public place. S. 292, I.P.C., has been held valid because the law against ob­scenity seeks no more than to promote public decency and morality.[34]

The test of obscenity is whether the tendency of the matter charged as obscene is to deprive and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort is likely to fall.[35]

The question as to when some utterance or publication was indecent or obscene arose in Ranjit D. Udeshi v. State of Maharashtra[36] wherein a bookseller in Bombay was persecuted and convicted under S. 492 IPC for selling and keeping an obscene book ‘Lady Chatterley’s Lover’. The Supreme Court upheld the conviction applying what is known as the Hicklin test as the right test to determine obscenity. The test laid down by Chief Justice Cockburn in Queen v. Hicklin[37] is:

Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall… It is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.”

It is said that the Hicklin test formulated more than a century back has become obsolete. It lays down a vague and arbitrary standard for judging obscenity and has a tendency to curtail the guaranteed right to freedom of speech and expression. In fact in the western world, where it was originated, it has been largely modified or discarded.[38]

In Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte[39] the Supreme Court has given somewhat wider meaning to the term decency and morality. The court maintained that ‘decency’ or ‘morality’ is not confined to sexual morality alone. Decency indicates that the action must be in conformity with the current standards of behavior or propriety.

In a recent case, Vadlapatla Naga Vara Prasad v. Chairperson, Central Board of Film Certification, Mumbai[40] a writ petition was filed by the brother of the late actress Kum. Vadapatla Vijaya Lakshmi, popularly known as ‘Silk Smitha’, alleging that his sister had been portrayed in a defamatory and obscene manner in the movie ‘The Dirty Picture’. He also alleged that the said movie portrayed his sister as a woman of very loose and immoral character and the film contains obscene scenes which are opposed to public morality and decency and deprive and degrade the women in general. The petitioner therefore prayed that the movie should not be issued certificate for exhibition. The respondents on the other hand denied that the film was based on biopic of the said actress and that it portrays the said actress in obscene and immoral light. The respondents therefore alleged that the said film is only fiction and all the statements published in the print as well as electronic media attributing that the film is based on the real life story of the deceased actress is unauthorized and hearsay.

The Andhra Pradesh High Court held that the certificate was issued to the movie keeping in mind the freedom of speech and expression guaranteed under Art. 19 (1)(a) and also the film is certified for restricted adult audience only. Thus the certificate granted to the movie was neither violative of the Constitution, nor of Sec. 5-B of the Cinematography Act, 1952 which lays down the principles for guidance in certifying films.

Contempt of Court:

In the exercise of one’s right of freedom of speech and expression, nobody can be allowed to interfere with the due course of justice or to lower the prestige or authority of the court. If the criticism of judiciary tends to create apprehension in the minds of the people regarding integrity, ability or fairness of the judges, it amounts to contempt.     This right is exercised in India by all courts when contempt is committed in facie curaie and by the superior courts on their own behalf or on behalf of courts subordinate to them even if committed outside the courts. There are many kinds of’ contempt. The chief forms of contempt are insult to judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalizing the judges or the courts.[41] The ground contempt of court was included in Art. 19(2) to ensure the independence and dignity of the judiciary and the due administration of justice. The Supreme Court under Art. 129 and the High Courts under Art. 215 have been vested with the power to punish a person for contempt of the Supreme Court or the High Courts, as the case may be.[42]

In the United States the courts have applied the test of ‘clear and present danger’ to the administration of justice for deciding whether an act amounts to contempt of court. The American courts however, allow a party to a case pending in a court to apply for a fresh trial if he has suffered on account of the comments made by the press. The English courts do not approve any comment on pending cases which would interfere with the course of trial.[43]

The contempt of court evolved in common law jurisprudence was codified in the form of Contempt of Courts Act, 1971. Sec. 2(a) defines “Contempt of Court”, as either “civil contempt” or “criminal contempt”. Clause (b) defines “civil contempt” to mean willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking to a court. Clause (c) defines “criminal contempt” as follows:

  • ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—
  • scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
  • prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  • interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other[44]

In C.K. Daphtary v. O.P. Gupta,[45] the respondent, party to an appeal pending before the Supreme Court, published and circulated a pamphlet in public purporting to ascribe bias and dishonesty to Justice Shah. It read as saying that Justice Shah had made up his mind to give judgment against him, that he did not listen to the arguments. The Supreme Court held the respondent guilty of committing gross contempt of court and the judges.

In E.M.S. Namboodiripad v. T.N. Nambiar[46] the facts of the case were as follows. The appellant who was the Chief Minister of Kerala at the time, made at a press conference various critical remarks relating to the judiciary referring to it, inter alia as “an instrument of oppression” and stating that the judges were “guided and dominated by class hatred, class interests and class prejudices”, instinctively favoring the rich against the poor. He also stated that as part of the ruling class, the judiciary worked against the workers, peasants and other sections of the working classes. These remarks were reported in the newspapers. On a charge of the contempt of court, the appellant was convicted by the Kerala High Court and sentenced to a fine of Rs. 1000 and in default to undergo imprisonment of one month. On appeal the Supreme Court observed that it was an attack upon judges calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakened the authority of law and law courts and constituted contempt of court especially because the statements were made in a press conference and the man was Chief Minister of a state with the belief of the people in his word as a Chief Minister. The law punishes not only acts which do in fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result.[47]

In A. K. Gopalan v. Noordeen[48] the case was that the first appellant had made a statement charging one group of persons being guilty of conspiracy to commit a murder. Some persons were arrested subsequently in connection with the case of murder referred to above. The said statement was also published in a newspaper edited by the second appellant. The Supreme Court held that it would be undue restriction on the liberty of free speech to lay down that even before any arrest had been made there should be no comments on the facts of any particular case and accordingly acquitted the first appellant. The conviction of the second appellant who had published the statement with the knowledge of the arrest of the accused was however confirmed.

In a recent case, Indirect Tax Practitioners’ Association v. R. K. Jain,[49] the respondent was the editor of a law journal, ‘Excise Law Times’. A contempt petition was filed by the petitioner association against the respondent on the ground that he wrote an editorial in the issue dated 1.6.2009 which amounted to criminal contempt under Sec. 2(c) of the Contempt of Courts Act, 1971. In the editorial the respondent had highlighted the irregularities in the functioning of a judicial tribunal.

The Supreme Court held that a person like the respondent can aptly be described as a whistleblower for the system who has tried to highlight the malfunctioning in the judicial system and there is no reason to silence such a person.


Defamation is both crime as well as a tort. Just as every person possesses the freedom of speech and expression, every person also possesses a right to his reputation. Hence, nobody can so use his freedom of speech or expression as to injure another’s reputation. Laws penalizing defamation do not, therefore, constitute infringement of freedom of speech and expression.

In the case of Dr. D.C. Saxena v. Hon’ble the Chief Justice of India[50] [(1996) 5 SCC 216], the Supreme Court held: “If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action.”

Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libelous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation.[51]

The law of civil liability is uncodified in India and is largely based on the common law. However, the law of criminal liability is codified and is contained in Sec. 499 of the Indian Penal Code.[52]

Where publication is defamatory, the persons jointly liable are the writer of the article, the proprietor of the newspaper, its editor and printer. Malice on the part of anyone makes the others jointly responsible. The printers and distributors should not be liable if they did not know that the publication contained the libel and the want of knowledge was not due to any negligence on their part.[53]

Thus, a newspaper stands in matter of defamation, in the same position as members of the public in general. The publisher of the newspaper shall be liable for published defamatory matter whether he was aware of that or not.[54] But an editor’s position is somewhat different. He can escape his liability by proving that defamatory matter was published in his absence and without his knowledge and he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person.[55]

In civil action truth is a defence, but in a criminal action the accused in addition has to prove that the publication was for the public good. It is suggested that the position in regard to civil action be put at par with criminal action.  The law should require that publication must be proved to be for public good if it is to be immune from civil liability. No social interest is involved in allowing publication of a truthful statement which harms the reputation of a person without bringing about any good to the society.[56]

In a latest case Kokan Unnati Mitra Mandal & Ors. v. Bennet Coleman & Co. Ltd. & Ors.[57] the defendant newspaper published a news article stating that illegal allotment of cement was done to various parties in rationed era of cement during tenure of plaintiff as Chief Minister. The publication of the said fact was not based upon hearsay but was made after proper investigation by the journalists of defendant newspaper by actually going to site and taking photographs of storage and movement of cement. Thus, no malice could be shown on part of the defendant. The Bombay High Court held that the publication was made in public interest and hence there was no defamation of the plaintiff. Court said that it would be reluctant to put fetters upon an apprehended and expected libel if it could be justified and was not untrue.

Incitement to an Offence:

‘Incitement to an offence’ was added as a ground of restriction by the Constitutional (First Amendment) Act, 1951. This ground permits legislation not only to punish or prevent incitement to commit serious offences like murder which lead to breach of public order, but also to commit any offence, which according to the General Clause Act, means ‘any act or omission made punishable by any law for the time being in force.’ Hence, it is not permissible to instigate another to do any act which is prohibited and penalized by any law.

This is a broad concept and so it is possible for the Legislature to create an offence and make incitement thereto punish­able. In this way, the freedom of speech can be effectively circumscribed as any subject can be precluded from public discussion by making it an offence.[58]

In Indulal K. Yagnik v. State[59] Sec. 3 of the Police (Incitement to Disaffection) Act 1922 was challenged under article 19 (1)(a). The section made it penal; inter alia, to induce or to attempt to induce any member of a police force to withhold his services or to commit a breach of discipline. Sec. 4, however, exempted such acts if done in good faith for promoting the welfare of any such member. The Bombay High Court while ascertaining the validity of the impugned section cited Sec. 145 of the Bombay Police Act 1951, which declared it an offence on the part of a police officer of whatever rank to withhold his services or to commit a breach of discipline. The court said that to induce or to attempt to induce a police officer would amount to incitement to an offence punishable under Sec. 3. It, therefore, held that this section was saved under the ground “incitement to an offence” and that the restriction imposed by it on the freedom was reasonable in view of its circumscribed scope.


Sedition is not mentioned in Art. 19(2). Sec. 124-A of the IPC defines the offence of sedition as follows: “Whoever by words either spoken or written, or by signs or by visible representation or otherwise, brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government established by law in India shall be punished…”

In Kedar Nath v. State of Bihar,[60] the Supreme Court held that Sec. 124-A was limited to acts involving an intention or a tendency to create disorder or disturbance of law and order or incitement to violence and was not violative of Art. 19(1)(a) read with Art. 19(2).

Photo credits:

[1] Jain, supra note 1, p. 1104

[2] Ibid., pp. 1072-73

[3] Basu, D.D., Commentary on the Constitution of India, Vol. 2, 8th Ed., Wadhwa and Co. Law Publishers, New Delhi, 2007, p. 2436

[4] Venkataramiah, Justice E.S., Freedom of Press: Some Recent Trends, B.R. Publishing Corporation, Delhi, 1987, p. 36

[5] Basu, supra note 25, p. 2437

[6] Ibid., p. 2440

[7] State of Bihar v. Shailabala Devi (Smt.), AIR 1952 SC 329

[8] Basu, supra note 25, p. 2440

[9] AIR 1950 SC 124

[10] Venkataramiah, supra note 26, pp. 36-37

[11] Basu, supra note 25, p. 2442

[12] AIR 1950 SC 129

[13] AIR 1952 SC 329

[14] Santokh Singh v. Delhi Admn., AIR 1973 SC 1091

[15] Basu, supra note 25, p. 2444

[16] Venkataramiah, supra note 26, pp. 40-41

[17] Jain, supra note 1, p. 1107

[18] AIR 1960 SC 675

[19] Venkataramiah, supra note 26, p.42

[20] Benazir Bhutto v. Federation of Pakistan, PLD 1988 SC 416

[21] AIR 1950 SC 124

[22] Basu, supra note 25, p. 2450

[23] Jain, supra note 1, p. 1105

[24] AIR 1957 SC 620

[25] Venkataramiah, supra note 26, p. 44

[26] AIR 1957 SC 896

[27] Venkataramiah, supra note 26, p. 47

[28] Ibid., p. 48

[29] AIR 1960 SC 633

[30] AIR 1962 SC 955

[31] Venkataramiah, supra note 26, p. 54

[32] Jain, supra note 1, p. 1109

[33] Kashyap, supra note 5, p. 620

[34] Jain, supra note 1, p. 1109

[35] R. v. Hicklin, (1868) 3 Q.B. 360

[36] AIR 1965 SC 881

[37] (1868) 3 Q.B. 360

[38] Venkataramiah, supra note 26, p. 57

[39] AIR 1996 SC 1113

[40] AIR 2012 A.P.  78

[41] Kashyap, supra note 5, p. 622

[42] Venkataramiah, supra note 26, p. 58

[43] Ibid., p,60

[44] The Contempt of Courts Act, 1971

[45] AIR 1971 SC 1132

[46] AIR 1970 SC 2015

[47] Kashyap, supra note 5, p. 627

[48] AIR 1970 SC 1694

[49] (2010) 8 SCC 281

[50] (1996) 5 SCC 216


[52] Venkataramiah, supra note 26, p. 66

[53] Venkataramiah, supra note 26, p. 67

[54] Mc Leod, (1880) 3 All. 342

[55] Rama Sami v. Lokaneda, (1886) 3 Mad. 387

[56] Venkataramiah, supra note 26, p. 68

[57] AIR 2012 (NOC) 122 (Bom.)

[58] Jain, supra note 1, p. 1107

[59] 1960 Cr.L.J. 1192

[60] AIR 1962 SC 955