Day 5 CB Arguments

Azam Khan – Freedom of Speech and Expression

January 22nd 2020


The Supreme Court is interpreting whether ministers enjoy a more restricted right to free speech and expression under Article 19(1)(a), while they are in public office. Further, it is assessing whether the fundamental right can be restricted by other fundamental rights – in particular, the right to life and personal liberty under Article 21.


In the previous hearing, Sr. Adv. Rajeev Dhavan argued that the Bench composed of Justices Arun MishraIndira BanerjeeVineet SaranM.R. Shah and S Ravindra Bhat should not hear the matter. He asserted that the questions before the Bench had already been previously answered.


Today, Additional Solicitor General (ASG) Madhavi Divan argued that the right to freedom of speech and expression is only restricted by Article 19(2).


‘We follow the Irish model, not the American one’

ASG Divan began by presenting arguments on the horizontal applicability issue: whether the fundamental right to free speech and expression is regulated only by Article 19(2), or also by Article 21?


She said that in this regard the Indian Constitution follows the Irish model, rather than the American one. She explained that the Irish Constitution clearly states when a right is restricted. She said that Article 19(2) clearly delineates specific restrictions on free speech.


Justice Mishra observed that even if ASG Divan is correct, there are laws regulating speech and the moral code of conduct. He asked why the Bench shouldn’t issue a writ of mandamus. A writ of mandamus is a judicial command to either an inferior court or public official to perform a statutory or public duty. ASG Divan responded that she will respond to his inquiry, after she finishes presenting arguments on the first issue.


She proceeded to cite the first amendment of the United States of America, wherein an absolute right to free speech is provided without any restrictions. In contrast, she read out sub-sections 1 and 2 of Article 19 of the Indian Constitution (Article 19(2) sets restrictions on Article 19(1)).


Then, she took the Court through case law to butress her argument. She referred to Romesh Thappar v. State of Madras, where 9(1-A) of the Madras Maintenance of Public Order Act, 1949 was struck down for imposing restrictions on free speech that went beyond the scope of Article 19(2).


Next, she reffered to Brij Bhushan v. State of DelhiIn Brij Bhushanthe Supreme Court struck down an order issued by the Chief Commissioner of Delhi that censored the RSS’s English weekly, Organizer. The Chief Commissioner’s order, issued under the East Punjab Public Safety Act, 1949, held that the Organizer was publishing material that threated ‘public law and order’. Ultimately, the Court struck down the order on the ground that it does not fall within the scope of the restrictions laid out in Article 19(2) of the Constitution.


She began to take the Court through the Constitution (First Amendment) Act, 1951. The First Amendment introduced three new restrictions to Article 19(2) – “public order”, “friendly relations with foreign states”, and “incitement to an offence”.


Before she could make her argument, the Bench interrupted to adjourn the hearing. The Bench observed that the hearings would be fragmented in the absence of the Attorney General. The matter will be listed onced the Attorney General is available again.

(Court reporting by Vageesh Sharma)