← The hardest concepts in Indian law
In one breath
Article 19(1)(a) guarantees citizens freedom of speech and expression, and Article 19(2) lets the State restrict it only on the grounds listed there and only by a reasonable law. A restriction on any other ground is invalid, however sensible it seems.
The picture
The fenced paddock
A farmer lets a horse run in a paddock. The fence has a fixed number of posts, each marking a reason for the fence: the road, the neighbour’s crop, the ditch. The farmer may put the fence only where one of those reasons applies, and may not fence in a corner of the field simply because the horse is noisy.
Article 19(2) is that fence. The grounds are the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence. A law restricting speech must fall within one of them, and it must also be reasonable, which means it must not be excessive and must have a close link with the ground. The Court has separated speech that merely discusses or advocates an idea from speech that incites, and it holds that only incitement can be restricted on grounds such as public order (Shreya Singhal). The Court has also distinguished law and order, public order and the security of the State as three circles of widening effect (Ram Manohar Lohia v State of Bihar).
Where the picture stops working
A fence stands still, whereas the meaning of its grounds is argued in every new case. The word public order, for instance, has been read narrowly to require a real link between the speech and disturbance of the community, and not any embarrassment to the government. The paddock picture also hides the fact that Article 19(2) protects only citizens, so a non-citizen relies on other provisions, and that a restriction can be reasonable in procedure as well as in substance.
How it really works
- 1Check that the person is a citizen and that the activity is speech or expression. Broadcasting, publishing and the press are included.
- 2Identify the law or order that restricts it. A restriction must be made by law, not by a mere executive instruction.
- 3Ask whether the restriction is aimed at one of the grounds in Article 19(2). If it is not, it fails at once.
- 4Ask whether it is reasonable: is it proportionate to the aim, and is it close to the ground in cause and effect, not remote?
- 5Separate discussion and advocacy from incitement. Only the last may be punished on grounds such as public order.
Why people get it wrong
- Assuming the State may restrict speech for any good reason. Only the grounds in Article 19(2) count.
- Treating all offence caused by speech as a threat to public order. The Court requires a real connection with the disturbance of public peace.
- Forgetting the word reasonable. A law that is aimed at a listed ground can still fail because it goes too far.
- Using Article 19 for non-citizens, who can rely on other guarantees such as Article 21.
A worked example
The facts are invented
A State law makes it an offence to post online any message that is annoying or causes inconvenience to another person. Maya is charged for posting a sharp criticism of a local official.
The Court first asks whether the offence is aimed at a ground in Article 19(2). Annoyance and inconvenience are not on the list, and the law is not limited to incitement, defamation or any other listed ground. It also sweeps in discussion and advocacy. The law therefore falls outside the fence and is invalid, which is what the Court decided in Shreya Singhal about a provision of that kind. A narrower law, aimed at a call to violence or at false statements that damage reputation, would be tested for reasonableness and might survive.
Try it
A law punishes any speech that causes embarrassment to the government. Which statement is closest to the position under Article 19?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Romesh Thappar v State of Madras, AIR 1950 SC 124
- Chintaman Rao v State of Madhya Pradesh, AIR 1951 SC 118
- Superintendent, Central Prison v Ram Manohar Lohia, AIR 1960 SC 633
- Ram Manohar Lohia v State of Bihar, AIR 1966 SC 740
- Shreya Singhal v Union of India, (2015) 5 SCC 1
Where to go next
Courses
Dictionary
More hard concepts in India law
- The basic structure doctrine (Constitutional law)
- Equality and arbitrariness under Article 14 (Constitutional law)
- The golden triangle of Articles 14, 19 and 21 (Constitutional law)
- Pith and substance and the three lists (Constitutional law)
- Eclipse, severability and Article 13 (Constitutional law)
- Public interest litigation and standing (Constitutional law)
- Essential religious practices under Articles 25 and 26 (Constitutional law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. India has a written Constitution, central and State legislation, and a unified court system under the Supreme Court. Each page states the usual formulation of the rule and names landmark decisions, with the citations as they are usually given in the Supreme Court Cases and All India Reporter series. The criminal codes and the law of evidence were replaced by new statutes, so the pages on criminal law state the doctrine and the decisions and mostly leave out section numbers; check the current text of any statute you rely on. Personal laws differ by community. This is a study aid, not legal advice, and an Indian advocate should check anything you need to rely on.