Freedom has its own limitations, in its own interests and can properly be described as regulated freedom. Liberty and restrictions go hand in hand, absolute freedom of press is neither desirable nor permissible. Government must be armed with all, including the widest extent of power. A weak government is the worst tyrant and first enemy to our freedom. So, the freedom of speech and the press does not confer absolute right to speak or publish without responsibility, whatever one may choose or any unrestricted or unbridled licence that gives immunity for every possible use of language and prevents punishments for those who abuse their freedom*1.

The freedom of speech and _expression as enumerated in Art 19(1)(a) is one of those great and basic rights which are recognised as the natural rights inherent in the status of a citizen. But none of these freedoms is absolute or uncontrolled, for each is liable to be curtailed by laws made or to be made by the state to the extent mentioned in clauses (2) to (6) of the Article 19. A restriction to be constitutionally valid, must satisfy the following two tests :
The restriction must be for the purposes mentioned in clauses (2) to (6) of Article 19.
The restriction must be reasonable.

Freedoms in Article 19 are not guaranteed in absolute terms as they are guaranteed under the American Constitution. The power of the state to restrict these freedoms has not been left to be implied from doctrine of "Police Power" and the use of the vague concept of "due process" has been purposely avoided. All the freedoms guaranteed in sub clause (a) to (g) of clause (1) are subject to reasonable restrictions which may be imposed by the state.

Restrictions on freedom of speech and press may be imposed on grounds mentioned in clause (2).In any particular case a restriction to be valid must satisfy the following conditions :
1.Restrictions must be imposed by state.The restrictions contemplated under clause (2) of Art. 19 are to be imposed by state as defined in Art 12. Thus, not only Union and States but also local or other authorities are competent to impose restrictions, but restrictions imposed by wrongful acts of private individuals are not within purview of Article 19.*2
2.Restriction can be imposed only by law.The restrictions on freedom in Art. 19 can be imposed by legislation - whether supreme or subordinate. Law here includes Acts, ordinances, orders, bye laws, regulations, rules, notifications, etc. as stated in Art. 13(3) (a) but it does not include departmental or executive instruction.*3 Restriction on freedom must be imposed by law and must be reasonable.*4
3.Law must be valid : Reasonable restrictions can be imposed only by a valid law. Any restriction which is levied without a legal authority will be subject to challenge U/A 19 as unreasonable restriction and the person affected may approach the supreme court U/A 32 or High Court U/A 226.*5
4.Grounds for restriction must be permitted by respective clause : The restriction to be valid must have reasonable connection with the objects stated in clause (2) to (6) which authorise restriction on the freedom in question.

The meaning of the term "Reasonable Restriction" was explained by Mahajan Justice:
".......... that the limitation imposed on a person in enjoyment of the right should not be arbitrary or excessive in nature, beyond what is required in the interests of the public. The word, "Reasonable" implies intelligent care and deliberation, that is the choice of a course which reason dictates, legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness......."*5

Now arises the question of reasonableness of a restriction
If the restriction is reasonable it will be valid. If it is unreasonable it will be struck down as unconstitutional for violation of Article 19. Whether a particular restriction is reasonable or not is to be decided by the court in the light of the social interest to be served by the restriction on individual’s freedom.

The concept was explained by the Supreme Court in "Dwarka Prasad Laxmi Narain V. State of U.P."*6 as follows :
The Phrase "reasonable restriction" means that the limitation imposed upon a person in enjoyment of his right should not be arbitrary or of an excessive nature beyond what is required in the public interest.Unless a law strikes a proper balance between the freedom guaranteed by several sub clauses of clause (1) of Art. 19 and the social control permitted by several clauses (2) to (6) of that Article it must be held to be wanting in reasonableness.

The manner of imposition of the restriction, the procedure to be followed by the executive, the duration and extent of the restriction and the circumstances under which restriction was authorised will have to be carefully considered while determining reasonableness of restriction on freedoms guaranteed U/A 19.
The word "reasonable" implies intelligent care and deliberation, that is, the choice of course which reason dictates.

In State of Madras Vs. V. G. Rao *7, Patanjali Justice observed" No hard and fast test for ascertaining the reasonableness of restriction can be laid down. Each case has to be examined in the light of the peculiar circumstances of that particular case. An abstract standard or general pattern of reasonableness cannot be laid down as applicable to all cases."

The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of imposition and the prevailing conditions at the time should all enter into judicial verdict.

Reasonableness is objective and not subjective.
The test is not whether a judge considers personally a restriction as reasonable or unreasonable but whether a reasonable person in his place would consider them reasonable or not. Reasonableness has to be judged taking into, consideration the nature of the right, the circumstances under which restriction is imposed, the manner, extent and duration of imposition and the social interest involved.

Das Gupta J. in Narendra Kumar V. Union of India,*8 Observed :in applying the test of reasonableness the court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, and the ratio of harm caused to individual citizens by the proposed remedy to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether restraint caused by the law is more than necessary in the interests of the general public.

Reasonableness of Substance as well as procedure:Both the substantive and procedural aspects of a law imposing restrictions on right, guaranteed by Art-19 should be examined from the point of reasonableness.

Retrospective operation of Restriction And Reasonableness:retrospective operation cannot be the decisive test of unreasonableness.It is within the power of the state to make laws imposing restriction on rights and liberties with restrospective effect, but the retrospective effect given to a restriction one of the factors which may be taken into consideration while determining its reasonableness. Merely because retrospective operation of a provision may operate harshly in some cases it cannot be said that the legislation is invalid.

Anticipatory Restrictions:legislature has the power to authorise competent person of authority to take anticipatory action or place anticipatory restriction on one’s activities in certain emergent situations where there is probability of danger to security or public order.
Reasonableness of Restriction and Directive Principles of state Policy: Where a restriction on freedom is imposed in implementing one of the Directive Principles embodied in Part IV of the constitution it must be presumed to be reasonable. The court should not invalidate it unless it is satisfied that the manner of implementation chosen by the state causes special hardship and a less injurious but equally effective method of implementation was possible.

Restriction and Prohibition:Das Gupta J. Observed in Narendra Kumar Vs. UOI. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot be accepted. When the restriction reaches the stage of prohibition special care has to be taken by the court to see that the test of reasonableness is satisfied. The greater the restriction the more the need for scrutiny by the court.

Reasonable restrictions and American Concept of Due process:The fifth and fourteenth Amendments of the U.S. constitutions expressly provide that the citizens can be deprived of life, liberty and property in the United States by due process of law. In the beginning the concept of "due process" was confined to procedural aspects. Thus, a law made by congress or states could curtail liberties provided it was applied by settled modes of procedures. However, since 1850, the "due process" began to be interpreted to have a substantive content as well. Under the new approach it is not enough that a law is properly enacted, published and applied but its substance or content must also be reasonable.

The test of reasonableness laid down in clauses (2) to (6) of Article 19 may coincide with American Principle of due process in many cases and in fact our concept is based on it. Even so it would not be safe to blindly rely upon the American concept of "Due process", in interpreting the provisions of the Indian constitution in Article 19, because framers of the Indian constitution deliberately avoided the use of _expression "due process" with its comprehensiveness, flexibility and attendant vagueness and adopted a somewhat more definite world "Reasonable"
The catena of judicial decisions shows that in Gopalan Case*9, the court had applied the test of subject matter, its pith and substance and not its effect or result.But later on the court rejected this approach and enunciated the test: What was the "Direct" and "inevitable" consequence or effect of the impugned state action on the fundamental right of the petitioner. So the court observed this principle in Bennett Coleman case.*10 and it has been applied in Maneka Gandhi*11 and the Sakal Papers Vs. India*12, R.C. Cooper V. Union of India*13.

Now, there is a double test to adjudge the validity of a restriction :Whether it is reasonable?Whether it is for a purpose mentioned in the clause?Both these questions are for the court to decide.Also observed in Chintamani Rao V. State of M.P.:The determination by legislature of what constitutes a reasonable restriction is not final and conclusive, it is subject to the supervision of the court.

Grounds provided under clause (2 )article 19 on which restrictions on the freedom of press can be imposed are as under :
(a)Security of the State - Under clause (2) of Article 19 reasonable restrictions can be imposed on freedom of speech and _expression i.e. the freedom of press in the interest of security of the State. In Ramesh Thapar v. State of Madras: the Supreme Court has occasion to interpret the meaning of the words ‘security of the State’. The Court said that there are different grades of offences against ‘public order’. Every public disorder cannot amount to be regarded as threatening the security of the State. The term ‘security of the State’ refers only to serious and aggravated forms of public disorder e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or _expression on the part of an individual which incite to or encourage the commission of violent crimes, such as, murder are matters which would undermine the security of the State.
The words "in the interests of" before the words "security of the State" clearly imply that the actual result of the act is immaterial. Thus acts which may indirectly bring about an overthrow of the State would come within the _expression. An incitement to an armed revolution, though infructuous, ultimately, is enough to attract the term.

(b)Friendly relation with Foreign States: - This ground was added by the constitution(1st Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly State which may jeopardise the maintenance of good relations between India and that State. No similar provision is present in any other Constitution of the world. But the laws of each country have adequate provisions to safeguard peaceful relations with foreign States. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Again, the Foreign Recruiting Act (IV of 1874) empowers the Executive to prohibit recruitment of any citizen of India to the army of foreign States. But the interests of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government, by the PRESS.
It is to be noted that members of the common wealth including Pakistan is not a "foreign State" for the purposes of this Constitution. The result is that freedom of speech and _expression cannot be restricted on the ground that the matter is adverse to Pakistan.

(c)Public Order :- The ground was added by the Constitution (First Amendment) Act, 1951, in order to meet the situation arising from the Supreme Court’s decision in Ramesh Thapar’s case.In that case it was held that ordinary or local breaches of public order were no grounds for imposing restriction on the freedom of speech, _expression guaranteed by the Constitution. The Supreme Court said that ‘public order’ is an _expression of wide connotation and signifies that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established. The Supreme Court struck down a law banning the entry of a journal in the State of Madras in the interest of ‘Public order' because Article 19 (2) did not contain the _expression 'Public order' It was held that restrictions could only be imposed on the grounds mentioned in Article 19(2). As a result of this decision the _expression ‘public order’ was added to Article 19(2)as one of the grounds for imposing restrictions on the freedom of speech and _expression.Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquillity. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbances of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. In Kishori Mohan v. State of W.B.*14, the Supreme Court explained the differences between three concepts: Law and order, public order, security of State. The difference between these concepts, the Court said, can be explained by three functional concentric circles, the largest representing law and order, the next public order, and the smallest, the security of the State. Every infraction of law must necessarily affect law and order but not necessarily public order and an act may effect public order but not necessarily security of the State and an act may fall under two concepts at the same time affecting public order and security of the State. One act may affect individual in which case it would affect law and order while another act though of a similar kind may have such an impact that it would disturb even the tempo of the life of the community in which case it would be said to affect public order, the test being the potentiality of the act in question.
Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Public safety means the safety of the community from the external and internal dangers. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of Government does not necessarily disturb public order. In its external aspect ‘public safety’ means protection of the country from foreign aggression. Under ‘public order’ the State would be entitled to prevent propaganda for a State at war with India.
The words "in the interest of public order" include not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restriction and the achievement of public order.

(d)Decency or morality - The words ‘morality or decency' - are words of wide meaning. The word ‘obscenity’ of English law is identical with the word ‘indecency’ under the Indian constitution. The test of obscenity is ‘whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences’ and into whose hands a publication of this sort is likely to fall. Thus a publication is obscene if it tends to produce lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that public into whose hands the book is likely to fall. This test was laid down in the English case of R. v. Hicklin.*15
Section 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and _expression impliedly the freedom of press in the interest of decency and morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. But the Indian Penal Code does not lay down any test to determine obscenity. In Ranjit D. Udeshi v. State of Maharashtra*16, the Supreme Court accepted the test laid down in the English case of R. Vs. Hicklin to judge the obscenity of a matter. In this case, the Court upheld the conviction of the appellant a book seller, who was prosecuted under Section 292, I.P.C. for selling and keeping the book. "The Lady Chatterley’s Lover". applying the above test, the Court held the novel as obscene.It has rightly been submitted that the Court has erred in not rejecting Hicklin Rule which 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. No fixed standard can be laid down as to what is moral and indecent. The standard of morality varies from time to time and from place to place. Birth control which was once considered immoral is now considered proper as a means to check over-population. On these considerations, we may submit that the court should revise its opinion as soon as it gets an opportunity to do so and reject the rule laid nearly hundred years ago by an English judge.

(e)Contempt of Court - Restrictions on the freedom of press can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court.The Contempt of Court Act, 1971, defines the _expression ‘Contempt of Court’ as follows: According to Section 2, ‘Contempt of Court’ may be either ‘civil contempt’ or ‘criminal contempt’, ‘Civil contempt,’ means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. ‘Criminal contempt’ means the publication (whether by words spoken or written, or by signs or by visible representations or otherwise) or any matter or the doing of any other act whatsoever, which Scandalises or tends to scandalise, or lowers or tends to lower the authority of any court;,prejudices, or interferes or tends to interfere with the due course of any judicial proceedings; orinterferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.The following acts are, however, not contempt of courts :-
Innocent publication and distribution of any matter;Publication of fair and accurate report of judicial proceedings;Fair criticism of judicial act;Complaint against Presiding Officers made in good faith;Publication of fair information relating to proceedings in chambers or in camera.
Under the Act, contempt of court is punishable with simple imprisonment for a term of 6 months, or with fine which may extend to Rs. 2,000, or with both.A judge, magistrate or any person acting judicially shall also be liable for contempt of his court in the same manner as any other individual is liable under this Act. Thus, judges have no general immunity from criticism of their judicial conduct provided it is made in good faith and is a fair criticism of his judicial act. The terminology used in the definition is borrowed from the English law of contempt and embodies concepts which are familiar to that law which by and large, was applied in India. The expressions "scandalise", "lowering the authority of the court", "interference", "obstruction" and "administration of justice" are therefore to be understood by our courts with the aid of English law. High Court of Kerala Vs. Pritish Nandy*17 On the freedom of speech and _expression, the law of contempt imposes a significant limitation by prohibiting publication of any matter which prejudices a fair trial and a reckless and scurrilous attack against judge imputing oblique motive amounts to criminal contempt of court.

(f)Defamation - A statement which injures a man’s reputation amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. In India, Section 499 of the I.P.C., contains the criminal law relating to defamation. It recognises no distinction between the defamatory statement addressed to the ear or eyes, i.e., slander and libel. These sections are saved as being reasonable restrictions on the freedom of press. The civil law relating to defamation is still uncodified in India and subject to certain exceptions follows generally the English law.In Janaki Ballav Patnaik Vs. Bennett Coleman and Co.*18:In a suit against newspaper for publishing defamatory matter involving allegations of sexual perversion against the plaintiff there is a likelihood of the discussion of the obscene matters by the witnesses; hence the court is entitled to put suitable restrictions against the press in regard to publication of proceedings.Freedom of Press does not extend to publication of false and malicious allegations in order to defend a person. Before a printer or publisher prints and publishes an article in respect of the conduct of a public servant he must take reasonable endeavour to verify the facts. Otherwise he is liable.Freedom of speech under Art. 19(1)(a) does not include a right to make a scandalous and libellous allegation against another in the absence of any contemporaneous documentary support*19.

(g)Incitement to an offence - This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and _expression/press cannot confer a licence to incite people to commit offence. The word ‘offence’ used here is not defined in the Constitution. It is, however, defined in the General Clauses Act as "offence shall mean any act or omission made punishable by any law for the time being in force". What constitutes incitement will, however, have to be determined by the court with reference to the facts and circumstances of each case.

(h)Integrity and Sovereignty of India - This ground was added to clause (2) of Article 19 by the Constitution (Sixteenth Amendment) Act, 1963. Under this clause freedom of speech and _expression can be restricted so as not to permit to any one to challenge the integrity or sovereignty of India or to preach cession of any part of India from the Union.
Sedition - As understood in English law, sedition embraces all those practices whether by word, or writing which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government. Thus the gist to the offence of sedition is incitement to violence. Mere criticism of the Government is no offence.In India - Section 124-A of the India Penal Code, 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 excite or attempts to excite disaffection towards the Government established by law in India shall be punished. Explanation 3 to Section 124-A states that mere comment expressing disappropriation of Government is no offence if it does not excite or attempt to excite ‘disaffection towards Government established by law.’

*ENDNOTES*
1 Ramesh Thapar V. State of madras AIR 1950 SC 124
2 P.D.Shamdasani V. Central bank of India AIR 1952 SC 59
3 Kharak singh V. State oF U.P. AIR 1963 SC 1295
4 Bijoe emanuel V. State of Kerela AIR 1987 SC 748
5 Chintamani rao V. State of M.P. AIR 1952 SC 196
6 AIR 1954 SC 224
7 AIR 1952 SC SC 196
8 AIR 1960 SC 430_436
9 A.K.Gopalan V. State of madras AIR 1950 SC 27
10 Bennet coleman & Co. V. India AIR 1973 SC 106
11 AIR 1978 SC 597
12 AIR 1962 SC 305
13 AIR 1970 SC 564
14 AIR 1973 SC 1749
15 L.R. 3 QB 360
16 AIR 1965 SC 881
17 1985 Cri.L.J 1963
18 AIR 1989 Orissa 225(229)
19 AIR 1990 Orissa 107(112)

END OF PART III
TO BE CONTINUED
ALL RIGHTS RESERVED WITH THE AUTHOR.

HEMA THAKKAR
ADVOCATE
DELHI HIGH COURT, INDIA.