The notions of freedom of speech were developed under The Enlightenment period in the 18th century. Influential philosophers of England and France stressed the importance of the individual with each person having a right to speak freely and participate in government. Freedom of belief would have little meaning if thoughts could not be freely expressed and shared.
Freedom of expression is essential in enabling democracy to work and public participation in decision-making. Citizens can’t exercise their right to vote effectively or take part in public decision-making if they do not have free access to information and ideas and are not able to express their views freely. Freedom of expression is thus not only important for individual dignity but also to participation, accountability and democracy. Violations of freedom of expression often go hand in hand with other violations, in particular the right to freedom of association and assembly.
Article 39(2) guarantees the freedom of ‘speech and expression,’ one recalls, subject to many a limitation. Law does impose many a restriction on the exercise of this right in the interest of the security of the state, friendly relation with foreign states, public order, decency or morality, or in relation to contempt of the court, defamation or incitement to an offence. (Khan, 2008)
Freedom of speech and expression means the right to express one’s own beliefs and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression connotes also publication and thus the freedom of press is included in this category. Free circulation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Autonomy of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to promulgate not one’s views only. It also includes the right to publish the views of other people; otherwise this freedom would not include the freedom of press.
Freedom of expression has four broad special purposes to serve:
1) It helps an individual to achieve self-fulfillment.
2) It assists in the breakthrough of truth.
3) It reinforces the capacity of an individual in participating in decision-making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance between steadiness and social change.
5) All members of society would be able to form their own credence and communicate them freely to others. (Singhi)
Freedom of government servants
A person taking up a government employment doesn’t forfeit his freedom of speech and expression and he will enjoy the same freedom as enjoyed by other citizens. However, for the integrity and discipline of the service, a government servant may be prohibited from expressing his views in respect of or discussing in public any matter connected with his employment.
Under art.39 the freedom of speech and expression is not absolute and is subject to restriction which may be imposed by law on specified grounds. Restrictions can’t be imposing on this freedom on grounds other than those specified in art.39.
Security of the State
Free expression of opinion and ideas is possible in an organized society and to preserve the right is necessary to prohibit utterances which threaten to overthrow an organized government by unlawful or forceful means. But peaceful and orderly opposition to the government with the object of changing the government can’t be suppressed.
A reasonable restriction may be imposed by law in the interest of public order. The expression ‘in the interest of’ enables Parliament to make laws to curb the tendency to break the peace, even though no breach of the peace has actually taken place. However, for the restriction to be valid, the exercise of the right must have a rational nexus with the possible breach of public order.
Friendly relations with foreign states
A foreign relation is always a touchy matter and the State can’t be embarrassed by irresponsible statements inside the country touching sensitive issues of international affairs. The object of this restriction on the freedom of speech is the prevention of slander and libel foreign States in the interest of friendly relations with them.
Decency or morality
A law may impose reasonable restrictions on speech which tend to undermine public morality. Whether any speech is likely to undermine decency or morality is to be determined with reference to the probable effect it may have on the people to whom it is addressed. A law against obscenity would be protected under art.39. An obscene publication is outside the realm of constitutionally protected freedom of expression. Obscenity means offensive to modesty, or decency; lewd, filthy, repulsive. But even an immodest representation may not be reasonably restricted in the interest of decency or morality if it conduces to the propagation of ideas and information of public interest, e.g., books on medical science. Ideas having social importance will prima facie be protected unless the obscenity is so gross that the interest of the public dictates otherwise.
Contempt of court
In the exercise of freedom of speech and expression, nobody can be allowed to interfere with the administration of justice or to lower the prestige or authority of the court even in the garb of criticizing judgments of the court. However, the law relating to contempt of court must be reasonable and must not be such as stifles the freedom of speech and expression. As because the contempt power constitutes a restriction in the freedom of speech and expression, this power should be cautiously and sparingly used. There are various laws falling under the contempt of court rubric which restrict the flow of information in order to protect the administration of justice. Some restrictions exist to ensure a fair trial and to avoid a “trial by the media.” Other restrictions are more to do with protecting the court from being “scandalized”.
Reputation is a valuable asset of a man. Nobody should be allowed to injure the reputation of a man in the name of freedom of speech and expression. The freedom is available so long as it is not malicious or libelous and if the speech or expression is untrue and reckless, the speaker or the author does not get protection of the constitutional right.
Reasonableness of restrictions
When a petitioner shows that he has a fundamental right under art.39 which is being denied, the onus lies on the respondent to show that the denial is authorized by a law imposing reasonable restrictions. In determining the reasonableness of a restriction upon the freedom of speech and expression, a reasonable balance between the need for the freedom in a democratic system of government provided for by the Constitution and the social interest in the prevention of disorder and anarchy.
Freedom of the press
Even though freedom of the press is implicit in the freedom of speech and expression, considering its importance, the Constitution has specifically mentioned it. There is another reason to mention it separately. Art.39(2) guarantees freedom of expression only to ‘citizen’ which expression excludes legal persons as distinguished from natural persons. Freedom of the press is subject to the same restrictions as is the freedom of speech and expression. Freedom of the press includes the right to publish information about cases pending in courts.
Freedom of speech concerns not only the right of the mass media and others benefiting themselves of free speech to the free expression of information and opinion, but also the right of the audience to receive such information. Responsibility is therefore also a component of freedom of speech. With the help of modern communications technology, information is circulated rapidly and to a wide audience. Consequently, the source and origin of the information may remain unclear. It is also increasingly difficult to make a distinction between information based on fact, opinion, interpretation, error or falsehood.
Once made public, invalid information spreads easily and its effects can be felt ever more widely. This development leads to recurrent legal problems connected to liability, be they questions of damages related to contractual obligations or of other types of damages and their compensation. In addition to traditional liability for economic damages as defined in liability and indemnity law, attention must be directed at other possible bases for compensating for economic damages such as antitrust violations and regulations affecting securities markets.
The most important principle involved here is the people’s right to know. Freedom of speech and expression should, hence, receive bountiful support from all those who believe in the involvement of people in the administration. Without freedom of speech there can’t be any democracy and the first thing an autocrat des is to curb the freedom of speech. This right is given in absolute form and it is not possible to pass any law curbing this right on any ground whatsoever. Thus no action can be taken against an individual for whatever he has written in his diary.
Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be largely assembled to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the right to announce one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed.
Freedom to air one’s view is the lifeline of any democratic institution and any attempt to suppress, stifle or restrain this right would sound a death knell to democracy and would help accompany in dictatorship or repression. The contemporary communication mediums advance public interest by informing the public of the events and development that have taken place and by this means educating the voters, a role considered significant for the vibrant functioning of a democracy.
The diverse communication channels are great sources of news and views and make significant impact on the minds of readers and viewers and our known to mould public opinion on vitals issues of national importance. The freedom of speech and expression includes freedom of propagation and circulation of ideas and therefore the right extends to the citizen to use the media to answer the criticism leveled against the views propagated by him. Every free citizen has undisputed right to lay what sentiments he pleases. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to put at risk public interest.
New technologies, such as the Internet, and satellite and digital broadcasting, offer exceptional opportunities to promote freedom of expression and information. Action by the authorities to limit the spread of harmful or illegal content through the use of these technologies should be carefully designed to ensure that any measures taken do not inhibit the enormous positive prospective of these technologies. The application of rules designed for other media, such as the print or broadcast sectors, may not be appropriate for the internet. Obviously, limitations on such technologies will be a fine balancing act between defending the freedom of expression and information and ensuring protection from abuses e.g. spread of child pornography.
Progress has been made in recent years in terms of securing respect for the right to freedom of expression. Efforts have been made to implement this right through specially constructed regional mechanisms. New opportunities are emerging for greater freedom of expression with the internet and worldwide satellite broadcasting. New terrorizations are emerging too, for example with global media monopolies and pressures on independent media outlets.
It can also be comprehended that public order holds a lot of importance as a ground of restriction on this fundamental right. But there should be reasonable and proper nexus or relationship between the restriction and achievement of public order. The words ‘in the interest of public order’ include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder.
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thought and choice of speech. Retrieved October 15, 2011, from http://www.fineartsbd.com/node/158
- Singhi, S. Freedom of Speech and Expression. Retrieved October 15,