To what extent and how the right to freedom of expression and speech can be restricted. Discuss different aspects of this right entailed in the constitution

To what extent and how the right to freedom of expression and speech can be restricted. Discuss different aspects of this right entailed in the constitution.

Freedom of expression and speech has special status as a human right because we need it to promote and protect all human rights. It embraces free speech, the sanctity of an individual’s opinion, a free press, the transmission, and receipt of ideas and information, the freedom of expression in art and other forms, the ability to receive ideas from elsewhere, and even the right to silence. We value freedom of expression because of what it means for us and what it helps us to attain.

Freedom of expression is one of a number of mutually supporting rights (including freedom of thought, of association and of assembly, and the right to vote) and is integral to other civil and political rights, such as the right to justice, and the right to take part in public affairs. Equally, the right to freedom of expression and speech influences social and cultural rights such as the right to education.

Freedom of speech is often considered as one of the most basic elements of democracy. As a fundamental right it is enshrined in documents such as the Bill of Rights in the United States, the United Nations Declaration of Human Rights, and the European Convention on Human Rights. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Freedom of Expression and Speech (Definition and Application)

It has come up with some relevant legal bases under both national and international law, from the Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights ratified by Bangladesh in September 2000, and Article 39 of the Constitution of Bangladesh. All of them are combined together to set out the fundamental right to freedom of expression in the following terms: Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers. The Declaration provides for freedom of expression in Article 11, which states that:”The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information an idea without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television, or cinema enterprises.

The exercise of this freedoms, since it carries with it duties and responsibilities, may be the subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society. In the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Significance: Freedom of Expression and Speech

Freedom of Speech is important for various reasons; it is of paramount importance in a democratic society, for an efficient and just government. “Free and Fair” democratic election cannot be conducted or secured unless candidates are not free to debate and criticize each other’s policies nor can government run efficiently unless a free press and other news media can expose corruptions and other abuses. There are other important elements too in which Freedom of Speech provides required preconditions for the protection of other’s rights and therefore for equal justice. Free and open debate about the nature and limits of other rights to privacy, religion, equal treatment are essential if our society is to reach sound and fair decisions about when and how those other rights must be defined and respected. However, we cannot expect sound political deliberation and decision about rights without securing and enjoying freedom of speech.

In the Context of Bangladesh

Constitution of the People’s Republic of Bangladesh ensured freedom of speech and expression. In the article 39 (1, 2) of chapter-3 of this constitution these have been stated:

39 (1) Freedom of thought and conscience is guaranteed. Freedom of thought and conscience, and of speech.

39 (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense –

a) The right of every citizen of freedom of speech and expression;

b) Freedom of the press, are guaranteed.

A simple case study:

The past army-backed Caretaker Government imposed a state of emergency in January 2007. It postponed parliamentary elections scheduled for 22 January 2007 until late 2008. The army was deployed to assist the police in maintaining law and order under the pretext of ending the violent election-related clashes between supporters of the main political parties. That time the freedom of speech, freedom of expression, as well as freedom of association and assembly were severely restricted. Many civil society groups and the public at large initially welcomed the state of emergency, but human rights groups began to raise concern that its continuation undermines due process of law and reinforces impunity for human rights violations.

Some reasonable restrictions found from the legal research are as follows-

· Against the interest of security of the State

· Against the friendly relation with foreign state Violation of public order

· Violation of decency or morality

· Anything related to contempt of court

· Defamation or incitement to any offense

Restriction on Right to Freedom of Speech and Expression: (Legal Framework)

Although the Constitution enshrines the right to freedom of expression, Bangladesh presents the worrying peculiarity of multiplying seemingly overlapping pieces of legislation, which all converge to impose serious restrictions on freedom of expression, as well as to access to information. Furthermore, an unfortunate practice has developed, whereby defamation cases are filed immediately, as currently drafted, it subjects the right to freedom of expression and freedom to “any reasonable restrictions imposed by law”. This falls below the international guarantee, that requires any restriction to be ‘necessary’ rather than merely ‘reasonable’. The specific areas of restrictions on Freedom of expression and speech are related to many factors within the legal framework. Most of the important factors are described as a legal research.

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 people are offences against public order. A law of punishing utterances made with the 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. However, there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.

The words ‘morality or decency’ are words of wide meaning. Sections 18 of the Bangladesh Constitution imposes restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.

Under this ground freedom of speech and expression cannot confer a right to incite people to commit offence. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force.

A statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still unmodified in Bangladesh and subject to certain exceptions.

Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’

Unlike the American Constitution, Art. 19(1)(a), Bangladeshi Constitution does not expressly mention the liberty of the press. The Printing Presses and Publications (Declaration and Registration) Act, 1973, regulates the licensing of printers, publishers and editors of any book, newspaper or publication. Under the law, the District Magistrates have been vested with the authority to issue or cancel a license of newspaper and publications. Because of the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression in a way that is not provided for in art.

As understood by English law, ‘sedition’ embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. Section 124A of the Bangladesh Penal Code on sedition also unduly restricts freedom of expression. It states that “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 be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”.

The term “security of state” refers only to serious and aggravated forms of public order rebellion, waging war against the State, insurrection, unlawful assembly, riot, and affray. Thus, speeches or expressions 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 State.

Analysis the complete scenario:

The logical argument is a little comprehensive and critical; it comprises “when” free speech is appropriate and “when is not”. Many agree that we need to suppress speeches only when those harm others, affect the security of the state, ethics and morality and the custom of other minority. But then again the same people have different opinion on “exactly when” free speech actually does harm to others resulting incipient disagreement or conflict on timing when a free speech can actually be restricted. The criteria of defining “harms” also has its own differentiating problems that brings the issue of ethics and morality, inviting ethical and moral disagreement. For example “hate messages/speeches” against any race and groups or of religious beliefs etc., could cause expressive harms and thus should be restricted, is not always absolute. However, there are areas where we are still lacking behind in ensuring freedom of speech and expression to exercise better democracy. Press and electronic media are still constrained to telecast any news that is against government but betterment for the general people. Sometimes People’s right to know about the state has been restricted by poor dissemination of information and corrupted bureaucratic system.


· The freedom of expression and speech law should apply to all legal persons and not just to Citizens.

· The Law Commission should consider the rule of law for the corrupted political system.

· It is required to communicate with the people about the specific refusals and the reasons for restrictions.

· Government must protect its citizens from foreign enemies and internal enemies. For this freedom of speech can be acceptably curtailed during times of war in order to prevent propaganda and spying which might undermine the national interest.

· Some intellectual views are antithetical to beliefs held by major religions, and should be protected against. In order to protect the religious from these views, we should prevent people from saying these offensive things.

· Criticism against government activities has some social own benefit and it is the right in a democratic country. Therefore, Electronic and press media should be allowed to express views about different activities of the government.

· For ensuring transparency, Information about the government activities has to be made available for general ensured but it should be disseminated in a way that does not carry any threat to the security of the state.

· For the betterment of the society regardless of the class, more valid restriction can be put on the language of commercial advertise.

· We need to protect minors (those under the age of majority) from exposure to obscene, offensive, or potentially damaging materials.


The right to freedom of speech and expression is one of the most important fundamental rights in a constitution. Nevertheless, we can see, this right is restricted on specific political and administrative grounds based on several factors of legislation. We also can see, it has a lot of significance as a ground of restriction on this fundamental right. However, there should be some reasonable and proper nexus or relationship between the restriction and achievement of public order. By this a country can be democratic and can achieve a transparent bureaucratic system.


Books, Journals and Articles

Abel, R. 1998. Speaking Respect, Respecting Speech. Chicago: University of Chicago Press.

Abrams, F. 2006. Speaking Freely: Trials of the First Amendment. London: Penguin

Alexander, A. 2005 Is There a Right to Freedom of Expression?. Cambridge: Cambridge Studies in Philosophy and Law.

Chowdhury, Afsan (2004). Media in Times of Crisis: National and International Issues. Shrabon. Dhaka.

Council of Europe. 2007. Freedom of Expression in Europe: Case-Law Concerning Article 10 of the European Convention of Human Rights. Council of Europe.

Dr. M. Cooray, ‘The Importance of Freedom of Expression’ An explanation of the importance of freedom of expression and freedom of association and how they are being eroded in Australia in 1996.

Edwin Baker, C., 1989. Human Liberty and Freedom of Speech. Oxford: Oxford University Press.

Fountaine, S. (forthcoming). Freedom of expression in New Zealand: Striking a balance. A research paper written for the New zeland Human Rights Comission

Gani, M. (2011). Freedom of Speech: Rights and Restrictions.

Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.

Hargreaves, R. (2002). The first freedom: A history of free speech. Phoenix Mill, UK: Sutton.

Jonathan Israel, Radical Enlightenment, Oxford University Press, 2002, p. 265ff.

Lyons, D., 1994, Rights, Welfare, and Mill’s Moral Theory. New York: Oxford University Press.

Magee, J. 2002. Freedom of Expression. Greenwood Press.

Matsuda, Mari J., et al. 1993. Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder (CO): Westview Press.

Matsuda, Mari J., et al. 1993. Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder (CO): Westview Press.

Mcleod, K. 2007. Freedom of Expression: Resistance and Repression in the Age of Intellectual= Property.Minneapolis: University of Minnesota Press.

Peters, John Durham. 2005. Courting the Abyss: Free Speech and the Liberal Tradition. Chicago: University of Chicago Press.

Rahman, Golam and Ahmed, Helal Uddin (2004). Banglapedia: National Encyclopedia of Bangladesh.

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Splichal, Slavko. 2003. Principles of Publicity and Press Freedom. Lanham (MD)/Oxford (UK): Rowman & Littlefield Publishers.

Stone, Geoffrey R. 2004. Perilous Times: Free Speech in Wartime. From the Sedition Act of 1798 to the War on Terrorism. New York: Norton.

Stone, Geoffrey R. 2004. Perilous Times: Free Speech in Wartime. From the Sedition Act of 1798 to the War on Terrorism. New York: Norton.

Sunstein, Cass R. 1995. Democracy and the Problem of Free Speech. New York: Free Press.

Sunstein, Cass R. 1995. Democracy and the Problem of Free Speech. New York: Free Press.

Waluchow, W.J. 1994. Free Expression: Essays in Law and Philosophy. Oxford: Oxford University Press