Interpretation of the Freedom of Speech and Expression Through the Lens of Public Order

By Noyonika Borah

The right to freedom of opinion and expression is bestowed to every citizen in the country and includes the freedom to hold opinions without interference. The freedom to seek, receive and impart information and ideas through any media and regardless of frontiers is embraced in the contents of Article 19 of the Indian Constitution. It is a fundamental human right to express one’s opinion and ideas without the interference of others, and the necessity of Article 19 must not be undermined. The significance of this Article facilitates and contributes to a civilised society, enshrining our collective rights: to praise, criticise and question the world around us- making it one of the most important human rights we have.

Every right comes with its fair share of responsibilities and limitation. The right to freedom of speech is bound by certain “reasonable restrictions”. These reasonable restrictions protect the integrity of India, the security of the state, prevent public disorder, among other things. A key incentive for limiting is the right to express one’s opinion is for the cause of Public Order.

While the impetus of public order is a widely used provision especially with respect to the Article 19(2), freedom of expression- the term itself is not unequivocally defined and left to interpretation in befitting situations.

While peaceful collection of individuals is not just a healthy part of democracy but is also enshrined in our Constitution, many such gatherings do not always remain peaceful. Unruly crowds threaten public order, resorting to vandalism, arson and looting the people as well as their private property. Article 19(2) protects and prevents from making statements, written, verbal or by conduct, which could prospectively cause or has caused public disorder in the state.

A belief that violent demonstrations are a part of a healthy democracy is an erroneous notion that many people in India have begun to preach and practice. Political leaders and political parties in power, display an inability and more so an unwillingness to suppress such demonstrations to maintain public order implying their approval for such acts. Some political parties take a step further to abet or assist in such hooliganism portraying utter disregard for the law and the constitution. Such conduct by people in authority, instead of curing occurrence of public disorder, goes to make the situation worse by adding fuel to the fire. They fail to impart their legislative duties and prove that their primary agenda is not people’s welfare but attaining and retaining power. They at times fail to fulfill their legislative duties and tend to act against people’s interest in their quest for power.

Public order is dependent on multiple factors, including the culture, history and characteristics of the society. It encompasses wide connotations and can be defined as “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.”[1]

The restriction upon freedom of speech and expression on the ground of Public Order was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar V State of Madras. Following the judgment of Romesh Thapar, many judgments dwelled in the ambit of public order under Article 19(2).

The phrase, ‘public order’ is accordingly referable to public order of local significance as distinguished from national upheavals, such as revolution, civil strife and war. Equally, it is distinguishable from the popular concept of law and order and of security of State. An activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of State.[2]

The term public order covers a small riot, an affray, breaches of peace, or acts disturbing public tranquility. But ‘public order’ and ‘public tranquility’ may not always be synonymous. For example, a man playing loud music in his home at night may disturb public tranquility but not public order.[3]

The term public order under Article 19(2) has been a major subject of judicial interpretation of statutes. The Supreme Court with the passing time has announced numerous landmark judgments that pave the way for the understanding and interpretation of the provision, even in modern times.In majority of the cases under this Article viz-a viz public order, the court has resorted to responsive interpretation, comparative originalism and prospective interpretation as the tools for constitutional interpretation .

The Romesh Thappar judgment set the foundation of the term public order. While viewing the story and scope of the term it relied on Criminal law of England[4]The case uses basis of comparative originalism to showcase the scope of public order, adjoining it with the ambit of limitations to Article 19. The judges analysed the Criminal law of England by viewing acts of riots, unlawful assemblies, rebellions under one roof. The common factor of them all is that normal tranquility of a civilized society is disturbed by either, ‘actual force or threat of it’[5]. Justice Patanjali in stated that the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression”:[6]

The court relied on  Ex parte Jackson[7] and Lovell v City of Griffin[8] and remarked on the replacement of ‘sedition’ as a term with ‘public policy’. Methods of comparative and historical interpretation were utilized to have a deeper understanding of the provision. Public order, for instance, was a significant Irish concept but was not favoured by our Constitution makers. 

The Supreme Court in the case of Brij Bhushan V State of Delhi discusses the matter of disjunctive terms of ‘public safety’ and ‘maintenance of public order’ that, ignoring that preservation of public safety is the dominant purpose of the Article “and that it is a special Act providing for special measures and, therefore it should not be confused with an Act which is applicable to ordinary, situations and to any and every trivial case of breach of public order”, applying a utilitarian prism to the question of law. The judgment also lays emphasis on the originalist approach to Constitutional interpretation. It focuses on the literal understanding of the Article and in instances its future.[9] It dives into the history of ‘public safety’ and ‘public order’ with respect to the East Punjab Public Safety Act and the Government of India Act. Justice Faisal Ali also uses foreign cases to bring a sense of similarity in the Indian Act and ones in the United States.

Another landmark case of Suprintendent, Central Prison, Fatehgarh V Ram Manohar Lohia [10] focuses on two aspects of Article 19, the scope of ‘reasonable restrictions’ and ‘public order’. To achieve a conclusive definition of ‘reasonable restrictions’ the court applied the principle of stare decisis. It relied on precedent judgments[11] and statutory interpretation of the Article to have a cohesive understanding. The court held that “the limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far- fetched, hypothetical or problematical or too remote in the chain of its relation with the public order.”

The ambit and meaning of public order have been widely discussed in the court with the use of American and English legal texts and cases. The American case of Cantwell V Connecticut was relied on to get a clearer picture of public order and public safety. The court also addresses the British Public Order Act, 1936 and Theaters Act , 1843 to build a connection between public order and freedom of speech and expression[12]. The court relies on precedent cases of Ramesh Thapper, Brij Bhushan , Ramji Lal Modi among other to get a grasp of Indian judiciary’s stance on the question in hand. This judgment uses historical, comparative and doctrinal interpretation to measure the meaning and scope of public order viz-a-viz freedom of speech and expression.

The Supreme Court in Babulal Parate vs State of Maharashtra[13] observed that public order must be “maintained in advance in order to ensure it” and ruled that restriction of Article 19 freedom of expression in the interest of public order is permissible.However, all such restrictions must continue to satisfy the reasonability test laid down in the Constitution. Judiciary, thus, can provide adequate safeguards against potential intolerance causing undue suppression of speech and expression. It relies on the American Scheneck Case[14] and discusses the right to freedom of speech and expression with respect to public order.[15] This judgment also administers the rule of comparative interpretation. It was later submitted that this case needed reconsideration.

The case of Ram Manohar Lohia uses the principle of Structural interpretation to get to the roots of the statute. It discusses the historical aspect of public order imbibes that the  expression ‘maintenance of law and order’ would cover ‘maintenance of public safety and tranquility’. It is not confined to “enforcement of law by the agency of the State prose cutting offenders against any of the numerous laws enacted for the purposes of a well- regulated society. Simple and ostensibly minor incidents at times lead to widespread disturbances affecting public safety and tranquility”[16]

The said judgment also analyses precedent cases such as Dalbir Singh[17], Romesh Thapper, Brij Bhushan, applying the doctrine of stare decisis. It conformed the concept of public order in three concentric circles of the society, largest representing ‘law and order’, the next represents ‘public order’ and the smallest represents ‘security of state’. It means that any threat to security of state does not imply threat to public order but every threat to public order implies threat to security of state. Similarly, any threat to public order does imply threat to law and order but the reverse holds true.

In interpreting the scope, meaning and ambit of Article 19 through the prism of limitation under Public Order the Courts rely heavily on two methods interpretation. Comparative and Doctrinal interpretation are the two mostly freely used tools in interpreting public order with respect to freedom of speech and expression. Many cases interpret the Act solely through the doctrine of stare decisis. Cases such as O.K. Ghosh[18], Madhu Limaye[19], Kishori Mohan Bera[20] are dependent on the analysis and conclusion of other precedent cases.

Other cases in the recent past, such as Viacom 18 Media Pvt Ltd V Union of India and the Tamas Case use rules and laws set by precedent cases. They do not venture into the depth of the provision but analyze the case on matter of fact and other questions of law unless, a ground-breaking alteration is to be made in the principles of constitutional interpretation of Article 19(2).

The Freedom of Speech and Expression is an indispensible part of the constitution that comes with its own set of limitations and their interpretation. The question of public order is the most flexible limitation and encompasses many factors. The Courts in India have successfully, using various tools of constitutional interpretation, circumscribed the scope of public order and thereby brought clarity to this aspect of the Indian Constitution. It sets out to prove that the Freedom of Speech is neither absolute nor obliterable.


(The author is an undergraduate law student at Jindal Global Law School, O. P. Jindal Global University, Sonepat. All views are personal)


[1] Romesh Thapar V State of Madras, AIR 1950 SC 124 (India)

[2] Benazir Bhutto V Federation of Pakistan, PLD 1988 SC 416 (Pakistan)

[3] M.P. JAIN, INDIAN CONSTITUTIONAL LAW, P.1105 (7th Ed., Lexis Nexis Butterworths Wadhwa, Nagpur 2010)

[4] Vol. II CRIMINAL LAW OF ENGLAND, p. 242

[5] Id at 2 

[6] Id at 2

[7] Ex Parte Jackson, 96 US 727 (1878)

[8] Lovell v City of Griffin, 303 US 444 (1938)

[9] ROBERT POST, “THEORIES OF CONSTITUTIONAL INTERPRETATION.” REPRESENTATIONS, PP. 13–

   41 (no. 30, 1990) [JSTOR, JSTOR, www.jstor.org/stable/2928445.]

[10] Suprintendent, Central Prison, Fatehgarh V Ram Manohar Lohia, AIR 1960 633 (India)

[11] THE PRINCIPLE OF STARE DECISIS (The American Register, 1886)

[12] ROSALIND DIXON & ERIN DELANEY, COMPARATIVE APPROACHES TO CONSTITUTIONAL History ( Edward Elgar Publishing)

[13] Babulal Parate vs State of Maharashtra, AIR 1961 SC 884 (India)

[14] Scheneck V United States of America, 249 US 47

[15] Theories of Constitutional Interpretation, supra.

[16] Id at 3

[17] Dalbir Singh and Ors V State of Punjab, AIR 1962 SC 1106 (India)

[18] O. K. Ghosh V E. X. Joseph, AIR 1963 SC 812 (India)

[19] Madhu Limaye V Sub-divisional Magistrate, Monghyr & Ors, AIR 1971 SC 2486 (India)

[20] Kishori Mohan Bera V State of West Bengal, 1972 3 SCC 845 (India)