Reasonability Of ‘Reasonable Restrictions’ Under Freedom Of Speech And Expression

Arnavi A. Nakhate, Maharashtra National Law University, Mumbai

ABSTRACT

In the current regime, gross violation of Freedom of speech and Expression, such as internet shut-downs, censorships, arrests of journalists, numerous sedition charges etc., under the guise of reasonable restriction, have become one of the most contested issues in a flourishing democracy like India. Though freedom of speech is one of the most important fundamental rights, but this right is not absolute in India. It is subject to reasonable restrictions under Article 19(2). However, there is no standard test for imposing these ‘reasonable’ restrictions on Freedom of speech and Expression. The reasonableness of these restrictions is administered by the courts at their own discretion. Therefore, one shall question the ultimate authority of courts in administering the extent of reasonability for restricting this right.

The article shall explore whether there could be a standard test for evaluating the reasonableness of the restrictions. To achieve this objective, the author shall first delve into the evolution as well as the need of the term ‘reasonable’. It will explore how it made a difference in Article 19(2) before and after the First Amendment. The next part will deal with analyzing the cause and effect of the inclusion of ‘reasonable’ while looking at various landmark and contemporary case laws. This will be followed by an in-depth discussion on Test of Reasonability laid down by the Indian Judiciary, maybe not explicitly but could be identified in various precedents till date.

The Article sums up by posing an intricate question to the Indian judiciary about its huge responsibility to determine a standard test of evaluating the reasonableness of the restrictions, which should be clear, consistent, and principled in nature, in consonance with the constitutional values.