B.R. Atre

Author is a practicing Senior Attorney of the Supreme Court and was a Member of the Law Commission of India. He has a very successful carrier as a Legislative Draftsman and Adviser on Parliamentary affairs for last 49 years. He was in charge of personal Laws in the Ministry of Law and Justice for twenty years and was responsible in drafting many important Legislations such as the Dowry Prohibition, Marriage Laws, Environment Protection, Special Economic Zones, VAT, besides number of Constitutional amendments. He was consultant in Legislative Drafting and Parliamentary Affairs to number of countries in Commonwealth Jurisdiction such as Trinidad and Tobago, Namibia and Kenya. His Book “Principles of legislative Drafting”  is very popular and is in 5th edition.

In this thesis the learned Author has traced the legal position of freedom of conscience and freedom of speech and religion in India going through the decisions of Supreme Court. The constitution-makers have not chosen to limit the extent of this freedom by adding the words "in the territory of India" at the end of Article 19(1) (a). They have deliberately refrained from using any words of limitation. Let us not forget that what we are expounding is a constitution and what we are called upon to interpret is a provision conferring a, fundamental right. Shall we ignore the high and noble purpose of Part III conferring fundamental rights? Would we not be stultifying the fundamental right of free speech and expression by restricting it by territorial limitation? Moreover, it may be noted that only a short while before the Constitution was brought into force and whilst the constitutional debate was still going on, the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10th December, 1948 and most of the fundamental rights which we find included in Part III were recognized and adopted by the United Nations as the inalienable rights of man in the Universal Declaration of Human Rights.

      Article 19 of the Universal Declaration declared that "every one, has a right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and import information and ideas through any media and regardless of frontiers". This was the glorious declaration of the fundamental freedom of speech and expression-noble in conception and universal in scope- which was before the Constituent Assembly when the constitution-makers enacted Article 19 (1) (a). There is therefore no doubt  that freedom of speech and expression guaranteed by Article 19(1) (a) is exercisable not only in India but outside. It is true that the right of free speech and expression enshrined in Article 19 (1) (a) can be enforced only if it sought to be violated by any action of the State and since State action cannot have any extra territorial operation, except perhaps incidentally in case of Parliamentary legislation, it is only violation within the territory of India that can be complained of by an aggrieved person. But that does not mean that the right of free speech and expression is exercisable only in India and not outside. State action taken within the territory of India can prevent or restrict exercise of freedom of speech and expression outside India. What Article 19(1) (a) does is to declare freedom of speech and expression as a fundamental right and to protect it against State action. The State cannot by any legislative or executive, action interfere with the exercise of this right, except in so far as permissible under Article 19(2). The State action would necessarily be taken in India but it may impair or restrict the exercise of this right elsewhere. science and technology and highly improved and sophisticated means of communication, a person may be able to exercise freedom of speech and expression abroad by doing something within the country and if this is published or restricted, his freedom of speech and expression would certainly be impaired and Article 19 (1) (a) violated.

         To conclude we must emphasize that coercive conversion of religion and laws like “Love Jihad” and “honor killing” have no place in India and must be banned being unconstitutional and oppose to very spirit of freedom of conscience, speech and freedom of religion which is very basis of part III

of the constitution.