June 15, 2021

Constitutional Framework of Freedom of Speech & Expression in India and USA:A Comparative Evaluation

Introduction

In the United Nation of Declaration of Human Rights, under Article 19, “free speech” has been identified as a core human right.[1] Right to free speech in any democracy is important for a man to have his autonomy to represent himself physically, emotionally and socially as well. Free speech is an integral part of a free society, where desired and even, undesired opinions and ideas of a person is protected, regardless of its opposition. Preservation of such freedom enhances one’s personal satisfaction and dignity. J.S. Miller, in On Liberty, wrote that shutting a person’s views is a wrong. Democracy form of rule promises every citizen free dissemination of ideas, described by John Miller as “market of ideas”. In a civil society, the rational desires of man ought to be reconciled with the desires of other individuals and therefore, certain restriction to control and regulate this fundamental right is discussed and adopted in favor of larger interest of the society. In this paper, the framework of the Indian and US’s right to freedom of speech and expression is compared.

United States of America

The First Amendment to the United States Constitution guarantees freedom of speech and expression. It was adopted in 1791, under the Bill of Rights. The First Amendment does not define this freedom, which gives wide discretion powers to the judiciary to decide regarding the free speech. Through many judgments over the year, the Courts have held what constitutes of this right and what is included in the protection of speech. In West Virginia Board of Education v Barnette[2] the right to not to salute the flag was upheld. The case of Cohen v California[3] decided that a few offensive phrases could be used in political messages and through Texas v Johnson[4] and United States v Eichman,[5] it was also held that the freedom of speech included “right to engage in symbolic speech”. The “clear and present danger” test was first laid out by the Schenck v United States which was further upheld by Dennis v United States. Brandenburg is another standard test applied by the Courts regarding free speech and issue of advocacy.

India

In India, Article 19 (1) of the Constitution of India provides for freedom of speech and expression, that is limited by “reasonable restrictions” enlisted under clause (2) of Article 19. In Romesh Thappar v The State of Madras,[6] the Court distinguished between public order and security of the state wherein “security of the state” does not fall under the limitations laid down by clause (2). In Brij Bhushan v State of Delhi, it was upheld by the Supreme Court that the laws restricting the freedom will only be sustainable if they have been made in the interest of public order. After the addition of “public order” as a restriction by the first amendment passed in 1951.[7] Again in 1963, “sovereignty and integrity of the state” was added by the sixteenth amendment, as recommended by the Committee on National Integration and Regionalism.[8] The case of Dr. Ram Manohar Lohia v State of Bihar,[9] public order was illustrated with three concentric circles, law and order is the biggest circle encompassing public order and in the core lies the circle of security of state.

Conclusion

A difference between the Indian and the U.S.’ guarantee of right to freedom of speech and expression is that while there is absolute right given by the First Amendment in the latter nation, in India, along with free speech comes certain restrictions. However, the Courts of the United States have decided with respect to what comes under the freedom of speech. For instance, the case of Roth v United States[10] excluded production and distribution of obscene materials from the right to freedom of speech; propagation of illegal drugs at school event[11] does not also come under this particular right.

In Express Newspapers (Private) Ltd. v Union of India, Justice Bhagwati opined that even though the provisions of the two countries are similar, the difference lies in the matter of degree. The practicality of such application is that in the United States, even the things which may be hurtful to others, which may make others feel inferior is still included in freedom of speech and can be expressed without any limitations. Whereas, in India, the moral standards and the ethics of India were taken into account while drafting and amending Article 19 (1) and (2).

Endnotes


[1] Universal Declaration on Human Rights, Dec. 10, 1948, art. 19.

[2] 319 U.S. 624 (1943).

[3] 403 U.S. 15 (1971).

[4] 491 U.S. 397 (1989).

[5] 496 U.S. 310 (1990).

[6] AIR (1950) SC 124.

[7] DD BASU, Commentary on the Constitution of India 2450 (Wadhwa and co. Law Publishers, 8 ed 2007).

[8] IND CONST amend 16 cl (2).

[9] 1966 1 SCR 709.

[10] 354 U.S. 476 (1957).

[11] Morse v Fredrick, U.S. (2007).


Author: Harshita Fatesaria (O.P. Jindal Global University)

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