Constitutional Framework of Freedom of Speech & Expression in India and USA:A Comparative Evaluation | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

• In the context of the United Nations Declaration of Human Rights, Article 19 highlights "free speech" as a fundamental human right.
• Free speech is crucial in a democracy as it allows individuals to express themselves physically, emotionally, and socially, promoting autonomy.
• It plays a vital role in maintaining a free society where both desired and dissenting opinions are safeguarded, irrespective of opposition.
• Protecting freedom of speech enhances personal satisfaction and dignity, as articulated by J.S. Miller in "On Liberty."
• Democracy ensures every citizen the liberty to freely exchange ideas, often referred to as the "marketplace of ideas" by John Miller.
• In a civil society, balancing individual rational desires with the interests of others necessitates certain restrictions on this fundamental right.
• Comparing the frameworks of the right to freedom of speech and expression in India and the United States reveals intriguing differences and similarities.

First Amendment to the United States Constitution

• The First Amendment, part of the Bill of Rights since 1791, safeguards freedom of speech and expression.
• This fundamental right is not explicitly defined, granting the judiciary broad discretion in interpreting free speech.
• Legal precedents, such as West Virginia Board of Education v. Barnette, underscore unique aspects of free speech protection.
• For instance, Cohen v. California affirmed the use of certain offensive language in political contexts.
• Cases like Texas v. Johnson and United States v. Eichman expanded the definition to encompass symbolic speech.
• The "clear and present danger" test, originating from Schenck v. United States, remains pivotal in assessing free speech limitations.
• Moreover, the Brandenburg standard test is frequently applied in evaluating speech advocating unlawful actions.

Overview

• Article 19 (1) of the Constitution of India guarantees freedom of speech and expression.
• This freedom is subject to "reasonable restrictions" outlined in Article 19(2).

Key Court Cases

• Romesh Thappar v The State of Madras:
  • The court differentiated between public order and the security of the state.
  • It clarified that "security of the state" is not restricted by Article 19(2).
• Brij Bhushan v State of Delhi:
  • The Supreme Court emphasized that laws limiting freedom must serve the interest of public order.
• Dr. Ram Manohar Lohia v State of Bihar:
  • Illustrated the concept of public order with three concentric circles.
  • Law and order encompass public order, with security of the state at the core.

Conclusion

• In conclusion, a notable distinction between the Indian and U.S. frameworks regarding the guarantee of the right to freedom of speech and expression is the presence of certain restrictions in India, unlike the absolute right provided by the First Amendment in the United States. While the U.S. courts have delineated the boundaries of free speech through decisions such as Roth v United States and cases involving the propagation of illegal drugs in school events, the Indian judiciary has also addressed similar issues.
• In Express Newspapers (Private) Ltd. v Union of India, Justice Bhagwati observed that although the provisions in both countries are similar, the divergence lies in the extent of permissible expression. In the United States, even potentially hurtful or demeaning speech is protected under freedom of speech without limitations, while in India, moral standards and cultural ethics influence the interpretation and application of Article 19(1) and (2) of the Constitution. This distinction underscores the nuanced approach taken by each country in balancing free speech with societal norms and values.