The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all other liberties. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.
Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights , European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.
Why to protect freedom of speech?
Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech –
1) For the discovery of truth by open discussion - According to it, if restrictions on speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. That is to say, it assists in the discovery of truth.
2) Free speech as an aspect of self- fulfillment and development – freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment.
3) For expressing belief and political attitudes - freedom of speech provides opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
4) For active participation in democracy – democracy is most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making.
Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy. The present study is intended to present the provisions of the American and Indian Constitution which recognize the freedom of speech and expression, the basic fundamental rights of human being. It is also to be examined that what is judicial trend in interpreting the freedom of speech and expression provisions. The study also covers the comparison between the approaches of both countries as far as freedom of speech is concerned.
Freedom of Speech in America
America is leader country as far as protection of freedom of speech and expression is concerned. It provides very wide interpretation of freedom of speech to its citizen. Freedom of speech, of the press, of association, of assembly and petition -- this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. However, initially there was no provision for protecting freedom of speech in American Constitution, but very soon realizing the importance of freedom of speech it amended its constitution and pave way for protection of speech and expression. The first amendment of the American constitution specially provides that -
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.
The above Amendment to the American Constitution is the part of the United States Bill of Rights. As per the Bill of Rights United States Congress has been prohibited from making laws, infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably assemble, etc. The sum total of the components of the law of the First Amendment provides a great deal of protection to freedom of speech .Although, as per the provision, the First Amendment only explicitly applies to the Congress, the Supreme Court of America has interpreted it as applying to the executive and judicial branches. The Supreme Court has interpreted the First Amendment's guarantee of freedom of speech very expansively, and the constitutional protection afforded to freedom of speech is perhaps the strongest protection afforded to any individual right under the Constitution.
We see then that in the United States freedom of speech receives a very high degree of constitutional protection. It is not untrue to say that the constitutional protection afforded to freedom of speech is perhaps the strongest protection afforded to any individual right under the American Constitution, and the value of freedom of speech generally prevails over other democratic values such as equality, human dignity, and privacy. American judiciary, too, has played very important role in broadening the scope of freedom of speech.
Schenck v. United States was the one of the first important case where Supreme Court was first requested to strike down a law violating the Free Speech Clause. It was a case related to Sedition Act of 1918 which criminalized "disloyal," "scurrilous" or "abusive" language against the government. Supreme court held in this case “ the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Thus in this case court evolved a new doctrine of “clear and present danger”.
The "clear and present danger" test of Schenck case was extended in Debs v. United States again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a "clear and present danger" to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a "natural tendency" to occlude the draft. The test of clear and present danger was further upheld by the court in Dennis v. United States. It was observed by the court that “clear and present danger" test did not require the government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited", thereby broadly defining the words "clear and present danger."
Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Example such restriction is providing authority to state to punish words that "by their very nature, involve danger to the public peace and to the security of the state ." Moreover, Lawmakers were given the freedom to decide which speech would constitute a danger.
• Press and freedom of speech
With regard to press freedom, America has again adopted very liberal attitude towards it. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of press and invalidate all laws or administrative actions, which interfere with it contrary to the constitutional mandate. It has provided broad freedom to press (every sort of publication which affords a vehicle of information and opinion ) to provide information to public. However, Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law.
Again, American judiciary has approved content-based regulation. Content-based regulation of television and radio has been sustained by the Supreme Court in various cases. For example In Miami Herald Publishing Co. v. Tornillo the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure press responsibility. Finding that only freedom, and not press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the government may not force newspapers to publish that which they do not desire to publish.
Since the freedom of speech is mainly governed by the first amendment of the constitution and first amendment did not talk about obscenity and freedom of speech, The Supreme Court has usually refused to give obscenity any protection. The governments, both federal and state, have been permitted to make suitable legislation. However the court from time to time developed various tests to examine obscenity. In Roth v. United States, Court applied a new test for obscenity, which was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." this is known as Ruth test of obscenity.
The Roth test was further expanded when the Court decided Miller v. California case. It is commonly known as Miller test. Under the Miller test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. It thus includes the expression of one’s ideas through any communicable medium or visible representation, such as gesture, signs and the like .It very important to note that under Miller test, the “community" standards are followed, which might be different from the national standard. Thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value.
• Defamation and freedom of speech
American law also recognizes the liability for defamatory speech or publication i.e. slander and libel. The nature of American defamation law was vitally changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan, The New York Times had published an advertisement indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the Civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that the advertisement damaged his reputation. The Sullivan case provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of ''a national awareness of the central meaning of the First Amendment, '' which is that the ''right of free public discussion of the stewardship of public officials . . [is] a fundamental principle of the American form of government.
This ''central meaning'' proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. ''Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.'' Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice William J. Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "malice.” The actual malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private individuals normally need only to prove negligence on the part of the defendant.
Hustler Magazine v. Falwell, extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected a parody. In the ruling, "actual malice" was described as "knowledge that the statement was false or with reckless disregard whether or not it was true.” It is clear from the above discussion that in American people enjoyed real freedom of speech but at the same time, American judiciary has evolved very fair ground to put restriction on freedom of speech. These restriction can be summarized as- Seditious Speech and Seditious Libel, Fighting Words and Other Threats to the Peace, Defamation, Group Libel, Hate Speech. Thus Despite the constitutional guarantee of free speech in the United States, legal systems have not treated freedom of speech as absolute and have put some obvious restrictions on the freedom to speech and expression.
Freedom of Speech in India
Freedom of speech enjoys special position as far India is concerned. The importance of freedom of expression and speech can be easily understand by the fact that preamble of constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression”. Explaining the scope of freedom of speech and expression Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture, signs, and the like.
Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri,J. in A.K. Gopalan case, observed,“man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”. It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration. We can see the guarantee of freedom of speech under following heads.
• Freedom of Press
Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press implicit in the right the freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India court observed the importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”
The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.
Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the text of India's Constitution clearly sets out restrictions on free speech. The freedom of speech guarantee under Article 19(1) (a) can be subject to reasonable state restriction in the interest of decency or morality. Obscenity in India is defined as "offensive to modesty or decency; lewd, filthy and repulsive." It stated that the test of obscenity is whether the publication, read as a whole, has a tendency to deprave and corrupt those whose minds are open to such immoral influences, and therefore each work must be examined by itself .
With respect to art and obscenity, the Court held that "the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked ." The Court concluded that the test to adopt in India, emphasizing community mores, is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech.
• Right to Information
Right to know, to information is other facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. The right to know has, however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act, 1923 which prohibits disclosure of certain official documents. Even, Right to Information Act-2005, which specially talks about peoples’ right to ask information from Government official, prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are generally the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1) of Constitution of India. One can conclude that 'right to information is nothing but one small limb of right of speech and expression.
• Grounds of Restrictions
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds: Clause (2) of Article 19 of Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed:-
1) Security of State: Security of state is of vital importance and a government must have power to impose restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. However the term “security” is very crucial one. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.
2) Friendly relations with foreign states: In the present global world, a country has to maintain good and friendly relationship with other countries. Something which has potential to affect such relation ship should be checked by government. Keeping this thing in mind, this ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India, and that state.
No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government. However it is interesting to note that member of the commonwealth including Pakistan is not a "foreign state" for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.
3) Public Order: Next restriction prescribed by constitution is to maintain public order. This ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of wide connotation and signifies "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."
Here it is pertinent to look into meaning of the word “Public order. Public order is something more than ordinary maintenance of law and order. 'Public order' is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order.
The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.
4) Decency or morality: The way to express something or to say something should be decent one. It should not affect the morality of the society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.
5) Contempt of Court: In a democratic country Judiciary plays very important role. In such situation it becomes essential to respect such institution and its order. Thus, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' But now, Indian contempt law was amended in 2006 to make “truth” a defence. However, even after such amendment a person can be punished for the statement unless they were made in public interest. Again in Indirect Tax Practitioners Assn. vs R.K.Jain, it was held by court that, “Truth based on the facts should be allowed as a valid defence if courts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or article”. The qualification is that such defence should not cover-up to escape from the consequences of a deliberate effort to scandalize the court.
6) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status another person. A person is known by his reputation more than his wealth or any thing else. Constitution considers it as ground to put restriction on freedom of speech. Basically, a statement, which injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word 'offence' is defined as any act or omission made punishable by law for the time being in force.
8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is prime duty of government. Taking into it into account, freedom of speech and expression can be restricted so as not to permit any one to challenge sovereignty or to permit any one to preach something which will result in threat to integrity of the country.
From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all concerned with the national interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are all grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are all concerned with the interest of the society.
India and America- A Swot Analysis
Two great democracies of world America and India very aptly recognizes the right of freedom of speech and expression. The United States and India almost have similar free speech provisions in their Constitutions. Article 19(1) (a) of Indian constitution corresponds to the First Amendment of the United States Constitution which says, “congress shall make no law… abridging the freedom of speech or of the press”4. However, the provisions in the US Constitution have two notable features i.e.:
As far as India is concerned, Supreme Court of India has held that there is no specific provision ensuring freedom of the press separately. The freedom of the press is regarded as a “species of which freedom of expression is a genus”. Therefore, press cannot be subjected to any special restrictions which could not be imposed on any private citizen,5 and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen.
- freedom of press is specifically mentioned therein,
- No restrictions are mentioned on the freedom of speech.
In the famous case, Express Newspapers (Private) Ltd. v. Union of India, Justice Bhagwati stated, "[that] the fundamental right to the freedom of speech and expression enshrined in our constitution is based on (the provisions in) Amendment I of the Constitution of the United States and it would be therefore legitimate and proper to refer to those decisions of the Supreme Court of the United States of America in order to appreciate the true nature, scope and extent of this right in spite of the warning administered by this court against use of American and other cases.” Despite similarities in their constitutional provisions, the United States and India have their own unique jurisprudence on freedom of speech. Consequently, they differ as to what is and what is not acceptable free speech. As mentioned, the real difference in freedom of speech enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions provision and the moral standard of the communities. India has progressed from an authoritarian system of control and is now attempting a legislative model of control, quite similar to that of the United States.
Free speech is meaningless unless it has space to breathe. It is important to note that false statements made honestly are equally a part of freedom of speech. The supreme court of India applied the famous doctrine of New York Times v Sullivan standard of American constitutional law against public officials. Accordingly, statements made against persons in the public eye cannot be considered defamatory unless they were made with “actual malice”. The reason for this is very simple, democratic governance mandates the strict scrutiny of public official duties.
The consequence of this very high degree of constitutional protection to freedom of speech in the United States is that ideas most Americans consider very repugnant, and that may be hurtful to some people, such as racial hatred, can be expressed freely. At the same time, the expansive protection to freedom of speech under the First Amendment ensures robust debate on all public issues and the widest dissemination of all ideas. As stated above, under the First Amendment, there is no such thing as a "bad idea," and the remedy for bad speech is said to be "more speech, and not enforced silence. It is part of our culture that people are "free to speak their mind" and need not fear that they will be sanctioned for saying something that is offensive or unpopular. The government is not required to and, more importantly, is not permitted to make decisions about what ideas may be expressed and what ideas may not be expressed. The constitutional guarantee of freedom of expression under the First Amendment then means freedom of expression in the fullest sense. For better or worse, this is the American way.
However in the case of India constitutional provisions have been widely influenced by the moral standard of the society. Constitution has tried to adapt and embody those freedom and restrictions enjoyed by the Indian people from long time. The provision of freedom of speech and restrictions are the result of that way of thinking, and this is the Indian way.
Expression through speech is one of the basic guarantees provided by civil society. However in modern world Right to freedom of speech and expression is not limited to express ones’ view through words but it also includes circulating one's views in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. It is a right to express and self realization. Two big democracies of world i.e. America and India have remarkably protected this right. As far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls in fundamental right category. Indian courts have always placed a broad interpretation on the value and content of Article 19(1) (a), making it subjective only to the restrictions permissible under Article 19(2).
The words 'in the interest of public order', as used in the Article 19 include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. There should be reasonable and proper nexus or relationship between the restriction and achievement of public order. Initially, the American constitution was not having any provisions directed to protection of freedom of speech and expression. It was inserted in the constitution vide first amendment of the constitution. The First Amendment has been drafted in broad and sweeping terms, and for this reason, the text of the First Amendment does not contain any standard for determining permissible restrictions on freedom of speech. The restrictions that are permissible now are those that have been developed by the Supreme Court in its interpretation of the First Amendment.
The United States has a complex First Amendment jurisprudence that varies the protection offered free speech according to form. Similarly, India developed its own free speech jurisprudence that applies a "reasonable restrictions" test based on eight mentioned restrictions. The real difference in freedom of speech enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions provision and the moral standard of the communities.