2015

Jamia
Millia
Islamia
UNIVERSI
TY
SUBMITTED TO
Mr.
FACULTY OF LAW
SUBMITTED BYAarif Mohammad
Bilgrami
I SEM

COMPARITIVE CONSTITUTION

 COMPARITIVE CONSTITUTION

Introduction
Where there is a right, there is a duty. The duties against the right to freedom of speech and expression are
enshrined within the Constitution of India in the form of restrictions under Article 19(2). While it is
necessary to maintain and preserve the freedom of speech and expression in a democracy, so also it is

[COMPARITIVE CONSTITUTION]
TOPIC

RESTRICTION ON FREEDOM OF

SPEECH & EXPRESSION:INDIA & U.S

necessary to place some curbs on this freedom for the maintenance of social order. Hence, no freedom can
be absolute or completely unrestricted.1
REASONABLE RESTRICTIONS: ARTICLES 19(2) TO 19(6)
Article 19(2) to 19(6) generally contain limitations on the six rights guaranteed under Article 19(1).
The legislature cannot restrict these freedoms beyond the requirements of Articles 19(2) to 19(6).
These limitations are characterised by the following noteworthy points::
(1) The restrictions can be imposed only by or under the authority of a law; no restriction can be
imposed by Executive action alone without there being a law to back it up.
(2) Each restriction must be reasonable.
(3) A restriction must be related to the purposes mentioned in Clauses 19(2) to 19(6).
GROUNDS OF RESTRICTIONS
Sovereignty And Integrity Of India
1 Ramlila Maidan Incident v. Home Secretary, Union of India (2012) 2 MLJ 32 (SC), wherein
the Court observed that the right that springs from Article 19(1)(a) is not absolute and
unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so
as to confer a right wholly free from any restraint. Also see, Sahara Real Estate Corpn. Ltd.
v. Securities and Exchange Board of India, AIR 2012 SC 3829.

 COMPARITIVE CONSTITUTION

Section 2 of the Criminal Law Amendment Act, 1961, makes penal the questioning of the territorial
integrity of frontiers of India in a manner which is, or is likely to be, prejudicial to the interests of the
safety or security of India.
Security Of State And Public Order
Article 19 (2) uses two concepts; public order and security of the state - the former being wider in its
ramifications than the latter. As the Supreme Court rightly points out, in Article 19(2), there exist two
expressions public order and security of the state.
The term public order covers a small riot, an affray, breaches of peace, or acts disturbing public
tranquillity. But public order and public tranquillity may not always be synonymous. For example, a
man playing loud music in his home at night may disturb public tranquillity, but not public order.
In Kishori Mohan Bera vs. State of West Bengal,2 the Supreme Court explained the differences between
three concepts: law and order, public order, security of State. Anything that disturbs public peace or
public tranquility disturbs public order.3 But mere criticism of the government does not necessarily
disturb public order.4
An aggravated form of disturbance of peace, which threatens the foundations of, or threatens to
overthrow, the state will fall within the scope of the phrase security of state. The expression
overthrowing the state is covered by the term security of state.
Friendly Relations With Foreign States
This ground was added by the Constitution (First Amendment) Act of 1951. The objective behind
imposing restrictions on the freedom of speech in the interests of friendly relations with a foreign country
is that persistent and malicious propaganda against a foreign power having friendly relations with India
may cause considerable embarrassment to India, and, accordingly, indulging in such a propaganda may be
prohibited.
Under Article 367(3), a foreign State means any State other than India. The President, however, may,
subject to any law made by Parliament, by order declare any State not to be a foreign State for such
purposes as may be specified in the order. The Constitution (Declaration as to Foreign State) Order, 1950,
directs that a Commonwealth country is not to be a foreign State for the purposes of the Constitution.
. The Supreme Court has stated in Jagan Nath v. Union of India5 that a country may not be regarded as a
foreign State for the purposes of the Constitution, but may be regarded as a foreign power for other
purposes.
2 AIR 1972 SC 1749.
3 Om Prakash v. Emperor, AIR 1948 Nag 199.
4 Raj Bahadur Gond v. State of Hyderabad, AIR 1953 Hyd 277.
5 AIR 1960 SC 675.

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Decency Or Morality
The terms decency and morality carry variable meanings in variable societies depending on the
standards of morals prevailing at a constant time period in the contemporary society.
The Indian Penal Code in Sections 292 to 294 lists some of the offences, like selling obscene books,
selling obscene things to young persons, committing an obscene act, or singing an obscene song in a
public place. Section 292 I.P.C. has been held valid because the law against obscenity seeks no more than
to promote public decency and morality.6
On the question of obscenity, the Court has laid emphasis on the importance of art to a value judgement
by the censors. Art should be preserved and promoted in any scheme of censorship for, as the Court
observed.
Contempt Of Court
The Constitution specifically empowers both the Supreme Court7 as well as each High Court8 to punish its
contempt. The freedom of speech and expression guaranteed by Article 19(1)(a) is thus subject to Articles
19(2), 129 and 215.
In addition to the Supreme Court and High Courts, the contempt of other Courts can be punished by the
High Courts under the Contempt of Courts Act, 1952. Section 228, I.P.C., also makes some cases of
contempt of Court punishable.
Charging the judiciary as an instrument of oppression, and the judges as guided and dominated by
class hatred instinctively favouring the rich against the poor has been held to constitute contempt of
Court.
Defamation
Defamation is both a crime as well as a tort. According to Winfield, Defamation is the publication of a
statement which reflects on a persons reputation and tends to lower him in the estimation of rightthinking members of society generally or tends to make them shun or avoid him. 9 As a crime,
Defamation is defined in Section 49 I.P.C. The law seeks to protect a person in his reputation as in his
person or property.
Incitement To An Offence

6 Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881.

7 Article 129.
8 Article 215.
9 Winfield and Jolowicz on Tort, 274 (1979).

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According to the general theories of criminal law, incitement and abetment of a crime is punishable.
Incitement to serious and aggravated offences, like murder, may be punished as involving the security of
the State.10 Incitement to many other offences may be made punishable as affecting the public order. But
there may still be some offences like bribery, forgery, cheating, etc., having no public order aspect, and
incitement to which could not be made punishable as an aspect of public order. So Article 19(2) has the
words incitement to an offence.
The word offence has not been defined in the Constitution but according to the General Clauses Act, it
means any act or omission made punishable by law.
HATE SPEECH
The Constitution of India and its hate speech laws aim to prevent discord among its many ethnic and
religious communities. The laws allow a citizen to seek the punishment of anyone who shows the citizen
disrespect "on grounds of religion, race, place of birth, residence, language, caste or community or any
other ground whatsoever". The laws specifically forbid anyone from outraging someone's "religious
feelings".
This law has often been criticised for being misused by individuals, people or groups for simply censoring
or trying to censor conflicting point of views raised by another individual, people or groups irrespective
of their objective merits,
India prohibits hate speech by several sections of the Indian Penal Code, the Code of Criminal Procedure,
and by other laws which put limitations on the freedom of expression. Section 95 of the Code of Criminal
Procedure gives the government the right to declare certain publications forfeited if the publication ...
appears to the State Government to contain any matter the publication of which is punishable under
Section 124A or Section 153A or Section 153B or Section 292 or Section 293 or Section 295A of the
Indian Penal Code. An apex court bench headed by the then Chief Justice Altamas Kabir issued the
notice after senior counsel Basva Patil told the court that such leaders deliver hate speeches repeatedly,
inflaming regional, religious and ethnic passion.
"We cannot curtail fundamental rights of people. It is a precious rights guaranteed by Constitution," a
bench headed by Justice RM Lodha said, adding "we are a mature democracy and it is for the public to
decide. We are 1280 million people and there would be 1280 million views. One is free not accept the
view of others". Also the court said that it is a matter of perception, and a statement objectionable to a
person might not be normal to other person.11
RESTRICTIONS IN THE U.S.
10 State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
11 Ibid.

 COMPARITIVE CONSTITUTION

The Supreme Court has identified categories of speech that are unprotected by the First Amendment and
may be prohibited entirely. Among them are obscenity, child pornography, and speech that constitutes socalled fighting words or true threats. In a 2010 case, the Court made clear that it would not be likely
to add more categories to the list of types of speech that currently fall outside the First Amendments
purview, but it did not entirely rule out the possibility that other forms of unprotected speech exist12.
Incitement
The Supreme Court has held that "advocacy of the use of force" is unprotected when it is "directed to
inciting or producing imminent lawless action" and is "likely to incite or produce such action". 13 In
Brandenburg v. Ohio (1969), the Court struck down a criminal conviction of a Ku Klux Klan group for
"advocating ... violence ... as a means of accomplishing political reform" because their statements at a
rally did not express an immediate, or imminent intent to do violence.
False statements of fact
In Gertz v. Robert Welch, Inc. (1974), the Supreme Court decided that there is "no constitutional value
in false statements of fact"14.
The Supreme Court has established a complex framework in determining which types of false statements
are unprotected. There are four such areas which the Court has been explicit about. First, false statements
of fact that are said with a "sufficiently culpable mental state" can be subject to civil or criminal liability.
Secondly, knowingly making a false statement of fact can almost always be punished. For example, libel
and slander law are permitted under this category. Third, negligently false statements of fact may lead to
civil liability in some instances.15 Additionally, some implicit statements of factthose that may just have
a "false factual connotation"still could fall under this exception16.
There is also a fifth category of analysis. It is possible that some completely false statements could be
entirely free from punishment. The Supreme Court held in the landmark case New York Times v.
12 U.S. v. Stevens, 559 U.S. 460 (2010) (Maybe there are some categories of speech that
have been historically unprotected, but have not yet been specifically identified or
discussed as such in our case law. But if so, there is no evidence that depictions of animal
cruelty is among them. We need not foreclose the future recognition of such additional
categories to reject the Government's highly manipulable balancing test as a means of
identifying them.)
13 Brandenburg v. Ohio
14 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
15Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985).
16 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

 COMPARITIVE CONSTITUTION

Sullivan (1964) that lies about the government may be protected completely. However, this category is
not entirely clear, as the question of whether false historical or medical claims are protected is still
disputed.
Obscenity
Under the Miller test (which takes its name from Miller v. California, 1973), speech is unprotected if (1)
"the average person, applying contemporary community standards, would find that the [subject or work in
question], taken as a whole, appeals to the prurient interest" and (2) "depicts or describes, in a patently
offensive way, contemporary community standards17, sexual conduct defined by the applicable state law"
and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value". Some
subsidiary components of this rule may permit private possession of obscene materials at one's home 18.
Additionally, the phrase "appeals to the prurient interest" is limited to appeals to a "shameful or morbid
interest in sex"19

Fighting Words and True Threats

So-called fighting words also lay beyond the pale of First Amendment protection. 20 The fighting
words doctrine began in Chaplinsky v. New Hampshire, where the Court held that fighting words, by
their very utterance, inflict injury and tend to incite an immediate breach of the peace and thus may be
punished consistent with the First Amendment. 21 In Chaplinsky, the Court upheld a statute which
prohibited a person from addressing any offensive, derisive or annoying word to any other person who is
lawfully in any street or other public place, calling him by any offensive or derisive name, or making
any noise or exclamation in his presence and hearing with the intent to deride, offend or annoy him, or to
prevent him from pursuing his lawful business or occupation.22

17 Smith v. United States, 431 U.S. 291 (1977).

18 Stanley v. Georgia, 394 U.S. 557 (1969).
19 Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985).
20 Virginia v. Black, 538 U.S. 343, 363 (2003)(finding that cross-burning is a particularly
virulent form of intimidation that may be punished as a true threat).
21 Chaplinskyv. New Hampshire 315 U.S. at 572.
22

 COMPARITIVE CONSTITUTION

This category of proscribable speech requires the threat of an immediate breach of peace in order to be
punishable. In Cohen v. California, the Supreme Court held that words on a t-shirt that contained an
expletive were not directed at a person in particular and could not be said to incite an immediate breach of
the peace.
Child Pornography
Child pornography is material that visually depicts sexual conduct by children. 23 It is unprotected by the
First Amendment even when it is not obscene; that is, child pornography need not meet the Miller test to
be banned. Because of the legislative interest in destroying the market for the exploitative use of children,
there is no constitutional right to possess child pornography even in the privacy of ones own home.24
In 1996, Congress enacted the Child Pornography Protection Act (CPPA), which defined child
pornography to include visual depictions that appear to be of a minor, even if no minor is actually used.
The Supreme Court, however, declared the CPPA unconstitutional to the extent that it prohibited pictures
that are produced without actual minors.25
Intellectual Property Rights
Another class of permissible restrictions on speech are based on intellectual property rights. Things like
copyrights or trademarks fall under this exception. The Supreme Court first held this in Harper & Row v.
Nation Enterprises26, where copyright law was upheld against a First Amendment free speech challenge.
Also, broadcasting rights for shows are not an infringement of free speech rights. 27 The Court has upheld
such restrictions as an incentive for artists in the 'speech marketplace'.
Commercial speech
While there is no complete exception, legal advocates recognize it as having "diminished protection". For
example, false advertising can be punished and misleading advertising may be prohibited. 28 Commercial
23 New York v. Ferber, 458 U.S. 747, 764 (1982). The definition of sexually explicit
conduct in the federal child pornography statute includes lascivious exhibition of the
genitals or pubic area of any person [under 18], and is not limited to nude exhibitions or
exhibitions in which the outlines of those areas [are] discernible through clothing.
24 Osborne v. Ohio, 495 U.S. 103 (1990).
25 Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002).
26 471 U.S. 549 (1985).
27 Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).
28 Peel v. Attorney Reg. & Discip. Comm'n, 496 U.S. 91 (1990).

 COMPARITIVE CONSTITUTION

advertising may be restricted in ways that other speech can't if a substantial governmental interest is
advanced, and that restriction supports that interest as well as not being overly broad. 29 This doctrine of
limited protection for advertisements is due to a balancing inherent in the policy explanations for the rule,
namely that other types of speech (for example, political) are much more important.
COMPARATIVE ANALYSIS OF FREE SPEECH N INDIA AND IN U.S.
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 press4. However,
the provisions in the US Constitution have two notable features i.e. freedom of press is specifically
mentioned therein, No restrictions are mentioned on the freedom of speech.
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, and cannot claim any privilege (unless conferred specifically by law), as
such, as distinct from those of any other citizen.
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. As mentioned, the real difference in freedom of
speech enjoyed in the United States and India is a question of degree. 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.
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
29 Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

 COMPARITIVE CONSTITUTION

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.
In the recent judgment of Shreya Singhal v. Union of India 30, a division bench of the apex court
analysed the position in both countries and identified four major differentiation points.
As a prefatory discussion in the case, the court delved into various American precedents and compared
the First Amendment of the American Constitution to Article 19 of the Indian Constitution and brought
out the similarities and dissimilarities between the two.
The first important difference is the absoluteness of the U.S. first Amendment Congress shall make no
law which abridges the freedom of speech. This has never been given literal effect to. In Chaplinsky v.
New Hampshire , it was held that Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and
under all circumstances. There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' wordsthose which
by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.
Second, whereas the U.S. First Amendment speaks of freedom of speech and of the press, without any
reference to expression, Article 19(1)(a) speaks of freedom of speech and expression without any
reference to the press. The American Supreme Court has included expression as part of freedom of
speech and this Court has included the press as being covered under Article 19(1)(a), so that, as a
30 W.P.(Crl).No. 167 of 2012.

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matter of judicial interpretation, both the US and India protect the freedom of speech and expression as
well as press freedom.
Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable
restrictions may be imposed. Both the U.S. Supreme Court and Indian Supreme Court have held that a
restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or
restrict only what is absolutely necessary.
Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject
matters - that is any law seeking to impose a restriction on the freedom of speech can only pass muster if
it is proximately related to any of the eight subject matters set out in Article 19(2). It is only here that
there is a vast difference. In the U.S., if there is a compelling necessity to achieve an important
governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law
cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the
eight subject matters set out under Article 19(2). If it does not, and is outside the pale of 19(2), Indian
courts will strike down such law.
CONCLUSION
In India, the recent striking down of Section 66A of the Information Technology Act, 2000, is unfortunate
in the context of hate speech, in so much as, even after identifying the problem is in incitement, they
did nothing to restrict the same and struck down the provision in its entirety without even framing any
guidelines.
Considering the communal history of India and the extremely diverse nature of the population with
different cultures and temperaments, it is imperative that the Indian judiciary takes its role seriously and
bears, to its best ability, the part of the responsibility it has to maintain peace and order in the country. For
this, the reasonability of the restrictions to free speech needs to be tested on the touchstone of the
economic and social fabric of India and not merely American judgments and abstract theories of
jurisprudence.