Freedom of Speech: Indian and US Constitutional Law

The debate over the freedom of speech and expression has become almost a daily incident in the popular media, academic circles or general conversation of citizens all over the world. India is no exception to this trend, rather it is exhorted here with unparalleled vigour among the general public. In such conversations in India, at least, United States of America is enthralled as the land of absolute free speech where the restriction such as we see in India does not come into picture.

These being said one must indulge in identifying certain important fact and concepts before embarking on an attempt to write about freedom of speech and expression as they presents themselves in Indian and US constitutional law.

It should be remembered that fundamental rights are different from the concept of human rights. Human rights are those inalienable right which every individual possess by the virtue of being a member of human species. As human rights are inalienable under no circumstance can it be violated. On the other hand fundamental rights are the gift of the state to its citizens. They cease to exists with the termination of citizenship of an individual by the state. Being a gift of the state to its citizens the constitution of a state is well within its rights to impose restriction on it. Like in Indian constitution the article regarding “freedom of speech and expression” finds its place among the fundamental rights as article 19(1)A along with certain restrictions on the said fundamental right. 

If such restrictions are not placed in the constitution itself, it remains under the authority of the courts (guardians of constitution) which are equipped with the ability to interpret the constitution to impose such restrictions on the fundamental rights as and when it seems to be in need of restrictions  after due consideration. In US constitutional law the authority to impose restrictions on fundamental rights rests with the US congress.

In Gitlow v. New York, (268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925) Supreme Court upholding the constitutionality of criminal anarchy statutes, it advocated that:

"It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom"

Court continues:

"That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question."

Even when subsequently it tone down its position on restrictions placed on free speech, US court maintained that states may prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.

The conclusion that emerged out of this was that the legislature may decide that certain speech can be prohibited. Those legislative decisions will be upheld if not unreasonable and will be enforceable rule punishable under law. Thus the state is provided with the authority to restrict the rights through evoking the concept of police power. This leads to a precarious situation where legislature can make laws to restrict rights but court can accept or struck in down if it identifies it to be reasonable or unreasonable respectively.

On the other hand in Indian by inscribing the list of reasonable restrictions in the constitution itself. Constitution limits the power that can be exerted by all three wings of government (Executive, Legislature and Judiciary). The legislature can only make laws in so far as it comes under the provisions provided in the constitution and supreme court does not have to be too creative as in US rather it should only consider whether the law passed by the legislature are in line with articles in Indian constitution.