Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

(2015) 1 LAW Shreya Singhal v. Union of India [IND-SC] ISC-139
and obscene, the profane, the libelous, and the
insulting or 'fighting' words – those 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. 'Resort to epithets or personal
abuse is not in any proper sense communication
of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act
would raise no question under that instrument.'
Cantwell v. Connecticut, 310 U.S. 296, 309, 310,
60 S.Ct. 900, 906, 84 L.Ed.1213, 128 A.L.R.
1352.” (at page 1035)
17. So far as the second apparent difference is
concerned, 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
matter of judicial interpretation, both the US and
India protect the freedom of speech and
expression as well as press freedom. Insofar as
abridgement and reasonable restrictions are
concerned, both the U.S. Supreme Court and this
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. It is only when it comes to the
eight subject matters 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.
18. Viewed from the above perspective,
American judgments have great persuasive value
on the content of freedom of speech and
expression and the tests laid down for its
infringement. It is only when it comes to subserving
the general public interest that there is the
world of a difference. This is perhaps why in
Kameshwar Prasad & Ors. v. The State of Bihar &
Anr., 1962 Supp. (3) S.C.R. 369, this Court held:
“As regards these decisions of the American
Courts, it should be borne in mind that though
the First Amendment to the Constitution of the
United State reading "Congress shall make no
law.... abridging the freedom of speech..."
appears to confer no power on the Congress to
impose any restriction on the exercise of the
guaranteed right, still it has always been
understood that the freedom guaranteed is
subject to the police power – the scope of which
however has not been defined with precision or
uniformly. It is on the basis of the police power
to abridge that freedom that the constitutional
validity of laws penalising libels, and those
relating to sedition, or to obscene publications
etc., has been sustained. The resultant flexibility
of the restrictions that could be validly imposed
renders the American decisions inapplicable to
and without much use for resolving the questions
arising under Art. 19(1) (a) or (b) of our
Constitution wherein the grounds on which
limitations might be placed on the guaranteed
right are set out with definiteness and
precision ♥ .” (At page 378)
19. But when it comes to understanding the
impact and content of freedom of speech, in
Indian Express Newspapers (Bombay) Private
♥ What precision? Even ‘incitement to offence’ has been
introduced as one of the grounds for reasonable
restrictions much later and so incitement to any hundreds
of offences under the penal code and other codes can be
cited as ground for restriction and is this precision?
Actually the Constituent Assembly in its first sessions
and before the advent of Ambedkar as Chairman of the
Drafting Committee rejected any move to introduce
reasonable restrictions clause and wanted that the
fundamental rights guaranteed should be absolute,
leaving it to the Courts to decide, like in America,
whether any police powers curtailing those are valid and
reasonable on the criterion of balance of interests and
rights of all citizens. And ‘defamation’!? When
defamation by itself is a separate criminal offence to be
prosecuted in certain circumstances and conditions, why
to use it under reasonable restrictions to curb a
fundamental right? What is left of this fundamental right
then? Virtually nothing, except Judges’ mercy!? - IMS.
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Law Animated World, 15-31 March 2015