RESEARCH PAPER

SUBMITTED BY – DEEPAK CHAUDHARY

SUBMITTED TO – PROF. ANMOL DIWAN
COMPARATIVE ANALYSIS OF AMBIT OF FREEDOM OF SPEECH IN INDIA AND
USA

ABSTRACT
In today's world, there is a strong emphasis on democracy as the most effective system of
government. The level of rights that citizens have inside a country plays a crucial role in
determining the quality of its democracy. India and the USA are both recognized as two of the
world's largest democracies. Both nations have embraced a legal system that prioritizes individual
rights. India places emphasis on safeguarding personal freedoms while also promoting social
justice and highlighting the State's responsibility in ensuring access to justice as a welfare state.
On the other hand, the USA primarily focuses on protecting the individual rights of its citizens
above all else. The right to freedom of expression has been widely recognized as a fundamental
right in both India and the USA. However, the extent of the rights possessed by the residents of
these two nations differs in how these rights are regulated by their governments and adjudicated
by their judiciaries. The right to express emotions is not absolute in both countries. The boundary
between citizens' right to express themselves and the responsibility for exceeding the limits of this
right varies in both countries. The study of how this variation occurs and the factors on which it
depends is important in both countries. Upon a meticulous examination of the current state of this
entitlement in both nations, it has been noted that in India, the extent of this entitlement is severely
limited.

India holds the distinction of being the largest democracy , while the United States of America is
recognized as the oldest democracy. The fundamental pillar of every democracy is the unrestricted
ability to express oneself and communicate ideas. Freedom of speech encompasses several forms
of expression such as verbal communication, written works, films, and public displays. The
significance lies in the fact that the presence of free speech and open opposition typically leads to
the consideration of the most optimal choice through careful discussion and argumentation, hence
preventing errors. The necessity of freedom of speech lies in its ability to enable individuals to
openly convey their emotions and thoughts to others. Any limitations imposed on this freedom
would impede our progress and hinder our personal growth and satisfaction. Moreover, freedom
of speech allows us to express our political and religious convictions and actively engage in
democratic processes. Nevertheless, it is crucial to strike a balance between the liberties of speech
and expression and the limitations imposed on such forms of expression. The safeguarding of
freedom of expression is a type of negative entitlement, which solely necessitates that the
government abstain from restricting communication, in contrast to the proactive measures
demanded by other affirmative entitlements. Freedom of speech is protected not only by national
constitutions and laws, but also by international agreements such as the Universal Declaration of
Human Rights, the European Convention on Human Rights and Fundamental Freedoms, and the
International Covenant on Civil and Political Rights. Article 19 of the Universal Declaration of
Human Rights (UDHR) guarantees individuals the right to express their opinions, ideas, and
beliefs freely, without any hindrance. This includes the right to access, gather, and share
information and knowledge through any medium, without any limitations or restrictions. The right
to freedom of speech is explicitly outlined in the ICCPR, encompassing the freedom to express,
acquire, and disseminate ideas and information of any nature, without any geographical limitations,
through various means such as oral communication, written expression, printed materials, artistic
creations, or any other chosen medium.
While freedom of speech is indeed a fundamental right, it is important to note that even in the most
true democracies, it is not an absolute right. It is not permissible to employ it as a means of
rationalizing obscenity, violence, slander, or libel. However, in a robust democracy, restrictions
on freedom of speech and expression would only be imposed when there is a significant enough
level of threat to warrant such limitations. The Constitution of India guarantees freedom of speech
and expression under Article 19(1)(a). The Preamble of the Constitution of India states the
commitment of the Indian people to ensure liberty of thought and expression for all citizens. This
differs from the situation in the United States. The first amendment of the American constitution
explicitly states that "Congress shall not make any law respecting the 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." Both America and India, two prominent democracies, duly acknowledge the right to
freedom of speech and expression. The Constitutions of the United States and India include nearly
identical clauses regarding freedom of speech. Article 19(1) (a) of the Indian constitution is
equivalent to the First Amendment of the United States Constitution, which states that "congress
shall not create any law that limits the freedom of speech or of the press." Nevertheless, the US
Constitution contains two noteworthy characteristics: the explicit mention of freedom of the press
and the absence of any restrictions on freedom of expression.

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. Freedom of speech is only meaningful when it is allowed to
be expressed without restriction. It is crucial to acknowledge that even false statements made in
good faith are protected under the right to freedom of speech. The highest court in India applied
the well-known doctrine established in the New York Times v Sullivan case, which sets the
standard for American constitutional law regarding public officials. According to this doctrine,
statements made about individuals in the public eye cannot be considered defamatory unless they
were made with deliberate intent to harm. This is because democratic governance requires close
examination of the actions of public officials. It is important to note that liberty of one must not
offend the liberty of others. Justice Patanjali Shastri, 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 State of Uttar Pradesh v. Raj Narain, the
Supreme Court concluded that Article 19(1)(a) of the Constitution bestows upon every citizen the
right to indulge in free speech, as well as the right to receive and spread information on topics of
public importance. The freedom to collect and communicate information is included in Article
19(1)(a) of the Constitution of India, according to Secretary, Ministry of Information and
Broadcasting, Govt. of India v. Cricket Association of Bengal9. For each person, the print media
is a strong instrument for disseminating and receiving information. Chief Justice Patanjali Shastri,
in Romesh Thappar v. State of Madras, expressed his views, that without open political
deliberation and public education, the appropriate functioning of the popular governmental
institutions will not be possible. Issues of misuse of these rights might arise from the bestowal of
such enormous freedom. However, the framers of the Constitution may well have agreed with
Madison, who was the driving force behind the First Amendment's drafting, who believed that it
is better to leave in some demerits in the concept than take away all of the merits of the same only
to ensure that the demerits don't reflect. RTI is an abbreviation for Right to Information. It is a
part of the right to "speech and expression" mentioned in article 19(1)(a) of the Indian constitution,
as stated in the People's Union for Civil Liberties v. Union of India case. Consequently, the right
to information is undoubtedly considered a fundamental right. The Supreme Court affirmed this
in the Govt. case. In the case of Union of India v. The Cricket Association of Bengal, it was
established that freedom of speech encompasses the right to obtain and disseminate knowledge. It
allows individuals to engage in discussions regarding cultural and ethical matters. The freedom of
speech encompasses the entitlement to receive education, information, and entertainment, as well
as the entitlement to be educated, informed, and entertained.

Legal justifications for imposing restrictions in India Restrictions on rights under Article 19(1) can
only be imposed by a 'Law', and not by operative or departmental instructions. Absolute or
unrestricted freedom does not exist. Article 19(2) of the Constitution restricts freedom of speech
and expression by permitting the State to impose "reasonable" limitations based on the grounds
listed below: The Constitution (Sixteenth Amendment) Act, 1963 incorporated the concepts of
India's sovereignty and integrity into clause (2) of Article 19. Freedom of speech can be restricted
to prevent any questioning of India's integrity or sovereignty, as well as the promotion of secession
of any part of the country from the Union. It is important to highlight that sedition is a legal
justification for limiting freedom of speech and expression, however, it is not specifically
mentioned in article (2). In the case of Debi Soron v. State of Bihar, it was determined that Sections
124A and 153A of the Indian Penal Code (IPC) provide lawful limitations in order to maintain
public order, and these limitations are protected by Article 19(2) of the Constitution. "State
Security": In order to protect the security of the state, it is acceptable to impose reasonable
limitations on freedom of speech. In the case of Romesh Thappar v. State of Madras, the Supreme
Court was tasked with analyzing the interpretation of the phrase 'security of the state'. The Supreme
Court noted that there were many tiers of 'public order' infractions. Not every instance of public
disruption may be deemed a threat to the security of the state. The term 'security of the state'
encompasses only significant and severe types of public disturbances, such as rebellion, waging
war against the state, and insurrection. It does not include the common breaches of public order
and public safety, such as illegal assembly, riot, and affray. Individual words or expressions that
incite or endorse major criminal acts, such as rape or murder, are concerns that pose a threat to the
state's security. The clause of "friendly relations with foreign states" was added to the Constitution
through the Constitution (First Amendment) Act in 1951. The objective of this article is to limit
uncontrolled hostile propaganda that is detrimental to a foreign friendly nation, perhaps
endangering India's positive relations with it. It is crucial to emphasize that member nations of the
Commonwealth, including Pakistan, are not classified as "foreign states" according to this
constitution. Consequently, limitations on the freedom to speak and express oneself cannot be
enforced only on the grounds that the matter is detrimental to Pakistan. "Public order" refers to the
state of tranquility that exists among members of a political community. As a result of government-
imposed internal constraints, a state of serenity has emerged. The term 'public order' was not
included in Article 19(2). The decision was made to only allow the grounds specified in that article
to be used for imposing limitations. The concept of 'public order' was incorporated into Article
19(2) as a valid criterion for limiting freedom of speech in response to this judgment. population
order is disrupted by any action or event that disturbs the tranquility or peace of the general
population. Therefore, any community disruptions and strikes that are deliberately orchestrated to
provoke discontent among workers are considered breaches of public order. Mere criticism of the
administration does not always lead to the disruption of public order. Under the grounds of 'public
order,' the Union Government would have the authority to prohibit the dissemination of
propaganda by a country engaged in warfare with India. "Morality" and "decency" are highly
ambiguous concepts with diverse interpretations. Sections 292-294 of the Indian Penal Code
delineate specific instances where freedom of speech and expression is restricted, in order to
uphold decency and morality. In India, obscenity is defined as behavior or content that is deemed
to be indecent, vulgar, nasty, or revolting, and is considered to be contrary to modesty. The "test
of obscenity" determines if a publication, when considered as a whole, has the capacity to degrade
and morally corrupt those whose minds are susceptible to such immoral effects. Each component
must be assessed separately. "Contempt of court" refers to a situation where an expression,
disguised as freedom of speech, beyond the reasonable and rational boundaries of free speech and
amounts to contempt of court. In such cases, it can be restricted or restrained. According to the
Contempt of Courts Act of 1971, "contempt of court" refers to either "civil contempt" or "criminal
contempt" as defined in Section 2 of the Act. Civil contempt is the intentional refusal to follow a
judge's decree, judgment, order, directive, writ, or other legal process. On the other hand, criminal
contempt refers to the act of spreading information or engaging in any conduct, whether through
spoken or written words, signs, visible representations, or any other means. It encompasses any
action that: Undermines or attempts to undermine the jurisdiction of any Court, Prejudices,
obstructs, or has a tendency to hinder the proper execution of the legal system; or Interferes,
hinders, or has a tendency to impede the functioning of the legal system in any other manner. The
act of honestly publishing and spreading any information, providing a complete and unbiased
report of court proceedings, engaging in legitimate criticism of judicial actions, expressing
grievances against presiding judicial officers in good faith, and sharing reasonable information
about court hearings conducted in private are not considered to be acts of contempt of court.
"Defamation" refers to a statement that does harm to someone's reputation. The essence of the
matter is to subject an individual to animosity, ridicule, or disdain. Defamation in India is regulated
under Section 499 of the Indian Penal Code (IPC), which contains the relevant criminal laws. It
fails to differentiate between defamatory assertions that are said or written, or between slander
(spoken defamation) and libel (written defamation). These elements have been maintained as valid
restrictions on freedom of speech.
The ground of "incitement to an offence" was added to the Constitution (First Amendment) Act in
1952. The freedom of expression does not encompass the freedom to incite individuals to engage
in unlawful behavior. The term 'offence' is not explicitly defined in the constitution. According to
the General Clauses Act, a "offence" refers to any action or failure to act that is punishable under
current legislation. The Court is required to assess whether incitement occurred by examining the
evidence and circumstances of each specific case. Schenck v. United States was one of the earliest
notable instances in the USA where the Supreme Court was called upon to declare a legislation
illegal due to its infringement of the Free Speech Clause. The case pertained to the Sedition Act
of 1918, which criminalized utterances that were deemed "disloyal," "scurrilous," or "abusive"
towards the government. In this case, the Supreme Court established that the determining factor is
whether the words used, in their specific context and nature, pose an evident and immediate risk
of causing the harmful outcomes that Congress has the authority to prohibit. Consequently, the
court introduced a novel concept known as the "clear and present danger" theory. In the case of
Miami Herald Publishing Co. v. Tornillo, the Supreme Court ruled unanimously to invalidate a
state ordinance that mandated newspapers to publish responses from political candidates regarding
critiques they had made. The state enacted the measure to guarantee press accountability. In its
ruling, the Supreme Court determined that the government is prohibited from compelling
newspapers to publish content against their will. This decision is based on the understanding that
the First Amendment simply mandates freedom of the press, without imposing a requirement for
journalistic responsibility. Historically, the Supreme Court has consistently refused to afford any
legal protection to obscenity due to the fact that the first amendment of the constitution, which
primarily safeguards freedom of expression, does not explicitly cover obscenity and free speech.
Both the federal and state governments have authorized the development of suitable legislation.
Nevertheless, the court sporadically devised alternative criteria to identify obscenity. In the case
of Roth v. United States, the Court introduced a new standard for determining obscenity. They
posed the question of whether the material, when considered as a whole, appeals to the prurient
interest of the average person, using contemporary community standards. This standard is
commonly known as the obscenity Ruth test. American law acknowledges the legal responsibility
for making false and damaging statements, known as defamatory speech or publication, including
slander and libel. In 1964, the Supreme Court significantly changed the essence of American
defamation law with its ruling in New York Times Co. v. Sullivan. Under those circumstances, The
New York Times had disseminated an advertisement asserting that officials in Montgomery,
Alabama had employed force to suppress African-American demonstrations during the Civil
Rights struggle. The preceding analysis clearly demonstrates that although Americans possess
authentic freedom of expression, the American judicial system has also established highly robust
justifications for limiting that freedom. Restrictions such as seditious speech, seditious libel,
fighting words, threats to the peace, defamation, group libel, and hate speech are applicable. Indian
courts have explicitly refused to accept the 'clear and present danger' test, stating that this doctrine
cannot be applied to the Indian constitution. This is because the fundamental rights guaranteed
under Article 19(1) of the Constitution are not absolute and can be restricted according to the
subsequent clauses of Article 19. However, rejecting the American standards does not resolve the
issue of determining the boundary between speech and action when interpreting Article 19(2). The
judiciary in India has broadened the scope of freedom of speech and expression.

Both the United States of America and India view these rights as not being absolute for their
inhabitants. Both countries have set limitations on fundamental rights, but the restrictions in India
are more stringent than those in the United States of America. Nevertheless, it is important to
recognize that the Judiciary in India has exerted significant authority in restricting the Freedom of
Speech, beyond the power of citizens to exercise this right, despite it being recognized as a
Fundamental Right. After careful analysis, I have determined that in the United States, the legal
safeguards for freedom of expression are extensive and, although they are often contested, they
generally ensure the preservation of free speech.

REFERENCES

1. Dheerendra Patanjali, Freedom of Speech and Expression, India v America - A Study.

2. A.K. Gopalan v. State of Madras, MANU/SC/0012/1950
3. J. N. Pandey, The Constitutional Law of India, CENTRAL LAW AGENCY, 47th edn.,
2010, p. 183.
4. Indian Express Newspaper v. Union of India, MANU/SC/0406/1984; Reliance
Petro-chemicals limited v. Indian Newspapers (Bombay) Pvt. Ltd.,
MANU/SC/0412/1988.
5. M. P. Charlesworth, Freedom of speech in Republican Rome, The Classical Review,
THE CLASSICAL ASSOCIATION 57 (1): 49, (March 1943).
6. A.V. Dicey, Introduction to the Study of Law of the Constitution, MACMILLAN, NEW
YORK, 10th edn. 1959, p. 238ff, 247ff.
7. United Nations General Assembly Resolution No. 217A (III), 10th December, 1948.
8. K.K. Mathew, Democracy, Equality and Freedom" in Upendra Baxi (eds.), Eastern
Book Company, Lucknow, 1978, p. 98.
9. Pujarani Behera, An Analysis of Right to Freedom of Speech and Expression, 11 PEN
ACCLAIMS 1, 1-12 (2020).
10. United Nations, 1966, Article 19(2).
11. UN Human Rights Committee, 2011, para. 12.
12. Dr. Ambedkar's speech in Constituent Assembly Debates, VII, 980.
13. Romesh Thappar v. State of Madras,(1950) SCR 594