Citing American Authorities in Free Speech Cases

The
Supreme Court’s judgment in the section 66-A case was striking to me for one
particular reason. Indian courts have long held that the judgments of American
courts can’t reliably be used as precedents while deciding cases involving the right to
free speech, because the right to speech is textually absolute in the U.S.
whereas it is circumscribed by numerous “reasonable restrictions” in India [see, e.g., Reliance
Petrochemicals v. Indian Express, AIR 1989 SC 190]. This, of course, is not entirely correct [see further: here]. American courts have recognized that there are exceptions to free speech –
child pornography, defamation, and perjury being prime examples.
The myth
of the “absolute” right to free speech in the U.S. has now been busted by Justice Rohinton Nariman of the Supreme Court of India who, I believe, is the first Harvard
LL.M. on India’s Supreme Court bench. Nariman J. has held:
“14.
It is at this point that a word needs to be 
said  about  the 
use  of American judgments in the
context of Article 19(1)(a).  In  virtually 
every significant judgment of this Court, reference has  been 
made  to  judgments from across the Atlantic.  Is it safe to do so?
15. It
is significant to notice  first  the 
differences  between  the  US
First Amendment and Article 19(1)(a) read with 
Article  19(2).   The 
first important difference is the absoluteness  of 
the  U.S.  first  Amendment
  – Congress shall make no law which abridges
the freedom  of  speech…. Insofar as the  first 
apparent  difference  is 
concerned,  the  U.S. Supreme Court has  never 
given  literal  effect 
to  the  declaration 
that Congress shall make no law abridging the freedom of  speech
.  
The  approach of the Court which
is succinctly stated in one of  the  early 
U.S.  Supreme Court Judgments,
continues even today….
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  sub-serving  the  general  public  interest  that  there  is  the  world  of   a difference…”

Thus,
after concluding that it’s safe to rely on American authorities in free speech
cases, the Supreme Court of India has extensively cited and relied on American cases in its judgment.

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