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.