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.
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:
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?
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….
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.