Sunday, March 29, 2015

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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