The first amendment to the United States Constitution creates the right of freedom of speech in the United States, whereas the first amendment to Indian constitution introduced various restrictions to the right of free speech while making those restrictions subject to the test of reasonableness. Freedom of speech and expression is the heart of liberty and dignity of the individual. The preamble of the Indian constitution places the dignity of the individual on the same footing as the unity and integrity of the nation, thus rejecting the concept of a totalitarian state. Article 19 recognise freedom of speech as the fundamental right. freedom of speech was recognised under the bill of rights in united states and accordingly the supreme court of united states in the case of Board of Education V Barnett observes that the objective of the bill of rights as to make certain rights beyond the reach of political Arm, few among them are free speech, worship, liberty, dignity and other as these rights cannot be submitted to the outcome of Vote. In the United States burning of the national flag is protected under freedom of speech vide Texas v. Johnson (1989). In the case, justice Brenan writes, “if there is a bedrock principle underlying the first amendment, it’s that government may not prohibit the expression of an idea simply because society finds the idea offensive”. After the judgement, the US Congress tries to overturn the law by enacting a law that bans the burning of the national flag but the US Supreme Court once again struck down the law in US vs. Eichman (1990) Case.

Freedom of speech and expression in India is not unlimited as article 19(2) to 19(6) provides various exceptions to it.  The restriction on freedom of speech and expression in the United States was determined on the basis of “Bad Tendency” Test initially. However, Justice Oliver Wendell criticise the bad tendency test and provides a new test called “Clear and Present danger” test in the case of Schenck vs. US (1919). It provides that only that restriction will be allowed if the speech constitutes clear and present danger to state and public order too closely and not remotely. Later on this clear and present danger test was also not followed and subsequently clear and present danger test was expanded to “imminent lawless test”. The Court in the case of Brandenburg Vs Ohio (1969) provides that the constitutional guarantee of free speech and free press do not permit the state to forbid or proscribe advocacy of the use of force or of Law violation, except when such advocacy is directed to producing imminent lawless action.   The decision of Ohio (1969) was subsequently followed in India in the case of Sri Indra das v state of Assam (2011) and Arup bhuyan vs. state of Assam (2011). In Shreya Singhal case (2015) justice Nariman observes that we have to adopt the test that was used by US Supreme Court in the case of Ohio (1969), where the distinction between advocacy and incitement was highlighted. The difference between advocating a certain point of view and inciting somebody to take up arms against the state —that’s where your speech does not offer any protection.

Freedom of speech has confronted with carious challenges and those in power wish to control the same in the form of charging with sedation on merely writing a letter against lynching, crushing the dissent, muzzle the minority voices and the like. The role of the Supreme Court in protecting the same is paramount. However, during recent past the Supreme Court although delivered the important judgements which will be remembered for the times to come particularly Anuradha Bhasin judgement, however, the Supreme Court will also be remembered in avoiding the listing of the petition pertaining to J&k, habeas corpus petitions and other. Still, after it, the trust in the Supreme Court is yet to fall. The United States Supreme Court in Citizens United vs. Federal election commission (2010) held that companies also have freedom of speech and in this right, they can support or oppose any candidate during the election.

Supporting the government ideas or opposing the ideas will not amount the instigation and the same cannot be used as a tool to book the person under 124A of Indian penal code. The Supreme Court should and must play a role in protecting the rights of people and must take disciplinary action against the magistrates both executive and judicial who fails to protect the right. Magistrates must use their judicial mind and should not become a tool in the hands of the executive to justify their action. As justice Kurian joseph the former judge of Supreme court said “the “silence of lawmen does more harm to the society than the violence of laymen”.

*The Author is a Research Scholar (PhD) in law at Jamia Millia Islamia