Freedom of Speech and Expression 1

CHAPTER II
FREEDOM OF SPEECH AND EXPRESSION

- JURISPRUDENTIAL ASPECTS
Chapter II Freedom of Speech and Expression - Jurisprudential Aspects
CHAPTER II
FREEDOM OF SPEECH AND EXPRESSION -
JURISPRUDENTIAL ASPECTS
The history of human species’ evolution is woven by the development of this

special skill of speaking and communicating the thoughts and ideas. This led the
foundation of human civilization and development of language, literature, arts and
culture. The Vedas, Upanishads, epics like Ramayana, Mahabharata, Silpadikaram,
Manimekali, Illiad, Odyssy, sculptures, paintings of Ajanta, Ellora, Khajuraho etc are
the few classical examples of this history which has continuous flow till today. This
would have not been possible without ability to speak and communicate one’s
thoughts and ideas. Therefore freedom of speech and expression assumes a pivotal
position under democratic legal systems.
In the modern-civilized-democratic-welfare society, notion of rights has

gained an important position. The rights are branded as indispensably valuable
possessions. These are so important that we, the Homo sapiens cannot exist without
them. The notion of Natural Law and Natural rights professes the idea that, the human
beings possess certain basic inalienable rights equally. The freedom of speech and
expression is regarded as the first condition of liberty. It occupies a preferred position
in the hierarchy of liberties, that gave birth and protection to all other liberties. Hence
freedom of speech and expression has been branded as the mother of all liberties.
The freedom of speech and expression is one of the most important human
rights which make the life of human being meaningful. Sir Edward Coke’s Institutes
of the Laws of England has first time used the phrase ‘freedom of speech.’ The
freedom of speech and expression includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing,
picture, film, movies etc1.
1
M.P. Jain, Indian Constitutional Law (Wadhwa Nagpur, 5th edn, Reprint 2006), p. 987.
31
It is alleged that human rights are violated only by the State machineries like
Army, Police etc. The role non-State actors (tyranny of majority) seem to be
neglected. At the same time the contemporary socio-economical, cultural factors that
influence and adversely affect the individual freedoms are often given less
importance. These are the allegations. But the philosophical-jurisprudential question
remains, is such analysis true? Exploitation at national, international level, profit
oriented neoliberal capitalist system on one hand and the quest for democracy, human
rights protection on another hand is viewed as contradiction. Though this may be
somewhat true, we cannot completely deny the importance of these human rights.
These rights have surely transformed the world from Dark Age to today’s Modern
Age. These ideas further need to be reviewed in the present Indian context.
Redefining these concepts may expand the horizons of existing jurisprudence. This
could further provide an energy and inspiration to make the human life meaningful.
Then the question comes, does parochial interpretation of various concepts under the
legal system leads to denial of bulk of human rights? These questions could be
answered with the help of critical analysis of free speech jurisprudence.
This chapter aims to critically analyze essence of freedom of speech and

expression valued by the Western as well as Indian philosopher during last two and
half millennium years. This jurisprudential analysis is a novel kind of attempt review
the modern concept of fundamental human rights in the light of these philosophies.
2.1 Freedom of Speech and Expression Jurisprudence: An Ancient Athenian

Legacy
The jurisprudence of freedom of speech is of recent origin in the west,

particularly in America. In the early decades of the 20th century the famous cases
Schenck v. United States and Abrams v. United States (1919) paved the way for
emergence and development of free speech jurisprudence in America. But identical
ideas of freedom of speech prevailed during ancient Greek (Athenian) that inspired
and influenced in its making and development. According to Socrates freedom of
thought implies the freedom to teach. He also justified this claim both as a duty that
he owed the Gods and a benefit that he conferred upon the state. In ancient Greek-
Athenian literature the term parrhêsia was used in the context of today’s freedom of
32
speech. Michel Foucault2 has thoroughly explained the concept while advocating
notion of fearless speech. With the help of Athenian ancient literature he explains the
notion of parrhêsia. He further draws the essentials of the notion as frankness, truth,
danger, criticism and duty. He interprets element of frankness3, according to which
the person exercising the right of parrhêsia, shall speak frankly whatever he has in his
mind without hiding anything. He shall also give an exact account of his thoughts.
The element of truth4 conveys the free speech must be sincere and the opinion
expressed shall be nothing less than truth. He explains the element of danger as;
“Parrhesia, then, is linked to courage in the face of danger. It demands the courage to
speak the truth in spite of some danger. And in its extreme form, telling the truth takes
place in the “game” of life or death.”5 Socrates6 believed in truth telling though there
was risk for his life. His philosophy believed that if one does not stand by his belief
and thought which he has expressed, and chooses life for death it would bring shame
on him. Therefore he preferred death than apologizing to avoid death for what he had
spoken.7 Thus parrhêsia was exercised without shame. According to the principle of
parrhêsia it could not be used by a king or tyrant as he risks for nothing. Parrhêsia
contained right to criticize. Foucault states: “the function of parrhesia is not to
demonstrate the truth to someone else, but has the function of criticism”.8 The right to
criticize shall only be exercised by the person of inferior status against the higher and
not otherwise. It has ultimate aim to empower the powerless against the powerful. If
2
Foucault was a post modernist French philosopher of 20th century. In 1983 he delivered a series of
lectures on “Discourse and Truth”, at University of California at Berkeley. The lectures were devoted
to Greek notion of parrhêsia, which is also understood as ‘frankness in speaking the truth.’ Joseph
Pearson, one of the members amongst the audience edited these lectures and published in the book
form as “FARLESS FREEDOM”.
3
Michel Foucault, FARLESS FREEDOM, Joseph Pearson (ed) ( SEMIOTEXT (E), Los Angeles), p. 12.
(Hereinafter Foucault).
4
Id., p. 14.
5
Id., p.16.
6
Socrates was tried for not respecting the views regarding the Gods prevailing in then Athenian
society. It was sort of an offence of Blasphemy in today’s context. Even today we, the society-domestic
as well as international, are experiencing, facing the same situation. It means intolerance and
fundamentalism is an essential feature of existing societies.
7
Infra note 13, Ch. II. Saxonhouse while interpreting Plato’s work Apology concludes that Socrates
accepted the death for what he believed and spoke to the Athenian rather going for an apology.
Socrates believed that he exercised parrhesia to tell the truth and apology would amount to a lie which
would bring shame on him. Therefore principle of shame was an antithesis to parrhesia.
8
Foucault, p.17.
33
the power to criticize is not allowed by denying right to freedom of speech and
expression, it would lead to tyranny. This would ultimately results in to the death of
democracy. The ancient Athenians were well aware about this fact. This right was not
absolute and was limited to Athenian citizens only.9 The women, children, slaves and
alien-foreigners could not exercise this right. The privileged citizen could exercise the
right. Thus Foucault relates the freedom of speech and expression with that of
democracy. He further opines that, “in parrhesia, telling the truth is regarded as a
duty”.10 The duty to tell the truth must be abide by free will and without any
compulsion. This recalls us verse from Marathi saint Tukarama’s gatha, “I cannot see
the sufferings of humans, therefore I am moved. Hence I shall have to convey the
truth as a matter of moral duty.”11
Thus Foucault concludes the notion of parrhesia as; “[t]o summarize the
foregoing, parrhesia… is a kind of verbal activity where the speaker has a specific
relation to truth through frankness, a certain relationship to his own life through
danger, a certain type of relation to himself or other people through criticism [self-
criticism or criticism of other people], and a specific relation to moral law through
freedom and duty.” He further adds:
9
In “democratic parrhesia” -where one speaks to the assembly, the ekklesia-one must be a citizen; in
fact, one must be one of the best among the citizens, possessing those specific personal, moral, and
social qualities which grant one the privilege to speak., p. 18.
10
Id., at p. 19.
11
बुडती हे जन दे खवे न डोळा │
हणुनी कळवळा येतसे │

Similarly noted revolutionary poet Faiz Ahmed Faiz in his poem ‘Bol’ says that:
Bol, ye thoda waqt bahut hai
Jism o zuban ki maut se pahle
Bol, ke sach zinda hai ab tak
Bol, jo kucch kahna hai kah le
(Speak, this brief time is ample, before the death of body and tongue. Speak, for the truth still lives,
Speak to say what needs to be said.) This ultimately conveys the commitment towards essence and
need of freedom of speech and expression, which was recognized by thinkers, philosophers, saints,
revolutionary personalities, poets as well as writer artists. See Chandra Chari & Uma Iyengar (eds),
The Public Intellectual in India ( Aleph Book Co., New Delhi, 2015).
34
More precisely, parrhesia is a verbal [speech] activity

in which a speaker expresses his personal relationship to
truth. He risks his life because he recognizes truth-
telling as a duty to improve or help other people [as
well as himself]. In parrhesia, the speaker uses his
freedom and chooses frankness instead of persuasion,
truth instead of falsehood or silence, the risk of death
instead of life and security, criticism instead of flattery,
and moral duty instead of self-interest and moral
apathy.12
(Emphasis supplied)
Saxonhouse views, “the Athenian freedom of speech is the affirmation of

equality of participation and self rule.”13 They were proud of themselves on free
speech as an aspect of their capacity to rule themselves under the rule of equal
citizens without any hierarchy. He argues that Athenian viewed freedom of speech as
the tool of self-government and not a bulwark. Hence he argues that for the Athenians
‘[f]reedom of speech was the practice of men in public, not a protection for self-
development.’14
2.2 Western Tradition of Freedom of Speech and Expression
Ancient Athenian State was an organized system. We experience that the

philosophers had quest for exercise of individual freedom during those days. This
element of individual freedom kept its journey in subsequent development of free
speech jurisprudence. During medieval European history the struggle between the
Church and the State represented by Monarchy was at its peak. The circumstances
prevailed then to consider essence of freedom of speech and expression. Arlene
Saxonhouse argues that Machiavelli in his work, The Prince, has explained free
speech as an essential political need. Freedom of speech, according to Machiavelli,
provides an opportunity to criticize one’s political leaders. Thereby it serves as a
restraint on the actions of leaders, thus protects the liberty of people. Therefore an
opportunity to criticism through freedom of speech and expression serves safety valve
12
Foucault, pp. 19-20.
13
Arlene W. Saxonhouse, FREE SPEECH AND DEMOCRACY IN ANCIENT ATHENS (Cambridge
University Press, New York, 2006), p. 24. (Hereinafter Saxonhouse).
14
Id. at p. 30.
35
which gives proper vent to the dissatisfaction against their ruler.15 Here Machiavelli is
trying to safeguard the rulers by providing guarantee of freedom of speech to the
governed to vent their grievances. His interest was to ensure the dominance of rulers.
Whatever might be his intents, he knew the importance of freedom of speech. If we
relate Machiavelli to the present election oriented political democracy, guaranteeing
the right to cast the vote by pressing the NOTA (None of the above) option, the voters
are allowed to vent their negative grievances against existing political system. Till
date that has not been given any value. Therefore the right to convey dissent, though a
minority opinion, goes unnoticed.
Sir Edward Coke’s Institutes of the Laws of England has first time used the
phrase ‘freedom of speech.’ For him the freedom of speech had limited meaning as a
privilege of free debates to the members of parliament.16 This connotes the limited
scope of freedom of speech as mere parliamentary privilege.
John Milton in his work “Areopagitica” (1644)17 said :
Though all the winds of doctrine were let loose to play

upon the earth, so Truth be in the field, we do
injuriously be licensing and prohibiting to misdoubt her
strength. Let her and Falsehood grapple; whoever knew
Truth put to the worse, in a free and open encounter? ....
Who knows not that Truth is strong, next to the
Almighty; she needs no policies, no stratagems, no
licensings [censorship] to make her victorious; those are
the shifts and defenses that error makes against her
power.
(Emphasis supplied)
Milton was very much convinced with the necessity of free flow of ideas. He
sincerely believed that the truth prevails against all odds. By relating the free flow of
ideas (say guaranteeing freedom of speech and expression) with truth, he did not
15
Id. at pp. 31-32.
16
Id. at p.19.
17
John Milton, Areopagitica: A Speech for the Liberty of Unlicen’d Printing (1644) - Milton’s best-
known prose work is a political pamphlet which argues against restricting the freedom of the press. In
order to defend his concern for freedom of press and thereby suggesting the evils such censorship bring
he depicts the ancient Athenian story.
36
validate restraint upon the free speech. With this argument Milton has raised his
concern for freedom of press and suggests the evils such censorship.
Thomas Hobbes, in his classic work Leviathan (1651) has described the state
of nature where all individuals were naturally equal. For the sake of self preservation
every person was free to do what he could wish for. It resulted in to uncertainty and
everyone suffered from continued fear and danger of violent death; this ultimately
made the life of man solitary, poor, nasty, brutish, and short. To overcome this
situation some reasoned individuals came together to create some supreme power to
impose peace on every one through ‘social contract.’ Hobbes argued that with this
‘social contract’ the people agreed among themselves to protect their natural rights of
equality and freedom. They also conferred certain absolute powers to a sovereign who
would make and enforce the laws to secure a peaceful society, ensuring protection to
the life, liberty, and property. When Hobbes refers natural right of individual liberty,
certainly might have included right to freedom of speech and expression. It was
impossible to materialize and enforce the social contract without any kind of
communication among the member parties of contract i.e. society. Therefore, though
Hobbes believed in absolute monarchy his social contract theory has an element of
freedom of speech and expression.
2.3 The Renaissance and Freedom of Speech
The eve of renaissance experienced more speedy development in the free

speech jurisprudence. John Locke’s second book titled Treaties on Government
(1681) is an important source of his classical liberal ideas. In this work, Locke
elaborates state of nature as governed by the Law of Nature. According to him, under
law of nature, no individual ought to harm another in life, health, liberty or
possessions. All human beings are equal before the law of nature because they are the
‘creatures of the same species and rank’. He further states that, being born equal, all
are entitled for, “same advantages of nature, and the use of the same faculties, should
also be equal one amongst another without subordination or subjection”. He thus
advocates the guarantee to exercise these rights without any distinction. These rights
have surely included right to freedom of speech and expression, which helps the man
to excel in different spheres of life. In spite of being endorsed with these rights by the
37
Law of Nature the men did not have proper agency to protect and enforce them. It
gave birth to society and the State. This was formed as a matter of ‘Social Contract.’
John Locke explains the purpose behind his notion of social contract was that “all
men may be restrained from invading others rights, and from doing hurt to one
another, and the law of nature be observed, which willeth the peace and preservation
18
of all mankind ”. (Emphasis supplied) He meant that one’s exercise of rights is
subject to the rights and freedoms of other fellow members of society. He is
supporting a kind of act of self regulation over the exercise of one’s own right.
In Chapter IV titled of slavery, Locke asserts that, “[t]he natural liberty of

man is to be free from any superior power on earth, and not to be under the will or
legislative authority of man, but to have only the law of nature for his rule.” For him
this liberty of man, in society is neither under any legislative power nor under the
dominion of any will, or restraint of any law. They are only subjected to the
legislature established by their consent. This legislature cannot act on its own but
according to the trust put in it by the people. Therefore he argues that the government
is an agent of people which people agree to form as a matter of their social contract.
He further explains the purpose of government as: “[t]he end of government is the
good of mankind: and which is best for mankind”. But if the people are exposed to the
boundless will of tyranny i.e. the government; then he opines, “that the rulers should
be sometimes liable to be opposed, when they grow exorbitant in the use of their
power, and employ it for the destruction, and not the preservation of the properties of
their people”.19 Certainly he believed if the people had to lose their liberties and
freedom which may endanger self preservation due to oppression at the hands of
tyrant government; the people have every right to overthrow the government by
revolution. This was so because he believed the people retain with them superior
power even after formation of the government. Thus, while advocating right to
rebellion to the people, he has obviously recognized the revolution by all means
18
John Locke, Second Treatise of Government, CHAPTER II, Of the State of Nature, [Locke, John. Of
Government: Book 2. In Economic Writings and Two Treatises of Government (1691). Volume 4 of
The Works of John Locke in Nine Volumes, London: Rivington. 1824. Online Library of Liberty. In the
Public Domain.] Published on Natural Law, Natural Rights, and American Constitutionalism
(http://www.nlnrac.org),
can be accessed at: http://www.nlnrac.org/earlymodern/locke/documents/second-treatise.
19
Id., Of the Dissolution of Government, CHAPTER XIX, Para 229.
38
including freedom of speech and expression. The freedom of speech and expression
allows the people to build the political consensus consciously against the tyrant
government. For all these reasons, while there are a variety of legitimate
constitutional forms, the delegation of power under any constitution is understood to
be conditional.20
For John Locke the individuals have inherent right to liberty, power to control
one’s person subject to the natural law which requires one to respect the freedom,
equality and rights of other fellow beings. His social contract theory emphasize that
some aspects of inalienable liberty the man had to surrender when he became member
of the society as a matter of social contract. He also advocates that religious liberty
and freedom of thought in general forms an essential part of this inalienable right.
This right is not only inherent in individuals but lies at the foundation of liberty.
According to Locke, human freedom and dignity are ultimately grounded in reason,
that is, in our capacity as rational beings to determine our own thoughts and actions.21
Therefore he denounces the slavery. Heyman argues that Locke’s respect for freedom
of thought has political dimension. The individuals surrender their inherent rights to
the society when they enter in to contract; upon this the society uses the power to
protect the members of the society. Therefore the society becomes sovereign but has
to act like trustee of the people. The conception conveys that the State as well as the
society has to take care of individual rights and freedoms.
John Locke in his Chapter On Slavery contends that, the natural liberty of man
is supreme power upon the earth. No legislative power, established by the consent of
power, can take away this liberty by undermining the trust of people. This liberty is
only subjected to the law of nature, in order to preserve the liberty of other fellow
beings in the society.22 This necessarily speaks of reasonable restrictions. But in order
20
Alex Tuckness, Locke’s Political Philosophy, in Edward N. Zalta (ed.), The Stanford Encyclopedia
of Philosophy (Winter 2012 Edition).
URL = <http://plato.stanford.edu/archives/win2012/entries/locke-political/>.
21
Steven J. Heyman, Free Speech and Human Dignity (Yale University Press, New Haven & London,
2008), p. 8. (Hereinafter Heyman).
22
John Locke, Of Government: Book 2, CHAPTER IV, Para 22, of Slavery in Economic Writings and
Two Treatises of Government (1691), Published on Natural Law, Natural Rights, and American
Constitutionalism Available at (http://www.nlnrac.org). (Hereinafter John Locke).
39
to impose the reasonable restrictions the government should not become tyrant. He
says:
Wherever law ends, tyranny begins, if the law be

transgressed to another’s harm; and whosoever in
authority [i.e. State machinery] exceeds the power given
him by the law, and makes use of the force he has under
his command, to compass that upon the subject, which
the law allows not, ceases in that to be a magistrate;
and, acting without authority, may be opposed as any
other man, who by force invades [violates] the right of
another.23
(Emphasis supplied)
In this way it seems he is pointing out at censorship which curtails the liberty
(including freedom of thought and speech) of man and warns such attempts to be
avoided. He warns that if the government fails to the respect and deny protection of
the liberty the society would get dismantled. He says “[w]henever the society is
dissolved, it is certain the government of that society cannot remain.”24 It means,
once society loses its existence ultimately the government ceases to exist. Thereby the
society dies its natural death. Under such circumstances the government gets
crumbled against foreign invasion. If the society is intact then any defeat of the
government in the war would never affect adversely. Therefore he prefers
preservation of society; which is possible then only if it respects dictate of natural
law. Therefore for the preservation of any society guarantee of freedom of speech and
expression is prerequisite.
Montesquieu in his work The Spirit of the Laws (1748) laid down the notion of
separation of power. He believed that concentration of all powers of the government
in one hand would lead to despotism as what he experienced in his home country. The
concept of check and balance of power surely has the quest for assurance to freedom
of speech and expression as well as democracy.
Jean-Jacques Rousseau is famous for his extremely brilliant thought in the

advocacy of natural rights. He was of opinion that, “[m]an is born free, and
23
John Locke, of Tyranny, CHAPTER XVIII, Para 202.
24
John Locke, of the Dissolution of Government, CHAPTER XIX, Para 222.
40
everywhere he is in chains.” His version of social contract has the purpose to assure
protection of life, liberty, and property of every individual. He considered people,
together, as sovereign to whom individuals have surrendered their natural rights. He
viewed will of the people forms general will. According to him all political power
must reside with the people. The exercise of their general will of people has to be
exercised in the interest of public good. If Rousseau recognizes the sovereignty of
people that means he has certainly recognized freedom of speech and expression of
the people as one of the basic natural right. His conception regarding general will of
the people also convey us the democratic principle in his theory of social contract.
William Blackstone25 opined that, the man has been considered as a creature.
He is absolutely a dependent being. Therefore he shall necessarily be subjected to the
laws of his creator. His inferior status compels him to obey the will of maker. Due to
such dependence man makes it necessary for the man that he should in all points
conform to the will of his maker. He brands this will of his maker as the law of nature.
He states that the God created man and endorsed him ‘with freewill to conduct
himself in all parts of life’. His freewill in some degree can only be regulated and
restrained under certain immutable laws of human nature laid down by the creator.
Blackstone believed that the creator has also endowed the man with faculty of reason
to discover meaning of those laws. Thus Blackstone viewed that the man with his
birth endowed with freewill, which he has to exercise as per his reason and has only
control of law of nature. This conveys us that, in the context of freedom of speech and
expression, a man can speak as per his free will using reason and law of nature is the
legitimate restriction up on it. Blackstone advocates reasonable restrictions up on
freedom of speech if it is improper, mischievous or illegal and, he suggests, dangerous
or offending writings to be judged as of pernicious tendency.26
25
William Blackstone, SECTION THE SECOND, OF THE NATURE OF LAWS IN GENERAL, p. 38.
See William Blackstone, Commentaries on the Laws of England, Book the First, Oxford (1765-1769),
Produced by The Bookworm, Linda Cantoni, and the Online Distributed Proofreading Team at
http://www.pgdp.net (This file was produced from images generously made available by the Posner
Memorial Collection (http://posner.library.cmu.edu/Posner/)).
Can be accessed at https://www.gutenberg.org/files/30802/30802-h/30802-h.htm#Section_the_second.
26
William Blackstone, Commentaries on the Laws of England, in Arlene W. Saxonhouse, Free Speech
and Democracy in Ancient Athens (Cambridge University Press, New York, 2006), p. 21.
41
John Stuart Mill, an icon of advocacy of liberty, defends individuality and

personal autonomy with his argument for liberty of expression. Mill lays down
dimensions of human liberty.
It comprises,…[of]…, the inward domain of

consciousness; demanding liberty of conscience,
…[more precisely] … liberty of thought and feeling;
absolute freedom of opinion and sentiment on all
subjects, practical or speculative, scientific, moral or
theological. The liberty of expressing and publishing
opinions [i.e. freedom of expression in the form of
freedom of press] may seem to fall under a different
principle, since it belongs to that part of the conduct of
an individual which concerns other people; but, being
almost of as much importance as the liberty of thought
itself, and resting in great part on the same reasons, is
practically inseparable from it.27
(Emphasis supplied)
Mill thus conveys that the freedom of expression is inseparable from liberty of
thought. He also viewed the struggle between the liberty and authority as historic.
Therefore he notes that the liberty meant to have ‘protection against the tyranny of the
political rulers.’28 He also opines that in the name of self government the
representatives of people may also act like tyrant to suppress the liberty of people who
have elected those representatives. He further states that the people had to accept such
danger to protect them from other dangers. But with the help of notion of liberty the
patriots tried to put arbitrary powers of such rulers. Through the struggle the patriots
got assured certain political liberties for the people. Next change was brought was in
the form of constitutional check upon the government. This ultimately resulted into
formation of representative government. He criticizes the concept of self government.
This is so because those people, who exercise the power, are not the same over whom
they exercise that power which may result in to oppression of the subordinated
people.
27
John Gray & G. W. Smith (eds.), J.S.MILL ON LIBERTY in focus (Routledge, London, 1991), p. 33.
(Hereinafter John Gray & G. W. Smith).
28
John Stuart Mill, ‘On Liberty’ (1859) (Reprinted Batoche Books Kitchener 2001), p.6. (Hereinafter J.
S. Mill).
42
Apart from this the ‘tyranny of the majority’, Mill views it as most evil for the
29
people. Such social tyranny which threatens the individual liberty could be very well
understood and experienced in the plural, diverse Indian society.30 While condemning
religious intolerance he praises freedom of conscience as an indefeasible right.31 He
further argues that irrespective of form of government, if the society does not respect
the liberty such societies are not free in true sense. Hence any opinion, however true it
may be, Mill views, if it is not fully, frequently, and fearlessly discussed, it will be
held as a dead dogma, not a living truth.32
While advocating the liberty, Mill limits its scope ‘only to human beings in the
maturity of their faculties.’33 He meant that those who are mature enough of their
mental faculties the liberty is fruitful. He analyses that, according to hedonistic
utilitarianism the only thing intrinsically desirable is pleasure. All forms of pleasure
are intrinsically desirable. Right acts are those which maximize happiness, interpreted
as pleasure and the absence of pain. Preference to utilitarianism, on the other hand,
seeks to maximize the satisfaction of desires. Therefore he judges the acts solely in
terms of their total utility or their total consequences in producing happiness or the
satisfaction of desires. The value of liberty is therefore wholly dependent on its
contribution to utility in these senses. But the consequences of exercising the rights
vary according to the changing social circumstances. Then the question comes, how
could the ‘right’ to liberty be absolute and indefeasible?34 In this sense Mill
propounds his Harm principle to define the limitation upon exercise of individual
liberty. Firstly, he believes that the exercise of liberty must serve the utility for the
large and must be in the interest of a progressive man. He allows the authorities or the
power to take away and limit the exercise of liberty. He defines the scope of limitation
upon one’s actions in the context of the interest of other people. He justifies legal
29
Id. at pp. 8-9.
30
The issues like hurt of sentiments, Khap panchayats (Caste Councils of Northern India), blasphemy,
banning of books, demands for ban on artistic expressions like movies, dramas, paintings etc have
become regular feature of Indian society.
31
Ibid. J.S. Mill at p. 12.
32
John Grey & G. W. Smith, p. 53.
33
Ibid. J.S. Mill p.14.
34
C.L.Ten, MILL’S DEFENCE OF LIBERTY, in John Gray & G. W. Smith, (ed.) J.S. MILL ON
LIBERTY in focus (Routledge, London-New York, 1991-Tylor & Francis e-Library, 2003), p. 213.
43
penalties against those who inflict injury to others. He further argues that, while
penalizing wrongful acts that hurt others the positive acts of liberty which seeks
benefit of the people at large must be defended.
Mill was of opinion that liberty of thought is meaningless without liberty of

speaking and writing. Thus he recognizes the importance of freedom of speech and
expression in order to exercise the liberty of thought and conscience. In his second
chapter Of the Liberty of Thought and Discussion Mill notes importance of the
“liberty of the press” as one of the securities against corrupt or tyrannical
government.35 But he denies this right to the people if they resort to coercion on their
own or through the organ of the government. Mill while denouncing suppression of
freedom of speech and expression notes certain disadvantages the society suffers from
it. He argues:
Were an opinion a personal possession of no value

except to the owner; if to be obstructed in the enjoyment
of it were simply a private injury, it would make some
difference whether the injury was inflicted only on a
few persons or on many. But the peculiar evil of
silencing the expression of an opinion [censorship] is,
that it is robbing the human race [like violation of
human right]; posterity as well as the existing
generation; those who dissent from the opinion, still
more than those who hold it. If the opinion is right, they
are deprived of the opportunity of exchanging error for
truth: if wrong, they lose, what is almost as great a
benefit, the clearer perception and livelier impression of
truth, produced by its collision with error.36
(Emphasis supplied)
With this argument we can say that defense of liberty of expression for Mill is
not for the sake of each entitled individual, but for the sake of the people at large who,
he thinks, would benefit from a society where liberty of expression is granted. Taking
in to account this benefit Mill wish to convey that censorship does not only adversely
affect the individual autonomy but happiness of the society gets robbed. Mill, while
interpreting the denial of right to freedom of speech, talks about adverse effect on
35
J.S. Mill, p.18.
36
John Gray & G. W. Smith, p. 37.
44
doing so. He argues that if dissenter is disallowed to express his dissenting thoughts
[even though that are erroneous], the person, authority imposing restrictions loses an
opportunity of exchanging his truth for error. Therefore he considers collision
between truth and error ultimately begets the truth and is beneficial. Therefore he
argues the expression of opinion by any means, whether contains truth or not, must be
allowed as it provides an opportunity to build the knowledge helpful for the society.
He states that authority should not judge the infallibility of others’ opinions rather the
37
individual is “capable of rectifying his mistakes, by discussion and experience.”
Mill shows confidence in the reasoned man who has potentials and capabilities to
ensure rectification of own mistakes.
Thus Mill strongly recognized the necessity to the mental well-being of

mankind. This could be ensured by guaranteeing of freedom of opinion and freedom
of the expression of opinion. This is so because he felt that on these opinions all other
well beings of mankind are dependent. With this argument Mill defends the
fundamental human right of freedom of speech and expression, thought, conscience in
the context of democratic dimension.
Thomas Paine opined that, ‘[h]e that would make his own liberty[one who
exercises his freedom of expression] secure, must guard even his enemy from
oppression, for if he violates this duty he establishes a precedent that will reach to
himself.’38 (emphasis supplied) Thus we understand that Paine while arguing in favour
of liberty (freedom of speech) has gone to such an extent that he considers it is our
duty to protect this right of our enemy also.
Karl Marx has praised importance of freedom of press and therefore treats it
with great esteem. He points that the free press (form of expression) has been
recognized as vigilant eye of a people’s soul. It is the embodiment of a people’s faith
in itself. It is also viewed as an eloquent link that connects the individual with the
37
J.S. Mill, p. 21.
38
Freedom of Speech and of the Press Striking passages from distinguished champions of freedom of
expression, Published by the NATIONAL CIVIL LIBERTIES BUREAU, New York City Washington.
(April, 1918), p 5. (The pamphlet compiled by John Haynes Holmes was an attempt to advocate the
cause of right to freedom of speech. The purpose behind publication of this pamphlet to convey-in the
word of Holmes, “as to the sanctity of freedom as a social principle-the wisdom of letting all be heard,
the folly and sin of silencing a single voice.”)
45
state and the world, embodied culture as well as intellectual struggles. He further
opined that the free press:
is a people’s frank confession to itself [acts as mirror to

self criticize], and … [its] … redeeming power of
confession is well known. It is the spiritual mirror in
which a people can see itself, and self-examination
[ignition of conscience] is the first condition of wisdom.
It is the spirit of the state, which can be delivered into
every cottage, cheaper than coal gas. It is all-sided,
ubiquitous, omniscient. It is the ideal world which
always wells up out of the real world and flows back
into it with ever greater spiritual riches and renews its
soul.39
(Emphasis supplied)
Marx viewed free press as the vigilant eye of the people’s soul therefore
considered the newspaper as an instrument of public communication. It guarantees the
protection to the free flow of ideas. Hence his writing as a journalist strongly supports
freedom of press while denouncing the censorship. His quest for freedom and the
disclosure of truth become the cornerstones of resistance against contradictory official
attempts to manipulate scope of freedom and notion of truth. The public authorities
manipulate the notion of truth and accordingly limit the understanding of freedom as
license to act.40 Karl Marx opines, “[t]he mortal danger for every being lies in losing
itself. Hence lack of freedom [of speech and expression] is the real mortal danger for
mankind.”41 (emphasis supplied). He thus refers the freedom in the context of press.
Marx argues that, “the [freedom of] press in general is a realisation of human
freedom. Consequently, where is a press there is freedom of the press.”42 (Emphasis
39
Karl Marx, Censorship, Rheinische Zeitung No. 135, Supplement, May 15, 1842), See On Freedom
of the Press -Ch 5, ,available at http://www.marxists.org/archive/marx/works/1840/free-press/ch05.htm
(1 of 5).
40
Hanno Hardt, COMMUNICATION IS FREEDOM: KARL MARX ON PRESS FREEDOM AND
CENSORSHIP, Javnost-the Public, Vol.7 (2000), 4, p 88, available at javnost-
thepublic.org/article/pdf/2000/4/6/.
41
Karl Marx, Censorship, Rheinische Zeitung No. 135, Supplement, May 15, 1842. See On Freedom of
the Press - Ch 5.
Available at https://www.marxists.org/archive/marx/works/download/Marx_Rheinishe_Zeitung.pdf .
42
Karl Marx, As a privilege of particular individuals or a privilege of the human mind?, Rheinische
Zeitung No. 132, Supplement, May 12, 1842. See On Freedom of the Press - Ch 4. Available at
https://www.marxists.org/archive/marx/works/download/Marx_Rheinishe_Zeitung.pdf .
46
supplied) Thus he suggests, the censorship which deny of freedom of press, pose a
real mortal danger for mankind. For him, “[t]he laws against freedom of the press are
a refutation of freedom of the press.”43 Marx agrees with fact that, in the land of
censorship the state has no freedom of the press. At the same time he points out that
the organ of the State i.e. the government exercise unconditional freedom of the press.
He contends further, “official government documents enjoy perfect freedom of the
press, does not the censor exercise daily an unconditional freedom of the press, if not
directly, then indirectly?”44 While commenting upon the attempts of censorship and
its effect on the notion of rights, Marx points at the dialectics of right to freedom. He
notes that the freedom has so much essence for a man that even the opponents of it
implement it while they combat its reality. The opponents, while denying the freedom
to others, for themselves considers such freedom as a most precious ornament. Hence
resort to appropriate for the same. Marx criticizes the censorship law and contends,
“[t]he censorship law, therefore, is not a law, it is a police measure; but it is a bad
police measure, for it does not achieve what it intends, and it does not intend what it
achieves.”45 He meant to say that censorship is not at all a law. In fact it is a bad
police measure. It can never achieve what it intends to achieve. At the same time what
it never intends to achieve it achieves ultimately the same. Censorship bears
undeserved fruits. Therefore Marx denounced the argument that the censorship is a
lesser evil than the excesses on the part of the press while exercising its freedom of
expression.
2.4 Freedom of Speech and Expression: An American Heritage
The development of modern free speech jurisprudence is indebted to historical

contributions of American legal system. It took inspirations from various philosophers
of West, gave birth to its own jurist thinkers while articulating freedom of speech and
expression.
43
Karl Marx, Opponents of a Free Press, Rheinische Zeitung No. 128, Supplement, May 8, 1842., See
Karl Marx On Freedom of the Press -Ch 2.
Available at https://www.marxists.org/archive/marx/works/download/Marx_Rheinishe_Zeitung.pdf .
44
Ibid.
45
Ibid.
47
Professor Thomas Emerson46 views freedom of expression is essential as a

means of assuring individual self fulfillment. The proper end of man is the realization
of his character and potentialities as a human being. For the achievement of this self-
realization the mind must be free. Hence suppression of belief, opinion, or other
expression is an affront to the dignity of man, a negation of man’s essential nature.
Moreover, man in his capacity as a member of society has a right to share in common
decisions that affect him. To cut off his search for truth, or his expression of it, is to
elevate society and the state to a despotic command over him and to place him under
the arbitrary control of others.
Further he opines that freedom of expression is essential process for

advancement of knowledge and discovery of truth. The person, who is in the search of
knowledge and truth, must understand the questions-problems through various
dimensions. By discussing his judgment openly with the persons of opposite views
can achieve his quest for truth and knowledge. Open discussion generates intelligent
individual judgment which may also provide for rational social judgment.
The First Amendment with regard to right to freedom of expression is a

defining feature of American society.47 In shaping the free speech jurisprudence the
English background has played a vital role. The Americans took the help of theory of
natural rights, social contract as well as common law systems to articulate this
jurisprudence.
Cato’s48 letter no. 15 is devoted to freedom of speech. The essay reads;
Without freedom of thought, there can be no such thing

as wisdom [freedom of conscience]; and no such thing
46
Thomas I. Emerson, The System of Freedom of Expression See CRAIG R. DUCAT,
CONSTITUTIONAL INTERPRETATION Rights of the Individual Vol. II (West Thomson Learning, 7th
Edn., 2000). pp 824-25.
47
Heyman, p.1.
48
Two Englishmen, John Trenchard and Thomas Gordon, in order to conceal their identities took the
pen name of Cato. They derived their inspiration from Cato the Younger (95-46 B.C.), who was
implacable foe of Julius Caesar and a champion of liberty and republican principles. Under the name
Cato they wrote newspaper articles condemning tyranny and advancing principles of liberty that
immensely influenced American colonists. Their 144 essays were published from 1720 to 1723,
originally in the London Journal, later in the British Journal. These essays are popularly known as
Cato’s Letters. These essays influenced the development of free speech jurisprudence in then America.
48
as publick (sic) liberty [in the society], without freedom

of speech: Which is the [fundamental human] right of
every man, as far as by it he does not hurt [violate]
and control the right of another; and this is the only
check [reasonable restriction] which it ought to
suffer, the only bounds which it ought to know.
(Emphasis supplied)
This paragraph emphasizes upon the importance by relating the wisdom, freedom of
thought and freedom of speech. It also prescribes reasonable restrictions in the form
of non injurious speech with respect to other fellow beings. This sounds like Mill’s
harm principle. The letter further reads;
This sacred privilege [in the form of fundamental

human right] is so essential to free [democratic]
government, that the security of property; and the
freedom of speech, always go together; and in those
wretched [undemocratic] countries where a man cannot
call his tongue his own, he can scarce call anything else
his own. Whoever would overthrow the liberty of the
nation, must begin by subduing [violent means of
control] the freedom of speech; a thing terrible to
publick (sic) traitors.49
(Emphasis supplied)
Thus the author links the viability of free government (which is essential for
democracy) with the freedom of speech. Cato’s letters are also critical about the
attempts of censorship by the State. Cato’s letter also argues that, “[f]reedom of
speech is ever the symptom, as well as the effect, of good government.”50 In order to
support its arguments in defense of freedom of speech the letter praises ancient
tradition of freedom of speech of Greco-Roman history. The letter further reads:
“Freedom of speech is the great bulwark of liberty; they prosper and die together:
49
John Trenchard, Of Freedom Of Speech: That The Same Is Inseparable From Publick Liberty. Cato’s
Letters, Vol. 1 November 5, 1720 to June 17, 1721 (LF ed.) [1724], published as Online Library of
Liberty: Cato’s Letters, vol. 1, November 5, 1720 to June 17, 1721 (LF ed.). Available at
http://oll.libertyfund.org/title/1237.
50
Cato’s letter no. 15.
49
And it is the terror of traitors and oppressors, and a barrier against them. It produces
excellent writers, and encourages men of fine genius.” (Emphasis supplied)51
Thomas Jefferson regarded freedom of speech as a natural right and freedom

of the press as an important barrier against governmental oppression. But is not
absolute and subject to reasonable restriction as it leads to injuries to others as a
matter of making false statement.52
Adopting the natural rights language of the Virginia Convention, Madison’s

draft of the First Amendment reads: ‘‘[t]he people shall not be deprived or abridged
of their right to speak, to write, or to publish their sentiments; and the freedom of the
press, as one of the great bulwarks of liberty, shall be inviolable.’’53 In short, the First
Amendment embodied the same principles as the Revolutionary State declarations of
rights; that the freedoms of speech and press were inalienable rights of individuals as
well as essential means by which the sovereign people could oversee the conduct of
public affairs and check governmental abuse of power.54
During 1790s the American were debating on the issue of Sedition Act. Most
powerful John Marshall, who believed the Act as Constitutional, opined that, the First
Amendment barred Congress only from passing laws which can abridge the freedom
of speech or of the press. For him the liberty of the press had a well-defined meaning,
signifies a liberty to publish, free from previous restraint, anything and everything at
the discretion of the printer only. At the same time it won’t operate if the literature
contains false and scandalous slanders which have capacity to destroy the peace and
mangle the reputation of an individual or of a community.55
Heyman concludes that Blackstone defended the common law’s proscription

of blasphemous as well as defamatory and seditious libels; while Marshall confined
his argument to defamation and sedition. He also interprets that, for Marshall Sedition
51
Id.
52
Heyman, p. 12.
53
Id. at p. 13.
54
Id. at p 14.
55
Heyman, p.16.
50
is an injury less to the government than to the people themselves, who had established
the government to promote their safety and happiness.56 Marshall therefore considers
Sedition as an injury to the people themselves than the Government established by
them for the promotion of safety and happiness of people.
The ideological origin of Fourteenth Amendment57 can be traced in antislavery

movement during 1830s. The antislavery activists believed the institution of slavery
violative of as a violation of the natural rights proclaimed under the Declaration of
Independence. The antislavery agitations had to face repression, through mob
violence as well as official censorship. Therefore the antislavery activists strongly
defended freedom of expression, which they described as an inalienable right
protected by the American constitutions. James G. Birney, a leading slavery
abolitionist activist, publisher, and two-time presidential candidate of the antislavery
Liberty Party strongly advocated that, prior restraint to freedom of speech should not
be allowed. If anybody, who does abuse of such right and thereby inflicts wrong on
society be penalized. But as such discussion on the issue of the morality of institution
slavery is not as such improper and wrong.58 Such matured understanding would
certainly help the Indians in settling issue of caste system, which is predominantly
anti freedom of speech doctrine and right. Growing caste based organizations are
influencing the politics and parliamentary democracy, making it more complex. If we
wish to bring true democracy, wherein freedom of speech, thought, and conscience
would prevail we must allow the debates over this social evil without inflicting injury
to the society as such. While drawing a direct relationship between the debates-
freedom of speech and democracy Sharad Patil59 has referred Rabindranath Tagore.
Tagore opined that the salvation can be attained through knowledge and the
knowledge increases through debates. Therefore he thinks that the debates are the
56
Id.
57
(14th Amendment:1868) It guaranteed citizenship to all persons born or naturalized in the United
States. It also guaranteed the fundamental human right to life, liberty… and imposed negative duty
upon the State not to infringe these rights without due process of law. In the context we can also
deduce that an arbitrary interference of the State in the exercise of fundamental rights was sought to be
restricted.
58
Heyman, p. 21.
59
Sharad Patil, Caste-ending Bourgeois Democratic Revolution and Its Socialist Consummation, Vol.
III (Mavalai Prakashan, Shirur, First Edn., 2005), p. 61.
51
inseparable part of democracy. It is to be further noted that when Senapati Sinha,

disciple of Mahavira wished to follow the Buddha, Buddha put him a condition. The
Buddha took assurance from him that he would continue to treat the followers of
Mahavira without any hatred and prejudices. Buddha always believed in intellectual
debates with his ideological opponents in democratic manner.60
Heyman61 has brilliantly analyzed the transformation of free speech

jurisprudence in America. He observes that post Civil War era has noticed this
change. During this period the function of law was no more than to protect
fundamental rights under the Constitution but was seen to promote social welfare as
defined by the community or the state. He explains the role played by Justice Oliver
Wendell Holmes Jr. The Civil War compelled Justice Holmes to view the notion of
natural rights in the form of fundamental rights as are threat to social security.
Therefore he rejected the Locke and Kant’s notion of inherent freedom and worth of
individuals. He viewed rights do not have an independent existence; they derive their
force from positive law and therefore have ultimate goal to promote the social ends.
Thus Justice Holmes justified restrictions upon freedom of speech and expression.
Hayman further observes that interest based approach of the law was further
developed by Roscoe Pound in his doctrine of Social Engineering. While rejecting the
traditional theory of natural rights, Pound viewed the existence of social institution,
State and law is meant for social ends. He regarded that the legal system recognizes
and protects certain individual interests as legal rights and thereby promotes these
social ends. Such individual interests are not entitled to protection for their own sake
but only to achieve general happiness and common good. They serve the purpose of
securing social interest in the preservation of the peace. Social interests as well as
individual interest fall under the jurisdiction of law. If these interests conflict with
each other needs to be balanced by legal system in order to preserve peace in the
society. Thus Justice Holmes’ positivism and sociological jurisprudence of Roscoe
Pound had the effect of undermining the traditional American rationale for freedom of
expression. But these attempts were seen as attempts to dismantle the First
60
Id., pp.60-61.
61
Heyman, pp. 23-25.
52
Amendment doctrine. In this context Prof. Zechariah Chafee’s views provided a fresh
interpretation of First Amendment. He criticized Justice Holmes for his decision in
Schenck v. United States (1919)62 and other Espionage Act decisions for treating free
speech as merely an individual interest inferior to societal interest in national security.
For Chafee, the freedom of speech actually serves social interest as it helps in
discovery and spread of truth regarding issues of vital social importance.63 Heyman
points out that Chafee’s view was immediately adopted by Justice Holmes in his
dissenting judgment in Abrams v. United States (1919) where he asserts that ultimate
good can be achieved by free trade in ideas. To be precise, free trade of ideas could
only be achieved through guaranteeing freedom of speech and expression.
Justice Holmes, while delivering the opinion of the court in Schenck v. United
States (1919) laid down the Clear and Present Test to determine the Constitutional
limits of freedom of speech. According to this test if the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils. Then only the Congress has a right to prevent.
Under such circumstances the limits would prevail. Therefore, with the respect
towards the notion of right to free speech, Justice Holmes suggests that it can be
subject to the limitation of law only then if it poses clear and present danger to the
society.
Similarly in his concurring opinion in Whitney v. California (1927)64 Justice

Brandeis has laid the foundation of free speech jurisprudence in American legal
system. He opined that “all fundamental rights comprised within the term liberty are
protected by the Federal Constitution [under the First Amendment] from invasion by
the States. The right of free speech, the right to teach, and the right of assembly are,
of course, fundamental rights”. He further held that, these rights “may not be denied
or abridged.” He also opined that, “… although the rights of free speech and
assembly are fundamental, they are not, in their nature, absolute.” He argued that the
scope of these rights. The right:
62
249 U.S. 47.
63
Heyman, pp. 25-26.
64
274 U.S. 357.
53
is subject to restriction if the particular restriction

proposed is required in order to protect the State from
destruction or from serious injury, political, economic,
or moral. [Upholding clear and present danger test he
held] That the necessity which is essential to a valid
restriction does not exist unless speech would produce,
or is intended to produce, a clear and imminent danger
of some substantive evil which the State constitutionally
may seek to prevent has been settled.65
(Emphasis supplied)
He further opined that, the founding fathers of the State, “believed that the
final end of the State under the Constitution was to make men free to develop their
faculties.” The government would not be arbitrary but deliberative. For them liberty
has dual role one as an end, and another as a means. They believed liberty to be the
secret of happiness, and courage to be the secret of liberty. They believed that
freedoms to think as one would like to and to speak as one could think are
indispensable means to the discovery and spread of political truth. Therefore he
opined that:
[W]ithout free speech and assembly, discussion would

be futile; …., discussion affords ordinarily adequate
protection against the dissemination [propagation] of
noxious doctrine; that the greatest menace to freedom is
an inert people; that public discussion is a political duty,
and that this should be a fundamental principle of the
American [democratic]government.66
(Emphasis supplied)
Thus we see the American jurisprudence of free speech has transformed

according to which First Amendment has both elements of protection for free speech
rights as well as social interests. In case of conflict they have to be balanced by the
legal system. Further he recognizes the public discussion as a political duty which is
an ultimately an essence of democracy. Therefore he asserts it as a fundamental
principle of American democratic government.
65
Id., at p.374.
66
Id., at p. 376.
54
In 1955, Alexander Meiklejohn was summoned before the Senate

Subcommittee on Constitutional Rights in order to summarize his interpretation of the
First Amendment. In brief he summarized the amendment:
First, when we speak of the Amendment as guarding

freedom to hear and to read, the principle applies not
only to the speaking or writing of our own citizens but
also to the writing or speaking of every one whom a
citizen, at his own discretion, may choose to hear or to
read. And this means that unhindered [freedom of]
expression must be open to non-citizens, to resident
aliens, to writers and speakers of other nations, to
anyone, past or present, who has something to say
which may have significance for a citizen who is
thinking of the welfare of this nation. The Bible, the
Koran, Plato, Adam Smith, Joseph Stalin, Gandhi, may
be published [as a matter of freedom of press] and read
in the United States, not because they have, or had, a
right to be published here, but because we, the citizen-
voters, have authority, have legal power, to decide what
we will read, what we will think about. With the
exercise of that “reserved” power, all “delegated”
powers are, by the Constitution, forbidden to interfere.67
(Emphasis supplied)
Hence we can deduce that the freedom of speech and expression of any person, non
citizen as well, is guaranteed under the First Amendment. Provided that speech has
been received by the American citizen and who considers such speech serves welfare
of his nation. Thus he claimed equality of status in the field of ideas. He linked the
freedom of press with that of democracy.
Accordingly Meiklejohn has propounded the earliest democratic theory of the

First Amendment i.e. Freedom of Speech. It could be deduced so with the help of
these three principles;68
67
Meiklejohn’s testimony was published in Senate, Committee on the Judiciary, Subcommittee on
Constitutional Rights, Hearings, 84th Congress, 1st Session, 1955, Part 1, 1ff, and also in Alexander
Meiklejohn, Political Freedom: The Constitutional Powers of the People (New York: Oxford
University Press, 1965), pp. 107-124.
68
Martin H. Redish & Abby Marie Mollen, Understanding Post’s and Meiklejohn’s Mistakes: The
Central Role of Adversary Democracy in the Theory of Free Expression, N O R T H W E S T E R N U
N I V E R S I T Y L A W R E V I E W, Northwestern University School of Law, Vol. 103, No. 3,
(2009), p.1311.
55
1. The freedom of speech has been constitutionally valued due to its potential to
facilitate democratic decision making.
2. The speech [and various modes of expression] facilitates democratic decision

making by conveying relevant information and opinion to the listener. With
that the listener may make an informed decision at the time of exercising his
vote [form of expression].
Thus, the First Amendment protects the right to speak in limited sense only as a
matter incidental to the listener’s right to listen.
3. Democratic decision making by the citizen could be achieved through

educating and informing the electorate (i.e. the voters) sufficiently. Such
information certainly includes [irrespective of being favourable to the
government], unfair as well as fair, dangerous as well as safe, un-American
as well as American have access to all relevant information and opinion.
He examined the scope of protection to the freedom of speech under First

Amendment on the basis of speaker’s purpose for speaking. He argued that such
constitutional protection is available to the man who plan and advocate and incite
toward corporate action for the common good. But if he argues, advocates or cause
incitement towards his own private interests, private privileges, and private
possessions he is not entitled for the same.69 Thus he differentiates private and
public sphere of speech.
Robert Post70 provides an alternative to Meiklejohn’s democratic

explanation of the First Amendment with the help of his participatory theory. For
him majority rule is significant only because it is a mechanism to realize the value
of collective self determination. Post views the Democracy is not primarily about
what individuals do, but rather about how they feel. Post believed that the
democratic legitimacy remains intact and exists till then when the elected
government responds to their wishes. Such legitimacy continues till the belief is
69
Id., at p. 1314.
70
Id., at pp. 1321-1323.
56
retained that they experience their state as an example of authentic self

determination and they identify and feel the government as their own. An
individual may feel that he is included in and is part and parcel of process of
collective self-government if he is free to participate through public discourse in
the communicative process relevant to the formation of democratic public opinion
as well as if the state is subordinated to the public opinion that emerges from this
public discourse. Thus, Post’s notion of participatory concept of democracy could
be analyzed and understood as if individuals can participate in the formation of
public opinion, and if the State is subject to the control of public opinion, under
such circumstances individuals can recognize their potential authorship in making
of collective decision. That justifies relevance of freedom of speech and
expression.
Erich Fromm in his classical work, THE FEAR OF FREEDOM,71 exhaustively

dealt with the notion of freedom. He also explains how the quest for freedom inspired
the generations to fight for their own liberation.72 Fromm categorizes the notion of
freedom as negative and positive freedom by using two concepts “freedom from” and
“freedom to”. He recognized the historical role of negative freedom which has
enabled the man to achieve emancipation of himself from the existing system and
institutions. His notion of ‘freedom from’ has a negative element because he opines
that rejection of the existing exploitative system may lead to destruction. Therefore he
argues the negative freedom must have association of positive and creative element of
‘freedom to’ use freedom for the purpose of creative acts. While explaining the object
behind his work Erich Fromm73 says:
1. Firstly, as a matter of negative freedom, the modern man got freed from
traditional authorities. That transformed in to an “individual”. But its negative
impact made him isolated, powerless, alienated from oneself as well as others.
71
This book was published firstly in United States as Erich Fromm, ESCAPE FROM FREEDOM
(Farrar & Rinehart, New York, 1941). Outside the America it is popular as The Fear of Freedom.
Available at http://realsociology.edublogs.org/files/2013/09/erich-fromm-the-fear-of-freedom-escape-
from-freedom-29wevxr.pdf. (Hereinafter Erich Fromm).
72
Id., at p. 1.
73
Erich Fromm at pp. 232-233.
57
This state undermines his self, weakens and frightens him making him ready
for submission and subjugation to new kind of bondage and slavery.
2. Positive aspect of freedom ensured full realization of individual personality,

his ability to live actively and spontaneously. Now the freedom is being
governed by logic of its own dynamism. Therefore future of democracy
depends upon the realization of individualism, which is ideological aim of
modern thought.
Thus we can logically deduce that the excess rejection with demand for
freedom from may lead to such emptiness and anxiety after the achievement of the
said freedom. But this very state may lead to subjugation of an individual to other
forces.
Therefore Fromm74 argues that, the freedom can achieve victory only if the
democracy transforms the society. Under such transformed society individual’s
growth and happiness becomes ultimate aim and purpose of the culture. Under such
circumstances the success becomes immaterial in the life. Such situation does not
allow subordination or manipulation of an individual by neither the State nor
economic order. Such would be the ideal society wherein one’s conscience and ideals
are not influenced by external factors but are the results of his own self.
2.5 Jurisprudence of Freedom of Speech and Expression: An Indian Experience
It is a fact that whenever we wish to discuss free speech jurisprudence we find

the modern jurists have always linked it to ancient Athenian as well as western
philosophical contributions. We also come across with the fact that the western free
speech jurisprudence has been founded upon the notion of inalienable natural rights.
Hence it has been often looked through individual centric angle. Indian judiciary has
also followed the same path. Same is the case with regard to the notion of democracy.
All we know that India is such a land that has provided breeding ground for various
philosophies. But this fact is often ignored while interpreting the free speech
74
Ibid.
58
jurisprudence in the light of Indian philosophical heritage. The researcher aims to

interpret the jurisprudence in the light of some of Indian origin philosophies.
2.5.1 Ancient Classical Literature: A Hawk’s View
The Vedas i.e. the Shrutis along with non Vedic philosophical as well as
ancient Sangam Age literature make us evident the great heritage of freedom of
speech and expression in Indian history. These classical literatures indirectly
emphasize upon the ability to speak. Shrut means to hear and Smriti means to
memorize. Thus we can conclude that without freedom of speech and expression in
the form of rhymes, verse the philosophy of the Vedas would have not been able to be
developed and communicated through the ages from generations to generations. Rig
Veda has acknowledged the plurality of ways in which the universal truth can be
interpreted and understood. It also suggests that everybody should contribute in
discovery of truth through one’s wisdom and intellect which would prove to be
beneficial to mankind. Thus it provides a scope for rational enquiry which takes the
human being towards fulfillment of his human rights.
Atharva Veda [Book VIII hymn X] refers the evolution of democracy during
Vedic period. According to Shankaracharya the Bhagvad Gita preached that the
Jnana marga was the only true way of salvation.75 This impliedly conveys that one
can enrich his own wisdom (Jnana) through freedom of speech and expression.
Therefore we can say that Shankaracharya recognized the importance of freedom of
speech and therefore linked the concept of salvation (moksha) with the concept of
salvation with Jnana by propounding it as an essential message of Bhagvad Gita.
Nyâya Sûtra,76 propounded by philosopher Gotama, provides us science of

logic to deduce the principles through discussion. He employed the logic to discover
the knowledge of truth. He believed that our false apprehension is destroyed by
knowledge of truth similarly as we come out of illusion of dreams when we get
75
DR. BABASAHEB AMBEDKAR: WRITINGS AND SPEECHES, Vol. 3 (Education Dept. Govt. of
Maharashtra, 1987), p. 360. (Hereinafter BAWS).
76
वृ दे वृ दे त विच तानुवाद: I वादे वादे जायते त वबोध: I
59
awaken.77 Therefore the concepts “Tarka-vidyâ” the science of reasoning and

“Vâdârth”78 the science of discussion must be needed to be looked into, for this
purpose. Vâdârth can be explained in the words of Gotama; “[d]iscussion is the
adoption of one of two opposing sides. What is adopted is analysed in the form of five
members, and defended by the aid of any of the means of right knowledge, while its
opposite is assailed by confutation, without deviation from the established tenets.”79
(Emphasis supplied) This is a kind of disciplined discussion without deviating from
agreed framework. This can be further elaborated as:
A dialogue or disputation (kathā) is the adoption of a

side by disputant and its opposite by his opponent. It is
of three kinds, viz., discussion which aims at
ascertaining the truth, wrangling80 which aims at mere
gaining victory, and cavil81which aims at finding mere
faults [in the speech of others]. A discutient is one who
engages himself in disputation as a means of seeking
the truth.82
(Emphasis supplied)
Thus we can understand that, the wrangling and cavil activities do not earn the
knowledge of truth. One can ascertain and discover the truth by discussion only. Now
a day, unfortunately, the people are employing their freedom of speech and expression
for the purpose of wrangling and cavil activities. This is responsible for creating
hatred in the hearts of opponents, which ultimately takes away the democratic space
from the human life. Nyayasutra83 also supports the idea of examination of the fact,
77
Major B. D. Basu (Ed.), The Sacred Books of the Hindus: The Nyayasutras of Gotama, Vol. VIII
(THE PANINI OFFICE, BHUVANESWARI ASRAMA, BAHADURGANJ, Allahabad, 1913), 4/2/35,
p. 135. (Hereinafter B. D. Basu)
78
Id., at p. ii.
79
वाद:; माणत क साधनोपाल भ स दा तािव िव द: प चावयोपप न:, B. D. Basu, 1/2/1, p. 14.
(Vaadah; Pramantaarsaadhanopalmbhassiddhantaaviruviruddhah Panchaavayopapannah)
80
ज प (Jalp – Wrangling).
81
िवत ड (Vitanda – Cavil) is a kind of wrangling which consists in mere attacks on the opposite side. A
caviller does not endeavour to establish anything, but confines himself to mere carping at the
arguments of his opponent, B. D. Basu, 1/2/3: p. 15.
82
Id, at p. 14.
83
य संशय त ैवमु रो र सङ (Yatra Sanshayastatraivamuttarottaraorasang) : 2/1/7, B. D. Basu, p. 24.
60
even if there is little bit doubt about it being true. It is to be noted that while imposing
reasonable restrictions these aspects are hardly taken in to account.
2.5.2 Freedom of Speech and Expression: An Outlook of Jainism
Mahavira, the Tirthankara advocates path of right conduct i.e. Samyak

Charitra for one’s liberation from self. The right conduct encompasses five vows.
One of the vows is Satya (truthfulness) which means to speak harmless truth only.
The principle of Ahimsa is included in his interpretation of freedom of speech. Thus
Ahimsa and Satya are the reasonable restrictions on freedom of speech as per the
philosophy of Jainism.
2.5.3 Freedom of Speech and Expression: Buddha’s Interpretation
Buddha’s philosophy is considered as an advocate of freedom of speech. His

Right Eightfold Path emphasizes up on Samma Vacca i.e. righteous speech.
Ambedkar has explained the concept of freedom of speech as per the Buddha’s
philosophy.84
…Samma Vacca (Right Speech) teaches what speeches

are justified as right and what are not been considered
as right. The Samma Vacca includes that (1) one should
speak only that which is true; (2) one should speak
kindly and courteously to all. Samma Vacca also puts
self-imposed restrictions on use of speech under certain
circumstances. It requires that one should not speak
what is false; one should not speak evil [hate speech] of
others; one should refrain from slander; one should not
use angry and abusive language towards any fellow
man [to refrain from using hate speech]; one should not
indulge in pointless, foolish [cavil and wrangling] talk,
but let his speech be sensible and to the purpose.
(Emphasis supplied)
It seems Buddha propound reasonable restrictions while one resorts to exercise

his freedom of speech and expression. His right speech is nothing but a self restraint
one has to observe while exercising the freedom. Ambedkar further interprets another
84
B. R., Ambedkar, THE BUDDHA AND HIS DHAMMA (Buddha Bhoomi Pub., Nagpur, 1997), p.
125.
61
dimension of Right Speech. He argues that such speech shall not be a result of fear or
favour, not the obedience to superior command or for the sake of individual’s
personal benefit. We can also find similarity between Samma Vacca and Athenian
concept of parrhesia.
Ancient Buddhist literature refers the healthy democracy prevailed in Vajji

Gana Sangha (an ancient Republic). Maha Parinibbana Suttanta85 refers the King
Ajatsattu of Magadha wished to win over the Vajjis. The sutta refers dialogue
between the Buddha and Ananda. In this dialogue Buddha tells bhikkhu (monk)
Ananda that if the Vajjis continue to meet together, would have free dialogue amongst
them, would have respect for democracy and free speech what he has taught to
Vajjians, till then the Magadha could not crush the Vajjis to defeat. Buddha also
designed his Sangha (an assembly of Buddhist monks), wherein freedom of speech
and democracy prevailed and differences amongst monks resolved peaceably. On the
basis of this we can deduce that the Western philosophies viewed freedom of speech
and expression from the point of individual member of society. But, Indian
philosophers, by advocating disciplined and self regulating speech, viewed the
freedom of speech and expression through social point of view. They knew illogical,
hateful, meaningless, unscientific and untrue exercise of freedom of speech and
expressions have detrimental effect. They condemned such exercise.
In modern period Ambedkar, while explaining the concept of liberty,

categorized the liberty as Civil and Political. He further states that civil liberty
encompasses liberty of speech (which of course includes liberty of thought, liberty of
reading writing and discussion.)86 He further asserts that civil liberty is fundamental
and most essential; hence its value cannot be doubted. He considered political liberty
as freedom of opinion is important because it’s a necessary condition of all moral,
political and social progress. Therefore we can understand that, for him, civil and
political liberties are interconnected with freedom of speech and expression. One can
form his opinion and spread it in order to advice multidimensional progress. In short
85
T. W. Rhys Davids (Ed), SACRED BOOKS OF BUUDHISTS, Vol. III (Oxford University Press,
London, 1910), pp. 78-81.
86
BAWS, Vol-3, at p. 98.
62
he has argued that the liberty of speech works as gateway of achieves and enforces
human rights, what we understand in today’s context. He also argues that, political
liberty consists in the right of the individual to share in the framing of laws and in the
making and unmaking of governments. Governments have been institutionalized in
order to secure certain inalienable rights such as life, liberty and pursuit of happiness.
Thus he uses the language similar to that of John Locke enshrined under the U.S.
Constitution. He argues the government must derive its existence, power and
authority from the people to whom it governs. Such political liberty is part and parcel
of the principle of human personality and equality. In the exercise of this liberty the
liberty of speech (freedom of speech and expression) certainly plays a dominant
role.87 Ambedkar goes further in relating freedom of speech and expression with the
politico-societal aspects. He does not see freedom of speech and expression in
isolation and views liberty of speech as a necessary condition of all moral, political
and social progress.
2.6 Freedom of Speech and Expression under Indian Democracy-An Overview
Two statements in the Rig Veda contain vital clues to any enquiry into the
nature of truth and justice to be pursued by anyone: “Truth is one. Wise men interpret
it differently” and “Let noble thoughts come from everywhere.” These two opinions
actually represent the oldest philosophical acknowledgement of the plurality of ways
in which the universal truth can be interpreted and understood. Further the second
statement in addition attempts to create a pool of wisdom to which everybody should
contribute and which is expected to be beneficial to all at the end. Therefore we can
logically deuce that the Vedas gave very much importance to freedom of speech and
expression. The democratic institutions Sabha, Samiti and the notion of Ganarajya
were predominantly based upon free and fearless discussion. Ancient
Ganasanghas/Janapadas like Vajjis is a vibrant and classical example of prevalence
of democracy in India.
According to Ambedkar, the term democracy has wider dimension. In his

speech at the Constituent Assembly on November 25, 1949 interpreted it as way of
87
Id., at p. 98-99.
63
life. Therefore he never wanted to limit the scope of democracy up to political sphere
but also wanted to include under it political as well as social democracy. Thus he
viewed democracy as an instrument of revolution. Therefore he said:
“Democracy is a form and a method of Government whereby revolutionary

changes in the economic and social life of people are brought about without
bloodshed.”88 For him democracy is a way of political life to seek revolutionary
transformation in economic as well as social spheres of human life by peaceful means.
Democracy can also be defined as a society characterized by formal equality

of rights and privileges for all people. “Democracy expects openness and openness is
concomitant of a free society and the sunlight of is a best disinfectant.”89 But very
rarely such wide interpretation is adopted to explain democracy.
Ambedkar strongly rejects the idea to limit the concept of democracy to mere
a form of Government. For him democracy is an associated form of living and of
conjoint communicated experience. He further elaborates his concept of democracy
by stating that such associated form of democracy is essentially an attitude of respect
and reverence towards fellow members of society. For him fraternity is synonym to
the concept of democracy. It is fraternity that assures social endosmosis. The society
that guarantees such social endosmosis is an ideal society for him. Under such
conditions different interests are consciously communicated. Such democratic society
is dynamic as well as mobile. He, therefore, concludes that a rigid society does not
have space for liberty, equality. That ultimately denies existence of fraternity and
therefore democracy. He sees the fraternity that assures social endosmosis is a true
kind of democracy. Hence he shows his disagreement to limit the democracy to mere
(election oriented Parliamentary) form of democracy.90 Democracy may be defined as
the political commitment to universal emancipation through securing the equal
enjoyment of fundamental human rights for everyone.91 In this regard it can be argued
88
Dr. Ambedkar’s address at Poona District Law Library on December 22, 1952.
89
Dinesh Trivedi, M. P. and Ors v. Union of India, (1997) 4 SCC 306.
90
BAWS , Vol. 1, p. 57.
91
Michael Goodhart, Democracy as Human Rights: Freedom and Equality in the Age of Globalization
(Routledge, New York, 2000), p. 135.
64
that Dr. Ambedkar long ago viewed democracy as an instrument for ultimate
emancipation of humans from socio, economic cultural enchainment. For such
purpose of emancipation democracy operates as a political commitment.
Indian judiciary has also attempted to define the term democracy. In Re S.

Mulgaokar v. Unknown92 honourable Supreme Court of India has rightly opined that:
Political philosophers and historians have taught us that

intellectual advances made by our civilization [through
debates] would have been, impossible without freedom
of speech and expression. At any rate, political
democracy is based on the assumption that such
freedom must be jealously guarded. Voltaire expressed
a democrat’s faith when he told an adversary in
arguments [that]“I do not agree with a word you say,
but I will defend to the death your right to say it”.
Champions of human freedom of thought and
expression throughout the ages, have realized that
intellectual paralysis creeps over a Society which
denies, …. , due freedom of thought and expression to
its members.
(Emphasis supplied)
But we notice that the judiciary attempted to interpret the notion of democracy in the
light of western individual centric approach, that too in the context of political
democracy only. The courts recognized the contributions of western philosophers but
they could not see the Indian philosophical dimensions.
2.7 Democracy vis â vis Freedom of Speech and Expression: A Critical Analysis
The term democracy has Latin roots. Latin Greek word dēmokratia, that
encompasses the word “dēmos” which means ‘the people’ while “kratia” means
‘power, rule’. Oxford dictionary interprets the term as “the practice or principles of
social equality.”93 According to Athenian concept of democracy, it conveys that the
assembly of ordinary citizens94 in larger groups that used to make all decisions
92
(1978) 3 SCC 339, 1978 3 SCR 162.
93
https://en.oxforddictionaries.com/definition/democracy.
94
Citizens did not include women, children, slaves and foreigners. Therefore the term did not have
wider meaning.
65
regarding governance. It was such political system in which the people (dēmos)
possessed monopoly over the political power (kratos) that was being used to govern
them. Each of the Athenian principal institution of governance basically were mass
meetings of the citizens who listened to debates and used to take collective decision
after voting on a particular issue. For Athenians there were two different concepts95
which were vital to their democracy. The first one Isēgoria, meant an equal
opportunity for the Athenian citizens to speak at their political institutions of
democracy i.e. ekklēsia (Assembly). The second one parrhēsia conveyed fearless
frank and open speech in such assemblies.
According to Harold Laski democracy is a government by discussion.

Democracy could become successful if the people effectively participate in the
government.96 In order to attain effective participation the people need to be educated.
Freedom of speech and expression helps in educating the people. Therefore there is
direct relationship between freedom of speech and expression and democracy.
Justice Brandeis, in his concurring judgment, in Whitney v. California97 gave

logical reasoning behind relevance of public discussion under democracy. He opined
that: The freedom fighters, who won independence of United States of America
believed that without free speech and assembly the discussion would be futile and
meaningless. They viewed that, the discussion affords ordinarily adequate protection
against the dissemination of noxious doctrine. They also believed that public
discussion was a political duty therefore that should be a fundamental principle of the
American government. They even believed in the power of reason as applied through
public discussion. This interpretation sounds like Athenian notion of democracy
wherein exercise of fearless speech by the citizens stands at its core.
Eric Barendt summarizes free speech principle as; it should often be tolerated,
even when conduct which produces comparable offence or harmful effects might
95
Keith Werhan, The Classical Athenian Ancestry of American Freedom of Speech, Tulane University
School of Law Public Law and Legal Theory Research Paper Series, Research Paper No. 09-02,
(February 2009). Can be accessed at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1350009.
96
Dr. Madabhushi Sridhar, The Law of Expression (Asia Law House, Hyderabad, Edn. 1, 2007), p. 18.
(Hereinafter Madabhushi Sridhar).
97
274 U.S. 357 (1927), at p. 375.
66
properly be proscribed. And that must be because speech is particularly valuable, or

perhaps because we have special reason to mistrust its regulation.98 It is so because it
helps in discovery of truth, it is regarded as tool of self fulfillment, it allows us to
participate in a democracy and criticize the government for improper functioning.
Democracy is thus the principle of equality of rights, opportunity etc or practice of
this principle.
In the notion of democracy, being based upon popular sovereignty, the

freedom of speech and expression serves the purpose of participation of members of
society in decision making. This conveys that concept of democracy need not to be
limited to the election oriented parliamentary democracy only. Hence democracy
should not be limited to the understanding of rule of majority as expected in popular
conception. It needs to be understood in the context of right to have difference of
opinion. Minority views shall always be given equal importance to point out even
drawbacks, loopholes, lacunae in the administration. Hence the freedom of speech is
considered as the bulwark of a democratic government.
Intolerance can be defined as unwillingness to tolerate differences in opinions,

practices, or beliefs, especially religious beliefs which opposes to the notion of
democracy. Intolerance is an output of narrow mindset which leads to fundamentalism
of any kind. Thus intolerance is an antithesis to the freedom of speech and expression
as well as democracy.
Therefore, we can deduce logically the different dimensions of freedom of

speech and expression. Heyman links free speech with other basic rights. According
to him concept of personal security encompasses right over one’s own body and the
body is inseparable from the self. Thus injury inflicted to the self is ultimately an
injury to the body. Therefore denial of right of self determination through freedom of
speech and expression of one self’s opinion is violation of personal security.99
Heyman also argues that as per Locke’s Social Contract theory, all human beings
constitute a single community. This community is governed by the law of nature
98
Eric Barendt, Freedom of Speech (Oxford University Press, 2nd Edn., 2007), p.7.
99
Heyman, p. 48.
67
which aims the peace and preservation of all mankind. An act of violence inflicting
injury to an individual is in fact injury to the society as a whole. Therefore it can be
viewed as violation of right to the public peace.100
Denial of freedom of speech and expression also can be regarded as denial of

right to equality. The principle of equality is closely associated with human dignity.
Thus denial of freedom of speech is denial to recognize the right of human dignity.
Apart from this denial to freedom of speech and expression denies individual’s every
right to participate in cultural life through artistic expression. In short denial to
freedom of speech and expression is denial to all dimensions of human personality,
which can be viewed as threat to existence of civil society. If Karl Marx meant history
of mankind is the history of class struggle, we have to understand the fact that it
would have not been possible with the freedom of speech and expression. Now a day
clash of civilization is considered as an immediate threat to the society. This theory
presents clash of so called contradictory cultures. But the culture as well as
civilization needs freedom of speech and expression to assert it.
2.8 Freedom of Speech-Right to Disagree and Dissent
Intellectual disagreement and quarrels have contributed a lot for the society.
We find the ancient philosopher Socrates, Homer, Aristotle, Plato had difference of
opinions hence fought intellectual battles. This heritage of debates and disagreement
was carried forward by other philosophers and thinkers in Europe. We have also seen
intellectual fight between Vedic philosophers and non-Vedic -Nastik philosophers like
Lokayats, Charvaka in Indian history. In Anand Patwardhan v. Union of India101 the
court opined that “in a democracy it is not necessary that everyone should sing the
same song.”
The above arguments clearly leads to the conclusion that the jurisprudence has
to include right to disagree and right to express one’s dissent against the State, views
of majoritarian population, the established religious ideas. But the democracy always
confronts with intolerance on the part of receivers of speech and expression.
100
Id., at p. 50.
101
AIR 1997 Bom 25.
68
Intolerance can be defined as unwillingness to tolerate differences in opinions,

practices, or beliefs, especially religious beliefs which opposes to the notion of
democracy. Intolerance is an antithesis to the freedom of speech and expression as
well as democracy. Repression of the free speech has become focus point in the
modern age. India is not an exception to this. Under such circumstances, in order to
guarantee the protection to exercise of this freedom, it has become inevitable to
redefine scope of reasonable restrictions as well as very notion of democracy.
The human being, after getting understood the surrounding reality through his
wisdom if expresses himself then the Dharmashastra, philosophy and science takes
the birth. But when the same reality is expressed through his senses, it gives birth to
different arts. This assumed a basic human right necessary for overall development of
human personality. Therefore right to freedom of expression that includes freedom
speech has played vital role in making the civilization flourish. Athenian notion of
parrhesia justified relevance of free speech, which became foundation for the free
speech jurisprudence in the western, modern civilized legal systems. Different
thinkers, philosophers as well as jurist articulated different arguments to express need
for guaranteeing the freedom. Ancient Indian philosophers too recognized essence of
freedom of speech and expression, but subjecting its exercise to restrictions in the
form of self restraint. Freedom of thought and expression is now generally recognized
in the liberal states of modern times as a fundamental civic right, indeed as the chief
trait that distinguishes liberal societies from totalitarian or despotic ones.102
An expression of thoughts and ideas has also been considered as an integral

part of the development of personality of human being. Suppression of this expression
is therefore an affront to dignity of human being.103 Rule of law postulates
recognition of civil rights and liberties. Freedom of speech and expression is one of
102
David S. Sills (ed.), International Encyclopedia of Social Sciences, Vol. 1 (Macmillan Company &
The Free Press, 1968), p. 5. Can be accessed at
http://home.sogang.ac.kr/sites/kylee/Courses/Lists/b6/Attachments/12/International%20Encyclopedia%
20of%20Social%20sciences.pdf.
103
Madabhushi Sridhar, at p. 19.
69
such liberty. Justice Hans Raj Khanna opines that, “[f]or true efflorescence of the rule
of law we need a climate of democracy.”104
Freedom of speech and expression coexists along with democracy, curtailment

of that dismantles democracy. Intolerant legal system as well as society crushes this
freedom mercilessly. Therefore repression of the free speech has become focus point
in the modern age. India is not an exception to this. Under such circumstances, in
order to guarantee the protection to exercise of this freedom, it has become inevitable
to redefine scope of reasonable restrictions as well as very notion of democracy.
104
Justice H.R. Khanna, Rule of Law, (1977) 4 SCC (Jour) 7.
70

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CHAPTER II

FREEDOM OF SPEECH AND EXPRESSION

FREEDOM OF SPEECH AND EXPRESSION -

The history of human species’ evolution is woven by the development of this

In the modern-civilized-democratic-welfare society, notion of rights has

This chapter aims to critically analyze essence of freedom of speech and

2.1 Freedom of Speech and Expression Jurisprudence: An Ancient Athenian

The jurisprudence of freedom of speech is of recent origin in the west,

हणुनी कळवळा येतसे │

More precisely, parrhesia is a verbal [speech] activity

Saxonhouse views, “the Athenian freedom of speech is the affirmation of

2.2 Western Tradition of Freedom of Speech and Expression

Ancient Athenian State was an organized system. We experience that the

John Milton in his work “Areopagitica” (1644)17 said :

Though all the winds of doctrine were let loose to play

2.3 The Renaissance and Freedom of Speech

The eve of renaissance experienced more speedy development in the free

In Chapter IV titled of slavery, Locke asserts that, “[t]he natural liberty of

Wherever law ends, tyranny begins, if the law be

Jean-Jacques Rousseau is famous for his extremely brilliant thought in the

John Stuart Mill, an icon of advocacy of liberty, defends individuality and

It comprises,…[of]…, the inward domain of

Mill was of opinion that liberty of thought is meaningless without liberty of

Were an opinion a personal possession of no value

Thus Mill strongly recognized the necessity to the mental well-being of

is a people’s frank confession to itself [acts as mirror to

2.4 Freedom of Speech and Expression: An American Heritage

The development of modern free speech jurisprudence is indebted to historical

Professor Thomas Emerson46 views freedom of expression is essential as a

Further he opines that freedom of expression is essential process for

The First Amendment with regard to right to freedom of expression is a

Cato’s48 letter no. 15 is devoted to freedom of speech. The essay reads;

Without freedom of thought, there can be no such thing

as publick (sic) liberty [in the society], without freedom

This sacred privilege [in the form of fundamental

Thomas Jefferson regarded freedom of speech as a natural right and freedom

Adopting the natural rights language of the Virginia Convention, Madison’s

Heyman concludes that Blackstone defended the common law’s proscription

The ideological origin of Fourteenth Amendment57 can be traced in antislavery

inseparable part of democracy. It is to be further noted that when Senapati Sinha,

Heyman61 has brilliantly analyzed the transformation of free speech

Similarly in his concurring opinion in Whitney v. California (1927)64 Justice

is subject to restriction if the particular restriction

[W]ithout free speech and assembly, discussion would

Thus we see the American jurisprudence of free speech has transformed

In 1955, Alexander Meiklejohn was summoned before the Senate

First, when we speak of the Amendment as guarding

Accordingly Meiklejohn has propounded the earliest democratic theory of the

2. The speech [and various modes of expression] facilitates democratic decision

3. Democratic decision making by the citizen could be achieved through

He examined the scope of protection to the freedom of speech under First

Robert Post70 provides an alternative to Meiklejohn’s democratic

retained that they experience their state as an example of authentic self

Erich Fromm in his classical work, THE FEAR OF FREEDOM,71 exhaustively

2. Positive aspect of freedom ensured full realization of individual personality,

2.5 Jurisprudence of Freedom of Speech and Expression: An Indian Experience

It is a fact that whenever we wish to discuss free speech jurisprudence we find

jurisprudence in the light of Indian philosophical heritage. The researcher aims to

2.5.1 Ancient Classical Literature: A Hawk’s View

Nyâya Sûtra,76 propounded by philosopher Gotama, provides us science of

awaken.77 Therefore the concepts “Tarka-vidyâ” the science of reasoning and

A dialogue or disputation (kathā) is the adoption of a

2.5.2 Freedom of Speech and Expression: An Outlook of Jainism