The Weekend Leader - Kashmir verdict: SC cites US laws on free speech during wars

Kashmir verdict: SC cites US laws on free speech during wars

New Delhi

10-January-2020

The Supreme Court on Friday noted that the US has undergone lot of changes concerning dissent during war, and the position that emerges is that "any speech which incites imminent violence does not enjoy constitutional protection".

A bench, headed by Justice N.V. Ramana, while examining the restrictions imposed on freedom of speech and expression in the Indian context, cited the US Civil War, when a dramatic confrontation over free speech arose with respect to the speech of Clement L. Vallandigham, who gave a speech calling the conflict "wicked, cruel and unnecessary".

"He had urged the citizens to use ballot boxes to hurl 'President (Abraham) Lincoln' from his throne. As a reaction, Union soldiers arrested Vallandigham and he faced a five member military commission which charged him with "declaring disloyal sentiments and opinions with the object and purpose of weakening the power of the government in its efforts to suppress an unlawful rebellion.

The Commission found Vallandigham guilty and imposed imprisonment on him during the war. This led to demonstrations terming it as a crime against the US Constitution, it said.

"President Lincoln, having regard to the US Constitution, commuted the imprisonment and converted it to banishment. He justified the aforesaid act by stating that banishment was more humane and less disagreeable means of securing least restrictive measures," the court said.

The apex court also cited the Cold War era, where the attention of the American Congress was on the increasing communism. In 1954, the Congress even enacted the Communist Control Act, which stripped the Communist Party of all rights, privileges and and immunities. The Act made it unlawful for any person to knowingly or willfully advocate the intent of overthrowing or destroying the government of the United States by force or violence, to organise or help to organise any group which does so, or to conspire to do so.

"An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations," the apex court cited the US Supreme Court as saying.

During the Vietnam War, the US Supreme Court held that the state cannot punish advocacy of unlawful conduct, unless it is intended to incite and is likely to incite imminent lawless action. The bench also cited an article by Bruce Ackerman, while the US was facing new challenges, especially with war on terror. "The selective adaptation of doctrines dealing with war predictably leads to sweeping incursions on fundamental liberties," the verdict said.

The apex court said: "From the aforesaid study of the precedents and facts, we may note that the law in the US has undergone lot of changes concerning dissent during war. The position that emerges is that any speech which incites imminent violence does not enjoy constitutional protection".

The Supreme Court, which has asked the Jammu and Kashmir to review all curb orders within a week, said: "We may note that even the broadest guarantee of free speech would not protect the entire gamut of speech. The question which begs to be answered is whether there exists a clear and present danger in restricting such expression."IANS