Freedom of Expression – Disruption of Public Order

Schenck v. United States, 63 L Ed 470 : 249 US 47 (1919), enunciated the clear and present danger test as follows:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck’s Stove and Range Co., 221 US 418 : 55 L Ed 797. The question in every case is whether 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 that Congress has a right to prevent. It is a question of proximity and degree.”
This was further refined in Abrams v. United States, 250 US 616:63 L Ed 1173 (1919), this time in a Holmesian dissent, to be clear and imminent danger. However, in most of the subsequent judgments of the US Supreme Court the test has been understood to mean to be “clear and present danger”. The test of “clear and present danger” has been used by the US Supreme Court in many varying situations and has been adjusted according to varying fact situations. It appears to have been repeatedly applied, see Terminiello v. Chicago, 93 L Ed 1131 : 337 Us 1 (1949), Brandenburg v. Ohio, 23 L Ed 2d 430 : 395 US 444.
In S. Rangarajan v. P. Jagjivan Ram, it was held as under:
“The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) of the Constitution of India may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably looked up with the action contemplated like the equivalent of a ‘spark in a power keg.’
The court has used the expression “tendency” to a particular act. Thus, in State of Bihar v. Shailabala Devi, 1952 SCR 654, an early decision of the Court said that an article, in order to be banned must have a tendency to excite persons to acts of violence. The test laid down in the said decision was that the article should be considered as a whole in a fair free liberal spirit and then it must be decided what effect it should have on the mind of a reasonable reader.
In Ramji Lal Modi v. State of U.P., 1957 SCR 860, the Court upheld Section 295-A of the Indian Penal Code only because it was read down to mean that aggravated forms of insults to religion must have a tendency to disrupt public order. Similarly, in Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, Section 124-A of the Indian Penal Code was upheld construing it narrowly and stating that the offence would be complete if the words complained of have a tendency of creating public disorder by violence. It was added that merely creating disaffection or creating feelings of enmity in certain people was not good enough or else it would violate the fundamental right of free speech under Article 19(1)(a). Shreya Singhal v. Union of India, (2015) 5 SCC 1.

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