In Ram Manohar Lohia versus State of Bihar (AIR 1966 SC 740 at 758-59), the Supreme Court

had occasion to consider the scope and ambit of the term ‘public order”, and held that the
community or the public at large have to be affected, and only then can it be said that a particular
action jeopardises public order- it “embraces more of the community than ‘law and order’”.
As was held by the Court in State of Uttar Pradesh versus Sanjai Pratap Gupta (2004) 8 SCC 591
the act in question should have the potentiality to “disturb the even tempo of the life of the
community”.

LOOK AT A.B. 1104.

Proportionality- What simpler means could have been taken?
The plurality opinion also expressed the wide applicability of the Stolen Valor Act. "The Act by
its plain terms," Kennedy wrote, "applies to a false statement made at any time, in any place, to
any person". Such breadth means that the law is "sweeping... [the] reach of the statute puts it in
conflict with the First Amendment... the statute would apply with equal force to personal,
whispered conversations within a home.1
Even though there are several examples of the use of penalizing false speech (like perjury),
Kennedy argued that "[t]he Government has not demonstrated that false statements generally
should constitute a new category of unprotected speech...2 Harmful free speech that causes harm
is being dealt with by other statutes and laws, fake news shouldn’t be one such ground. Use
the no content based restriction wala argument. Thodi der me mentioned hai.
Fake news does no harm
 https://www.ifs.org/2017/03/27/constitutional-and-practical-issues-with-california-
assembly-bill-1104/
Fake news causes no proximate harm to the society.
If candidates, political parties, or other organizations find false or misleading messages to be a
problem, the alternative is not censorship, but more speech. The Supreme Court has consistently
adopted this position. “The remedy for speech that is false is speech that is true. This is the ordinary
course in a free society. The response to the unreasoned is the rational; to the uninformed, the
enlightened; to the straight-out lie, the simple truth…. The theory of our Constitution is that the
best test of truth is the power of the thought to get itself accepted in the competition of the market.”3
And those supposedly “protected” from false speech under A.B. 1104 are uniquely suited to
answer false speech directly. As the online blog techdirt recently wrote: It would seem the
“victims” listed in the proposed amendment aren’t really in need of a free speech-abusing law. If
California’s government doesn’t like the tone of online posts about ballot measures, it has plenty

1
United States v. Alvarez, 132 S. Ct. 1421, 589-590 (S. Ct. 2012).
2
United States v. Alvarez, 132 S. Ct. 1421, 590 (S. Ct. 2012).
3
United States v. Alvarez, 567 U.S. __, 132 S. Ct. 2537, 2550 (2012).
of opportunities (and numerous platforms) to set the record straight. Worse, it gives the
government the power to shut down speech it doesn’t agree with under the pretense [of] preventing
voters from being misled. As for political candidates, they rarely suffer the problem of having too
little speech. Bullsh–t can be countered with more speech, a rhetorical weapon everyone has access
to, but political candidates in particular tend to be especially well-equipped in this department.4
Outside of the obvious remedy to speech one disagrees with or finds “false or deceptive,”
candidates may find solace in existing libel and slander laws. These statutes already provide ample
protection against false speech that causes real damage. When applied properly, these provisions
succeed in compensating the victims of defamatory or libelous speech, frequently resulting in
favorable settlement or the payment of damages. For example, since Nevada’s false statement law
was deemed unconstitutional in Nevada Press Association v. Nevada Commission on Ethics,
candidates in the state have turned to existing libel and slander laws to gain compensation for
damaging speech.5
While the preferred avenue for answering political commentary or misleading speech in campaigns
is more speech, in extreme circumstances, candidates are entitled to use existing libel and slander
laws to seek protection and damages from the courts.

A general rationale for widespread freedom of speech – i.e., exclusion of government regulation
of speech – is the so-called “marketplace of ideas” rationale. The rationale starts from the
assumption that society aims to get the truth, the more truth the better. The argument then proceeds
by claiming that the best way for society to get the truth is to let everyone express their viewpoints
to others. When government stays out of the picture, and lets everybody expound and defend their
views, others will get a wider range of evidence and will profit from that by garnering more truth.
This theme has been endorsed by famous writers of many eras. John Milton wrote: “Let Truth and
Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter (Milton
1644).” And Justice Oliver Wendell Holmes, in a famous (dissenting) opinion wrote: “[W]hen
men have realized that time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas – that the best test of truth is the power of the thought to get itself
accepted in the competition of the market.” (Abrams v. United States 1919: 630)
And political speech is traditionally viewed by the Court as possessing the highest value, thereby
entitling it to the highest level of protection.

4
Tim Cushing, “California Lawmakers Looking To Make Bad Law Worse By Banning ‘False’ Political Speech,”
techdirt. Retrieved on March 24, 2017. Available at:
https://www.techdirt.com/articles/20170317/17054236942/california-lawmakers-looking-to-make-bad-law-worse-
banning-false-political-speech.shtml (March 20, 2017).
5
Nev. Press Ass’n v. Nev. Comm’n on Ethics, 2005 U.S. Dist. LEXIS 4923 (D. Nev. Mar. 26, 2005). The case
began with original proceedings on Sept. 12, 2002, and was decided on March 26, 2005.
Government should not be allowed to decide what ideas or messages people may express, lest it
misuse such power in nefarious ways. Aschcroft v. ACLU, “The Constitution demands that content
based restrictions on speech be presumed invalid …”. (Cited in Schiffrin, 2014, p. 125, fn. 22)
Harm Test
In Schenck v. United States, a World War I-era case, the Court upheld the defendant’s conviction
under the Espionage Act of 1917 for causing insubordination of military forces by circulating a
pamphlet to draftees telling them to obstruct the draft.166 In so doing, Justice Holmes announced
the “clear and present danger” test: “The question in every case,” he declared, “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 6
Justice Holmes’s classic line maintained that “[t]he most stringent protection of free speech would
not protect a man in falsely shouting fire in a theatre and causing a panic7.
Speech advocating the use of force or crime can only be proscribed where (1) the speech is
“directed to inciting or producing imminent lawless action” — a requirement of intent; and (2) the
advocacy is also “likely to incite or produce such action.”8
the possibility that a more narrowly drawn statute “could significantly reduce the threat of First
Amendment harm while permitting the statute to achieve its important protective objective
Public Order
The term 'public order' covers a small riot, an affray, breaches of peace, or acts disturbing public
tranquillity. But 'public order' and 'public tranquillity' may not always be synonymous.
An aggravated form of disturbance of peace which threatens the foundations of, or threatens to
overthrow, the state will fall within the scope of the phrase 'security of state'.
The expression 'in the interests of' gives a greater leeway to the legislature to curtail freedom of
speech and expression, for a law penalising activities having a tendency to cause, and not actually
causing public disorder, may be valid as being 'in the interests of' public order. However, the
restriction imposed must have a reasonable and rational relation with the public order, security of
state, etc. If the nexus between the restriction and public order, etc., is farfetched, then the
restriction cannot be sustained as being in the 'interests' of public order, etc.5 As has been stated
earlier, this introduces the concept of proportionality in the area of Fundamental Rights.6
A provision made penal any instigation not to pay any exaction to government. The Supreme Court
ruled that the prohibition imposed was too wide, as it "takes in the innocent and the guilty persons,
bona fide and mala fide advice, individuals and class, abstention from payment and deferment of
payment, express or implied instigation, indirect or direct instigation... In short, no person, whether

6
249 U.S. 47 (1919) at 52
7
id
8
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927
(1982) (“[M]ere advocacy of the use of force or violence does not remove speech from the protection of the First
Amendment.”).
legal adviser or a friend or a well-wisher of a person instigated can escape the tentacles of this
section, though in fact the rent due has been collected through coercive process or otherwise".
Section 124A,I.P.C., punishes any person who by words, spoken or written, attempts to bring into
hatred or contempt, or excites disaffection towards the government established by law. In the pre-
Independence era, this section had been interpreted very broadly, and exciting or attempting to
incite bad feelings towards the government was held punishable whether or not it resulted in public
disorder.12 Obviously, the section in such a broad form could not be sustained under Art. 19(2).
In Kedar Nath v. State of Bihar, 13 the Supreme Court upheld S. 124A by interpreting it
restrictively--as rendering penal only such activities as would be intended, or have a tendency, to
create disorder.
In Kedar Nath, the Court took the position that when a provision of law is capable of two
interpretations, one of which makes it constitutional and the other unconstitutional, the
interpretation which makes it constitutional should be preferred. Accordingly, the Court ruled
that a mere criticism of government action, however strongly worded, would be consistent with
the Fundamental Right of freedom of speech and expression. Only the words having the pernicious
tendency, or intended to create disturbance of law and order would be penal in the interests of
public order. The gist of the offence, the Supreme Court said, "is incitement to disorder or tendency
or likelihood of public disorder or the reasonable apprehension thereof." For determination of
criminality, the Court in each case has to determine whether the words in question have "the
pernicious tendency" and the uttered has the "intention of creating public disorder or disturbance
of law and order." Then only the penal law would take note of the utterance.14
Administrative Discretion
The general principle is that it is unreasonable to leave absolute and arbitrary discretion to an
administrative officer to regulate the freedom of speech and expression. The discretion to be valid
must be exercisable for purposes specified in Art. 19(2),
A provision authorising the district magistrate to prohibit dramatic performances of a scandalous
or defamatory nature, corrupting persons or arousing or likely to excite feelings of disaffection to
the government has been held to be unconstitutional for it makes a district magistrate the final
authority to determine the question whether or not a particular play is offensive under the Act.
Further, the district magistrate is not obligated to give reasons for his decision and there is no high
authority (judicial or otherwise) to review his decision.50
Criticiztion of Government.
Ram Nandan v State AIR 1959 All 101 (110)- One cannot think of a right unless it is conferred
expressly by some provision of law. The right to spread disaffection against the Government or
any other person is included in the right to freedom of speech and expression guaranteed by the
Constitution; if Article 19(1)(a) did not exist, one could not say that an Indian has a right to spread
disaffection against the Government.
There are some speeches which will not cause public disorder; there are some speeches which will,
there are some which are likely to, but might not, there are some which are not likely to hut might
and there are some which may or may not. A restriction on a speech that will result in public
disorder is undoubtedly in the interests of public order; on the other hand a restriction on a speech
that will not is undoubtedly not one in the interests of public order. A restriction on a speech that
is likely to result in public disorder, or on a speech that may or not result in public disorder, must
be held to be in the interests of public order. There should not only be no public disorder but also
there should be no threat to public order.
the provision inflicting punishment upon a speech containing a danger to public order cannot be
severed from the provision inflicting punishment upon a speech containing no threat to public
order. As a matter of fact there are not two provisions but one indivisible provision indicting
punishment upon all speeches exciting hatred regardless of whether they contain any incitement
to, or threat of, public disorder.

Romesh Thappar- It was held that the restrictions were imposed for a wider purpose and were,
outside the scope of permitted restrictions under Sub-article (2) and therefore, void. If the language
employed in restricting statute is wide enough to cover restrictions both within and without the
limits of constitutionally permissible legislative action affecting the right and consequently there
is the possibility of the statute being applied for purposes not sanctioned by the Constitution, it
must be held to be wholly void. "In the absence of a statute narrowly drawn to define and punish
specific conduct as constituting a clear and present danger to a substantial interest of the State, the
petitioner's communication considered in the light of the constitutional guaranties, raised no such
clear and present menace to public peace and order as to render him liable to conviction of the
common law offence in question."

If the right to freedom of speech is abused by using a speech to incite to violence and crime, the
people through their Legislatures may protect themselves against the abuse; "but the legislative
intervention can find constitutional justification only by dealing with the abuse. The rights
themselves must not be curtailed".

The law in America is different; the conduct of the accused, and not the statute, is measured against
the constitution. The American Constitution contains no provision like our Article 13, making a
law. infringing a constitutional guarantee automatically void.- -RamNandan v State
Even if it be said that it is in the interests of public order or the security of the State to impose a
restriction on a speech exciting a feeling of hatred etc., towards the Government, it is certainly not
reasonable to impose a restriction on every such speech just because some of it may involve a
threat to public order or to the security of the State
The restriction must not be given more prominence than the fundamental liberty assured. In my
view, the words "interest of public order" should not be so amplified us to enable the fundamental
right guaranteed by Article 19(l)(a) to be swallowed up by the application of Article 19(2). One
has to bear in mind that the Constitution of India is democratic, that it is based on the principle of
election and that the Constitution itself provides a machinery for the Constitution being altered.
Freedom of speech is essential to the proper working of the Constitution.
If there is a possibility in the working of our democratic system -- as I think there is -- of
criticism of the policy of Ministers and of the execution of their policy, by persons untrained
in public speech becoming criticism of the Government as such & if such criticism without
having any tendency in it to bring about public disorder, can be caught within the mischief
of Section 124-A of the Indian Penal Code, then that Section must be invalidated because it
restricts freedom of speech in disregard of whether the interest of public order or the security
of the State is involved, and is capable of striking at the very root of the Constitution which is
free speech (subject of limited control undor Article 19(2) ).
Certain cases were cited before us to show that many specches varying in their language wern
held not to fall within Section 124-A of the Indian Penal Code. We are not concerned here
with individual speeches. All that we are concerned with here is whether it is possible for a
public speech, which excites the mildest form of disaffection or hatred or contempt even
though such speech has not the tendency to bring about disorder to be caught by Section 124-
A.
"Where a law purports to authorise the imposition of restrictions on a fundamental right in
language wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting such right it is not possible to uphold
it even so fur as it may be applied within the constitutional limits, as it is not severable.

So long as the possibility of its being applied for purposes not sanctioned by the Constitution
cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words
Clause (2) of Article 19 having allowed the imposition of restrictions on the freedom of speech
and expression only in eases where danger to public security is involved, an enactment, which
is capable of being applied to cases where no such dangjer could arise, cannot be held to be
constitutional and valid to any extent." (p. 129) In the present case, as already shown
above, Section 124-A is capable of being applied not only to cases where danger to public
order could arise, but also to cases where danger to public order could not arise.

These observations, therefore, would also apply with full force to the present case, and would
again have the effect of invalidating Section 124-A, I. P. C. To the same effect is the law laid
down in the other case of the Supreme Court reported in AIR 1950 SC 129 (N