The fundamental right o is not absolute even in the United States which is considered to be the crucible of freedom of speech.

The Smith Act of the United States makes it a felony to hold membership in an organization that advocates the overthrow of the government by violence. However, the Supreme Court has ruled that membership alone is not sufficient for conviction. The court has stated that there must be clear proof of a defendant’s specific intent to accomplish the aims of the organization through violence. The court has also held that punishing mere knowing membership, without a specific intent to further the unlawful aims of an organization, is not constitutionally adequate. The court has consistently upheld the First Amendment’s protection of free speech and assembly, even for organizations whose ideas are disliked or even hated. This was observed in cases like Keyishian v. Board of Regents of New York and Whitney v. California.

” In Whitney v. California , the question which arose was whether the petitioner, who joined and assisted in the organization of a Communist Labor Party contravening the California Criminal Syndicalism Act, did so with knowledge of its unlawful character and purpose. The Supreme Court of the United States of America, while upholding the constitutionality of the abovementioned act, observed that the
freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility. Furthermore, although the rights of free speech and assembly
are fundamental, they are not, in their nature, absolute.”

The above metioned cases of the US Supreme Court were referred to by the Supreme Court of India in

Arup Bhuyan .. Appellant Versus
State of Assam & Anr. .. Respondents.
…decided by the Supreme Court of India on 24.03.23


Sanjiv Narang Adv. is an Advocate on Record in the Supreme Court of India. His qualifications include an LLB from University of Delhi and a Masters degree in Personnel Management from Panjab University,Chandigarh.In his more than 3 decades of experience, he has practiced law at the District, High Court and Supreme Court levels.He also has more than a decade of experience in the field of Management. He is the author of two books namely Laws for Women in India and Innovation, Why What and How.