Free speech is a sine qua non for a democracy. One person’s free speech can
threaten the security of state, or can hamper tranquillity in the society or
affect decency and morality, could lead to contempt and also infringe other
person’s right(s), to check and balance these things laws are made to regulate
free speech. Any such restriction on free speech must stand the test provided
under Article 19(2) and if it does not, it is prima facie
unconstitutional. But sometimes the laws impose more restriction than
This causes the problem of overbreadth and vagueness, which ultimately sums up
to cast a chilling effect. A doctrine which applied in United States of America,
South Africa and European Court of Human Rights. This article aims to
describe these concepts, how they curb legitimate speech and their recognition
in United States and India. It makes an attempt to talk about the jurisprudence
in a concise manner. I also tackle a few measure taken by the government which
cast chilling effect (in my opinion).
What is chilling effect?
Chilling effect is stifling of legitimate speech through excessively broad
laws. In its pith and substance, it is the unwanted prohibition of one’s free
speech for the fear of criminal sanction. It does not directly affect free
speech but has the impact of self-censorship. The direct as well as
inevitable consequence of the restriction imposed must be considered by the
court while deciding the constitutionality of a legislation. The restriction,
thus, imposed by the legislation must be given the narrowest possible
form. Over breadth and Vagueness together give rise to the problem of
A problem of overbreadth arises when a law prohibits something that the state is
constitutionally entitled to prohibit and something which it is not. In
Kameshwar Prasad v. State of Bihar the Supreme Court struck down a rule,
prohibiting every kind of public demonstration, on the same ground. Whereas,
vagueness is defined on two grounds, firstly, the law must give a man of
reasonable intelligence the opportunity to know what is prohibited and what is
not and, secondly, to avoid arbitrariness and discrimination the law must
provide explicit standards. When both these aspects are absent, there is a
vagueness in the law and it can be struck down using the void for vagueness
doctrine. Indian courts have struck down laws on grounds of
overbreadth and vagueness.
To understand it better, let’s look at a hypothetical, viz, the government of
nation X imposes a blanket ban on any or all publications for the
matters which are sub-judice before the higher judiciary and penalises them.
This legislation inter alia casts a chilling effect on freedom of speech and
expression. The phrase any or all is wide enough to cover
protected as well as unprotected speech and the term can also be considered
vague for want of explicit standards. The ban covers fair comment or even
discussing the daily orders.  Now, if a person is under a fear of criminal
sanction, he/she may not exercise his/her right of free speech thereby it casts
a chilling effect.
Thus, a court of law (with requisite jurisdiction) can strike down such a
draconian law on grounds of overbreadth and vagueness. I define chilling effect
as – an indirect interference on one’s right by the state through vague laws
(which carry sanctions) and impact of self-censorship.
It was in 1965 that chilling effect was used as a legal term by Justice William
Brennan in Lamont v. Postmaster General, back then it was referred to as
deterrent effect on freedom of expression. The US Supreme Court in NY Times v.
Sullivan while recognising chilling effect observed that erroneous
statements are inevitable in a free discussion and thus must be protected to
allow freedom of speech to have a breathing space.
The concept has been recognised in India in R.Rajagopal v. State of Tamil
Nadu and S.Khushboo v. Kanniammal, the Supreme Court held
that laws should be construed in a manner so as to avoid chilling effect over
freedom of speech and expression.
In Shreya Singhal v. Union of India, the Court struck down Section
66A of the Information Technology Act, 2000s on the same ground.
In October 2018, the Jawaharlal Nehru University attempted to impose Central
Civil Services Rules, 1964 [hereinafter CCS Rules ] on its faculty.
There was an uproar by the JNU Teacher’s Association [hereinafter JNUTA]. Though
this ordinance was withdrawn in 276th meeting of the JNU Executive Council, yet
a chargesheet was registered against some faculty members under Rule 14 of the
CCS rules are framed for persons who are appointed to a civil service or to a
service in connection with the Union.  The first test is whether a teacher
is a civil servant or not ? Civil service is defined by the US courts as
services which are rendered to and paid by the state or nations and are
concerned with great administrative departments.
While the Supreme Court of India in State of Gujarat v. Ramanlal Keshavlal describe
civil post or civil service on the grounds of existence of a master servant
relationship between the person and the union. These definitions certainly do
not include teachers, professors and the faculty member in general as there no
administrative function or a master servant relation between the faculty members
and the state. Thus, at the very basic level there exists a problem which is
that the CCS cannot be imposed on faculty of any University.
Furthermore, the JNUTA claims this violates their freedom of speech and
expression, casting a chilling effect. The following paragraph gives an overview
of how application of CCS Rules casts a chilling effect.
Rule 5 of the CCS prohibits taking part in politics and elections, Rule 9
prohibits criticism of the government. A teacher or a professor cannot be
deprived of free speech, without having an opinion one cannot teach or propagate
her idea. Academicians today depend on writing academics articles or essays
which might criticize the government, or support a particular political theory.
Application of CCS in such profession would cast a chilling effect on the
faculty members, as there will be constant fear of losing job. The implications
of such an imposition must be kept in mind, It will reduce academic writing in
Universities, particularly faculty of law in the University will not be able to
talk about practicality. It is hard to imagine social sciences lectures without
criticism of the government or without forming political opinions.
To protect free speech and ensure the sustenance of a democracy, it is required
that laws are not broadly or hazily drawn and the free speech has a breathing
space. If the legislature fails in this task, supressing free speech would be a
plain sailing for the executive. In such situations, the courts should be as
liberal as possible while interpreting the fundamental rights and the broad
interpretation must be given preference over the narrow one.
There must be close to perfect, if not perfect, balance between the fundamental
rights, aim of the law, the legislative intent and the need for the law. In the
words of George Washington, - If freedom of speech is taken away, then
dumb and silent we maybe led, like sheep to slaughter.
 S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574 53 (India).
 Bennett Coleman v Union of India AIR 1973 SC 106; PUCL v Union of India AIR
1997 SC 568; Shreya Singhal v Union of India, 2015 (5) SCC 1 (India); Bijoe
Emmanuel v State of Kerala AIR 1987 SC 748.
 Gautam Bhatia, The Chilling Effect in India, available at : https://indconlawphil.wordpress.com/2013/12/05/the-chilling-effect-in-india/.
 Wieman v Updegraff, 344 US 183 (1952) 26.
 Gautam Bhatia (n 3).
 Maneka Gandhi v Union of India (1978) 1 SCC 248 20 (India).
 Shreya Singhal (n 2) at 90 (India); S. Khushboo v. Kanniammal (2010) 5
SCC 600 47 (India).
 Petronet LNG Ltd v India Petro Group 2009 SCC OnLine Del 841.
 As defined by Merriam-Webster Legal Dictionary.
 AIR 1962 SC 1166.
 Grayned v City of Rockford 408 US 104 (1972) 11 affirmed in Shreya
Singhal (n 2) at 56.
 Chintaman Rao v State of Madhya Pradesh 1951 AIR SC 118; State of Madras v
V G Row AIR 1952 SC 196; Shreya Singha (n 2).
 State of Madhya Pradesh v Baldeo Prasad AIR 1961 SC 293 11; Kartar
Singh v State of Punjab (1994) 3 SCC 569 77.
 A rule that affects everyone and covers all possible events/cases.
 Orders and Judgment are different in the sense that judgment has the final
verdict and the reasoning involved therein while orders can be passed while the
proceedings are still going on.
 Ram Jethmalani v Subramaniam Swamy AIR 2006 Del 300.
 Lamont v Postmaster General 381 US 301 (1965) 11.
 The New York Times Company v L B Sullivan, 376 US 254 (1964) 58;
Attorney General v Guardian Newspapers Ltd (1990) 1 AC 109 affirmed in R
Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.
 R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.
 S.Khushboo (n 7).
 Shreya Singhal (n 2) at 94.
 § 1, CCS Rules, 1964.
 Ward v. Leche 189 La. 113.
 State of Gujarat v. Ramanlal Keshavlal AIR 1981 SC 53.
 Broad interpretation goes beyond the black letter of law, whereas the
narrow interpretation sticks to the law verbatim. Broad interpretation follows
the law in spirit.