Origin And Concept Of Rule Of Law

The concept of Rule of Law" is the building block on which the modern democratic society is founded. For
the successful functioning of the polity it is imperative that there is enforcement of law and of all contracts
based on law. Laws are made for the welfare of the people to maintain harmony between the conflicting forces
in society. One of the prime objects of making laws is to maintain law and order in society and develop a
peaceful environment for the progress of the people. The concept of Rule of Law plays an important role in
this process.
The term Rule of Law" is derived from the French phrase 'La Principe de Legality' (the principle of legality)
which refers to a government based on principles of law and not of men. [1] In a broader sense Rule of Law
means that Law is supreme and is above every individual. No individual whether if he is rich, poor, rulers or
ruled etc are above law and they should obey it. In a narrower sense the rule of law implies that government
authority may only be exercised in accordance with the written laws, which were adopted through an
established procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary actions of
the government authorities. [2] The rule of law has been described as a rare and protean principle of our
political tradition". [3] The rule of law centrally comprises the values of regularity and restraint, embodied in
the slogan of a government of laws, not men". The term Rule of Law does not provide any thing about how
the laws are to be made, or anything specific like the Fundamental Rights or the Directive principles or
equality etc. but it provides for two basic concepts that is Law must be obeyed by the people and that the law
must be made in such a way that it is able to guide the behaviour of its subjects. Different legal theorists have
different approaches towards the concept of Rule of Law. Some believe that the rule of law has purely formal
characteristics, meaning that the law must be publicly declared, with prospective application, and possess the
characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of
the law. While other legal theorists believe that the rule of law necessarily entails protection of individual
rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives,
respectively labeled the formal and substantive approaches.

ORIGIN OF THE CONCEPT OF RULE OF LAW:

The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge in the reign of Henry III in a
way introduced the concept of Rule of Law without naming it as Rule of Law. He wrote:
"The king himself ought to be subject to God and the law, because law makes him king." [4]
Edward Coke is said to be the originator of concept of Rule of Law when he said that the king must be under
God and law and thus vindicated the supremacy of law over the pretensions of the executives. [5] In India, the
concept of Rule of Law can be traced back to the Upanishad. It provides that Law is the King of Kings. [6] It is
more powerful and higher than the Kings and there is nothing higher than law. [7] By its powers the weak shall
prevail over the strong and justice shall triumph. [8] But the credit for developing the concept of Rule of Law
goes to Professor A.V. Dicey who in his classic book Introduction to the Study of the Law of the
Constitution" published in the year 1885 tried developing the concept of Rule of Law. As per Diecy no man is
punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in
the ordinary legal manner before the ordinary Courts of the land. [9] This establishes the fact that law is
absolutely supreme and it excludes the existence of arbitrariness in any form. According to Diecy where there
is scope discretion there is room for arbitrariness. [10] So Dicey held that every man, whatever be his rank or
condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals. [11]
DICEY'S THEORY of Rule of Law consists of three main principles: [12]
1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law means the absolute supremacy
of law and 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the courts of the land. Diecy was of the view that
all individuals whether if he is a common man or government authority are bound to obey the law. He is of the
view that no man can be punished for any thing else than a breach of law which is already established. And
also that the alleged offence is required to be proved before the ordinary courts in accordance with ordinary
procedure.
2. Equality before Law: As per Diecy Rule of law, in the second principle, means the equality of law or equal
subjection of all classes of people to the ordinary law of the land which is administered by the ordinary law
courts. In this sense rule of law conveys that no man is above the law. Even the Government Officials are
under a duty to obey the same law and there can be no other special courts for dealing specifically with their
matters.
3. Constitution is the result of the ordinary law of the land: As per Diecy , in many countries rights such as
right to personal liberty, freedom, arrest etc are provided by the written Constitution of a Country. But in
England these rights are a result of the judicial decisions that have arisen due to the conflict between the
parties. The constitution is not the source but the consequence of the rights of the individuals.
But this principle of Diecy is not applicable in India as in India we consider the Constitution to be the basic
ground work of laws from which all other laws are derived.
COMPONENTS OF RULE OF LAW: Rule of Law is a dynamic concept but it is somewhat difficult to define.
Every person has its own way of defining rule of law some think it to be the supremacy of law; some think it to
be the principles like clarity, universality, stability etc. Due to all these reasons certain ingredients of Rule of
Law have been identified and all which need to exsist for the concept of Rule of Law to survive.
Common ingredients of Rule of Law are:
a government bound by and ruled by law
equality before the law
the establishment of law and order;
the efficient and predictable application of justice; and
the protection of human rights.

RULE OF LAW IN MODERN SENSE: [13]

Today Diecy's theory of rule of law cannot be accepted in its totality. The modern concept of the rule of law is
fairly wide and therefore sets up an ideal for any government to achieve. This concept was developed by the
International Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on confirmed at logos
in 1961. According to this formulation-
"The rule of law implies that the functions of the government in a free society should be so exercised as to
create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the
recognition of certain civil or political rights but also creation of certain political, social, economical,
educational and cultural conditions which are essential to the full development of his personality".
According to Davis, there are seven principal meanings of the term Rule of law: (1) law and order; (2) fixed
rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural law or observance of the
principles of natural justice; (6) preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and (7) Judicial review of administrative actions. So finally it may correctly be said
that rule of law does not mean and cannot mean any government under any law. It means the rule by a
democratic law-a law which is passed in a democratically elected parliament after adequate debate and
discussion. Likewise, Sir Ivor Jennings says -
"In proper sense rule of law implies a democratic system, a constitutional government where criticism of the
government is not only permissible but also a positive merit and where parties based on competing politics or
interests are not only allowed but encouraged. Where this exist the other consequences of rule of law must
follow".
RESEARCH HYPOTHESIS: The Hypothesis of my Study is Suspension of Freedom to Speech and
Expression leads to violation of Rule of Law. I will try to either prove or disprove the hypothesis during the
study conducted.
RESEARCH QUESTIONS: The important research questions with which I shall try and deal during my study
are:
Q1) Try and analyze what is Rule of Law, its scope, its origin, components etc.
Q2) Try and Analyze as to what exactly Freedom of Speech and Expression is.
Q3) Try to find out the position of Freedom of Speech and Expression in India.
Q4) Try to find out the position of Freedom of Speech and Expression in the United States of America.
Q5) Try and make a comparative analysis of the two Countries to determine if there exists any difference in the
rights of Freedom of Speech and Expression.

RESEARCH METHODOLOGY:
The Research Methodology adopted for the study is the Doctrinal Method of research. The Doctrinal Method
of research involves analysis of the statutes, existing secondary information from different sources like books,
internet, articles etc and then making a comparative study with the United States of America. This Country is
referred for the comparative study as because this country shares many common features with that of India like
both are Democratic Countries, both have a written Constitution etc. And also because this is a Country which
grants very wide discretionary rights of Freedom of Speech and Expression.

HOW ARE FREEDOM OF SPEECH AND EXPRESSION

PART OF RULE OF LAW:
Rule of Law is actually the very founding stone on which the platform of democracy stands. It is considered as
the integral part of a democratic setup. The value of democracy lies in respecting the rights of others and the
way they want to express themselves either by speech, writing, painting, drawing etc. And above all Rule of
Law means nonarbitariness which can be ensured by guarenting freedom and one of such freedom is freedom
of speech and expression.

WHAT IS FREEDOM OF SPEECH AND EXPRESSION:

Freedom of Speech and expression is one of the most important basic fundamental rights which every
individual enjoys. Freedom of speech and expression is a very essential feature of any democratic form of
government. This freedom is required for the proper functioning of any democratic process. It the liberty to
express ones opinions, thoughts and ideas etc to others without any interference or the fear of being subjected
to any type of punishment. As per the Universal Declaration of Human Rights (1948) Every individual has
the right to freedom of opinion and expression; the right includes freedom to hold opinions without
interference and to seek and receive and impart information and ideas through any media and regardless of
frontiers". [14] The term Freedom of Speech and Expression is sometimes used to indicate not only the
freedom of verbal speech but it also includes any act of seeking, receiving and imparting information or ideas,
regardless of the medium used. The Right to Freedom and Speech is recognized as a human right under Article
19 of the Universal Declaration of Human Rights as well as is in the international human rights law in the
International Covenant on Civil and Political Rights (ICCPR). The judgment given by J. P. N Bhagawati in the
case of Menaka Gandhi Vs Union [15] of India helps us to know the significant importance of Freedom of
Speech and Expression in case of a democratic form of Government. The judgment can be explained in these
words:
Democracy is based essentially on free debate and open discussion, for that is the only corrective Government
action in a Democratic setup. If Democracy means government of the people by the people, it is obvious that
every citizen must be entitled to participate in the democratic process and in order to enable him to
intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely
essential." [16]
Freedom of Speech and Expression is a very broad right which includes the right to receive and disseminate
information received, Freedom to provide comprehensive information about the social, financial and political
aspects of a country (Freedom of Press) and also to express their own views on the related aspects etc,
Picketing, Demonstration and Stike, Right to travel abroad, Media etc. The individual is free to express his
opinion or ideas or beliefs in any of this form. Human beings as rational beings have very high desires to do
many things but in a democratic society these rights need to be controlled and curtailed by certain reasonable
restrictions so that rights of other individuals are not in any manner hampered. Due to this reason only all the
Fundamental Rights which are granted to each individual excepting the right of life and liberty are not absolute
and they and controlled by some reasonable restrictions in the interest of an individual as well as the nation.

FREEDOM OF SPEECH AND EXPRESSION IN THE

INDIAN CONSTITUTION:
Article 19(1) (a) of Indian Constitution says that all citizens have the right to freedom of speech and
expression. Freedom of Speech and expression means the right to express one's own ideas, views and opinions
freely by words of mouth, writing, printing, pictures or by any other mode. It thus includes the expression of
one's idea through any communicable medium or visible representation, such as gesture, signs, and the like.
The term Freedom of Speech and Expression also includes publication of material like articles and books etc.
So the freedom of press is also included in this category. Free propagation of ideas is the main objective which
is carried out through the freedom of press. This propagation of ideas is secured by freedom of circulation.
Freedom of circulation is highly essential as because without circulation the publication would be of little or
no value. The freedom of speech and expression includes liberty to propagate not only one's own views but it
also includes the right to propagate or publish the views to other people; otherwise this freedom would not
include the freedom of press. Freedom of Speech and Expression thereby fulfills some basic requirements like:
It helps the individuals to be well informed about ones own society, nation as well as that of others;
It helps the individuals in formation of their own opinions, ideas, views etc which further helps them in
decision making process;
It allows the individuals to freely discuss their opinions or views with others thereby helping in propagation of
their ideas;
The propagation of various ideas helps in the maintenance of balance between stability and social change.
This freedom helps the citizens to discover the exact truth behind any issue.
Lastly this freedom helps in the attainment of self fulfillment. [17]
Explaining the importance of Freedom of Speech and Expression Patanjali Shastri, CJ observed in case of
Romesh Thapar v. State of Madras, [18] Freedom of speech and of the press lay at the foundation of all
democratic organizations, for without free political discussion no public education, so essential for the proper
functioning of the process of popular government, is possible." [19]
In the Indian Constitution the scope of Freedom of Speech and Expression is broad enough to include the
freedom to circulate ones own ideas, views and beliefs etc either by words or by writings or through media
like television, newspapers etc. So every individual of India has a right to propagate his ideas via any of these
sources including the electronic media but the rights are subjected to certain reasonable restrictions which are
imposed under Article 19(2) of the Constitution of India. The Supreme Court has again widened the scope of
Freedom of Speech by including the right to propagate ones ideas or views by means of advertisements and
electronic media etc but all these rights are subjected to certain reasonable restrictions. The Supreme Court has
further in the case of Peoples Union for Civil Liberties vs. UOI, [20] held that A person talking on telephone
is exercising his right to freedom of speech and expression. Telephone tapping, accordingly, infracts Art.
19(1)(a) unless it falls within the grounds of restriction under Article 19(2)." [21]

REASONABLE RESTRICTIONS ON SPEECH AND

EXPRESSION:
Freedom of Speech and Expression do not confer absolute rights on any individual. It is not only ones own
right it is also the dignity of other individuals and norms of civility. So therefore the Constitutions and States
have imposed reasonable restrictions on these rights which are imposed by the Legislature under Article 19(2).
Article 19(2) of the Constitution of India provides that nothing in sub clause (a) of clause 1 shall affect the
operation of any existing law or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub clause in the interest of the
sovereignty and integrity of India, the security of the State, friendly relations with foreign states with foreign
states, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an
offence." [22] But the Indian Constitution does not define as to what restrictions can be said to be reasonable.
It is upon the Judiciary to decide as to what is reasonable as the reasonability of this right varies from right to
right. But the Supreme Court has actually evolved certain standards to test the reasonability of the
restrictions: [23]
The restriction imposed should not be arbitrary or excess of the rights imposed under the Legislation.
There must be a direct relation between the restrictions imposed and the object to be achieved.
The restrictions imposed must be reasonable as per the interest of the person on whom it is imposed rather than
the person who imposes the restriction.
The law enacted by the legislature might be valid but the restrictions imposed are valid or not has to be
determined by the court.
But the onus of proving that the restrictions imposed are reasonable or not is on the State to prove that the
restriction imposed is reasonable and in no way it was against the interest of any individual.
No abstract or fixed principle can be laid down which may have universal application in all cases. The question
of reasonability varies from case to case.
It is necessary to examine the whether any restriction imposed is meant to protect social welfare satisfying the
need of prevailing social values.
The state can impose reasonable restrictions in case of Security of State, Friendly Relations with Foreign
States, Public Order, Decency and Morality, Contempt of Court, Defamation, Incitement to an offence,
sovergnity and integrity of India, in case of inciting communal passion, sedition, abuse, hurting religious
sentiments, inflamtory speech etc.

SUSPENSION OF FREEDOM OF SPEECH AND

EXPRESSION:
The Freedom to Speech and Expression is suspended in India when a proclamation of emergency is made
under Article 352 of the Indian Constitution. The Provision for such suspension is provided under Article 358
of the Indian Constitution. Article 358 of the Indian Constitution provides that While proclamation of
emergency declaring that security of India or any part of the territory of India is threatened due to war or
external aggression, is in operation, the state shall not be limited by Article19. In other words, Government
may make laws that transgress upon the freedoms given under Article 19 during such emergency. However,
such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive
action that transgresses upon freedoms granted by Article19 must recite that it is in relation to the emergency
otherwise, it cannot be immune from Article 19. It also says that any acts done or omitted to be done under this
provocation cannot be challenged in the courts after the end of emergency. In case of MM Pathak vs. Union of
India, [24] held that the rights granted by article 14 to 19 are not suspended during emergency but only their
operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive
and can be enforced. [25] The Supreme Court acts as a check on the power of the executive to declare
emergency. The provisions of freedom of speech and expression violated during the emergency cannot be
challenged in the court but never the less any criminal action or arbitrary action done by the executive under
the grab of emergency can definitely be challenged in the court of law.

FREEDOM OF SPEECH AND EXPRESSION IN THE

UNITED STATES CONSTITUTION:
Freedom of Speech and Expression in United States is quite different from that in India. Freedom of Speech
and Expression in the United States Constitution is protected by the First amendment to the U.S Constitution
and by many other State Constitutions and State and Federal law. [26] The First amendment is included in the
Bill of Rights which contains the first ten amendments to the United States Constitution. They were introduced
by James Madison to the First United States Congress in 1789 as a series of articles and came into effect on
December 5, 1791 when they had been ratified by three fourth of the states.
The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances." [27]
The First Amendment of the Constitution of the United States almost speaks in absolutist terms that the
Congress can make no law which either abridges or prohibits the Freedom of Speech, of Press, or the right of
the people to assemble peacefully or to petition the government for the redressal of their grievances. [28] The
purpose of the first amendment was mainly to prevent all types of restrictions which were imposed by the other
Governments on the various types of publications. Freedom of Expression provided by the first amendment to
the United States Constitution includes the rights to freedom of speech, freedom to press, right to assemble and
the right to petition the Government for redressal of grievances. The United States Supreme Court first applied
the principle of right of free speech with the case of Gitlow vs. New York. [29] Gitlow vs. New York, was a
historically important case which was argued before the United States Supreme Court in which the Court was
of the view that the Fourteenth Amendment to the U.S Constitution had extended the reach of certain
provisions of the First Amendment, specifically the provisions protecting freedom of speech and freedom of
the press to the governments of the individual states. [30] So like the life and liberty of a person cannot be
taken away without due process of law in the same way the rights of freedom of speech and expression which
are the fundamental personal rights cannot be taken away without any due process of law.
The Constitution of the United States by the First Amendment gives the right to the citizens to express their
ideas, views and beliefs without any fear of interference by the Government. The United States Supreme Court
requires the Governments to give justifications or reasons for any regulations imposed on the right to freedom
of speech and expression of the citizens. But the Supreme Court allows the Government to prohibit certain
types of speech which it feels is likely to cause breach of peace. [31] The freedom to speech and expression
also includes the freedom to press as per the first amendment of the United States Constitution. Freedom of the
press is a part and parcel of the freedom of speech and expression provided by the first amendment of the
United States Constitution. By freedom of press people are given a chance to express their views and ideas to
others by publication. Freedom of Press does not grant any special protection to the members of the media
rather they also have the same rights as that of an ordinary citizen having the right of freedom of speech and
expression. But the Supreme Court of United States is of the view that the Press is protected in order to
promote and to protect the exercise of free speech in the society including the receipt of information by the
people. [32] The Government may sometimes try to regulate or restrain the content of speech which is spoken
by the citizens even before it is spoken then the Government has to at first define as to what is illegal, explain
as to what is the minimum speech required, then it must be supported by the court and it must be ready to bear
the cost of suing the other party and on top of that it has to prove that if such type of speech would surely result
in direct and irreparable damage to the Nation as well as to its people. [33] This is the theory of Prior Restraint
of Speech as was given by the Supreme Courts of United States in the case of New York Times Co. vs. United
States. [34] But the Government has almost stopped acting in consequence to the theory of prior restraint since
the case of Near vs. Minnesota. [35]

REASONABLE RESTRICTIONS ON FREEDOM OF

SPEECH AND EXPRESSION:
The Constitution of United States has given prime consideration to the concept of Freedom of Speech and
Expression. The First Amendment to the Constitution of United States expressively deals with the concept of
Freedom of Speech and Expression and consider it as an integral part of Rule of Law. However a close look at
the administration and governance of United States of America reflects that these rights though are
fundamental is not absolute or unlimited. There has been a restriction on these rights either by the Congress or
the Government or the Executive which has been buttressed by the United States Supreme Court. Unlike in
India and other Countries it is not the Executive or Legislature who has developed this concept but it is the
Court who has deliberated upon and evolved this tradition. Therefore it can be said that Judicial Review which
is a significant concept of Rule of Law has also levied certain restrictions on Freedom of Speech and
Expression despite recognizing its importance. Although Freedom of Speech and Expression is a fundamental
right necessary for every citizen but a standard is required to be fixed beyond which the speech can curtailed.
The standard is necessary to determine as to what degree of evil is sufficiently substantial to justify resort to
abridgment of speech and press as a means of protection and how clear and imminent and likely the danger is.
To solve all such types of problems various restrictions are being provided by the Court as well as the
Congress with the passage of time. Clear and Present Danger Test is the principle where it can be established
that the speech and expression of an individual or group has posed a threat to the State Government or its
actions. Such a case is considered to be a criminal action. It was for the first time evolved by Justice Homles in
Schenck vs. United States [36] where he held that when the publication of a material which posed a threat to
the administrative action of a State pose a clear and present danger. Though the American Constitution doesnt
clamp upon any restrictions on the Freedom of Speech and Expression but through judicial decisions like
Schenck vs. United States & Debs vs. United States [37] the Court has evolved that the Congress has right to
restrict an individual or group from publishing or producing any material that had the natural, intended and
probable effect which may lead to twisting of truth and inciting criminal action. However in case of Abrams v.
United States, Justices Holmes and Brandeis have further developed their positions that by mere speaking or
writing against Government actions or having a different opinion doesnt amount to clear and present danger.
In Whitney vs. California [38] Court affirmed a conviction under a criminal syndicalism statute based on
Defendants association with and membership in an organization which advocated the commission of illegal
acts, finding again that the determination of the legislature that such advocacy involves such danger to the
public speech and security of the State. Therefore we can conclude that the Legislature or Congress has been
given power to restrict Freedom of Speech and Expression. In Terminiello v. City of Chicago [39] Justice
Jackson, who called rioting as a substantive agent. Since then have being trying to evolve a mechanism to
Freedom to Speech and criminal evil to the extent that Justice Frankfurter in Dennis vs. United States had
rejected the applicability of clear and present danger test and adopted balancing test which aims at balancing
between individual rights and social responsibility. Thus the responsibility may be placed on the courts to
balance the relevant factors and ascertain which interests in the circumstances do prevail. There also exists
certain other types of restrictions on Freedom of Speech and Expression and they being the Time, Place or
Manner restrictions, Content based restrictions, View point based restrictions etc

SUSPENSION OF FREEDOM OF SPEECH AND

EXPRESSION:
There is no express provision in Constitution of the United States which provides for any emergency
provisions neither does it provides for the suspension of any fundamental rights of the citizens including the
freedom of speech and expression on during any time of crisis. But the freedom of speech and expression is
not absolute in the United States. It is subjected to certain types of regulations depending on the fact that it
may cause direct or irreparable damage to the people as well as to the Nation. The Power to impose emergency
lies with the President but the misuse of this power is again checked upon by judicial review as well as the
Congress. Therefore the Supreme Court of United States has identified seven types of expressions which the
Government has the power to regulate irrespective of the freedom of speech and expression. [40] The seven
types of expression are as follows:
Core Political Speech-
Speech that incites illegal or subversive activity
Fighting words
Obscenity and Pornography
Symbolic speech
Commercial speech
Student speech
It is upon the Government to regulate a particular kind of speech depending upon its content and the damage it
might seem to cause to the people or the Nation. Both state and Federal Courts will apply the same level of
scrutiny to Government Regulation of Free Speech under the First Amendment since the free speech clause has
been made applicable to the States via the Fourteenth amendments Due Process clause. (Gitlow vs. New
York, 268 U.S. 652 (1925)
Core Political Speech- Core Political Speeches are granted the highest possible protection. These types of
speech generally consist of conduct and words that are intended directly to gain public support for any
particular issue, position or for candidate. In Meyer vs. Grantt, [41] U.S Supreme Court had suggested that
Core Political Speech generally involves any interactive communication concerning political change. In case
of Buckley v. Valeo, [42] Supreme Court concluded that any discussion of public issues and debate on the
qualifications of candidates are forms of political expression integral to the system of government established
by the federal Constitution. Thus, circulating handbills
and petitions, posting signs and placards, and making speeches and
orations are all forms of Core Political Speech, so long as they in some or other way address social issues, any
political positions, political parties, political candidates, government officials, or governmental activities. [43]
Speech that incites illegal or subversive activity- These are certain types of speech which motivates the listener
to do some act which is against the political system of the country. The listener may be so very much
motivated by the speech that he is ready to do any act to change the political system of any country. It can even
lead to joining of some political organization for overthrowing the U.S Government.
Fighting Words- These are another type of words which receive less protection of the First Amendment Act.
These are kinds of words the utterance of which either inflict injury or tend to cause acts of violence among
people thereby causing a breach of peace. Chaplinsky v. State of New Hampshire, [44] .
Obscenity and Pornography- The Judiciary tries to define Obscenity by applying the Miller Test. It generally
tries to do so by applying the contemporary community standards. It is a kind of speech to which all of the
following standards apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently
offensive way, and lacks serious literary, artistic, political, or scientific value. State and federal laws attempt to
enforce societal norms by encouraging acceptable depictions of human sexuality and discouraging
unacceptable depictions. Libidinous books such as Lady Chatterly's Lover and pornographic movies such as
Deep Throat have rankled communities struggling to determine whether such materials should be censored as
immoral or protected as works of art.
Symbolic speech- The speech which is spoken without the use of any language by means of expression or
signs and symbols are known as Symbolic Speech. Eg. of such a type of speech may be waving of hand,
nodding of head etc. For the people of United States one such type of symbolic speech was the crashing down
of the World Trade Centers following the terrorist attack. The First Amendment to the Constitution to the
United States however does not protect all such types of symbolic expression. The Court may give some form
of protection for symbolic speech like in the case of: West Virginia State Board of Education vs.
Barnette [45] where the Court held that the State cannot force public school children to salute the flag.
Commercial speech- The Court in the case of Central Hudson Gas and Electric Corporation vs. Public Service
Commission, [46] held that the speech is commercial if it does no more than propose a commercial transaction.
This type of speech also includes advertising as it helps in the free flow of information. But certain types of
advertisements which actually do not propose anything in particular that is they do not advertise a sale does not
come under Commercial speech. Commercial Speech is given less protection because the citizens have a right
of such commercial information. The First Amendment protects such commercial information as long as the
Governments interest in doing so is substantial. Eg. Misleading Advertisements etc.
Student speech- The First Amendment does not provide the same amount of protection to students speech as
to that of the adults. The Supreme Court in Hazelwood School District v. Kuhlmeier, [47] has held that a
public school students right to free speech is not automatically co-extensive with the rights of adults in other
settings. That means that the educators in a school are liable to control the speech and expressive conduct of
the students as long as there actions are reasonably related to legitimate pedagogical patterns. Any student who
speech is not in consonance with the school educational mission can be censored.
COMPARATIVE ANALYSIS:
When we try and compare the two Constitutions that are the Indian Constitution and the American
Constitution we can come to the conclusion that both of them have a lot of features in common. Both are
democracies and have many characteristics features which are similar to both the Constitutions like Freedom
of Religion, Right to Life, Equal Protection Clause etc. Both of them even have a certain degree of similarity
in the provisions of Freedom of Speech and Expression. However the basic difference is that in case of Indian
Constitution are integral part and parcel a of the Indian Constitution but the same is not the case with the
American Constitution. The reasonable restrictions which are applied on the Freedom of Speech and
Expression to restraint the Freedom of Speech and Expression to a certain level are not imbedded in the
American Constitution rather they are developed by the Judiciary by Judicial Review. The Congress is also
some what empowered to regulate the Freedom of Speech and Expression to a certain level by various ways.
Further the American Constitution provides for the due process clause which the Indian Constitution explains
it as the procedure established by law. Similarly the Legislature has a larger role to play under the Indian
Constitution while the American Congress though empowered to restrict Freedom of Speech and Expression it
is limited by the expressive clause of the First Amendment and therefore has to depend on the liberal
interpretation by the Judiciary. We can conclude that what is judicial review to American Constitution
especially in the context of Freedom of Speech and Expression it is inherent in the Indian Constitution.

CONCLUSION:
In Indian Constitution in comparison to the American Constitution the emergency provision of the Executive
where Fundamental Rights including Freedom of Speech and Expression are suspended possessed a greater
threat in India. More than one third of the Indian Population are poor, illiterate and impoverished. Suspension
of their Fundamental Rights brings a larger misery to them. Therefore it can be said to be the violation of not
only their Fundamental Right but also of their Human Rights.
Talking about adopting the Present and Imminent Danger Test in the Indian circumstances the Supreme Court
has definitely tried adopting the principle in some cases. One of them is the case of R.P Ltd vs. Proprietors,
Indian Express Papers, Bombay (P) Ltd., [48] the Supreme Court considered the question of holding a balance
between two interest i.e Freedom of Speech and administration of Justice. The Present and Imminent Danger
Test was relied upon to justify the order of injunction issued by the Court prohibiting the Indian Express News
Papers from writing anything about issue of convertible debentures by Reliance Petro Chemicals. It, therefore
seems the Supreme Court has accepted the principle of Present and Imminent Danger Test to restrict Freedom
of Speech and Expression.
So in my view even though some restrictions are required to balance between the individual and the society
unless a clear cut is evolved mere suspension of Freedom of Speech and Expression will impose a greater
danger to the Nation