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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.
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 one’s 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 one’s 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 one’s 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 one’s 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 People’s 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 one’s 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 doesn’t 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 doesn’t amount to clear and present danger.
In Whitney vs. California [ 38 ] Court affirmed a conviction under a criminal syndicalism statute based on Defendant’s 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
Obscenity and Pornography
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 amendment’s 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 Government’s interest in doing so is substantial. Eg. Misleading Advertisements etc.
Student speech- The First Amendment does not provide the same amount of protection to student’s speech as to that of the adults. The Supreme Court in Hazelwood School District v. Kuhlmeier, [ 47 ] has held that a public school student’s 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.
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.
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.
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