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 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