Monthly Archives: August 2013

Content Neutrality and Free Speech as a Social Good

While discussing the Court’s newspaper regulation cases in the previous few posts, we noticed that in Sakal Papers and in Bennett Coleman, the Court accepts the unregulated marketplace as an a priori background condition within which the right to freedom of speech operates, and not something that may itself be subject to change or modification in the interests of free speech. In a separate line of cases, however, this view has been emphatically rejected. Unsurprisingly, these cases have to do with the second and third conceptions of free speech latent in Justice Mathew’s dissenting opinion in Bennett Coleman, that we discussed in the last post: free speech as a social good, promoting a rich, substantive conception of democracy; and free speech as the right of the hearers/listeners (the community) to have access to a wide range of ideas and opinions. It is easy to see why this is at odds with the unregulated-marketplace viewpoint: an unregulated marketplace possesses no safeguards against monopoly (indeed, if you were a Marxist, you would argue that any unregulated marketplace necessarily tends towards a monopoly), and a monopoly over ideas is something both the substantive-democracy justification as well as the community-right justification simply cannot abide. The goal of both these justifications is an end-state in which there is a certain variety of ideas accessible in the public domain; and the market is an instrument (as opposed to being an end in itself) that is used to achieve that end-state, with whatever influence or interference necessary to bring the end-state about.

Union of India v. The Motion Picture Association (1999) is a classic case on point. In that case, various provisions of the Cinematograph Act permitted the Government to issue directions to… [cinema] licensees that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films have to be exhibited by the licensee along with the other films which the licensee is exhibiting.” In other words, this was a case of content-specific compulsory speech. The Court rejected the 19(1)(a) challenge in the following words, which deserve to be quoted in full:

“…. the best way by which ideas can reach this large body of uneducated people is through the entertainment channel which is watched by all – literate and illiterate alike. To earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it. None of these statutory provisions require the exhibitor to show a propaganda film or a film conveying views which he objects to. In fact, the exhibitors have not raised any objection to the contents of the films which they are required to show. They, however, contend that one of the important requirements for upholding such compulsory speech in the United States is that such speech should be content-neutral. While in the present case, the contents of the compulsory films are specified in the legislation concerned. In the context of Article 19(1) what we have to examine is whether the categories of films so required to be carried promote dissemination of information and education or whether they are meant to be propaganda or false or biased information. The statute quite clearly specifies the kinds of films which promote dissemination of knowledge and information. (Paragraph 18)

Two things stand out in this paragraph. First, the Court disclaims the language of community rights, using instead the vocabulary of free speech as a social good: the goal is “informed debate… on public issues”. That is why the public ought to have access to ideas, information and knowledge – not because they have a right to it. Is the distinction important? Yes it is, for precisely the same reason that, in our very first post on Sakal Papers, we highlighted with respect to the instrumental/intrinsic justifications for free speech: on this reasoning, the Court ends up creating hierarchies of free speech, singling out for special treatment those instances that promote the said “informed debate… on public issues.” This, as we have seen before, in practice, amounts to nothing more than a line in the sand, and it is extremely difficult to apply it in a principled and consistent fashion.

Secondly – and more interestingly – the Court rejects the cardinal principle of American free speech jurisprudence: content-neutrality. Indeed, the Court could not possibly accept it, because to advocate a diversity of views is by definition to endorse a certain kind of content-regulation. What the Court does subscribe to – as is eveident from the last part of the quoted paragraph – is a softer principle that – for want of a better word – we can tentatively label “ideological neutrality”. Now, there are two objections to this holding of the Court’s. First, it is an open question whether “ideological neutrality” is even a coherent idea. The last eighty years of continental philosophy cast serious doubt upon that proposition. We know from Gramsci, for instance (to take just one example) that what we treat as “common sense”, something given and “natural”, is actually shot through with ideology and presuppositions that aren’t actually natural or necessary. Unlike the concept of content-neutrality, therefore, the Court’s hybrid principle might not have a strong philosophical foundation. And secondly, even if ideological neutrality does exist, why must it be enforced if we subscribe to a marketplace with access to a true range of diverse ideas? Suppose tomorrow all newspapers and television channels take an editorial decision to support the FDI-in-Retail-Policy, effectively excluding the contrary viewpoint from the public sphere. If the government now takes active measures to introduce the other side – admittedly, derivative and emblematic of a certain political ideology – into the so-called market, then is it inconsistent with the idea of democracy that the Court expounded upon? Whatever the independent principled justification and pragmatic wisdom of such a move, I suggest that it is entirely in keeping with the vision of democracy as playing host to a truly diverse range of viewpoints that the Court itself endorses.

LIC v. Manubhai D. Shah (1993), which was actually decided a few years earlier, puts the issue in clearer perspective. In that case, the Respondent published a study-paper pointing out various lapses in LIC’s insurance policy; an LIC official published a counter in The Hindu, and the Respondent published a rejoinder to the counter in the same newspaper. The LIC official’s counter was also published in LIC’s in-house magazine, but the Respondent’s request that his rejoinder be published there was rejected. It was this decision that he challenged. The Court upheld the challenging, observin that:

Such an attitude on the part of the LIC can be described as both unfair and unreasonable; unfair because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” (paragraph 12)

It is of course, not very clear how it is my right that you should have a balanced picture of anything. It is safe to surmise on a reading of the case as a whole, however, that the Court was referring – in the vein of the Motion Picture Case – to a community goal of providing a balanced account of any contentious issue to the public. Yet what is of importance here is to note, again, how ideological neutrality is an extremely difficult concept to pin down. Here, the Court’s argument is that the rejoinder must be published to reach an overall balance of opinion. But if that is the case, then what differentiates our earlier hypothetical of promoting ideologically-loaded content which has otherwise been excluded – for whatever reason – from the public sphere?

In any event, for obvious reasons, the Supreme Court’s decisions in Manubhai D. Shah and in Motion Pictures Association are in tension with its decisions in Sakal Papers and in Bennett Coleman, because the idea of free speech as a social good and as a community right must necessarily conflict with an individual-rights view. The jurisprudence of the Supreme Court on this point is conflicted; we must therefore look beyond it to see which set of principles corresponds to the philosophy of our Constitution as a whole.

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Free Speech and Newspaper Regulation – IV: Democracy and Freedom in Mathew J.’s Bennett Coleman Dissent

To conclude our discussion of the newspaper regulation cases, let us turn to Mathew J.’s dissent in Bennett Coleman. This opinion is important not only because it is closely reasoned and rigorously argued, but also because it represents a line of thought that the Majority rejected in both Sakal Papers and Bennett Coleman, and therefore illustrates the choice that the Court made in clearer manner.

We have already discussed Mathew J.’s opinion to the extent that he agreed with the Majority about the constitutionality of the Newsprint Order (see paragraphs 105, 108). Mathew J. then went on to discuss the Newsprint Policy which, as we recall, fixed a cap of ten pages for the calculation of newsprint quota, even for those dailies that were more than ten pages long. The important difference between the analysis of Mathew J. and that of the majority opinions in Sakal Papers and Bennett Coleman is that unlike the latter, who took the existing market conditions as something akin to a given, background feature of the environment, Mathew J. treated them as something imposed by deliberate governmental policy, and examined them from a historical perspective. He found that before the 1972 Newsprint Policy, newsprint allocation was based on the page level of 1957 and the circulation levels of 1961-62; that, as a matter of fact, this disadvantaged newspapers that were established after 1962; and that one of the objectives of the Newsprint Policy was to remedy this disadvantage. (Paragraph 112)

Mathew J. then entered into an analysis of the philosophical foundations of free speech. In line with judgments both before and after (see, for instance, Hamdard Dawakhana and Sakal Papers), he concluded that one of the crucial purposes that free speech served was that of sustaining and maintaining democracy. However, at this point, Mathew J. drew the opposite inference from that drawn in Sakal Papers: for a democracy to thrive, and to be meaningful in any sense, he observed, there must be a multiplicity of ideas, viewpoints and arguments available to the public, in order to achieve the ideal of an informed, aware electorate. (Paragraph 123) In other words, the “marketplace of ideas”, an image so beloved of John Stuart Mill and Oliver Wendell Holmes, would be a chimera if a few newspapers held a monopoly over the field.

Mathew J. then also observed:

“It is no use having a right to express your idea, unless you have got a medium for expressing it.” (paragraph 123)

 It is, of course, not entirely clear what work is being done here by the phrase “no use”; in the context of the entire judgment, however, it is safe to say that Mathew J. understood the freedom of speech and expression to include reasonable access to a medium of expression. In other words, directly contrary to Sakal Papers and Bennett Coleman, Mathew J. held that lack of access to the newspaper market because of insufficient means constituted an unfreedom in the sense of Article 19(1)(a) (for philosophical arguments justifying this stance, see our first two posts on newspaper regulation).

Mathew J. therefore concluded, in two paragraphs that deserve to be quoted in full:

What is, therefore, required is an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.” (Paragraphs 126 – 27)

Lastly, to buttress his opinion, Mathew J. cited a series of American authorities (in particular, Mikeljohn and Emerson) as well as the Directive Principles of State Policy, to argue that the right embodied in the free speech clause was not only the right of the individual to express herself, but also the right of the society to be informed, and to have access to, as wide a range of relevant and important ideas as possible. (Paragraphs 135 – 141) He found that the impugned Policy was designed to deepen and enrich the freedom of speech by ensuring a broadened and diversified reach to the general public. Consequently, Mathew J. dissenting in upholding the Policy.

Thus, in Mathew J.’s opinion, there emerges a complex vision of the philosophical ideas underlying Article 19(1)(a). Mathew J. finds three separate political ideals that characterize and justify the free speech clause: free speech is an individual right, the right of a person to express herself; it is a social good, instrumental in upholding democracy; and it is a community right, the right – in simple terms – to “hear”. Yet Mathew J. doesn’t stop here, but elaborates upon each of these ideas. His view of the individual right is one that assumes an ancillary right of reasonable access, and treats the market not as a background condition, but as an infringement of freedom. His vision of democracy is a substantive vision that goes beyond merely formal ideas, and presupposes an environment in which there is a genuine spread and proliferation of diverse and opposing ideas. And his sense of the community right departs from ideas of passive consumers of ideas to a vision of an active, civic-minded citizenry that deserves access to a genuinely wide range of thought, argument and debate. Nonetheless, that is not the view the Court takes, in Sakal or in Bennett Coleman. Which of the two visions is a better vision is a matter of individual judgment, but at least in the context of newspaper regulation, Mathew J.’s thought has not been accepted. Yet that might not be the end of the story: in subsequent posts, we shall see whether a version of Mathew J.’s arguments play a role in the context of election cases and cases involving the right of reply; and whether, in light of those decisions, the newspaper regulation judgments might now be anomalous – or at the very least, debatable.

Let us now sum up the state of play: our discussions of the Court’s newspaper regulation cases have shown us that the word “freedom” in Article 19(1)(a) is not a value-neutral term. It presupposes a series of political choices: in particular, a choice between those limitations upon a person’s scope of action that are treated as background conditions, under which he must exercise his right to freedom of speech – and therefore, do not count as limitations upon freedom – and those limitations that are treated as infringements of freedom, and therefore must be justified under Article 19(2). For example, let us – for the purposes of argument – follow Hayek in defining “freedom” strictly as “intentional interference by other human beings”. Then, while the fact that my bone-structure precludes me from flying unaided, and my being kept locked in a prison cell, are both instances of some limitation upon the scope of action I can undertake, the former is simply an incapacity, while the latter is unfreedom. Our search for such a principle that would justify the Court’s choices in the five important Supreme Court cases through the years – Express Newspapers, Sakal Papers, Bennett Coleman, Indian Express Newspapers and Express Publications – proved only partially successful. While it was clear enough, in each individual case, where the Court drew its line, we could not identify a general rule (such as, e.g., a Hayekian definition of freedom as intentional interference by human beings) that was guiding the Court in its decisions. Intellectually, Mathew J.’s dissenting opinion might provide us the most satisfactory set of principled arguments underlying, explaining and justifying Article 19(1)(a) in the context of newspaper regulation; for now, however, Mathew J.’s opinion remains just that: a dissent.

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Free Speech and Newspaper Regulation – III: What does it mean to “abridge”?

In the previous two posts, we examined the case for treating the exclusionary effects of an unregulated newspaper market as a genuine impediment upon the freedom of speech and expression, attributable to the government, and thus a potential violation of Article 19(1)(a). Our case study was Sakal Papers v. Union of India. Three years earlier, in 1958, the Court was called upon to decide Express Newspapers v. Union of India. In that case, a statutory Wage Board had established a minimum wage that newspapers must compulsorily pay to all working journalists. This was challenged before a Constitution Bench on the ground that the wage in question was so high that it would drive newspapers out of business. Thus, the regulations of the Wage Board violated Article 19(1)(a).

After going into a detailed history of minimum wage fixation policies across the world, the Court examined American cases such as Grosjean, which made it clear that the press was not immune from general policies of taxation or labour welfare that the government might choose to pursue. Nonetheless:

“It would certainly not be legitimate to subject the press to laws which take away or abridge the freedom of speech and expression or which would curtail circulation and thereby narrow the scope of dissemination of information, or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid. Laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media, prevent newspapers from being started and ultimately drive the press to seek Government aid in order to service, would therefore be struck down as unconstitutional.” (Paragraph 207)

In the present case, the Court found that in substance, the impugned Act was designed to ameliorate the working conditions of journalists; neither the “intention” nor the “proximate effect” of the legislation was to abridge the freedom of speech. The feared consequences of a fall in circulation, the seeking of governmental aid etc. were only “incidental“, and “would be remote and depend upon various factors which may or may not come into play.” They were neither “direct”, nor “inevitable“. Hence, the 19(1)(a) challenged failed. (Paragraphs 218 – 219)

Yet what, precisely, is the distinction between Express Newspapers and Sakal Papers? How is it that the relationship between a price-per-page policy and newspaper circulation is proximate, but that between a fixed minimum wage and circulation is not? Why is legislative intent to open up the market and make it more equitable constitutionally suspect, but an intent of improving labour conditions not? A newspaper’s inability to access the market because it can’t compete with the economies of scale that established newspapers run upon is not treated as an impediment to freedom; but a newspaper’s inability to access the market because it is required, by law, to pay a certain wage to its journalists is not so treated. Why?

The intent and effect tests surely cannot refer to a mere statistical correlation between the policy and newspaper circulation. In neither Express Newspapers nor Sakal did the Court enter into the question of likelihood; and there is, of course, no evidence to suggest that a price-per-page policy has a greater chance of reducing circulation than a minimum wage. The proximity requirement, therefore (much as in the public order cases) contains an inbuilt set of moral assumptionsassumptions about what counts as “direct”, and what counts as an “external factor” that makes the relationship between, say, a tax and a fall in circulation “indirect”.

So, what are these moral assumptions? For the answer, we must return to the arguments of the previous post: freedom of speech and expression does not exist in vacuum, but exists enmeshed within an existing legal framework that, in turn, is predicated upon a series of political choices. This, recall, is the point that Cohen makes: when we’re talking about freedom, therefore, we aren’t talking about simple facts relating to ability to do things and interferences with that ability, but about explicit political choices: and every judicial decision, therefore, implicitly endorses one set of political choices, and rejects another. In Sakal Papers, the Court endorsed the existing market; in Express Papers, it made an exception for price-fixation. In other words, according to the Court, the existing market subject to tax and labour legislation, are not an impediment upon freedom, but conditions under which freedom is exercised.

And the Court re-emphasised this position more recently, in 2004, when in Express Publications (Madurai) v. Union of India, echoing the direct-intent-and-effect test laid down in Express Newspapers. Our agreement or disagreement with the judgments in Express Newspapers and Sakal depends upon our agreement or disagreement with the political choices that underlie those judgments.

The argument becomes clearer when we compare the decisions above with the famous case of Bennett Coleman v. Union of India (1973). In Bennett Coleman, the Newsprint Order (1962) and the Newsprint Policy (1972) were challenged; the Newsprint Order placed certain restrictions upon the import of newsprint (complementarily, publishing newspapers in material other than newsprint was prohibited); while the Newsprint Policy prohibited common ownership units from starting new newspapers, limited the maximum number of pages to ten, and allowed a twenty percent increase in page level to newspapers that had less than ten pages. The Court upheld the Order, reasoning that newsprint was a scarce resource, and that its allocation was a matter of governmental policy with which the Court would not interfere, as long as it was bona fide and in good faith. The Policy, on the other hand, was defended on the same grounds as Sakal (prevention of monopolies, growth of small papers), and struck down for the same reasons as in Sakal (no violation of the rights of big newspapers permitted in order to help small newspapers grow) (see Paragraphs 79, 81, 82). Once again, therefore, the availability of newsprint is deemed to be a background condition within which newspapers (i.e., journalists and editors, as held in this case) exercise their right to freedom of speech and expression, and not itself an infringement upon that right; whereas restrictions upon page limits, upon advertisements, and so on, do constitute an infringement. Bennett Coleman also departed from Express Newspapers in rejecting an object-cum-effect test in favour of a pure “direct effect” test; once again, though, it is abundantly clear that “direct effect” is not a question of statistical probabilities, since restricting availability of newsprint and curtailing the amount of pages a newspaper can have are surely both equally directly affecting circulation.

The issue is sharpened by a close look at Justice Mathew’s dissent (although not upon the point at issue). Justice Mathew, following the American Professors Mikheljohn and Emerson, distinguished between the abridgment of speech and the abridgment of the freedom of speech. The newsprint quota, for him, did abridge speech, but not the freedom of speech (paragraph 108). We must therefore repeat the question we have been asking in our previous posts on newspaper regulation: what is the principle that determines when my inability to do something amounts to an unfreedom to do it? We have seen earlier that the most common – and intuitively plausible distinction – is between the effects of natural events (such as a flood), and the acts that can be traced to human agency. If that is the line that Bennett Coleman draws, then we could say that scarcity of newsprint (and therefore the need to ration) amounts to a natural event, while controlling page limits is an infringement by the government. Yet it is unclear whether this distinction is philosophically plausible, because the scarcity of newsprint – which, in Bennett Coleman, was imported from abroad – also depends directly upon governmental action (in particular, issues of budgetary priorities). So it is difficult to draw the line in such a way.

A possible principle is provided in the case of Indian Express Newspapers v. Union of India. (1984) Responding to a challenge to an import duty placed upon newsprint, the Court differentiated between those general taxes or duties that would require newspapers to make a similar contribution to the exchequer as other individuals and business in a similar position, and those that imposed a fiscal burden over and above such contribution. In Indian Express Newspapers, the petition was allowed; perhaps then, the conclusion that is to be drawn, on a combined reading of all these cases, is that by framing a “direct effect” test, the Court has essentially distinguished between interferences with the freedom of speech and expression, and background conditions within which that freedom must be exercised. Two of those background conditions seem to be an unregulated marketplace and general legislative provisions dealing with taxation and rationing of newsprint that are applicable across the board. Whether all these cases provide a coherent principle for determining what is to count as a background condition, and what is to count as an infringement remains, at best, unclear.

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Free Speech and Newspaper Regulation – II: More on the Idea of Freedom

In the last post, we discussed whether, in the context of Sakal Newspapers, an economic inability to enter the newspaper market should be classified as lack of freedom or not. We suggested that Hayekian liberalism, which treats the exclusionary operation of the market as equivalent to a natural catastrophe such as an avalanche or a forest fire, and the consequent incapacity to access it as equivalent to a mere physical inability (such as an inability to fly unaided), suffers from certain flaws, and that in any event, there are strong reasons for holding that the Indian Constitution does not subscribe to such a philosophy. In this post, we shall examine other arguments against holding that the exclusion of small and new newspapers from the market does not constitute a lack of freedom.

Rawls and Berlin distinguish between freedom and the ability to use it. They argue that lack of means/resources falls into the latter category. Because of monetary incapacity, the small newspapers involved in the Sakal case were unable to meaningfully use their freedom of expression; it had no value to them, was worth nothing. But the freedom yet existed, and therefore, the status quo, no matter how unjust it was otherwise, was not a violation of the freedom of expression.

There are a number of fine terminological distinctions at play here, but the core question is this: if we accept the definition of freedom as the absence of interference by others, then does lack of money as a resource qualify as “unfreedom”? In Freedom and Money, G.A. Cohen argues that it does. For Cohen, in our society, money ‘structures’ freedom. In other words, if I want access to a certain good (Cohen’s example is a train ticket from place X to Y), then I can have it if I pay the asking rate; if I do not pay, and still try to access it (e.g., I board the train without a ticket), I shall be physically restrained from doing so. Therefore, without money, I will be subject to interference by others in accessing what I could otherwise have accessed had I had the money. Hence, absence of money means a lack of freedom. Or, to put it in another way, money serves to remove interference which would otherwise have operated without it. Therefore, in Cohen’s words, “therefore money confers freedom, rather than merely the ability to use it, even if freedom is equated with absence of interference.”

If Cohen is right, then the argument ends at this stage. Even if Cohen’s argument fails, however, we have to ask a further question: does the right to freedom of speech and expression carry with it a concomitant right to reasonable access (even if it does not come within the “definition” of freedom itself)? In the Indian situation, the answer is an unequivocal “yes”. Specifically, in the election cases, that we shall examine in a future post, the Court has held that the right to vote (which is an embodiment of the right to freedom of speech and expression) is “meaningless” without, for instance, secret ballots or background information on candidates. In other words, what is being protected by 19(1)(a) is not the formal expression of the right, but everything ancillary that makes it meaningful. In this context, then, it seems clear that inability of access certainly renders the right illusory, and that the right of access if therefore implicitly contained within 19(1)(a).

The third argument holds that every legal system must – by definition – settle upon a certain distribution of freedoms that elevate certain freedoms to the level of protection, and exclude others. For instance, if my legal system contains the right to private property, then not only do I confer upon private property owners the freedom to hold and dispose off their property according to their choice, but I also limit the freedom of every other person to trespass upon or in any other way use the property of another. Private use must necessarily exclude common enjoyment. Like any other freedom, the freedom of speech and expression is subject to similar distributional decisions. On this view then, the Sakal decision tells us that the freedom of speech and expression, when it comes to newspapers, actually means “the freedom of speech and expression under prevailing market conditions.” This would then justify the Court’s decision prohibiting the government from bringing about a change in the market conditions that, concomitantly, would bring about a change in the initial distribution of the freedom.

Do we have any reason for believing that our Constitution subscribes to this philosophy? There is no evidence that supports this point of view; indeed, certain observations made by the Court in the Cricket Association of West Bengal case(which we shall have occasion to discuss in a later post) appear to undermine it. In that case, which was about the distribution of broadcast frequencies, the Court observed:

“It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject.

And:

“The monopoly in broadcasting and telecasting is often claimed by the Government to utilise the public resources in the form of the limited frequencies available for the benefit of the society at large. It is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can monopolise the dissemination of views and information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. The claim to monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably denied an access to broadcasting or the governmental agency claims exclusive right to prepare and relay programmes.”

When we read these observations along with the repeated insistence of the Courts (discussed in previous posts) that a fundamental point of the freedom of speech is to sustain democracy, that thrives on a free flow of information and ideas from all sections, as well as the Dworkinian principle of equal concern and respect, that mandates according to everyone an equal opportunity to shape the prevailing moral and social environment, we have strong reasons, grounded in constitutional precedent as well as political philosophy, that speak against reading the right to free speech as a right within prevailing market conditions; because that takes no account of the damaging and exclusionary impact of monopolies.

At other points in the Cricket Association of West Bengal case, the Court makes observations distinguishing broadcast media from print media in light of governmental control over one and the operation of market forces in another. This brings us to the last objection: that the interference with freedom here is by private entities using market conditions, and not by the government. But what that argument crucially ignores is that the structure of the market, far from existing in a state of nature, is constituted by the government-imposed legal system. The range, nature and scope of permissible transactions within the market is a direct function of the legal system; therefore, if the unfreedom of small newspapers is attributable to the prevailing market conditions, then – given that the market is constituted by the legal structure imposed by the government – it is not a stretch to attribute such unfreedom to the government itself. Which, in turn, makes it not only optional for the government to remedy that, but obligatory.

To sum up: we have argued that the inability of small and new newspapers to enter the market because of economic conditions, in the circumstances of Sakal, constituted an absence of freedom in the sense of Article 19(1)(a), that is attributable to governmental action. That does not, of course, mean that Sakal was wrongly decided, because the impugned laws certainly restricted the freedom of existing large newspapers, and it would take a complex balancing exercise to adjudicate upon the validity of those laws. Nonetheless, it is submitted that the Court was mistaken in describing the issue as one of “public interest”, and rejecting it on 19(2) grounds: the real issue turned upon Article 19(1)(a), and the meaning ‘freedom’.

In subsequent posts, we shall apply the arguments made here to the other important newspaper regulation cases decided by the Supreme Court.

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Free Speech and Newspaper Regulation – I: What Does “Freedom” Mean?

Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. While the word “freedom”, in this context, appears to be uncontroversial enough, it actually is the site of much philosophical and political contestation; and the Supreme Court’s newspaper regulation cases provide us with a good point of departure to examine these issues.

In the first two posts on this blog, we discussed Sakal Papers v. Union of India. Let us briefly recall the facts: the government, by legislation, introduced a price-per-page policy, in accordance with which newspapers would either have to keep their price constant and reduce their page count, or keep their page count constant, and increase the price. This was ostensibly to break the monopoly of big newspapers and ease the conditions of entry for small newspapers who could not, under present conditions, compete. The Court held that the law violated the right to freedom of expression of the newspapers affected and that the government’s defence was, if anything, a public interest defence that found no place in Article 19(2). The legislation was, consequently, struck down.

Now, on the facts of Sakal Papers, this much is undeniable: if Individual X wished to start a newspaper, prevailing conditions (particularly, an inability to compete with established newspapers due to economies of scale) would make it prohibitively expensive for her to do so. In other words, Individual X wishes to speak. She cannot do so. Why is this not a violation of Article 19(1)(a)?

There are four reasons why it may not be so. First, inability and unfreedom are two very different concepts. Human physiology dictates that I am incapable of unaided flight. Yet it would be stretching the bounds of language to claim that I am not free to fly, or that my inability to fly is a constraint upon my freedom. On the other hand, if I am locked up in a prison, we could claim with perfect propriety, that I am not free to go out. Broadly, then, our concept of freedom isn’t one of limitations upon our range of action simpliciter but – it would seem – limitations brought about by human actions of a certain sort.

Secondly, certain liberal philosophers – in particular Isaiah Berlin and John Rawls – draw a distinction between freedom (liberty) and the use (or value) of freedom. Berlin, for instance, in Four Essays on Liberty, argues:

“If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated.”

Similarly, Rawls in A Theory of Justice argues that an inability to take advantage of your legal rights and opportunities because of lack of means merely affects the worth of that liberty (to you), but not liberty itself.

Thirdly, freedom itself is a politically loaded term. My right to private property restricts your freedom to trespass, and therefore curtails your freedom of movement. My right to bodily integrity restricts your freedom to assault me at will. Therefore, it is not entirely accurate to say – as it is often said – that the institution of private property and laws against violence are about protecting freedom. What is true is that certain kinds of freedom, accorded to certain persons, are deemed – for whatever reason – to be valuable, and worth protecting; while other freedoms are deemed to be worthless. In other words, the very presence of a coercive legal system, of any sort, necessarily implies restrictions upon freedom; this, in turn, implies – as Cohen argues – that every legal system makes a political choice about the initial distribution of freedoms. It is crucial to recognise this for what it is – a conscious choice, and not a fixed or embedded part of our natural environment.

And lastly, one may accept all of the above arguments, but simply hold that Article 19(1)(a) provides freedom against State interference; and while Sakal was certainly a case of interference, the small newspapers’ 19(1)(a) rights were not affected because their liberty wasn’t being interfered with by the State.

We are now in a position to see that underlying the Court’s seemingly obvious decision are a series of unstated political choices, and it is important to examine whether these choices are justified. Let us take the issues in turn. Is the inability to enter the market equivalent to an inability to fly unaided? One school of economic thought – led by Friedrich Hayek, in particular – would hold that it is. In The Constitution of Liberty, Hayek defines freedom as the absence of coercion, that is, control by the “arbitrary will of another”. One who can act in accordance with his own decisions and plans is therefore “free”. The range of choice open to one, argues Hayek, has nothing to do with freedom, but he question is whether one “can expect to shape his course of action in accordance with his present intentions, or whether somebody else has power so to manipulate the conditions as to make him act according to that person’s will.” For Hayek, this means that the legal system must contain only abstract, general and impersonal rules, so that “in most instances an individual need never be coerced unless he has placed himself in a position where he knows he will be coerced.” In other words, the more abstract and general the rules are, the more scope you have to plan your affairs. In the economic sphere, naturally, this implies an unregulated marketplace because, while people might exploit such an environment to “alter the social landscape to which I have adapted my plans…”, yet nonetheless, “though the alternatives before me may be distressingly few and uncertain, it is not some other will that guides my action… even if the threat of starvation to me and perhaps to my family impels me to accept a distasteful job at a very low wage, I am not coerced… so long as the act is not aimed at making me do or not do specific things, so long as the intent of the act that harms me is not to make me serve another person’s ends its effect is not different from that of any natural calamity.”

Hayek thus equates the economic impact of an unregulated marketplace to a “natural calamity”. In other words, my inability to access the marketplace is indeed equivalent to my inability to fly.

Readers may – or may not – find Hayek’s arguments convincing. Intuitively, however, it seems obvious that a market and an avalanche, or a forest fire, are two very different things. The market is structured and shaped entirely by human action. The legal system, with its interlocking arrangement of rights, liabilities, powers and privileges, determines the form that it will take; and after that, the actions of individuals determine the relative positions occupied by various actors within it. How then can one argue that my access (or lack thereof) to the market is not determined by human action? Hayek’s response is to concede that it is, but to argue that an unregulated marketplace proceeds through “spontaneous evolution“, one in which the individual actions of people are not aimed at making anyone do or abstain from doing a specific thing. The entire argument, therefore, rests upon what we make of the word “aimed”, and it is extremely unclear whether it can do the philosophical work that Hayek means it to do. I put a gun to your head and order you to do X – evidently, I “aim” at making you do X – but not if I exploit a depressed labour market and the legally established and enforced labour legislation that makes no provision for minimum wage in order to offer you a subsistence-wage employment that I know you have no realistic choice but to accept. Even if true as a matter of terminology, is there really a moral difference here? It seems bizarre to claim that in our society, where from cradle to the grave, the environment that we grow up in (e.g., the legal structure), the opportunities that are open to us (e.g., the availability of public transport for those born in remote areas) and the very persons we become (e.g., the presence or absence of state-sponsored free education) are not really determined by active human agency, that the lack of opportunities open to us are not caused by human action, and that this is not a relevant moral consideration.

In any event, whatever the force of Hayekian arguments in the abstract, it is abundantly clear that Indian Constitutional philosophy does not embody Hayekian liberalism. This is because a central tenet of Hayekian philosophy is the absence of force and fraud in the establishment of economic relations within the unregulated market. Yet, as we are well aware, and as the Constituent Assembly debates (especially the ones over property, and Article 31) make abundantly clear, one of the guiding principles of our Constitution was precisely to reverse relations of power and economic dominance obtained through force and fraud during a long period of colonial rule. Subscription to a Hayekian definition of freedom, therefore, could not have been a justification for the Court’s decision in Sakal. In the next post, we shall examine the other possible arguments at play.

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What is Decency?: Article 19(2) and the Bal Thackeray Case

The word “decency” in Article 19(2) is often run together with “morality”, forming the compendious term, “decency or morality“. Since judicial discussion tends to focus on the meaning of “morality” (see, for instance, our previous analysis of the Ranjit Udeshi case), the word “decency” tends to get subsumed within the meaning of “morality”. Bal Thackeray v. Prabhakar Kashinath Kunte (1996) is, however, a notable exception, and deserves close scrutiny.

S. 123(3) of the Representation of Peoples Act prohibited a person from appealing for votes on the basis of “his religion, race, caste, community or language.” In the Bal Thackeray Case, it was argued that S. 123(3) violated Article 19(1)(a), and was constitutional only if the said appeal was directly prejudicial to public order, as envisaged by Article 19(2). The Court rejected this contention. Naturally, then, S. 123(3) was either unconstitutional, or saved by another head under Article 19(2). The Court settled upon the latter course, and chose decency. Rejecting the appellant’s argument that the phrase “decency or morality” was limited to “sexual morality”, the Court held:

“The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the house.” (Paragraph 29)

The Court went on to add:

The fact that the scheme of separate electorates was rejected in framing the Constitution and secularism is the creed adopted in the Constitutional scheme are relevant considerations to treat this as a reasonable restriction on the freedom of speech and expression, for maintaining the standard of behavior required in conformity with the decency and propriety of the societal norms. (Paragraph 31)

These observations are crucial. Recall that in our discussions of Ranjit Udeshi (here, here and here), we had found that much turns upon what, precisely, “morality” means in Article 19(2). For reasons both textual and philosophical, I had argued that the Court was mistaken in equating “morality” with either “public morality” or “individual morality”; and that, in the alternative, the best interpretation was reading it to mean “constitutional morality“, that is, the moral principles espoused by the Constitution as a whole, and not those of a shifting, transient majority. In Bal Thackeray, the Court clearly accepted such a reading of the word “decency”. Because obviously, if decency means “public decency”, or the standards of decency maintained by a present majority, then it makes no sense to curtail election speeches on the grounds of decency, because – and this much, at least, is uncontroversial – the ballot box is, at present, one of the – if not the – most effective way of gauging public opinion. If I appeal to my religion to gain votes, and I do succeed in persuading the majority to vote for me, then it cannot really be argued that the public considers such an appeal contrary to decency.

The argument is buttressed by the specific observations of the Court. In Paragraph 29, it defines acceptable behaviour in the context of a secular polity. A secular polity, however, is not a matter of public opinion – it is a constitutional commitment, and has been repeatedly held to be part of the basic structure of the Constitution. In paragraph 31, the Court makes it explicit, holding that secularism is part of the constitutional scheme. Thus, the Court derives its meaning of decency not from a vague reference to public standards, but by directly invoking the philosophy of our Constitution.

This has important ramifications. Consider again, the phrase 19(2) phrase, “public order, decency or morality“. In our discussions on Udeshi, we asked whether the word “public” qualifies only “order”, or all three words, “order”, “decency” and “morality”. Clearly, both interpretations are grammatically unexceptionable. But if, per Bal Thackeray, “decency” means “constitutional decency”, then “public” doesn’t qualify “decency” after all. And if that is the case, then it would be grammatically absurd for it to quality “order” and “morality”, but not “decency”. Therefore, it is a necessary implication of the Bal Thackeray decision that the morality referred to in Article 19(2) is not public morality.

Regretfully, however, the Court’s overall jurisprudence in this area remains a tangled knot. In Odyssey Communications v. Lokvidayan Sanghatana (1988), the Court blithely employed the phrase “public morality”, without any argument. In Bobby Art International v. Om Pal Singh Hoon (1996), the case about the screening of The Bandit Queen, the Court allowed the screening of the film, including scenes of rape and frontal nudity, because it found on fact that the impugned scenes advanced the message of the film, and were not designed to “titillate the cinema-goer’s lust“. (Paragraph 30). Since the Court declined to expound upon the particular harm caused to self or others by this “titillating of lust”, we must assume that this is a case of legal moralism (see the analysis of Udeshi), predicated upon reading “morality” in Article 19(2) as referring to “individual morality”, with the Court taking upon itself the role of protecting individual morals from depravity. On the other hand, in Ajay Goswami v. Union of India (2007) the Court, dealing with an obscenity case, after citing a bewildering array of tests, from  “Hicklin” to “clear and present danger”, from “ordinary man” to “contemporary standards”, finally affirmed both a harm standard and a violation of morality standard within the same paragraph! (paragraph 44) And most recently, in S. Khushboo v. Kanniammal (2010) the question arose whether criminal proceedings against an actress who called for social acceptance for pre-marital sex in live-in relationships, could be sustained. It was argued that public morality was strongly supportive of limiting sexual intercourse to the marital relationship, and that such statements would lead to “deviant behaviour which would adversely affect public notions of morality.” (Paragraph 10) While the Court accepted the present state of the law on obscenity (which, it would seem, astonishingly enough, is still the Victorian-era Hicklin Test), it also observed:

Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.” (Paragraph 29)

The Court noted that those who viewed her remarks as an attack upon the centrality of the institution of marriage had every freedom to contest their merit through the existing channels of free speech, such as the media. This was precisely how dialogue and discussion took place in a democracy, “wherein people can choose to either defend or question the existing social mores.” (Paragraph 18)

And:

“An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.” (Paragraph 30)

Assuming – reasonably – that “conventional morality” and “public morality” refer to the same idea, it is clear, on a combined reading of the three observations of the Court, that preservation of “public morality” is not, after all, in itself, a ground for restricting free speech! Of course, the issue is more complicated, since the Court was undoubtedly influenced by the fact that the case was not about a pornographic film that depicted sex, but about a statement in a newspaper. Yet is there a principled difference between an influential actress persuading people about the desirability of pre-marital sex by making a statement, and a pornographic film doing the same by depicting it? If there is, the Court did not attempt to explicate it.

In conclusion, therefore, it is rather difficult to extract a coherent philosophy out of the Court’s “decency and morality” jurisprudence over the last fifty years. We saw that there are at least three possible ways of interpreting this phrase, each of which correspond to a different political philosophy, and a different vision of society: speaking very broadly, and ignoring all the nuances employed within this terms, these are legal paternalism, legal moralism and a strong, autonomy-respecting harm principle. The Court, in its decisions, has at various times endorsed all of them, some of them, or none of them. We await clarity on this important issue.

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Sedition as Anti-Democratic Speech: The Paradox of Liberal Neutrality?

Let us briefly sum up the conclusions of our last post on sedition:

In Kedar Nath Singh, Section 124A was challenged as being violative of Art. 19(1)(a). Naturally, the Court could not have found that the test for sedition was broader than what Article 19(2) permitted. Nonetheless, there were three ways in which the Court could have effectively hamstrung any Article 19(2) barriers, and allowed the executive a free rein in the application of the sedition law:

(a) The Court could have held that seditious speech does not come within the protection of Article 19(1)(a) at all (as it did for commercial speech in Hamdard Dawakhana and – as we shall see subsequently – it has done in a case involving the flying of the Indian flag).

(b) The Court could have created a legal fiction by holding that inciting disaffection, or feelings of enmity, or of disloyalty (as per S. 124A) is deemed to proximately disrupt public order

(c) The Court could have weakened the public order test itself, holding that feelings of disaffection could conceivably affect public order by promoting disobedience towards the government, and that that is enough, considering the wide import of the phrase “in the interests of public order” (an argument used too many times to count, on behalf of the State).

As we have seen, the Court came dangerously close to both (b) and (c), but ultimately affirmed the existing interpretation of Article 19(2), and by implication, affirmed the strong protection of free speech. The law on sedition, therefore, is clear and unambiguous. Legally, there is no doubt that instances such as those of Aseem Trivedi, the 8000 sedition cases filed against the protesters at Koodankulam, Arundhati Roy’s arrest, and countless others are blatant abuses of law. It is submitted that a legislation that serves no discernible purpose (as argued in the previous post), and is regularly used as a tool for political persecution, has no business being on the statute books. It must go.

Let us now, however, examine another issue that arose out of the Kedar Nath Singh case, but one that has received comparatively little attention. In Paragraph 36, the Court stated:

“Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”

This is framed somewhat curiously. Presumably, my inciting disaffection against the ruling UPA Government does not amount to sedition, because the UPA only consists of people “for the time being engaged in carrying on the administration.” Who – or what – then, do I have to incite disaffection against in order to qualify as seditious? Is it the government as an abstraction, as a concept? Perhaps my target must be the institution of government, as governance is practiced in India – in other words, (liberal?) democracy – that is, liberal democracy embodied by the elements of our Constitution’s basic structure.

We may now describe the alleged paradox at the heart of liberal political theory. As we have discussed in many of the previous posts, political liberalism’s central tenet is neutrality – neutrality between competing conceptions of the good, between opposite ideas of what Rawls calls “comprehensive theories” – that is theories about what is good, true and beautiful, and how one ought to live one’s life. Now, if that was true, then political liberalism itself is merely one comprehensive theory, and cannot take either epistemic or moral priority over the others. And that, in turn, would imply that if I use liberal institutions to assume political power, and then systematically dismantle those very institutions, then liberalism itself gives no argument to stop me – for that would amount to privileging one conception of the good (liberalism itself) over others (say, fascism).

States that claim to be politically liberal have struggled with this issue for years. In the United States, Justice Holmes’ “clear and present danger” test, enunciated in Schenck v. United States, was notoriously used by the Supreme Court during the McCarthy era, to suppress communist-leaning entities (see, in particular, Dennis v. United States), before being narrowed to an “incitement to imminent lawless action” test by Justice Douglas in Brandenburg v. Ohio. It is interesting to note that Dennis, in particular, involved the advocacy of a philosophy that is explicitly hostile to political liberalism, but because of American free speech philosophy’s commitment to content neutrality, the ground of the decision, ultimately, was something akin to preserving public order.

Now compare this with a decision of the European Court of Human Rights (Refah Partisi v. Turkeyand the Israeli Supreme Court (Neiman v. Election Committee), and Article 21.2 of the German Basic Law. Refah Partisi was a Turkish political party that claimed, as part of its manifesto, its commitment to the abolition of secularism, the imposition of sharia law and the creation of a theocracy in Turkey. The Turkish Constitutional Court dissolved the party. The case went up in appeal to the ECHR, which held that if a political party wishes to change the legal and constitutional structure of the State, “the change proposed must itself be compatible with fundamental democratic principles.” Sharia law, it held, was not so compatible, and it also held that political parties could be forestalled from such action by their dissolution before they came to power, as long as the need was perceived to be urgent. In Neiman, the Israeli Supreme Court, apparently influenced by John Rawls’ insistence on the need to “tolerate the intolerant”, set a higher bar of “negating the existence of the State of Israel as one of its goals” as sufficient grounds for dissolving a political party. How a political party, using political mechanisms to assume political power can simultaneously negate the very existence of the State that it seeks to govern is, however, somewhat unclear. And lastly, consider Article 21.2 of the German Basic Law, stating that parties who “seek to undermine or abolish the free democratic basic order” are unconstitutional.

Are the ECHR and Israeli decisions, and German Constitutional provision, then, philosophically justified? Laurence Tribe is clear that they are not, arguing that:

“It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions – just as it must permit evolution from communitarianism to individualism.”

Rawls and Popper, on the other hand, argue strongly that in order for a liberal society to survive, it must set limits on what it is willing to tolerate. But this leads precisely to the paradox that we outlined above – and the mere statement that liberalism will be destroyed by untrammeled toleration of the intolerant, while emotively powerful, for the reasons described above, remains philosophically unsatisfactory.

Joseph Raz does indeed take a stab at a philosophical justification. Eschewing neutrality as the defining feature of liberalism, he focuses instead on autonomy – that is, the range of worthwhile choices open to an individual to make towards the shaping of his life. For Raz, coercion (read, banning of free speech) amounts to a loss of autonomy, since it restricts a person’s range of choices; hence, it can only be justified on the grounds of a corresponding autonomy gain. A Razian would thus argue that if a thriving democracy provides maximal autonomy for all its citizens, than the autonomy loss in restricting speech for the purpose of preserving the democratic order is justified. Of course, one may have philosophical disagreements with Raz’s conception of autonomy, with his distinct flavour of autonomy-utilitarianism, but that is a debate for another day.

These issues have not yet – to my knowledge – been tested on the touchstone of the Indian Constitution. Perhaps, one day, for instance, if a party with the agenda of turning India into a ‘Hindu Rashtra‘ comes to power, they will become particularly pertinent. For now, these arguments form an important piece of the puzzle in determining whether the Indian Constitution is committed to political liberalism – and whether it should be.

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