In accordance with the Newspaper Act of 1956, and the Daily Newspaper Order of 1960, the government sought to regulate the number of pages a newspaper could contain by making it a direct function of newspaper’s price (i.e., in order to bring out more pages, the newspaper would have to be priced higher); it also prescribed the number of supplements that could be published, as well as the relative area that could be occupied by advertisements.
The constitutionality of these measures was impugned as being violative of – inter alia – Article 19(1)(a). The petitioners argued if they wished to keep the size of their newspaper constant, they would have to raise the price – and suffer a fall in circulation. If, on the other hand, they wished to keep their price constant, they would have to reduce the volume of news they were providing. In either event, there was an infringement of Article 19(1)(a).
The State made a number of arguments in response. For the purposes of this post, I will focus on the following: it argued that the object of the regulations was to prevent unfair competition and the rise of monopolies within the newspaper industry (the argument presumably being that due to economies of scale, established large newspapers were in a position to keep prices at a level at which newer – and smaller – newspapers were unable to compete, and would therefore either be unable to enter the market – or if already present – would be forced to exit by selling to one of the established newspapers). It argued that effectively – by freeing up the market – the regulations were designed to promote the freedom of speech and expression.
The Court agreed, in substance, with the petitioners. Mudholkar J., speaking for the Court, made the unexceptionable point that Article 19(1)(a) covered not only matter, but volume (paragraph 27); the effect of the impugned regulations would be to directly limit circulation (paragraph 32) or volume (paragraph 35); this was thus a clear case of infringement, and one that was not saved by the exceptions in Article 19(2) (in light of the unfair competition claim, the Court focused particularly upon the absence of a “public interest” exception in Article 19(2), as opposed to its presence in Article 19(6)) (paragraph 38). The Court parted with the case by stressing the important of the freedom of speech “under a democratic Constitution which envisages changes in the composition of legislatures and governments…“, and emphasised that any regulation that would necessarily “undermine… power to influence public opinion” was “capable of being used against democracy as well.” (Paragraph 45)
These parting remarks can be taken as the point of departure for an analysis of the Court’s decision. In this one sentence, the Court has already made a series of political and philosophical choices: at the most abstract level, it has made a choice between intrinsic/constitutive and instrumental justifications for free speech. Justifications of the first kind regard the freedom of speech – for whatever reason – as an essential component of a just political and moral order. According to Ronald Dworkin, for instance, freedom of speech is an essential aspect of government treating its citizens with equal concern and respect; while along similar lines, Scanlon argues that it is part of living an autonomous life. Instrumental justifications, on the other hand, locate the value of free speech in the contribution it makes towards securing or promoting other values. For instance, Mill famously argued that an open marketplace of ideas was the best means for arriving at truth. Here truth is the constitutive/intrinsic value that free speech serves instrumentally.
In choosing democracy as its fundamental value, therefore, the Court not only endorses instrumental justifications over intrinsic (and thus subscribes to a particular philosophy of the nature of rights), but also selects one particular justification, that is, the role that free speech plays in maintaining a functioning democracy (this argument has been made most famously by Mikeljohn in the context of the American First Amendment).
The immediate consequences of this are manifold. First, in Sakal Papers, it allowed the Court to hold as it did. What might have happened, for instance, if the Court had endorsed a different theory? For the purposes of argument, let us assume that the Court found Dworkin’s justification of free speech attractive, and decided to apply it. Dworkin argues that part of what it means for government to accord equal concern and respect to every citizen is to ensure that she has an equal opportunity of shaping the moral environment of society, the moral environment in which we all live. Equal opportunity here naturally entails the idea of equal – or at least, equivalent – access. Consequently, Dworkin’s argument does not permit an abstract account of interferences and infringements upon the freedom of speech – rather, it necessitates an enquiry into each particular situation, in order to determine whether the aforesaid equal opportunity is available to each citizen.
We are now in a position to appreciate the argument made by the Respondent-State through a Dworkinian lens: preventing monopolies and unfair competition is no longer a “restriction” upon free speech placed in the “public interest”, as the Court characterised it (paragraphs 47 – 49) – rather, it is an integral element of the freedom itself. By ensuring an economic environment that is conducive to the entry and survival of small newspapers, the State is not only doing something permitted to it, but in fact, fulfilling its obligation of ensuring the freedom of speech.
What would have happened if the Court had accepted the instrumental justification – as it did – tradition, but endorsed instead something akin to a Millian argument of the marketplace of ideas? Here the issue would have been more delicate, but it would have been possible for the Court to hold, for instance, that a monopolistic market is a distorted market, and in the traditions of liberal economic theory, State intervention to correct market imbalances justifies the regulations that it might choose for such purpose.
The second consequence of the Court’s choice of the democratic justification is more long-term. If we accept the unexceptionable proposition that our Courts ought to act in a principled manner over a sustained period of time, then it would be arbitrary for the Court to invoke the democratic justification in newspaper regulation cases, but a Dworkinian-constitutive justification in a case involving – hypothetically – film censorship – unless the Court could demonstrate a principled reason why that need not be the case. The decision in Sakal Papers, therefore, is far-ranging, and provides a reason for the Court to decide in a certain way in cases as diverse as obscenity trials and pornography on the one hand, and seditious speech on the other.
Here’s how: if we are agreed that the justification of free speech lies in is protection of democracy, then it stands to reason that only those forms of expression that play a some kind of role in democratic governance are worthy of protection. It is highly plausible that this is not the case. For instance, imagine a case comes up before the Court that involves the closure of a pornographic website. The petitioners have invoked the protection of Article 19(1)(a). Now the Respondent Counsel stands up to argue:
RC: Your Lordship, in accordance with the judgment of this Hon’ble Court in Sakal Papers, the role of free speech is to protect our democracy by ensuring that citizens have complete information about important matters. We submit that access to pornographic websites is clearly irrelevant to the protection of democracy – no ideas of governing importance are found in the realm of pornography, and it provides no information that responsible citizens need in order to make an informed choice in the next election. Pornography is not protected under Article 19(1)(a).
This argument is not as far-fetched as it may sound – the term “matters of governing importance” is the precise term used by Mikeljohn in his own democratic justification of the First Amendment.
I hope I have done enough to demonstrate that the philosophy and politics underlying a constitutional judgment is not an exercise in dry academic theorising. On the contrary, it is crucial not only to understanding (and therefore, if necessary, being able to challenge) what justifies an actual judgment of the Court, but also crucial to understanding how a host of similar – and live – issues will be affected by it.
In the next post, I hope to examine briefly a few of the other interesting philosophical issues thrown up by the Sakal judgment.