Ranjit Udeshi – II: The Enforcement of Morals

In the previous post, we noticed that in Ranjit Udeshi, the Court upheld the constitutionality of obscenity laws. Two justifications emerge from a close reading of the decision: first, the enforcement of “public morality” via Article 19(2); and secondly, the need to protect people from “moral depravity and corruption.” While there are connections between the two, conceptually, they remain separate arguments; and we shall consider them in turn.

The Hart/Devlin/Dworkin debate, conducted in the aftermath of the publication of the Wolfenden Committee Report in the United Kingdom, remains the locus classicus on the point. The Wolfenden Committee Report, on homosexuality and prostitution, famously stated that “there is an area of private morality… that is none of the law’s business.” In an essay – later a book – called The Enforcement of Morals, Lord Devlin made two arguments against this position: first, that society had the right to protect itself against practices that threatened its existence; and secondly, that society had the right to follow its own moral convictions to prevent (what it considered to be) an adverse change in its moral environment. In the case of pornography, for instance, it may be argued that the institution of marriage and the family, being a fundamental feature of our society, will be eroded by the prevalence of pornographic material (the first prong of Lord Devlin’s case); or, it may be argued that the widespread availability of pornographic material will fundamentally change the way people view sex and relationships, and that is something society has the right to forestall through criminal legislation (the second prong).

Hart attacked the first prong of the argument, and Dworkin the second. Hart argued that “society” could mean one of two things: the physical fact of a collection of people – in which case, it was absurd to suggest that “society” in this sense could be destroyed by a simple change in practices; or – as Lord Devlin held – it could mean a community with “shared ideas on politics, morals and ethics.” But if that was the definition of society, and if, admittedly, these shared ideas were constantly shifting and changing, then on what principled basis could the majority of a moment arrogate to itself the power to freeze a transient moral status quo into permanence?

Dworkin argued (here) that Lord Devlin’s idea of a “moral conviction” was inconsistent with his definition of it (“a level of disgust, rising to intolerance”). Distinguishing a moral conviction (“homosexuality is immoral”) from questions of taste (“homosexuals make me sick!“), prejudice (“homosexuals aren’t real men), rationalisations stemming from verifiably incorrect facts (“homosexuality is physically debilitating“), and parroting (“everyone knows that homosexuality is immoral!), Dworkin argued that:

“the principles of democracy we follow do not call for the enforcement of the consensus, for the belief that prejudices, personal aversions and rationalizations do not justify restricting another’s freedom itself occupies a critical and fundamental position in our popular morality. Nor would the bulk of the community then be entitled to follow its own lights, for the community does not extend that privilege to one who acts on the basis of prejudice, rationalization, or personal aversion. Indeed, the distinction between these and moral convictions, in the discriminatory sense, exists largely to mark off the former as the sort of positions one is not entitled to pursue.”

It is important to note that the upshot of Hart and Dworkin’s arguments is not to defeat any enforcement of morality, but to set an extremely high threshold upon the use of that method. The question remains, however, whether it is permissible for the so-called moral majority to apply criminal sanctions to behaviour it deems immoral. In the previous post, some arguments were adduced to demonstrate that such is not the purpose of Article 19(2) of our Constitution. We can now add three further observations: Article 19 is part of our entrenched Bill of Rights, and one – if not the most important – function of a bill of rights in a democracy is to protect minorities against the legislative power of the extant majority. Justice Jackson’s statement in West Virginia Board of Education vs Barnette deserves to be quoted in full, at this point:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

If, therefore, the right to free speech is an entrenched fundamental right (which it is), and if obscene speech comes within the ambit of the right (which, it would appear from this case, it does), then the logic of a bill of rights makes it clear that majority opinion ought not to be a valid ground of restriction.

Secondly – and this is a matter of great controversy, so I shall only advance this claim in a very tentative fashion – the nature of the rights guaranteed by Part III of our Constitution (equal protection before the law; the fundamental freedoms; life and liberty; the freedom of conscience; cultural minority rights, and so on) suggest strongly that the underlying philosophy of our bill of rights is that of political liberalism. Now, whatever else may be in dispute about the nature and meaning of liberal political theory, this much is certain (endorsed, among others, by Rawls and Dworkin): liberalism is committed to neutrality, that is, it is not for government to adjudicate upon the desirability of competing world-views and forms of life – that is a matter for individual judgment. Naturally, then, it is not for the government to promote or to hinder particular world-views through the mechanism of law.

Now, as Raz points out, it is through speech, expression and – most of all – communication that we define and place ourselves within our society; and it is through unhindered public expression and portrayals of particular forms of life that we seek validation for them; correspondingly, censorship and bans on expression amount to:

“…not only a disapproval of the particular act in question, but a disapproval of the way of life that that act or expression has come to symbolize.” (emphasis supplied)

A government ban, therefore, on an allegedly obscene publication or a pornographic work is not only censorship of that individual creation, but in our society, comes to symbolise an authoritative condemnation of the entire style or way of life that such work forms part of, is an example of, or portrays. And that is a judgment that a liberal Constitution and a liberal polity is not permitted to publicly undertake.

Lastly – and as a matter of pure textual exegesis – the framers of our Constitution appear not to have viewed “morality” as referring to “public morality”; in the Constituent Assembly Debates on 1st December, 1948, while discussing the draft article 13(2) (later 19(2)), “public order” was not yet part of the wording, and a proposed amendment sought to insert the phrase “decency or morality” (sans “public”) into 13(2). The phrase “decency or morality” was used again on 2nd December 1948 in the specific context of discussing the limitations on free speech, while “public order” was being simultaneously discussed. I suggest that from a reading of the debates, it becomes clear that “public order” and “decency and morality” were discussed separately, as separate concepts. Our Constitutional text, therefore, does not expressly make “public morality” a ground for restricting free speech; and I have suggested, in this post and the last, that our Constitutional philosophy militates against such a conclusion.

What then does the word “morality” mean, if not public morality? One possibility is that it refers to individual morality. This, indeed, is the second line of argument pursued by the Court: it is permissible to ban obscene publications because they deprave and corrupt individual morals. In the next post, we shall discuss whether and to what extent that argument can be used to justify restrictions on free speech.


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4 Comments

Filed under Free Speech, Obscenity

4 responses to “Ranjit Udeshi – II: The Enforcement of Morals

  1. Neha

    Great post Gautam. 🙂 These are my (raw and initial) thoughts.
    My problem with Dworkin’s account of free speech is
    that he contends that one must not adopt an instrumental approach but an intrinsic one.
    Thus a person’s freedom of speech is intrinsically useful because
    she is a moral agent and must be respected and the State must not
    impose its views on her. The justification of free speech cannot be
    instrumental, like the ‘marketplace of ideas’ may suggest. This is reflected in Dworkin’s idea of ‘ethical independence’ elaborated
    upon in ‘Hedgehogs’. You ofcourse have very elegantly summarized it
    thus:
    “liberalism is committed to neutrality, that is, it is not for
    government to adjudicate upon the desirability of competing
    world-views and forms of life – that is a matter for individual
    judgment. Naturally, then, it is not for the government to promote or
    to hinder particular world-views through the mechanism of law.”
    My problem with this argument is one Cohen makes at the beginning of
    his book ‘If you are an egalitarian’. If you had a twin and discovered
    she was not an egalitarian like you are because she was raised by
    Republicans, then would that change your views about how your
    convictions and beliefs are formed and your views on autonomy?
    Dworkin’s ideas of ‘moral agency’ and free speech do not adequately
    account for the crucial role played by institutional structures or
    familial structures in shaping convictions and world views. In
    response to the neutrality of liberalism, neutrality
    often masks entrenchment of existing institutional structures of
    government or historical inequities. I think Dworkin does offer a way out of this in ‘Justice for Hedgehogs’ by referring to ‘moral responsibility’
    in ethical independence. So he states that convictions cannot be
    formed by flipping coins but rather by moral reasoning that is sound
    and consistent. How should the idea of liberalism and neutrality then
    reconcile with this moral responsibility in shaping of convictions and
    ethical independence? Further, how must it avoid reiteration of the
    generational or historically entrenched state position in the name
    of ‘moral agency and autonomy’ or ‘neutrality’? Personally I think
    Raz says it best when he proposes that State cannot criminalise
    different life styles but may encourage some life styles as opposed to
    others, ofcourse only if the very high burden of proof is met with
    respect to the incontrovertible deleterious consequences of the impugned lifestyles. I would take the example of smoking. The State may not forbid or penalize it but can atleast discourage the same by banning advertisements glorifying it? This could be seen as the State remedying its earlier actions of allowing cigarette lobbies enormous clout for economical and political reasons?

    • Thanks for the comment! You make a series of very interesting points – and correctly identify, in my opinion, the flaw that makes political liberalism an incomplete theory. As I see it, political liberalism has Kantian and Enlightenment roots, and the *basic* idea it subscribes to is that of the autonomous, individual self, situated in a universe of similar autonomous selves, itself constant and unchangeable, itself an unconstrained “subject” – and choosing freely from a world of objects, a shopping-list of available “options”, to shape its own life and future in accordance with its free will (forgive me if I’ve mangled some of the terminology).

      I think the last eighty years of Continental philosophy demonstrate that to be a mistaken view. Take Bourdieu for instance – he eschews talk of subject and object, and talks instead of “habitus” and “field” – at the risk of egregious oversimplification, individuals (if such things exist) are neither “free” nor “determined”, but instead composed out of a series of external and internal influences (“structured and structuring”, I think, is the term he uses to define the “habitus”). If you accept that view – or similarly, arguments made by Giddens – then political liberalism collapses utterly.

      For instance, take the distinction Scanlon makes between a command that I give to you to do something, backed up by threat of physical harm – in which case, I am responsible – as opposed to my persuading you to do something by throwing propaganda at you, in which case it’s you who are responsible, because as an individual, autonomous self, you make judgments upon reasons placed before you. This scheme simply cannot accommodate ideology – in the sense in which Gramsci and Bourdieu talk about it. And obviously, then, we need a different way of analysing cases on hate speech, pornography, and so on – one that does take ideology in to account in a principled, coherent and persuasive view.

      I think, in fact, that constitutional theory is in need of enrichment through applying these concepts – complementarily – to the established anglo-American analytical philosophical grounding that presently holds the field because it is, I feel, inadequate.

    • Oh, and for the record – I don’t think that the ethical independence argument in Justice for Hedgehogs is something new. I think it’s a restatement (the preface to Freedom’s Law talks about it), and suffers from precisely the same problems. No matter how much moral responsibility you take upon yourself to construct your coherent, holistic and elegant moral universe, such construction is going to be strongly influenced *by* a whole host of influences that can in no sense be attributed to (your) individual self.

      As an aside, I don’t think Raz escapes it either – his entire idea of autonomy is based on the responsible agent formulating her life by choosing a combination of valuable options out of a multiplicity – again, it is limited to what we’ve discussed above.

  2. Pingback: What is Decency?: Article 19(2) and the Bal Thackeray Case | Indian Constitutional Law and Philosophy

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