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.