Some thoughts on Article 14 Post-DSPE

Previously on this blog, Manish has criticised the Supreme Court’s opinion in Subramanian Swamy v. CBI, which was handed down earlier this month (I have done the same here). To recap: S. 6A of the Delhi Police Special Establishment Act (“DSPE”) required governmental sanction for investigation of offences under the Prevention of Corruption Act, in case the allegations concerned senior government officials (Joint Secretary or above). The Court struck down this provision on Article 14 grounds, holding that different rules for different classes of officials with respect to investigating corruption were unconstitutional, but – as I’ve tried to demonstrate – got its reasoning hopelessly entangled. The case, however, provides us with an opportunity to reflect upon the current state of Article 14 jurisprudence.

One particularly worrying trend – exemplified in the DSPE case – is the increasing reliance that the Court is placing on the “legitimate state interest” prong of its Article 14 analysis. Traditionally, Article 14 scrutiny of governmental classification consisted of two prongs: an intelligible differentia between the classes that the challenged law had created, and a rational nexus with a governmental purpose. In cases like the Delhi High Court’s Naz Foundation judgment, and now in DSPE, the Court has also required that the State purpose itself be legitimate, and this requirement has played a pivotal role in the outcomes of these cases.

This, however, is extremely problematic. Who judges whether a State purpose is legitimate or not? Traditionally, the Court has the power to strike down laws enacted by a democratically elected legislature under two circumstances: first, if the legislature lacks the competence to pass that law (for example, if it is a State legislature passing a law upon a central subject, like defence); and secondly, if the law violates a fundamental right. In other words, the touchstone for legal legitimacy is the Constitution itself – which lays down rules of competence, and enshrines fundamental rights. As long as those two requirements are satisfied, it is not for the Court to examine the merits of the law, its wisdom or its desirability, or its efficiency – that is within the domain of the parliament, and the remedy for bad laws lies at the ballot box. Lack of competence and violation of fundamental rights, however, are independent grounds for striking down legislation – so on what basis then is the Court creating this extra criterion of legitimate state purpose, which is neither related to competence nor to fundamental rights, as part of its Article 14 analysis?

It is easy to see why the Court feels the need to bring in this analytical construct: a traditional Article 14 enquiry is very easy to satisfy. In most cases, the government will be able to construct some purpose that can bear a rational connection with the classification (in the DSPE case, for instance, the government’s stated purpose was administrative efficiency). Consequently, the legitimate purpose prong is one way for the Court to ensure that Article 14 doesn’t become almost entirely toothless. Yet this is not the right way to go about things, because it essentially transforms the Courts into super-legislatures, passing judgment on the “legitimacy” of laws, based upon standards of its own creation.

There is, however, another ways in which Article 14 can be given some bite. The first is to create a tiered structure of scrutiny, based on the model adopted by the United States Supreme Court. In the US, equal protection violations are judged on three levels: rational review, intermediate scrutiny and strict scrutiny. Rational review – like a standard Article 14 analysis – requires only a “rational connection” between the classification and the purpose. In certain cases, however, which involve “fundamental rights” (for example, if the classification is based on race), the Court requires the government to show a compelling interest, and also that the challenged legislation is the narrowest method of achieving that interest (strict scrutiny has been used to strike down affirmative action policies). Government almost never succeeds under this standard. In between rational review and strict scrutiny, there is “intermediate scrutiny”, which the Court uses in its sex-discrimination cases. Intermediate scrutiny requires the government to show a substantial interest (in between compelling and any interest), and a reasonable connection (in between rational and narrowly tailored) between the law and the purpose. The government’s success rate, unsurprisingly, lies somewhere in between rational review (almost always successful) and strict scrutiny (almost never successful).

The key question, of course, is to determine which tier of scrutiny will apply to which set of cases. Judgments of institutional competence and the gravity of the interests involved play a part in this determination, which is ultimately the task of the judiciary. For instance, adjudication upon the merits of economic policy will – given concerns of institutional competence – necessarily involve the weakest form of review (rational review). The DSPE case, however, involved setting up two different legal procedures for different classes of persons, involving fundamental rule of law concerns (as the Court itself acknowledged). Given that the classification raised rule of law concerns, there is a clear argument in favour of ratcheting up the level of scrutiny to intermediate or strict. Under intermediate scrutiny, for example, the Court would have required the government to come up with evidence to demonstrate that administrative efficiency was actually served by the classification in question (as opposed to taking the government’s claims on face value, as it would do in a rational review case).

This leads us to another important point: tiers of scrutiny also involve questions of burdens and standards of proof. Under rational review standards, the Court will not itself look into whether the government has shown beyond doubt that is classification actually serves its stated purpose. As we move up the levels, however, given the importance of the interests involved, the government has a heavier burden of making such a demonstration to the satisfaction of the Court. The basic idea here is to prevent the government from invoking legislative purposes as a colourable method for screening otherwise illegitimate classifications. So, for example, in the DSPE case, the idea behind requiring the government to show – by evidence – that there is a connection between its classification and administrative efficiency, is to prevent the efficiency argument from acting as a screen, shielding corrupt high officials from investigation.

The tiered scrutiny framework does away with the problems of the legitimate-purpose enquiry. Of course, a full version of the argument will need to be developed, over time, by the judiciary. The present state of the law, however, is untenable: “legitimate purpose” is an entirely free-floating concept that will, in the end, become a plaything of individual judges. Tiered scrutiny, I suggest, is one coherent method by which to bring a degree of order to Article 14, while performing the same function that legitimate purpose does – prevent the government from doing an end run around its constitutional obligations by coming up with false or colourable purposes.

Net Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy

(This post first appeared on the CIS blog, here)

In the modern State, effective exercise of free speech rights is increasingly dependent upon an infrastructure that includes newspapers, television and the internet. Access to a significant part of this infrastructure is determined by money. Consequently, if what we value about free speech is the ability to communicate one’s message to a non-trivial audience, financial resources influence both who can speak and, consequently, what is spoken. The nature of the public discourse – what information and what ideas circulate in the public sphere – is contingent upon a distribution of resources that is arguably unjust and certainly unequal.

There are two opposing theories about how we should understand the right to free speech in this context. Call the first one of these the libertarian conception of free speech. The libertarian conception takes as given the existing distribution of income and resources, and consequently, the unequal speaking power that that engenders. It prohibits any intervention designed to remedy the situation. The most famous summary of this vision was provided by the American Supreme Court, when it first struck down campaign finance regulations, in Buckley v. Valeo: “the concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.” This theory is part of the broader libertarian worldview, which would restrict government’s role in a polity to enforcing property and criminal law, and views any government-imposed restriction on what people can do within the existing structure of these laws as presumptively wrong.

 

We can tentatively label the second theory as the social-democratic theory of free speech. This theory focuses not so much on the individual speaker’s right not to be restricted in using their resources to speak as much as they want, but upon the collective interest in maintaining a public discourse that is open, inclusive and home to a multiplicity of diverse and antagonistic ideas and viewpoints. Often, in order to achieve this goal, governments regulate access to the infrastructure of speech so as to ensure that participation is not entirely skewed by inequality in resources. When this is done, it is often justified in the name of democracy: a functioning democracy, it is argued, requires a thriving public sphere that is not closed off to some or most persons.

Surprisingly, one of the most powerful judicial statements for this vision also comes from the United States. In Red Lion v. FCC, while upholding the “fairness doctrine”, which required broadcasting stations to cover “both sides” of a political issue, and provide a right of reply in case of personal attacks, the Supreme Court noted:

“[Free speech requires] preserv[ing] an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee… it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”

What of India? In the early days of the Supreme Court, it adopted something akin to the libertarian theory of free speech. In Sakal Papers v. Union of India, for example, it struck down certain newspaper regulations that the government was defending on grounds of opening up the market and allowing smaller players to compete, holding that Article 19(1)(a) – in language similar to what Buckley v. Valeo would hold, more than fifteen years later – did not permit the government to infringe the free speech rights of some in order to allow others to speak. The Court continued with this approach in its next major newspaper regulation case,Bennett Coleman v. Union of India, but this time, it had to contend with a strong dissent from Justice Mathew. After noting that “it is no use having a right to express your idea, unless you have got a medium for expressing it”, Justice Mathew went on to hold:

“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.”

 

In Justice Mathew’s view, therefore, freedom of speech is not only the speaker’s right (the libertarian view), but a complex balancing act between the listeners’ right to be exposed to a wide range of material, as well as the collective, societal right to have an open and inclusive public discourse, which can only be achieved by preventing the monopolization of the instruments, infrastructure and access-points of speech.

Over the years, the Court has moved away from the majority opinions in Sakal Papers and Bennett Coleman, and steadily come around to Justice Mathew’s view. This is particularly evident from two cases in the 1990s: in Union of India v. The Motion Picture Association, the Court upheld various provisions of the Cinematograph Act that imposed certain forms of compelled speech on moviemakers while exhibiting their movies, on the ground that “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.”

LIC v. Manubhai D. Shah is even more on point. In that case, the Court upheld a right of reply in an in-house magazine, “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…” This goes even further than Justice Mathew’s dissent in Bennett Coleman, and the opinion of the Court in Motion Picture Association, in holding that not merely is it permitted to structure the public sphere in an equal and inclusive manner, but that it is a requirementof Article 19(1)(a).

We can now bring the threads of the separate arguments in the three posts together. In the first post, we found that public law and constitutional obligations can be imposed upon private parties when they discharge public functions. In the second post, it was argued that the internet has replaced the park, the street and the public square as the quintessential forum for the circulation of speech. ISPs, in their role as gatekeepers, now play the role that government once did in controlling and keeping open these avenues of expression. Consequently, they can be subjected to public law free speech obligations. And lastly, we discussed how the constitutional conception of free speech in India, that the Court has gradually evolved over many years, is a social-democratic one, that requires the keeping open of a free and inclusive public sphere. And if there is one thing that fast-lanes over the internet threaten, it is certainly a free and inclusive (digital) public sphere. A combination of these arguments provides us with an arguable case for imposing obligations of net neutrality upon ISPs, even in the absence of a statutory or regulatory obligations, grounded within the constitutional guarantee of the freedom of speech and expression.

Guest Post: Article 14 and the Rights and Wrongs of the Supreme Court’s Sanction for Prosecution Judgment

(This is a guest post by Manish, a legal researcher based in Delhi, and a 2013 graduate of NLS-Bangalore.)

Last week, in Subramanian Swamy v. Director, CBI, a Constitution Bench of the Supreme Court, speaking through Chief Justice Lodha, struck down section 6A of the Delhi Special Police Establishment Act, 1946 (“DSPE Act”) as being ultra vires Article 14 of the Constitution. The Bench was hearing two writ petitions filed by Subramanian Swamy and CPIL, dating back to 1997 and 2004. This post is a critique of how, in this case, despite a substantial question of Constitutional importance being raised before it, the Supreme Court missed out on an opportunity to clarify its jurisprudence on Article 14.

 

Some factual background is necessary. The Central Bureau of Investigation (CBI), a body constituted under the DSPE Act, is empowered to investigate offences by public officials under the Prevention of Corruption Act, 1988 (“PC Act”). The Government of India had issued a series of executive instructions to the CBI covering investigations in these cases. One of these instructions, called the ‘single directive’, required the CBI to obtain prior sanction before prosecuting officials of and above the rank of joint secretary. In 1998, this directive was struck down by the SC as ultra vires in Vineet Narain v. Union of India. In what was an apparent attempt to override the decision in Vineet Narain, the Union Government issued an ordinance in 1998 which was followed by a Bill that eventually became the Central Vigilance Commission (Amendment) Act, 2003, section 26(c) of which inserted section 6A into the DSPE Act.

 

While hearing the case, a three-judge Bench of the SC in 2005 expressed doubts about the decision in Vineet Narain vis-a-vis the correctness of its application of an earlier Constitution Bench in Veeraswami v. Union of India (on the point of prior sanction), as well as the question of whether arbitrariness and unreasonableness or manifest   arbitrariness   and unreasonableness,   being   facets   of   Article   14   of   the Constitution are available or not as grounds to invalidate a legislation, in light of apparently conflicting decisions of three judge benches of the Court. Hence, the matter was directed to be placed before the Constitution Bench on these grounds. This post will be restricted to the SC’s analysis of Article 14.

 

It will be useful to briefly outline the Supreme Court’s jurisprudence on equality here. Under Article 14 of the Constitution, the State is prohibited from denying to any person equality before law and equal protection of the law. The Supreme Court has, over the years, evolved two tests to determine whether particular kinds of State conduct are Constitutionally permissible under Article 14. The first of these, referred to as the “old doctrine” or the “classification test”, was developed by the Court in a series of judgments in the 1950s including, notably, Ram Krishna Dalmia v. Justice Tendolkar. Simply put, it permits the State to make differential classification of subjects (which would otherwise be prohibited by Article 14) provided that the classification is founded on intelligible differentia (i.e. objects within the class are clearly distinguishable from those that are outside) and has a rational nexus with the objective sought to be achieved by the classification. This is an application of the adage, derived from United States jurisprudence, that persons similarly situated are to be treated equally, which has been held by our Supreme Court to be an integral part of the equality envisaged in Article 14. The second test, referred to as the “new doctrine” or the “arbitrariness test”, was propounded by Bhagwati, J. in the case of E.P. Royappa v. State of Tamil Nadu in 1974, and affirmed as an integral part of Article 14 jurisprudence on subsequent occasions. The test postulates that the equality envisaged by Article 14 includes a guarantee against arbitrariness in State action. Although soundly criticised by the likes of Seervai as being logically unsound and untenable, this test has subsequently found favour with the Supreme Court and despite its somewhat vague formulation, has formed the basis on a number of occasions for State action being declared ultra vires Article 14.

 

At the outset, it will be useful to reproduce the relevant portion of section 6A of the DSPE Act here:

 

“The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to-

(a) the employees of the Central Government of the Level of Joint Secretary and above; and

(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.”

 

The Union Government’s stated rationale for this section was to insulate bureaucrats in decision-making positions from false and frivolous prosecution and enable them to take decisions freely without fear of being prosecuted. It is interesting to observe how the Court engages with this (or not), particularly on the question of arbitrariness.

 

The Court spends over one-third of the judgment (paras 4-36) setting out the facts (despite this being a reference purely on a question of law) and the arguments of opposing counsel at length. It then proceeds to analyse Article 14, laying out the principles relating to the old doctrine as summarised in Ram Krishna Dalmia’s case (paras 40-42). This is followed by a very brief substantive discussion on the new doctrine (paras 45-48), after which, the Court, instead of discussing the question of law referred to it, directly proceeds to apply it to the facts of the case. A largely pointless discussion of Vineet Narain is inexplicably followed by the following observation:

 

“Can the Legislature lay down different principles for investigation/inquiry into the allegations of corruption for the public servants who hold a particular position?  Is such classification founded on sound differentia? To answer these questions, we should eschew the doctrinaire approach. Rather, we should test the validity of impugned classification by broad considerations having regard to the legislative policy relating to prevention of corruption enacted in the PC Act, 1988 and the powers of inquiry/investigation under the DSPE Act.” (para 55)

 

The Court not only muddles up the two limbs of the classification test, but seems to confuse it with the arbitrariness test – despite the two being distinct doctrines with distinct reasoning. Two paragraphs later, it manages to arrive at the following conclusion, although the chain of reasoning is missing:

 

“It seems to us that classification which is made in Section 6-A on the basis of status in the Government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988.”

 

This is bizarre logic: the Court’s jurisprudence on Article 14 indicates that the rational nexus referred to in the second limb of the classification test must be with reference to the object of the legislation that is under challenge. In the present case, the legislation under challenge is the DSPE Act and not the PC Act, which the Court relies on. And even though it might have been possible to argue that the object of the DSPE Act was to enable swift prosecution, and that section 6A defeats this object, the Court does not approach this angle at all.

 

That said, the extract quoted above would have sufficed in terms of deciding on the Constitutionality of the impugned section. However, it inexplicably continues rambling on about classification (not, it must be noted, arbitrariness) in a manner that defeats sound sense and logic. In para 59, reliance is placed on a passage from Ambica Mills, dealing with the first limb of the classification test, to support the Court’s reasoning in respect of the second limb of the test. Subsequently, after exhausting its discussion on the second limb of the test, the Court belatedly remembers the first limb and addresses it:

 

“Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under PC Act, 1988 and inquiry / investigation into such allegations is to be carried out.  Our answer is in the negative.”

 

This is a reasonable conclusion, and it is submitted that the Court might have saved itself reams of paper and rivers of ink, had it been more structured and discussed this point at the outset. Strangely enough, later in the same paragraph, it proceeds to declare that the object of Section 6-A of the DSPE Act is discriminatory, based on the following (it is submitted, extremely questionable) logic:

 

“The  object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants.”

 

It is unclear on what basis the Court resolved this apparent conflict between the objects of the DSPE Act and the PC Act, declaring only the latter to be legitimate. Ironically, all of this is from a Bench that was originally asked to pronounce on the question of arbitrariness! There is also plenty of sermonising about corruption and the need to eliminate it, including reference to a UN Convention and the legislative history of the PC Act. Nowhere is the analogous point of prior sanction for prosecution in other legislations, such as section 197 of the Code of Criminal Procedure, even considered in detail, besides a cursory statement that there is no similarity between section 6A of the DSPE Act and any other provision, and  that each case has to be examined independently and not by applying a general rule. What becomes of precedent then, one wonders. The Court concludes by striking down section 6A, without answering the question referred to it.

 

While one may agree with the decision of the Court in principle (and in law), the reasoning for the same is wholly flawed. Further, the Court does not deal with the issue that was referred to it, but goes off on an unrelated tangent, thus losing a valuable opportunity to clarify its Article 14 jurisprudence. While Constitution Benches have been a rarity in recent times, and it is encouraging to see more questions of Constitutional interpretation referred to larger Benches, it is submitted that such references will only be a waste of time and judicial resources if the questions remain unanswered.

 

Supreme Court rules on Medium-of-Instruction in Schools: Free Speech and Freedom of Occupation

This week, a Constitution Bench of the Supreme Court handed down a very interesting opinion on the constitutional issues involving the medium of instruction in schools. In State of Karnataka v. Associated Management, the Court struck down a Karnataka Government Order, which stated that:

“The medium of instruction should be mother tongue or Kannada… in all Government recognized schools in classes 1 to 4.”

The Associated Management of Primary and Secondary Schools in Karnataka challenged this policy on the grounds of Article 19(1)(a) [freedom of speech], 19(1)(g) [freedom of occupation], 21A [education] and 26, 29 and 30 [minority rights]. At stake was also the interpretation of Article 350A of the Constitution, which provided that:

“It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups.”

The basic issue in this case turned upon the scope and extent of legislative regulatory power over schools, and whether and to what extent this regulatory power was to be limited by existing fundamental rights.

The Court was first called upon to interpret the meaning of the phrase “mother tongue”, as used in Article 350A. Going into the history of the Amendment, it noted that it was the result of the reorganisation of States along linguistic lines, and aimed at preserving the language of linguistic minorities within states, that themselves had been constituted on the basis of language. Mother-tongue, therefore, referred to the language of linguistic minority groups in States, where that differed from the dominant regional language. In individual cases, it would be the parent of guardian who would decide the issue (Paragraph 26).

Having established the meaning of “mother tongue”, the next question concerned the validity of the Government Order. This was where the Constitution came in. The Court first looked at Article 19(1)(a). It cited Mill and Laski to understand the conceptual foundations of free speech. In On Liberty, Mill writes of the “liberty of tastes and pursuits; of framing the plan of our life to suit our own character…”  In The Grammar of Politics, Laski writes: “The freedoms I must possess to enjoy a general liberty are those which, in their sum, will constitute the path through which my best self is capable of attainment.”

The Court’s choice of quotations is particularly interesting. Very broadly, free speech is justified on two grounds. The democratic (or instrumental) justification of free speech considers it crucial to a functioning democracy. Insofar as the legitimacy of government depends upon the will of the people, an open public sphere, in which ideas and opinions circulate freely, is necessary towards the constitution of an informed electorate. This vision of free speech, developed by the American scholars Mikeljohn and Post, ultimately traces its philosophical roots to an idea of democracy as a process in which people take form their interests and preferences, and take collective decisions, through their participation in a free and unconstrained conversation, set up and pursued on equal terms.

There is, however, another vision of free speech that understands it as crucial to individual autonomy. It is through expression and expressive activities that we form and communicate not only our preferences and interests, but our very selves. Free speech, thus, is an intrinsic good. Its value lies not in the goals it serves – such as democracy – but in how it is indispensable to personal development and identity.

While these two visions are often complementary, they can, at times, come into conflict. Historically, it is the democratic justification of free speech that has caught the attention of the Court, in famous cases involving newspaper regulation (Sakal Papers), film censorship (K.A. Abbas), the right to vote (PUCL), silencing unpopular speech (Ram Manohar Lohia), and so on. Here, however, the Court unambiguously affirms the autonomy-based vision of free speech.

This has a few interesting implications. The most important one is that if we accept that individuals have the right to freely develop their own personality, a right served by expressive activity, this then implies that the government is not permitted to intervene on the ground that certain forms of speech will corrupt or otherwise shape an individual’s identity in ways that the State considers undesirable. The Court acknowledges as much immediately after quoting Mill, when it holds:

“According to Mill, therefore, each individual must in certain matters be left alone to frame the plan of his life to suit his own character and to do as he likes without any impediment and even if he decides to act foolishly in such matters, society or on its behalf the State should not interfere with the choice of the individual.”

This is important, because under Article 19(2), one permissible ground of restricting free speech is “morality”. We have exhaustively analysed the content of this restriction previously on this blog, and argued that among three possible meanings of the term “morality’ – i.e., individual morality, public morality and constitutional morality, it is the last one that should be preferred. On the autonomy vision of free speech, however, that the Court affirms in this judgment, individual morality (which formed part of the Court’s decision in Ranjit Udeshi, when it upheld the ban on Lady Chatterley’s Lover) is out: the shaping of one’s own personality through expression is a matter of individual choice. Paternalistic or moralistic arguments cannot be used to justify restrictions. This would be particularly relevant when it comes to regulating pornography and other forms of speech that have historically been considered “immoral”, and it will be interesting to see if the intellectual basis of this opinion has an impact in future free speech cases.

Given its theory of free speech, it was then easy for the Court to hold:

“The right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the freedom of a child to be educated at the primary stage of school in a language of the choice of the child and the State cannot impose controls on such choice just because it thinks that it will be more beneficial for the child if he is taught in the primary stage of school in his mother tongue. We, therefore, hold that a child or on his behalf his parent or guardian, has a right to freedom of choice with regard to the medium of instruction in which he would like to be educated at the primary stage in school.”

The Court reiterated that permissible restrictions were limited to those specified under 19(2) [emphatically not public interest], precisely because they would be “harmful to the development of personality… and not in the larger interests of the nation.” (paragraph 32). This is also important because despite the express wording of Article 19, the Court has often seen fit to read in a “public interest” exception spun out of whole cloth (Ranjit Udeshi is one glaring offender, but by no means the only one). This opinion clarifies that the free speech/public interest balance has already been made in the exceptions scheme under Article 19(2), and that it would therefore be improper to import an additional public interest limitation.

The Court summarily rejected the Article 21A claim, but upheld – rather straightforwardly – the minority rights claims under Articles 29 and 30. (Paragraph 37). It then extended the argument to non-minority, un-aided schools by invoking Article 19(1)(g). Citing T.M.A. Pai for the proposition that the right to set up an educational institution is protected by Article 19(1)(g), the Court noted:

“If a citizen thinks that he should establish a school and in such a school, the medium of instruction should be a particular language then he can exercise such right subject to the reasonable regulations made by the State under Article 19(6) of the Constitution.”

In this case, the government was unable to show a reasonable restriction in the public interest, such as the maintenance of educational standards (paragraph 40), and so it failed on that count as well.

Interestingly, the Court was faced with an argument from educationists, to the effect that it was actually most beneficial for learning and personality development purposes, that children be taught in their mother tongue at a young age. Although this is not strictly a legal issue, it presents a fascinating question: to what extent are fundamental rights regulated by the internal norms of autonomous sub-systems within society? We often extend a high degree of latitude to professional communities – such as, for instance, the medical community, the academic community, and so on – to regulate their own functioning, through norms prescribed by those whom the profession vests with authority. Sometimes, these norms come into conflict with what – in an abstract context – we consider to be individual rights, and it is not immediately clear which of the two must give way. The Supreme Court’s opinion comes down on the side of individual rights – the right to free speech and the right to occupation – but an analysis of why these rights must outweigh the internal regulation of the educational profession would have been helpful as well.

The Court’s unambiguous affirmation of the individual-centric vision of free speech is a welcome development, though, and it remains to be seen whether the Court will take it forward in subsequent cases involving Article 19(1)(a).

Blog Updates

Recent additions to the blog pages include:

(i) The introduction of “Multiculturalism” under the Theorising Rights page, with eight classic pieces. The idea of multiculturalism is important for justifying as well as interpreting minority and other group rights, which form a crucial part of the Indian Constitution. The first three pices – by Charles Taylor, Will Kymlicka and Brian Barry – lay out the groundwork of a liberal theory of multicultural rights in a democracy, and introduce some of the key concepts, such as “recognition”. The next five encapsulate critiques from various perspectives. Nancy Fraser’s essay questions the very idea of “recognition”, while Iris Marion Young and Susan Muller Okin mount two famous feminist criticisms. Coleman’s piece looks at multiculturalism through the lens of justice, and Sachar rounds it off by examining multiculturalism as it plays out through differential treatment in law.

(ii) Press freedoms in the context of libel and other SLAPP-tactics under the Civil Liberties Database: added two landmark American cases – Curtis Publishing v. Butts and Gertz v. Welsh, both of which addressed the vexing questions of libel suits, punitive damages and the need to reconcile privacy and reputational claims with free flow of information that is of public importance, and the essential breathing space needed by a free press.

(iii) Under offensive speech: added Cohen v. California (the “Fuck the Draft” case), and Texas v. Johnson (the flag-burning case).

(iv) The freedom of religion category has been introduced under the Civil Liberties Database, with landmark American cases on defining “religion”, and exemptions for religions conduct.

(v) The Reliance SLAPP attempt upon “Gas Wars” is the latest free speech controversy brewing in India. “Free Speech Watch” has begun – and will continue to – track it.

As always, contributions to the Civil Liberties Database, and the Theorising Rights Page, are most welcome.

Happy reading!