The “Balancing” Test and Its Discontents

At the heart of the Supreme Court’s upholding of criminal defamation is the argument that the right to freedom of speech under Article 19(1)(a) must be “balanced” against the right to “reputation” under Article 21 (as I pointed out in my post about the judgment, the Court’s examination of the reasonableness of criminal defamation under Article 19(2) simply merges into its balancing test. No finding is returned with respect to the former – thus leaving balancing as the sole basis of the judgment).

The criminal defamation judgment is not the first time that the Court has resorted to “balancing” the textually guaranteed right under Article 19(1)(a) against unenumerated rights under Article 21 (R. Rajagopal and In Re Noise Pollution are two others). One problem is that the method of balancing has never been described – the “balancing” invariably leads to subordination of free speech to whatever right the Court decides to find under Article 21.

There is a deeper problem, however. The Court never justifies the balancing test in the first place. To understand why this is a problem, consider the famous American Supreme Court judgment in United States vs StevensPut simply, United States vs Stevens was about the constitutionality of a statute that prohibited the dissemination of videos depicting cruelty to animals. The State attempted to defend the statute by arguing that the “value” of such speech was far outweighed by the social interests advanced by its prohibition. Rejecting this argument by an 8 – 1 majority, the Court observed:

“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.””

There is little I can add to the soundness of this reasoning, except to note that this applies with even greater force to the Indian Constitution than it does to the American. Textually, the American First Amendment is a broad, freedom of expression clause that contains no restrictions. On the contrary, Article 19(2) lists out eight restrictions upon the freedom of speech that can be imposed by law. The argument that the “balancing” between free speech and various social interests has already been achieved within the constitutional text is therefore far more compelling in the Indian context. Given that the framers (and then the amenders) specifically enumerated eight restrictions upon the freedom of speech within the constitutional text strongly suggests that the process of balancing has already been undertaken in the drafting of Articles 19(1)(a) and 19(2). It is not for the Court to further “balance” the freedom of speech against interests that do not form part of Article 19(2) (and certainly not by invoking the DPSPs and Fundamental Duties!)

Three further textual points support this reasoning. The first is that Article 19(2) does not contain a “public interest” restriction (as opposed to, say, Article 19(6)). This suggests a deliberate choice on the part of the framers to reject a general balancing between the freedom of speech and those “social interests” not specifically enumerated under Article 19(2). The second point is that where the Constitutional text intends such a balancing, it specifically says so. Article 25(1)’s freedom of religion guarantee, for instance, is expressly made “subject to” the other provisions of Part III. Article 19(1)(a) is not. A purely textual analysis, therefore, precludes “balancing” Article 19(1)(a) against other provisions of the Constitution. And the third point is that in Constitutions where the balancing test is part of free speech jurisprudence, it is based on specific textual guarantees that allow the State to limit free speech in the interests of “the rights of others” (something similar to Article 25(1)). Article 19(2) contains no such limitation.

Over the last twenty years, it has become established judicial wisdom that Article 19(1)(a) is to be “balanced” against Article 21 (in its capacious, ever-proliferating avatar), and even “balanced” against Part IV, and the fundamental duties chapter. This has come to a point where, in the criminal defamation judgment, the Court hasn’t even returned a finding on Article 19(2), preferring instead to decide the case on the basis of balancing. However, the Court has never interrogated the foundation of that claim (Shreya Singhal, which implicitly holds that restrictions upon freedom of speech must meet the test of Article 19(2) is an exception, as it is an exception in many other ways). Because of the strong textual evidence against this balancing exercise, the Court must show overwhelming reason why this method is constitutionally mandated. So far, it has not done so.

(Ed. My thanks to Jawahar Raja, whose strong objections to the balancing test made me rethink my own intuitive acceptance of it)



Filed under Balancing Rights, Defamation, Free Speech

4 responses to “The “Balancing” Test and Its Discontents

  1. I agree that the ‘balancing test’ is misused by the Supreme Court. In DK Basu vs. St. of WB the court justifies extra legal killings on that basis. See my argument in this regard in my introduction to my report on Habeas Corpus in Kashmir (In Search of Vanished Blood

  2. Great points again. Gautam, you seem to have come around to the opinion I expressed in a comment on your previous post – Why the Supreme Court’s Criminal Defamation Judgment is Per Incuriam”- where i said – I would go further and argue that the Subramanian Swamy defamation judgment is per incuriam at a more basic level. It omitted to apply the only test there is, that of the reasonableness of the restrictions under Article 19(2).

  3. Pingback: The “Balancing” Test and Its Discontents — Indian Constitutional Law and Philosophy – LAW SCHOOL LEARNERS

  4. Pingback: The “Balancing” Test and Its Discontents — Indian Constitutional Law and Philosophy – LAW SCHOOL LEARNERS

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