On Reasonable Restrictions and the First Amendment

In The Hindustan Times, Avantika Mehta has written a perceptive review of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. In particular, I found this observation interesting, and one that calls for a response:

“… when Bhatia discusses hate speech without bringing up parliamentary debates on the issue or a beloved politician’s contribution to enacting the law he finds so vile – yes, we are referring to Nehru’s introduction of the “reasonable restrictions” clause of our FOE — he does a disservice to history and to his readers. Historians have noted that the clause was brought in to muzzle the Hindu Mahasabha. The amendments were later used by the Supreme Court to uphold the law of sedition, which Bhatia extensively discusses in the book without looking into the realpolitik of the situation.”

There is considerable controversy over Nehru’s role in the constitutional history of the free speech provision. It is therefore important to clarify what Nehru was responsible for, and what he wasn’t. To start with, let us take the text of Article 19(2) as it stood at the time the Constitution was adopted:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

After the First Amendment (which was brought about in response to cases such as Romesh Thappar vs State of Madras and Brij Bhushan vs State of Delhi), the modified Article 19(2) now read:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

Two points need to be made.

First, restrictions upon the freedom of speech were not introduced by Nehru via the First Amendment. Article 19(2) was part of the original Constitution. The final wording of the sub-clause was the result of intense and bitter debate in the Constituent Assembly, but – interestingly enough – Nehru was not a very active participant in that debate. The intellectual defence of a restrictions clause was provided by Ambedkar in a lengthy speech, where he cited Gitlow vs New York (American Supreme Court) for the specific proposition that free speech must be constrained in certain circumstances. Sardar Patel also provided strong support for Article 19(2) (then draft Article 13(2)), on more than one occasion. A perusal of Nehru’s speeches indicate that he was clearly in favour of the restrictions clause, but the heavy lifting – at least in the Assembly – was primarily done by Ambedkar and Patel, and certain other members such as Brajeshwar Prasad. Opposition to the restrictions clause came from two quarters: the Left (Somnath Lahiri, in particular), and the (Hindu) Right, both of whom advanced nuanced and subtle arguments calling for the restrictions clause to be scrapped altogether, or to be watered down. Unfortunately, they lost.

Secondly – and this is crucially important – the First Amendment did two different things, which need to be kept separate. First, it expanded the scope of Article 19(2) by introducing the terms “public order” and “incitement to an offence”. This was clearly done with a view to get around the decisions of the Supreme Court in Romesh Thappar and Brij Bhushan, which had struck down a ban on a left-wing journal and pre-censorship of a right-wing (RSS) journal respectively (N.B.: it wasn’t just about suppressing the Hindu Mahasabha – it was equally about suppressing communism), on the basis that the original Article 19(2) did not authorise the State to impose restrictions upon free speech in the interests of public order, but required it to discharge the higher burden of showing a threat to the security of the state. This was a regressive step, and as the mover of the Amendment, Nehru deserves to be severely criticised for it.

However, this was not all that the First Amendment did. In addition to expanding the scope of Article 19(2), it also introduced the word “reasonable” into the sub-clause. This word did not come out of a vacuum, but had a long history behind it. In a forthcoming paper on free speech in the Constituent Assembly Debates, I attempt to explain the significance of the word “reasonable”, for the framers. Consider the following excerpt:

“Distrust of the State was also the underlying motivation of another set of objections to the wording of the restrictions clause. Sardar Hukum Singh perceptively noted that the phrase “in the interest of”, placed just ahead of the substantive restrictions, would serve to reduce the Supreme Court’s area of review to a very narrow sliver. The question of whether a legislation was “in the interest” of the security of the State, for instance, would restrict the Court to merely being able to interrogate its bona fides.[1] “The proviso in article 13(3)”, he argued, “has been so worded as to remove from the Supreme Court its competence to consider and determine whether in fact there were circumstances justifying such legislation.”[2] Pandit Thakur Dass Bhargava suggested a way out: add “reasonable” before “restrictions.” This, he suggested, would ensure that “the courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say.”[3] In that context, Hukum Singh, in fact, took on Ambedkar on his own terms. Ambedkar’s argument that he could produce a foreign precedent for every restriction placed in draft clause 13(2), he argued, was inapposite, because in other countries, it was the judiciary’s task to balance the competing interests of liberty and social order.[4]” [Footnotes omitted]

The word ‘reasonable’, therefore, was meant to legitimise judicial review over free speech restrictions. Note that Romesh Thappar and Brij Bhushan were decided on the basis that the laws in question related to “public order”, and not to “security of the State”. Without the introduction of the word “reasonable”, this jurisprudence would have very soon hit a dead end, since the only enquiry that the Court could undertake would be whether there existed some discernible relationship between the restriction and the contents of Article 19(2). The nature of that relationship would have remained beyond judicial review.

It was the word “reasonable”, in fact, that allowed the Supreme Court to introduce a proximity requirement between speech and public disorder in Ram Manohar Lohia’s Case, and kickstarted the limited free-speech protections that we find in the Supreme Court’s jurisprudence today. Without that word, the few progressive free speech decisions in our constitutional history would not have existed: there would have been no Lohia, no Arup Bhuyan, and no Shreya Singhal.

It’s possible, of course, that a more textually constrained Court would have found more creative ways to protect civil rights, and ended up developing a better and more coherent free speech jurisprudence. The history of the Court, however, suggests that this would have been a highly unlikely outcome.

In sum, therefore, it’s important to reiterate two basic points that seem to repeatedly get submerged in discussions about the Constituent Assembly and the First Parliament, in the context of free speech. First, an extensive restrictions clause existed in the original Constitution, and one that was accepted by all the major figures of the Assembly – Ambedkar, Patel, Nehru, Alladi Krishnaswamy, and so on. And secondly, the First Amendment was regressive in that it expanded the scope of 19(2), but progressive in that it also expanded the scope of judicial review (what the Court has done with its expanded powers is a different question entirely).




Constitutional Fraternity as Non-Domination?

On this blog, on various occasions, I have tried to advance the beginnings of a theory of constitutional fraternity, that focuses on egalitarian relationships within non-State associations (it is a model of fraternity that is entirely different from that propounded by the Supreme Court in the criminal defamation case). Recently, I came across the work of the political theorist Ian Shapiro, on the subject of “non-domination” as central to justice. It seems to me that Shapiro’s understanding of non-domination captures with great succinctness the idea of constitutional fraternity (as I understand it):

“I have previously made the case that the best path for pursuing justice, thus conceived, is to democratize human relationships in a particular way. This involves institutionalizing democracy as a conditioning or subordinate good that shapes the ways in which people pursue other goods. My democratic conception of justice is partly defined contextually, linked to the nature of the goods in question and the ways in which people pursue them in particular historical settings. But mine is also partly a general ideal. It implies the need for participation in decision making as well as rights of opposition as constraints on ways in which people pursue their contextually defined goals. How robust these constraints should be depends on how vulnerable to domination people are in particular settings; the more vulnerable they are, the more demanding should be the constraints.

Vulnerability to domination is operationalized, for me, principally by reference to the notion of basic interests. People have basic interests in the security, nutrition, health, and education needed to develop into, and live as, a normal adult. This includes developing the capacities needed to function effectively in the prevailing economic, technological, and institutional system, governed as a democracy, over the course of their lives. People are more vulnerable in collective settings when their basic interests, thus conceived, are at stake than when they are not. If I control resources that you need to vindicate your basic interests, that gives me power over you. This fact legitimates more stringent democratic constraints on our collective endeavours when basic interests are at stake than when they are not. This power-based resourcism, as I have called it, is geared toward mitigating the most serious kinds of domination that permeate human social arrangements.”

From Ian Shapiro, On Non-Domination (University of Toronto Law Journal, 2012).

Readers will recall that we have tried to thresh out a similar argument when discussing Article 15(2) as providing a right against horizontal discrimination in the domain of housing, as well as the constitutional validity of the anti-excommunication law that was at issue in the Dawoodi Bohra Case (and is now moot because of the passage of the Maharashtra Social Boycott law). I hope to be able to further develop this argument a little way down the line.

The Kerala High Court on Pregnancy and Discrimination

In a judgment handed down last month, a single judge of the Kerala High Court refused to grant relief to a B.Ed student who was disqualified from appearing for her University’s annual examination, since she had been unable to secure the minimum mandatory attendance percentage. The reason for this was her being in an advanced stage of pregnancy. The outcome of the case is something about which reasonable individuals may differ; however, what is disappointing is the judgment’s refusal to situate pregnancy-based burdens within the context of discrimination law:

“It cannot also be said that the case of the petitioner is an exceptional one, since, pregnancy cannot be considered to be a medical condition visited on the petitioner unexpectedly. This Court is of the firm view that the petitioner ought to have definitely adjusted her priorities when continuing a higher education, especially in a course which trains her to be a professional teacher. Pregnancy was an optional choice and that cannot be a reason to permit a student to deviate from the requirements of a regular course of study, and the insistence to adhere to the course regulations cannot be termed to be, a negation of the preferential treatment to women enshrined under the Directive Principles or in derogation of the values of motherhood. The petitioner has chosen to expand her family and can only be deemed to have taken a sabbatical from regular studies; which is definitely permissible and laudable too. But that cannot be turned to her advantage for wriggling out of the terms and conditions of a regular academic course. The award of a degree is not a private affair concerning the awardee alone; when it also brings with it the stump of approval of a reputed educational agency, on which the society acts. Personal preferences and individual predilection should bow down to the larger public interest and societal obligations. The petitioner definitely will be entitled to continue the second semester in the next year and appear for the examination after securing the requisite attendance.”

The judgment’s choice of language is disturbing: “optional choice“, “personal preference” and “individual predilection” are words that sit ill with the kind of intimate, personal and life-changing decisions involved in pregnancy. Furthermore, the judgment ignores some key conceptual issues around pregnancy and sex discrimination, which have received significant scholarly and judicial treatment (in multiple jurisdictions) over the last few decades: that seemingly “neutral” institutional rules such as attendance requirements are framed from the perspective of the male participant who does not get pregnant (and thereby, in effect, perpetuate systemic discrimination). The judgment makes it out to be the individual’s responsibility to structure and adapt their lives around these (seemingly) “neutral” rules, treating the rules themselves as immutable facts of nature instead of human constructions. In this, the judgment is at odds with last year’s opinion of the Delhi High Court, which we had discussed on this blog; notable, the Delhi High Court’s observation that:

The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother. This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times… A seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.“

It seems that there is still a long way to go before indirect discrimination is acknowledged and acted upon on a consistent basis by the judiciary. A thorough, doctrinal development of equality jurisprudence by the Supreme Court (which is still to advance beyond the “arbitrariness” test of thirty-five years ago) would perhaps be helpful.

Jural values running riot: The strange case of Ambika Prasad Mishra vs State of UP

Previously on this blog, we have extensively discussed sex equality under Articles 14 and 15 of the Constitution. Today, while reading Flavia Agnes’ book, Law and Gender Inequality, my curiosity was piqued by reference to the case of Ambika Prasad Mishra vs State of UP. This is a 1980 judgment of a Constitution Bench upholding the constitutional validity of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. The Act was part of the series of land reform legislations that had been undertaken in the years after Independence and which, of course, had been the site of many memorable battles between Parliament and the Courts, culminating in the basic structure doctrine of Kesavananda Bharati. The UP Act, which – like many others – imposed a ceiling upon permissible land holdings  with a view to breaking up ownership over large tracks of land (with a further view to redistribution) – was challenged on multiple grounds, all of which the Court rejected. Here, I want to focus on one: the challenge under Articles 14 and 15(1) of the Constitution, on the basis of sex discrimination.

There were two provisions of the Act that were challenged as being discriminatory. The first was Section 5(3), which stipulated that:

“Sec. 5(3): Subject to the provisions of sub-sections (4), (5), (6) and (7) the ceiling area for purposes of sub- section (1) shall be

(a) In the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, who are either not them selves tenure holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land;”

The second was Section 3(17), part of the definitional clause, which stipulated that:

“… ‘tenure holder’ means a person who is the holder of a holding but [except in Chapter III] does not include —

(a) a woman whose husband is a tenure-holder.”

With respect to the first provision, the discrimination lay in that a son’s land holding, upto two acres, was counted as part of the overall ceiling limit, whereas a daughter’s was not. Thus, the Act facially discriminated between men and women. It was also discriminatory in effect, since – as the lawyer for the Petitioner pointed out – it severely disincentivised unmarried women from holding land.

How did the Court manage to uphold a law as blatantly discriminatory as this? The judgment of the Court was written by Justice Krishna Iyer (possibly one of the most lionised judges in the history of the Court), and for the most part, is extremely difficult to follow. On the subject of sex discrimination, the learned Judge had this to say:

“We wonder whether the Commission on the Status of Women or the Central Governments or the State Governments have considered this aspect of sex discrimination in most land reforms laws, but undoubtedly the State should be fair especially to the weaker sex. Adult damsels should not be left in distress by progressive legislations geared to land reforms. This criticism may have bearing on the ethos of the community and the attitude of the legislators, but we are concerned with the constitutionality of the provision. Maybe, in this age of nuclear families and sex equal human rights it is illiberal and contrary to the zeit geist to hark back to history’s dark pages nostalgically and disguise it as the Indian way of life with a view to deprive women of their undeniable half. Arts. 14 and 15 and the humane spirit of the Preamble rebel against the de facto denial of proprietary personhood of woman-hood. But this legal sentiment and jural value must not run riot and destroy provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life’s realism is legislatively pragmatised. Such a scheme may marginally affect gender justice but does not abridge, even a wee-bit, the rights of women.”

I must confess, the meaning of this passage escapes me entirely, despite multiple readings. How do “legal sentiments” and “jural value” (?) “run riot”? How does the fact that a law “organises a scheme where life’s realism is legislatively pragmatised” affect its constitutional validity? How can the same sentence acknowledge that a law may (marginally) “affect gender justice“, but at the same time not “abridge, even a wee-bit, the rights of women” (isn’t “marginal” and “wee-bit” pretty much the same thing? And even if it does, do constitutional violations admit of degrees? Is a marginal constitutional violation acceptable, but a gross one not?)

Some insight into the learned Judge’s thinking may be gleaned from what comes after:

“If land-holding and ceiling thereon are organised with the paramount purpose of maximising surpluses without maiming woman’s ownership no submission to destroy this measure can be permitted using sex discrimination as a means to sabotage what is socially desirable. No woman s property is taken away any more than a man’s property.”

The problem with this reasoning is that Article 15 does not state that “The State shall not discriminate on grounds of sex with regard to ownership of property”. It only states that “The State shall not discriminate on grounds of sex”, period. In certain constitutions, such as the ECHR, an equality claim must be brought alongside a claim of a substantive rights violation. The Indian Constitution is not of that mould – it prohibits unequal or discriminatory treatment simpliciter. The fact, therefore, that the UP Act did not take away the property of women was not sufficient to save it from unconstitutionality. It treated women unequally, and that should have been enough.

While the above point is at least arguable, Section 3(17), which excluded women from the definition of “tenure holder” altogether (and, as Flavia Agnes correctly points out, embodied the worst of the medieval European fictions where the legal personality of women was subsumed within their husbands) seemed even more blatantly unconstitutional. And in examining it, the learned Judge grew even more opaque:

“The husband being treated as tenure-holder even when the wife is the owner is a legislative device for simplifying procedural dealings. When all is said and done, married woman in our villages do need their husband’s services and speak through them in public places, except, hopefully in the secret ballot expressing their independent political choice. Some of us may not be happy with the masculine flavour of this law but it is difficult to hold that rights of women are unequally treated, and so, the war for equal gender status has to be waged elsewhere. Ideologically speaking, the legal system, true to the spirit of the Preamble and Art. 14, must entitle the Indian women to be equal in dignity, property and personality, with man. It is wrong if the land reforms law denudes woman of her property. If such be the provision, it may be unconstitutional because we cannot expect that “home is the girl’s prison and the woman’s work-house” But it is not. It must be said in fairness, that- the legislature must act on hard realities, not on glittering ideals which fail to work. Nor can large landholders be allowed to outwit socially imperative land distribution by putting female discrimination as a mask.”

There seem to be four possible reasons here for upholding the law. First, that it is “for simplifying procedural dealings”. Secondly, that “married women… need their husband’s services.” Thirdly, that “the war for equal gender status has to be waged elsewhere”. And fourthly, that “the legislature must act on hard realities.” It needs hardly to be stated that none of these are constitutional reasons. It also seems clear that the use of multi-syllabled words to avoid the necessity of providing cogent legal reasoning is not a recent development in Indian Constitutional law.

Reading this judgment reminded me of two other cases. One is State of UP vs Lalai Singh Yadav, where the same Justice Krishna Iyer insisted on a “pragmatic approach” to free speech, and warned that whoever by “books or bombs” sought to disturb public tranquility would be met by the interdict of the State. The second is State of Bihar vs Madhu Kishwar, where the Court once again deployed “pragmatic” reasoning to refuse to strike down a law despite returning a finding of gender inequality. Over the years, we have come to think of the Supreme Court as an “activist Court”. Perhaps it is time for a more honest re-assessment: “activist on most things, pragmatic on civil rights,”