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(This is a guest post by Karan Lahiri, a practicing lawyer.)

Earlier this month, the Supreme Court passed an interim order in the case of Viacom 18 Media Pvt. Ltd. & Ors. v. Union of India & Ors., lifting the bans that the state governments of Gujarat and Rajasthan had imposed on the screening of Sanjay Leela Bhansali’s Padmaavat, the release of which faced violent protests from fringe Rajput groups. It also tied the hands of States like M.P. and Haryana, where similar executive orders were being contemplated, from following suit. Whether one sees this as a reaffirmation of constitutional values, or, more cynically, as a grasping of low-hanging fruit in these fraught times for the Court, the issues thrown up are worth discussing from the standpoint of constitutional doctrine.

In an article published in the Mint, which can be accessed here, I’ve examined how the Padmaavat interim order drew from the Aarakshan judgment (Prakash Jha Productions v. Union of India), as also the 1989 judgment in S. Rangarajan v. P. Jagjivan Ram, both of which establish that States have a positive duty to protect free expression by maintaining law and order. The sequitur is that the States cannot throw up their hands when faced with a heckling mob, and point to instances of violence caused by such hecklers to justify censorship on grounds of law and order.

Apart from addressing the issue of the States’ duty to maintain public order and protect, I believe that the Order vaguely pointed at another important idea, which ought to have been fleshed out in a more organized, coherent manner, when it said –

“Once the parliamentary legislation confers the responsibility and the power on a statutory Board and the Board grants certification, non-exhibition of the film by the States would be contrary to the statutory provisions and infringe the fundamental right of the petitioners.”

The fact that there is a specialized statutory board is not really relevant here. This should not have sounded like an argument on institutional competence. The emphasis ought to be on the fact that this board, i.e. the CBFC, is a creature of Parliamentary legislation. To drive this argument home, the Court ought to have looked at Schedule VII of the Constitution, which divides legislative fields between the Union and the States. Entry 60, List I places “[s]anctioning of cinematograph films for exhibition” as an area in the exclusive domain of the Union Parliament. The power of the States, under Entry 33 List II, extends only to “cinemas subject to the provisions of entry 60 of List I”. This means that, first, States can only regulate individual cinemas through legislation. Second, this power is specifically subordinated to the Union Parliament’s power under Entry 60, List I, making it clear that States have no power whatsoever to enter into the content of the films screened in these cinemas.

One of the few judgments of the Supreme Court which has looked into this division of power between the Union and the States is Union of India v. Motion Picture Association, where the Court observed: –

“The basic purpose of the impugned laws which deal with licensing of cinema halls, and prescribing conditions subject to which such licences can be granted, is to regulate the business activity of the exhibitors of cinematograph films. Obtaining a licence for running such cinema theatres is for the purpose of regulating this business. This purpose has a direct nexus with Articles 19(1)(g) and 19(6) of the Constitution. The source of legislation under this head can be traced to Entry 33 of List II which entitles the States to legislate on “theatres and dramatic performances; cinemas subject to the provisions of Entry 60 of List I; sports, entertainments and amusements”.

That is why State laws have been framed for regulating the terms and conditions on which a licence for exhibiting films at cinema theatres can be obtained. Part III of the Cinematograph Act, 1952 which applies to Union Territories is also in the exercise of the legislative powers under Entry 33 of List II. Since Delhi was a Union Territory and is now National Capital Territory since 1991 by virtue of the Constitution 69th Amendment Act, 1991, Parliament has the power to legislate under this entry also [see Article 246(4) and the relevant provisions of Article 239-AA]. Entry 60 List I on the other hand deals with “sanctioning of cinematograph films for exhibition”. Censorship provisions, for example, would come under Entry 60 of List I and these would directly relate to Article 19(1)(a) and Article 19(2) of the Constitution. The basic purpose of these impugned provisions is, therefore, to regulate the business of exhibiting films in cinema theatres under Entry 33 List II.”

Justice Sujata Manohar, who penned this decision, identified that States can only regulate the business activity of the individual cinema hall, whereas legislation touching the content of the film lies exclusively within the domain of Parliament. This clear delineation of legislative powers ought to have been expressed clearly in the Supreme Court’s interim order.

This line of argument, where federalism and structure blend with rights and freedoms, and where the domain of impact of one tier in a federal system is fenced in, consequently enhancing liberty (e.g. by tying the hands of States in domain of censoring cinema), is not novel. In the United States, it has been used to great effect in advancing the rights of the LGBT community in challenges to the Defence of Marriage Act (DOMA), a federal legislation that had prevented same-sex couples married under their State laws from accessing federal benefits. Judge Boudin of the U.S. Court of Appeals for the First Circuit, in Massachusetts v. HHS, while striking down DOMA, placed the regulation of the rules and incidents of marriage within the domain of the States, and said that federal statutes intruding on matters customarily within State control are to be “scrutinized with special care”. Judge Boudin pointed quite clearly to the blending of structure and rights when he said: –

“True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.

Therefore, federalism was used by Boudin to justify a closer scrutiny of laws violating the equal protection clause of the US Constitution. This rationale was picked up and taken much further by Justice Anthony Kennedy in the US Supreme Court’s decision in US v. Windsor, fusing federalism with the right of same-sex couples to live with dignity. He wrote: –

“Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy used federalism a little differently from Boudin. While Boudin used it to justify a higher degree of scrutiny, Kennedy used federalism to define a constitutional baseline against which to test DOMA. His argument, at its most basic, runs a little like this: –

  1. Only States can regulate marriage.
  2. States have used this power to recognize the rights of same-sex couples and their right to live with dignity. [This is the baseline set by Kennedy.]
  3. The Federal government, in enacting DOMA, has not only intruded into the domain of the State but also deprived the same class of people whose rights were recognized by the State of important benefit. This is, according to Kennedy, “strong evidence of a law having the purpose and effect of disapproval of that class”.

In other words, the ratcheting back of privileges by the Federal government (an interloper in the domain of States) tested against the baseline set by the States has been used by Kennedy to justify the conclusion that same-sex couples have been singled out for particular disability.

I have attempted to provide these two examples from American constitutional jurisprudence to clarify my own ideas on the link between structure and freedom, perhaps as a starting point for further examination and writing. To this end, I felt it might be useful to think aloud, in the hope that the reader may get a flavor of my claims from a few disjointed threads: –

  1. I think there is a need to look at our Constitution’s structural features more closely, and map this onto the larger doctrinal topography of Indian fundamental rights jurisprudence. For instance, the fact that these structural features (such as the interplay between Entry 60, List I and Entry 33 List II) have freedom-enhancing effects in certain cases cannot lead to the conclusion that they were inherently intended to be freedom enhancing. For this to hold good, there would need to be some evidence of this in our constitutional history supporting this claim, which is perhaps one avenue of inquiry for systematic research.
  2. Second, I recognize the fact that, in general, arguments flowing from federalism (or, indeed, any structural argument, even if it flows from the horizontal separation of powers between the three branches of government) do not, inherently, enhance or constrict freedom. A State law enhancing the breadth of rights may fall to a federalism objection. I am also aware that arguments flowing from structure are agnostic with respect to political valence and the desirability of outcomes. For instance, Boudin’s decision (mentioned above) cites S. v. Lopez, where the conservatives on the U.S. Supreme Court came together to strike down gun control legislation by deploying arguments founded in structure.
  3. I am interested, more specifically, in the formulation and deployment of arguments where there is a hybridity, so to speak, brought about by fusing structure and freedom, and the outcomes in such cases.
  4. Most particularly, it would be worth thinking about such hybridity as both a doctrinal and rhetorical tool in the hands of a judge (and, perhaps, developing a schema that explains particular cases, such as the DOMA cases in the U.S.), as also a strategy in the arsenal of constitutional lawyers, particularly in the face of a conservative bench. A conservative bench, ordinarily wary of expanding freedoms, would perhaps be more amenable to an argument addressing structure and In the Padmaavat case, the bench was headed by the present Chief Justice, who penned the judgment in Devidas Ramachandra Tuljapurkar v. State of Maharashtra, where he created a new class of “historically respected personalities”, previously unknown in our jurisprudence, and used it to justify curbing the breadth of provocative artistic expression touching upon such personalities. Arguably, a pure rights-based argument about Padmaavat, where the Karni Sena’s objections stem from the portrayal of Rani Padmini, a “historically respective personality”, may not have gained traction. What the Padmaavat order tells us, perhaps, is that in the face of a conservative Court, fusing rights with structure may make for a more successful formulation of arguments against intrusive state action.

One concluding point: it needs to be emphasized, for the sake of completeness, that the States could not have relied on Entry 1 of List II, giving the States the power to legislate on “public order”, or on Article 19(2), which allows for reasonable restrictions on free speech on grounds of “public order”, to justify their actions. This is because it would have been difficult to demonstrate that anything in the film constituted the proverbial “spark in a powder keg”, i.e. that the message has a clear tendency to disrupt public order, especially at a time when the movie had not even been released. Obviously, measures designed to maintain public order would have addressed themselves to the violent mob looking to silence expression, and not to an unreleased movie.