Guest Post: Constitutional Silences, Balancing of Rights, and the Concept of a “Neutralising Device”

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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[This is a guest post by Anubhav Khamroi.]

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The doctrine of balancing of rights have troubled constitutional courts across jurisdictions. The Indian Supreme Court, once again (although, in my opinion, unnecessarily), in Kaushal Kishor v. State of Uttar Pradesh [“Kaushal Kishor”], has taken upon itself the job of balancing two potentially competing fundamental rights, namely – Article 19(1)(a) and Article 21 or any unenumerated right within it. The Constitution Bench passed an order (see here) framing five questions for consideration. This Post concerns only the first question, which reads –

“Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?”

In some previous posts, Gautam Bhatia has dealt with the question of balancing of Article 19(1)(a) with other freedoms under Part III (See here and here). To summarise, his primary arguments are:

• Article 19(2) does not contain a “public interest” limitation, such as found in Article 19(6), which suggests a deliberatechoice to reject a general balancing between the Freedom of Speech and the “social interests” not specifically enumerated under Article 19(2);
• As the Constitution expressly enumerates limitations upon the Freedom of Speech within its text, the process of balancing has already been undertaken within the drafting of Articles 19(1)(a) and 19(2);
• Article 19(2) does not contain any proviso or limitation that makes the Freedom of Speech subject to other provisions of Part III, such as found in Article 25(1);

In that light, some compelling questions arise: If there is no express mechanism for balancing of rights within the constitutional text, what is the significance of such “constitutional silence” in Article 19(2), or Part III in general? Does it make the Freedom of Speech a standalone right? Under what circumstances can one Part III right operate as a valid limitation on another? I shall deal with the aforementioned points in seriatim. Thereafter, I shall elaborate on the evolution of the concept of a “Neutralizing Device” by the Supreme Court.

Situations of Potential Conflict between Two Part III Rights

As discussed above, Article 19(2) sets out eight express limitations. But it does not contain any limitation that makes Freedom of Speech ‘textually’ subject or subordinate to other fundamental rights guaranteed under Part III. This is also the case for other Part III rights, with the exception of Article 25(1). However, we ought not lose sight of the possible clashes between two Part III rights. Following are some illustrations of such clashes:

1. Freedom of Press [Article 19(1)(a)] vs. Right to Privacy [Article 21];
2. Right to Freedom of Speech [Article 19(1)(a)] vs. Right to a Fair Trial [Article 21] – This conflict was being adjudicated upon in the initial proceedings of Kaushal Kishor, concerning a Minister calling the victim’s case a “political conspiracy only and nothing else”.
3. Right to impart and receive Information on matters of public interest [Article 19(1)(a)] vs. Right to Reputation or Autonomy to control dissemination of personal information [Article 21]- The scope of this conflict was briefly commented on by SK Kaul J. in Paras 53 to 58 of his separate opinion in Puttaswamy.
4. Freedom to manage religious affairs of religious denominations [Article 26] vs. Dignity and Liberty of women [Article 15 & 21] – This conflict came up for consideration in the Sabarimala

It is thus evident that constitutional values do come in severe conflict quite often. However, for resolution of such a ‘constitutional conflict’, there is no balancing mechanism set out within the text of Part III. This is a classic case of ‘constitutional silence’. To balance competing rights of equal supremacy is not a decision simpliciter for the judiciary and a proper mechanism must be formulated (See below – the use of a “neutralizing device”).

Now, let us specifically focus on Article 19(2). I do agree with Mr. Bhatia’s conclusions here, that it might not be appropriate for the Supreme Court to ‘invent’ additional grounds for restricting Freedom of Speech, such as “constitutional fraternity” or “constitutional compassion”, which are mere abstract concepts, incapable of sufficiently revealing their precise contents.

My disagreement is only to a limited extent – the limitations set out in Article 19(2) cannot be considered exhaustive, to the extent it might be necessary to balance Freedom of Speech against other Part III rights, such as Article 21 or unenumerated rights situated within it. However, to make the balancing process functional, the contents of such unenumerated rights must be somewhat objectively determinable. For example, the contents of right to privacy has been well defined in the Puttaswamy judgement.

In my opinion, while being in a state of mutual co-existence, the competing Part III rights operate as a valid limitation upon each other. The judiciary, which is the “balancing wheel between the rights” (See Chief Justice Subba Rao’s opinion in Golak Nath ), plays the role of a facilitator in this process.

Dealing with the absence of a Stipulation/Preface stating – “subject to other provisions of this Part”

The absence of a proviso or a clause such as “subject to other provisions of this Part” does not put any one particular Part III right at a higher pedestal in constitutional order of priorities. During the operation of a Part III right, as explained above, it might experience clashes with another right. In that event, ‘pragmatic reasoning’ clearly suggests that these rights cannot work in complete isolation. For example, there must exist a functional cooperation between Article 19(1)(a) and Article 21, so as to make the operation of both sustainable.

In a different context, Chandrachud J. pointed out the need to harmonise different provisions under Part III of the Constitution, in the Sabrimala judgement (Para 13 of his separate opinion). I attempt to use his reasoning as a suitable illustration and analogy to buttress my point. In that case, he was evaluating the consequences of a similar absence of ‘words of subjection’ in Article 26, as compared to the wording of Article 25(1). In this regard, he had observed that:

“Even where one provision is not subject to another there would still be a ground to read both together so that they exist in harmony. Constitutional interpretation is all about bringing a sense of equilibrium, a balance, so that read individually and together the provisions of the Constitution exist in contemporaneous accord….[T]he freedoms which find an elaboration in Part III are exercised within a society which is networked. The freedoms themselves have linkages which cannot be ignored.”

The inherent inter-relationship and cohesion between fundamental freedoms in a modern democratic society also lends support to the above reasoning. Herein, it might also be noted that the legal maxim “expressio unius est exclusio alterius” (express mention of one/some, leads to the exclusion of others) does not strictly apply in the context of constitutional interpretation.

As we are well aware, any written constitution is never complete or comprehensive. The gaps in the Constitution are ought to be filled with societal values and common experiences, promoting a notion of fluidity. The Part III rights are not placed in “water-tight compartments”, operating in a staccato fashion (See Rustom Cavasjee Cooper v Union of India & Maneka Gandhi). They do not exist in an exclusive sphere of operation and therefore, a measured calibration of each of them is a ‘constitutional necessity’.

Conceptualizing the Idea of a “Neutralizing Device”

The questions that now haunts us are – in actuality, how and when do we balance freedoms of identical or equal importance? What measures ought to be deployed to recalibrate two Part III rights, wherein neither substantively loses its essence?

The answers to the above questions may be found in certain general principles laid down by a Constitution Bench (five-judges) in Sahara India Corporation v. SEBI (Paras 42-43). Accordingly, a three-step test must be followed before a balancing measure is deployed:

• Operation of one Part III right poses a “real and substantial risk” to the effective operation of another;
• A balancing measure is necessary i.e. no ‘reasonable’ or less intrusive alternative can assist in prevention of the said risk (necessity test); and
• The salutary effects or benefits of such balancing measures outweigh the detriment caused to the operation of the right/freedom, which is sought to be limited (proportionality test).

Upon fulfilment of the above test, as per the Sahara decision, the courts must deploy a “neutralizing device”. Of course, there cannot be a straightjacketed or common formula for what “neutralizing device” ought to be used in every possible situation of conflict between Part III rights. It will vary depending on the peculiar facts of each case. But as a general principle, these devices must – (1) operate within the parameters of necessity and proportionality as set out above; (2) pass the test of reasonableness under Article 14, 19(2) and 21 (Maneka Gandhi); and (3) have the capacity to ‘neutralize’ the friction and discord between two Part III rights.

For example, in the Sahara decision, there was a conflict between the Freedom of Press guaranteed under Article 19(1)(a) and Right to a Fair Trial under Article 21. In that case, the Supreme Court devised the use of postponement orders, as a “neutralizing device”, against any publication or broadcast that may put the proper administration of justice or fairness of the trial at “real and substantial risk”. Also, in accordance with the tests of necessity and proportionality, the Supreme Court declared that such orders should have effect only for a limited duration.

Moreover, in a recent 2018 decision in Kanimozhi Karunanidhi, the Madras High Court considered another conflict between Free Speech under Article 19(1)(a) and Right of Privacy under Article 21 (Para 26). Although it did not cite Sahara, the High Court adopted a similar conflict-resolution strategy and passed an injunction order that only prohibited publication of ‘private information’ about the applicant’s life without her consent. But it was clarified that the injunction shall not extend to any information relating to the work of the applicant as a Member of Parliament or as a leader of the political party (Paras 43-44).

This must operate as a guideline for all Courts in future cases of similar conflict.

Conclusion- So isn’t Kaushal Kishor (Q1) An Unnecessary Academic Exercise?

As clarified above, the Supreme Court in Sahara has already declared “the law under Article 141 on balancing of Article 19(1)(a) rights vis-à-vis Article 21” (Paras 15, 42 & 45). Although, the decision was relating to contempt of court, I believe the Constitution Bench had sufficiently clarified the general principles that ought to apply in all cases of conflict between 19(1)(a) and Article 21 rights, notwithstanding the context. Therefore, the Supreme Court has already answered the first question framed in Kaushal Kishor in the positive, and the question is no more res integra.

According to a Constitution Bench decision in Central Board of Dawoodi Bohra (Para 12), though a bench of co-equal strength may express an opinion doubting the correctness of the view taken by an earlier bench of co-equal strength, but thereupon such a matter must be “placed for hearing before a bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”

Accordingly, judicial discipline and propriety suggest that the five-judges bench in Kaushal Kishor must either uphold and reiterate the decision in Sahara; or refer the matter to a larger bench of seven-judges for reconsideration. They should not themselves deviate from or declare the decision in Sahara per incuriam, as clarified in Dawoodi Bohra.