Last month, the Supreme Court issued its Advisory Opinion in Governors’ Assent – a Presidential reference to seek clarity on the extent of the Governor’s and President’s powers to withhold assent to legislation enacted by state assemblies. Both positions are occupied by nominees of the Union Government, who serve as the titular heads of states and the Union respectively. Although a two-judge bench addressed identical issues in Tamil Nadu v Governor of Tamil Naduthis April, ruling in favour of states by creating timeline and discretion-based fetters on the Governor’s and President’s powers to withhold assent, the Union’s expectation – and so it has turned out – was that the answers here would be different.
In effectively overruling the two-judge decision, the Court, in interpreting Article 200 of the Constitution, held four things: first, that the Governor is not bound by state executives’ “aid and advice” to grant assent to bills, and may withhold it on their discretion; second, that there are no timelines within which the Governor should act; third, that the Governor may reserve any bill for the President’s consideration, again without timelines; and lastly, that even after a bill is returned and reconsidered by the legislature, the Governor can still refer it to the President and stall the legislative process indefinitely. In essence, the Union can choose any among these combinations to keep state legislation in limbo, leaving them to move the Supreme Court to negotiate for assent. This intrusion comes atop an already constricted federal landscape: states legislate on a comparatively small set of regulatory and revenue-sharing subjects, and their laws must concede to parliamentary legislation in cases of conflict. With Governors’ Assent, even laws belonging exclusively in states’ zone can be withheld as matters of pure politics.
While the Court suggests that states may move it for a “direction to take action” when legislation is withheld for unreasonable durations, litigation may be unable to substitute lawmaking. Time-sensitive policymaking would be stifled, governments may be unable to deliver on electoral promises, and weakened assemblies could be used to engineer defections. The impropriety in the court’s decision to hear the reference has been notedpreviously on this blog, for it effectively grants the Union a special appellate remedy to overturn precedent. For all practical purposes, however, this holding will govern the issue of assent going forward, and states would explore constitutional detours – each of which is democratically inferior to legislation – to minimise the risk of assent being withheld. Three strategies are likely to emerge.
First, the Governor lacks an option to withhold assent and return to the assembly a bill which has been certified as a “money bill”. States may leverage the law on the subject, which – pursuant to the Aadhaar judgment – enables any relationship, howsoever tenuous, between a bill and public funds sufficient to qualify it as a money bill. Accordingly, Speakers, who are partisan players in the political process and support the legislative agenda of their parties, may increasingly certify ordinary legislation as money bills based on a remote relationship of the law with public funds. Since money bills are not voted upon in upper houses, this option would undermine the value of bicameralism, for the Legislative Council – which comprises representatives from municipalities and the educational profession – would stand excluded. This option – under the text of Art 200 – would only prevent the Governor from withholding a bill and returning it to the assembly, not preventing them from referring it to the President. Given this possibility, states may use two other options.
Second, states already have a large volume of legislation in place, most of which allows for subordinate legislation to be formulated by state governments, i.e., their executive. Generally, instead of containing a definite list of matters on which subordinate legislation can be made, laws contain a general clause empowering the executive to make rules for “carrying out the purposes of the Act”. In the Supreme Court’s decisions on the subject, any subordinate lawmaking is acceptable as long as it is compatible with the “policy and guidelines” of the parent act. This is a deferential analysis, and generally, as long as the subordinate legislation does not undermine or conflict with the parent act, it is upheld. States could, therefore, find a statutory basis to their rulemaking by claiming to make rules in pursuance of a statute, avoiding the possibility of their laws being withheld. This is because Article 200 applies only to plenary legislation, and there is no requirement for the Governor’s assent for subordinate legislation. Thus, for instance, if a state seeks to provide affirmative action for infrastructure tenders and its bill doing so gets withheld (this is the situation Karnataka finds itself in), it can instead find a provision in a plenary legislation empowering rulemaking on the subject to occur, and simply bring the requisite policy using this route. This strategy, too, is democratically deficient: it undermines the value of legislative representation, and allows unelected members of the executive to control lawmaking.
Third, states may capitalise on another aspect of Indian constitutional design: its executive-centeredness. Under the constitutional framework, governments do not need a legislative backing to perform their tasks. They can, instead, simply act through their executive, and such acts cannot be challenged on grounds of being incompetent or impermissible solely because they lacked a supporting legislation (these can, of course, still be challenged for violating fundamental rights). The Supreme Court has conceptualised executive power as the “residue of governmental functions after legislative and judicial functions are taken away”, and Article 162 of the Constitution defines the state government’s powers as coextensive with those of legislatures. Accordingly, states may issue directions for desired governance activities to be carried out, and not enact a law at all. This option boasts the worst democratic credentials: in the absence of a definite legislation (plenary or subordinate), citizens cannot plan their affairs, uncertainty dominates, and enforcement depends entirely on administrative discretion.
States may, at least for some time, prefer sticking to the legislative route for activity previously performed this way out of convention. It is not, however, unforeseeable that the decline of federal relations may compel states to find crafty solutions to be able to govern even minimally, without every piece of legislation being stymied by the Union. When they do, these constitutional detours would be democratically deficient, and their origins will lie squarely in the Court’s opinion in Governors’ Assent.
[This is a guest post by Krishaan Doctor. This is the fourth post in a series on the Karnataka High Court’s decision in X Corp vs Union of India. Read Part 1, Part 2, and Part 3.]
Introduction
In X Corp v Union of India, the Karnataka High Court upheld the constitutionality of Rule 3(1)(d) of India’s IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as well as the Sahyog Portal. In reaching this conclusion, a facet of the Court’s reasoning that is noteworthy—but has received little attention—is its significant reliance on history. The court began the judgement by explaining that understanding free speech in the digital epoch required a ‘backward glance’ into the history of communication and technology. To facilitate this inquiry, it framed the following two questions.
(i)Whether the march of human civilization – from the days of yore to the present digital age – has ever witnessed information and communication in an unregulated state; or whether regulation has been its constant companion across epochs?
(ii) Whether the regimes of regulation that prevailed in earlier times continue to subsist, both in the local context of our polity and in the global order of nations?
Through its answers to these questions, the Court constructs an elaborate historical narrative that presented regulation as a timeless and inevitable counterpart of expression. History is portrayed as a linear march, in which every new technology inevitably gives rise to new regulation. The court then situates the contested IT Rules as part of this unbroken historical continuum of regulation, making them appear not as exceptional or overreaching but as part of a natural regulatory tradition. This narrative played an important role in foregrounding the Court’s decision to uphold the contested provisions, and served to broadly legitimise greater state control over digital communication.
This blog argues that the Court’s historical reasoning suffers from several critical flaws. First, the historical inquiry the Court embarks upon bore little relevance to the legal issues before it. Second, the Court fails to substantiate its claim that communication has always been regulated throughout history. Third, it deceptively weaves all historical communication regulation—including administrative, licensing, infrastructural arrangements, and colonial speech laws—into a continuous narrative to legitimise the contested IT Rules and the Sahyog Portal.
A Fundamentally Misguided Inquiry
At the outset, it is important to clarify X Corp’s contention before the court––because this is something that the court mischaracterises while framing the first two issues. X Corp sought to have Rule 3(1)(d) of India’s IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 declared ultra vires or read down to not confer an independent power to issue takedown notices. This was a challenge limited to a particular provision of the broader regulatory framework governing IT. However, the court construes X Corp’s limited claim as one that asked for ‘unbridled freedom’ [¶11.8] and sets out to defend the legitimacy of all forms of regulation.
Through directing its inquiry in such a manner, the court tries to imply that the regulation of communication in the past legitimises, in some manner, the contentious IT Rules of today. However, this reasoning is flawed for a fairly intuitive reason: the descriptive fact that something has occurred in the past does not lend normative justification to it. For a constitutional court, what is of relevance is whether a law conforms with the tenets of the constitution––and not whether it has been in operation since a very long time. While history might be relevant in construing what the constitution means, it by itself cannot be used to justify a particular law.
James Balkin has argued, in the context of constitutional law, that history must function as ‘resource’ for making arguments about the best understandings of our constitutional commitments. However, the questions framed by the court do not appear to use history in order to better understand or interpret a particular constitutional provision. The questions pitched by the court are at too high a level of generality in order to be useful for any kind of constitutional analysis. For example, should the court hold that communication has always been regulated it would do little to illuminate the scope of a legal provision or the values it enshrines. Such reasoning, as precedent, could be used to justify virtually any state enactment. This present case directly engaged Article 19 of the Constitution, so a historical inquiry might have been instead directed towards understanding the meaning of ‘reasonable restrictions’.
To conclude, the court’s historical inquiry is a product of a mischaracterisation of X Corp’s claim, and was not tied to the understanding of any particular constitutional or legal provision. The next two sections critically analyse how the court goes about proving the historical claims it makes.
Why Regulation Is Not the ‘Companion’ of Communication
The court, by way of the first issue, advances a sweeping historical claim: that regulation has always been the companion of speech. My observations on the court’s historical account are threefold. First, it merely describes different communication technologies without delineating the nature of regulation they are subject to. Second, the court’s account is cherrypicked: many examples the court references as evidence to prove that communication has been universally regulated demonstrate the contrary. Third, the claim is very easily disprovable.
An Entirely Descriptive Account
The court references a variety of different communication technologies, including the couriers of the Persian Empire, the postal system in the Mauryan age, the telegraph, the the early Internet, the World Wide Web and even YouTube. [see ¶10.01 to ¶10.11 and ¶10.13]
However, in its extensive discussion the word ‘regulation’ appears only twice––the relevant paragraphs are reproduced below.
Just as Kings and Parliaments of the old regulated the messenger, the post, the press, so too did Governments. [¶10.12]
The rise of this medium(Internet)….has not been without the steadying hand of regulation from time to time. [¶10.14]
The court’s engagement with regulation is highly limited––despite the fact that the argument the court is trying to make is that communication has always been regulated. Even when the court mentions regulation, it is invoked primarily as a rhetorical tool. There is no elaboration as to what regulatory mechanisms each form of communication was subject to or how regulation specifically evolved to accommodate each new technology. There is a significant logical jump involved between asserting that a specific communication technology existed and stating that technology was also regulated. A mere mention of different communication technologies––as the court did––does not suffice as evidence of regulatory frameworks governing them.
Cherry Picking
Onto the second point, the examples the court invokes are cherry-picked and could equally support a claim of communication lacking regulation. For instance, the court mentions the ‘printing press’ [¶ 10.3]. It took the Catholic Church 75 years to orchestrate its censorship policies to accommodate the printing press. It was this lack of regulation that allowed the rapid dissemination of ‘Protestant ideas’ that assailed the existence and authority of the Church. The court references the ‘birth of the internet’ [¶ 10.6] but fails to engage with the fact that in the early years of the internet, particularly the 1990s it was notorious for being decentralised and unregulated. It was described in one book as a “virtual ‘Wild West’, an unregulated province of libertarians and cyber-anarchists”. There are many such examples from throughout history––the point I am trying to make is that the historical record has been far more fragmented than what the court makes it out to be.
An Impossible Claim
Lastly, two things about how the court’s claim is practically impossible to prove. First proving that communication has always been regulated would require evidence from all of human history––which is impossible to acquire. By logical corollary, that claim also cannot be conclusively proven. This also applies to the other related claim the court makes later on, that there is no nation that has left flow of information, wholly unregulated. [¶ 10.3] Secondly, since the claim is that communication has always been regulated, even a singular counterexample (such as those mentioned above) would disprove it in its entirety.
To conclude this section, I am unsure as to what the court was thinking in framing this particular issue. Not only was it irrelevant to the case for the reasons discussed earlier, it is both historically inaccurate and can be very easily disproven. Further, the court did not even try explain how communication was ‘regulated’ in any meaningful way.
Deconstructing the Court’s ‘Historical Continuum’ of Communication Laws
By way of the second issue, the court draws a continuum between past regulatory regimes, both in India and the U.S, and the present IT Rules––in attempt to legitimise them as part of a broader historical trend.
It lists around forty two different laws and regulations from a variety of different historical eras to conclude the following:
“From the press of the colonial era, to the digital platforms today, there has always existed a framework of law to temper liberty with responsibility, freedom with accountability.” [¶11.9]
In this section, I catalogue the Acts/Rules the court mentions based on the subject matter they pertain to. (This is also necessary because the court has not described most of the laws it cites.) Through this, I aim demonstrate how the Court’s historical account is deceptive because of three key reasons.
First, the majority of statutes the court cites have little or no connection to speech-related restrictions. Second, among the few laws that do pertain to speech, most are colonial-era censorship enactments whose historical and normative context is left unexamined. Third, the regulations that pertain to proper speech restrictions and are genuinely relevant to the ‘freedom and accountability’ claim and are neither analysed nor contextualised.
Indian and American Administrative/Infrastructural/Miscellaneous Regulations (23 statues)
Sr No
Act
Description
1
Registration of Newspapers (Central) Rules 1956
Regulates how newspapers and books are printed and published–requiring registration and certain declarations
2
Press Council of India Act 1978
Created oversight mechanism for the press and set journalistic ethics
3
Central Media Accreditation Guidelines 2022
Accreditation/licensing of media access
4
Indian Broadcasting System 1930
Establishment of state radio infrastructure
5
All India Radio (AIR) 1936
State-operated radio network
6
Central News Organization (CNO) 1937
State news infrastructure
7
Prasar Bharati Act 1990
Semi-autonomous public broadcaster administrative oversight
8
Indian Telegraph Act 1885
Licensing & technical operation of telegraph and telecom services
9
Indian Wireless Telegraphy Act 1933
Licensing & spectrum regulation
10
National Telecom Policy 1994
The primary objective of the policy was to ensure India’s emergence as major base of telecom equipment
11
TRAI Act 1997
Established Telecom Regulatory Authority of India (TRAI)
12
New Telecom Policy 1999
Updated the 1994 Act’s regulatory framework
13
National Telecom Policy 2012
Modernization & licensing
14
NDCP 2018
Digital communications policy infra regulation.
15
Prohibition of Discriminatory Tariffs for Data Services Regulations 2016
Concerning charging of tariffs by different service providers.
16
Postal Acts 1792 & 1866
Established federal control over U.S. postal services, including rates penalties, and correspondence.
17
Indian Telegraph Act 1885
Establish government control over telegraph services and formalised licensing requirements.
18
Mann-Elkins Act 1910
Amendment to regulate transport & telecommunication infrastructure
19
Interstate Commerce Act 1887
Regulation of interstate transport and communication infrastructure
20
Radio Act 1912
Licensing & spectrum regulation for radio
21
Communications Act 1934
licensing of radio and satellite communications; mostly administrative
22
Cable Communications Policy Act 1984
Licensing & oversight of cable television networks
23
Privacy Act 1974
Limits on data collection by federal agencies; affects administration of communications
Colonial Era Censorship Enactments (9 statues)
Sr no
Act and Year
Description
1
Censorship of Press Act 1799
Imposed censorship on printed material to control content and suppress dissent.
2
Licensing Regulations 1823
Made operating a press without a license an offense. Aimed at Indian-language newspapers or those edited by Indians.
3
Press Act or Metcalfe Act 1835
Expanded licensing requirements and imposed fines for ‘seditious ‘material
4
Licensing Act 1857
Gave the government the right to grant/revoke licenses and prohibit the publication of any newspaper or book.
5
The Press and Registration of Books (PRB) Act 1867
Required registration of books and controlled printing to monitor content
6
Vernacular Press Act 1878
Targeted vernacular language publications; enabled pre-publication censorship
7
Newspaper (Incitement to Offence) Act 1908
Criminalized publications that incited ‘violence or rebellion’
8
Indian Press Act 1910
Imposed stringent controls on press freedom and expanded government powers to seize press materials
9
Indian Press (Emergency Powers) Act 1931
Gave the government emergency powers to restrict publications during times of unrest
U.S Laws Mentioned By Court: Might Have Been Relevant But Not Analysed (4 statues)
Relevant U.S Laws
Description by Court
Communications Decency Act (CDA) 1996
Criminalized display of offensive material to minors while shielding online intermediaries from liability for third party content [¶11.8]
PATRIOT Act 2001
The core purpose was to deter terrorism, expand law enforcement investigatory abilities [¶11.5]
EARN-IT Act 2022
Eliminate abusive and rampant misuse of interactive Technologies. The Act brings in, a federal frame work in prevention of online sexual exploitation of children [[¶11.6]
Tools to Address Known Exploitation by Deepfakes 2022+(TAKE IT DOWN ACT)
The purport of ‘TAKE IT DOWN Act’ is plain to shield dignity and to prevent exploitation in the digital public square and to criminalize non-consensual intimate imagery and seeking to govern the ungoverned expanse of cyberspace, as law and morality [¶11.7]
The three Indian laws––Cinematograph Act 1952 (introduced U,UA,A,S film certification), Cable Television Rules 1994 and 1995 (set content standards for cable television––that could be construed as relevant to speech restriction are not even described by the court.
Analysis of Findings
A significant majority (24) of these laws dealt with only administrative, infrastructural or economic facets of communication. Indeed, a law that that attempts to universalise access to telephones or build radio infrastructure relate to communication in a broader sense. However, X Corp was about a singular facet of communication, which related to freedom of speech on digital platforms. Additionally, the claim that a communication law balanced ‘liberty with accountability’ generally refers to the extent of permitted speech and the restrictions imposed upon it. Thus, insofar as the court attempts to construct a narrative of continuity––between these historical laws and the contentious IT Rules and Sahyog Portal––it fails to do so. It is also to be noted that even if these laws did pertain to ‘speech’ they would not by themselves provide sufficient warrant for the laws because of the normative/descriptive distinction discussed in the first section.
A sizeable chunk (9) of laws the court mentions are colonial era enactments. It is deeply concerning that a constitutional court has referenced the likes of the Vernacular Press Act 1848 and Licensing Act 1857 in a case engaging Article 19 of the Constitution. The court later refers to these historical laws as ones that ‘tempered liberty with responsibility’. [¶11.9] Surely, and one hopes, the Court did not mean to rely on such repressive enactments as precedents for construing a constitutional right.
A select set of American legislations may have been relevant for the court’s analysis—however, the court’s engagement with them is limited to mere description. It does not explain what principle each legislation might illuminate or how theX Corp situation might be analogous. Ironically, the Communications Decency Act (CDA)––described by the court as a law that shielded intermediaries for third party content––directly supports X Corp’s position in the case (X Corp’s ‘safe harbour’ status was threatened if it did not comply with directives from the Sahyog Portal). Similarly, the few Indian laws that bore some relation to the broad fora of speech regulation are not analysed or contextualised.
Conclusion
This essay demonstrated the major defects of the Court’s historical reasoning in X Corp. Firstly, the inquiry it undertook was a product of a complete mischaracterisation of X Corp’s contentions and was far too general and ambiguous to be relevant to any kind of constitutional analysis. Secondly, the court’s primary claim (that communication has always been regulated) is something that the court does not even try to prove. In addressing the first issue, the court rarely even mentions regulation and when it does it lacks any genuine engagement. In the second issue, the court’s engagement with regulation was entirely descriptive in nature––and deeply misleading insofar as it tried to justify a speech based restriction on the basis of laws that pertained to subjects as diverse as telecommunications infrastructure, licensing of radio and censorship under a colonial regime.
Further, the court’s historical account does not reflect a bonafide attempt to reach the truth; rather it reads like an ex post facto rationalisation of an already predetermined conclusion. Throughout the decision, there is lack of analytical and reasoned engagement with history and yet, the court seems to reach a highly sweeping conclusion. It is a matter of great concern that this unreasoned narrative is then used to legitimise greater state control over speech.
Lastly, another reason why we must pay more attention to the court’s historical inquiry is because of the seriously diminished standard of judicial reasoning at play. It is disappointing that a bench of a high court is asking questions such as whether communication has ever been ‘unregulated’ or ‘always has been regulated’. These kind of questions reduce a much more complicated historical spectrum into a crude dichotomy. Had the court recognised that regulation exists in different degrees or forms, we could have seen a far more intellectually honest historical inquiry.
Constitutional Law and Philosophy 