Free Speech and Contempt of Court – II

(This post first appeared on the CIS website)

Towards the end of the last post, we saw how the Law Commission traced the genealogy of the “scandalising the Court” offence, inasmuch as it sought to protect the “standing of the judiciary”, to that of seditious libel. The basic idea is the same: if people are allowed to criticise state institutions in derogatory terms, then they can influence their fellow-citizens who, in turn, will lose respect for those institutions. Consequently, the authority of those institutions will be diminished, and they will be unable to effectively perform their functions. Hence, we prevent that eventuality by prohibiting certain forms of speech when it concerns the functioning of the government (seditious libel) or the Courts (scandalising the Court). This, of course, often ties the judges into knots, in determining the exact boundary between strident – but legitimate – criticism, and sedition/scandalising the Court.

Seditious libel, of course, went out in the United States with the repeal of the Sedition Act in 1800, and was abolished in the England in 2009. Notoriously, it still remains on the statute books in India, in the form of S. 124A of the Indian Penal Code. An examination of the Supreme Court’s sedition jurisprudence would, therefore, be apposite. Section 124A makes it an offence to bring or attempt to bring into hatred or contempt, or excite or attempt to excite, disaffection, towards the government. The locus classicus is Kedar Nath Singh v. Union of India. I have analysed the case in detail elsewhere, but briefly, Kedar Nath Singhlimited the scope of 124A to incitement to violence, or fostering public disorder, within the clear terms of Article 19(2). In other words, prosecution for sedition, if it was to succeed, would have to satisfy the Court’s public order jurisprudence under Article 19(2). The public order test itself – as we discussed previously on this blog, in a post about Section 66A – was set out in highly circumscribed terms in Ram Manohar Lohia’s Case, which essentially required a direct and imminent degree of proximity between the speech or expression, and the breach of public order (in that case, the Court refused to sustain the conviction of a speaker who expressly encouraged an audience to break the law). Subsequently, in S. Rangarajan v. P. Jagjivan Ram, the Court noted that the relation ought to be like that of a “spark in a powder keg” – something akin to inciting an enraged mob to immediate violence. Something that the Court has clearly rejected is the argument that it is permissible to criminalise speech and expression simply because its content might lower the authority of the government in the eyes of the public, which, in turn, could foster a disrespect for law and the State, and lead to breaches of public order.

Unfortunately, however, when it comes to contempt and scandalising, the Court has adopted exactly the chain of reasoning that it has rejected in the public order cases. As early as 1953, in Aswini Kumar Ghose v. Arabinda Bose, the Court observed that “it is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.”

Subsequently, in D.C. Saxena v. CJI, the Court held that “Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.” Notice the chain of causation the Court is working with here: it holds faith in the administration of justice as a necessary pre-requisite to the administration of justice, and prohibits criticismthat would cause other people to lose their faith in the judiciary. This is exactly akin to a situation in which I make an argument advocating Marxist theory, and I am punished because some people, on reading my article, might start to hold the government in contempt, and attempt to overthrow it by violent means. Not only is it absurd, it is also entirely disrespectful of individual autonomy: it is based on the assumption that the person legally and morally responsibly for a criminal act is not the actor, but the person who convinced the actor through words and arguments, to break the law – as though individuals are incapable of weighing up competing arguments and coming to decisions of their own accord. Later on, in the same case, the Court holds that scandalising includes “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority.” As we have seen before, however, disrepute or disrespect of an institution cannot in itself be a ground for punishment, unless there is something more. That something more is actual disruption of justice, which is presumably caused by people who have lost their confidence in the judiciary, but in eliding disrepute/disrespect with obstruction of justice, the Court entirely fails to consider the individual agency involved in crossing that bridge, the agency that is not that of the original speaker. This is why, again, in its sedition cases, the Court has gone out of its way to actually require a proximate relation between “disaffection” and public order breaches, in order to save the section from unconstitutionality. Its contempt jurisprudence, on the other hand, shows no such regard. It is perhaps telling that the Court, one paragraph on, adopts the “blaze of glory” formulation that was used in an 18th century, pre-democratic English case.

Indeed, the Court draws an express analogy with sedition, holding that “malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes in their mind to obey them.”Even worse, it then takes away even the basic protection of mens rea, holding that all that matters is the effect of the impugned words, regardless of the intention/recklessness with which they were uttered. The absence of mens rea, along with the absence of any meaningful proximity requirement, makes for a very dangerous cocktail – an offence that can cover virtually any activity that the Court believes has a “tendency” to certain outcomes: Therefore, a tendency to scandalise the court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.”

The assumption implicit in these judgments – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it – was made express in Arundhati Roy’s Case, in 2002. After making observations about how confidence in the Courts could not be allowed to be “tarnished” at any cost, the Court noted that “the respondent has tried to cast an injury to the public by creating an impression in the mind of the people of thisbackward country regarding the integrity, ability and fairness of the institution of judiciary”, observed that the purpose of the offence was to protect the (presumably backward) public by maintaining its confidence in the judiciary, which had been enacted keeping in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledly (sic) have the tremendous faith in the dispensers of Justice.” So easy, indeed, to mislead, that there was no need for any evidence to demonstrate it: “the well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society.”


The American legal scholar, Vince Blasi, has outlined a “pathological perspective” of free speech. According to him, heightened protection of speech – even to the extent of protecting worthless speech – is important, because when the government passes laws to regulate speech that is hostile towards it, it will, in all likelihood, over-regulate purely out of self-interest, sometimes even unconsciously so. This is why, if the Courts err, they ought to err on the side of speech-protection, because it is quite likely that the government has over-estimated public order and other threats that stem out of hostile speech towards government itself. The pathological perspective is equally – if not more – applicable in the realm of contempt of Court, because here the Court is given charge of regulating speech hostile towards itself. Keenly aware of the perils of speech suppression that lie in such situations, we have seen that the United States and England have abolished the offence, and the Privy Council has interpreted it extremely narrowly.

The Indian Supreme Court, however, has gone in precisely the opposite direction. It has used the Contempt of Court statute to create a strict-liability criminal offence, with boundlessly manipulable categories, which is both overbroad and vague, entirely inconsistent with the Court’s own free speech jurisprudence, and at odds with free speech in a liberal democracy.

Free Speech and Contempt of Court – I

This post first appeared on the CIS website, here)

On May 31, the Times of India reported some observations of a two-judge bench of the Supreme Court on its contempt powers. The Court noted that the power to punish for contempt was necessary to “secure public respect and confidence in the judicial process”, and also went on to add – rather absurdly – to lay down the requirements, in terms of timing, tone and tenor, of a truly “contrite” apology. This opinion, however, provides us with a good opportunity to examine one of the most under-theorised aspects of Indian free speech law: the contempt power.

Indeed, the contempt power finds express mention in the Constitution. Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “… in relation to contempt of court.” The legislation governing contempt powers is the 1971 Contempt of Courts Act. Contempt as a civil offence involves willful disobedience of a court order. Contempt as a criminal offence, on the other hand, involves either an act or expression (spoken, written or otherwise visible) that does one of three things: scandalises, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the administration of justice. As we can see, contempt can – broadly – take two forms: first, obstructing the proceedings of the Court by acts such as disobeying an order, holding up a hearing through absence or physical/verbal disturbance etc. This is straightforward enough. More problematically, however, contempt also covers instances of what we may call “pure speech”: words or other forms of expression about the Court that are punished for no other reason but their content. In particular, “scandalising the Court” seems to be particularly vague and formless in its scope and ambit.

“Scandalising the court” is a common law term. The locus classicus is the 1900 case of R v. Gray, which – in language that the Contempt of Courts Act has largely adopted – defined it as “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” The basic idea is that if abusive invective against the Court is permitted, then people will lose respect for the judiciary, and justice will be compromised.

It is obvious that this argument is flawed in many respects, and we shall analyse the Supreme Court’s problematic understanding of its contempt powers in the next post. First, however, it is instructive to examine the fate of contempt powers in the United States – which, like India, constitutionally guarantees the freedom of speech – and in England, whose model India has consciously followed.

America’s highly speech-protective Courts have taken a dim view of contempt powers. Three cases stand out. Bridges v. California involved a contempt of court accusation against a labour leader for calling a Court decision “outrageous”, and threatening a strike if it was upheld. Reversing his prior conviction, the Supreme Court noted that “public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist.Given the strong public interest, the burden of justifying restrictions upon this speech was particularly high. The Court identified two possible justifications: respect for the judiciary, and the orderly administration of justice. On the first, it observed that an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” On the second, it held that since striking itself was entirely legal, it was no argument that the threat of a strike would illegally intimidate a judge and subvert the course of justice. Throughout the case, the Court stressed that unfettered speech on matters of public interest was of paramount value, and could only be curtailed if there was a “clear and present danger” that the substantially evil consequences would result out of allowing it.

Similarly, in Garrison v. Lousiana, an attorney accused certain judges of inefficiency and laziness. Reversing his conviction, the Supreme Court took note of the paramount public interest in a free flow of information to the people concerning public officials, their servants…. few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.” Consequently, it held that only those statements could be punished that the author either knew were false, or were made with reckless disregard for the truth. And lastly, in Landmark Communications v. Virginia, the Court held that “the operations of the courts and the judicial conduct of judges are matters of utmost public concern”, and endorsed Justice Frankfurter’s prior statement, that “speech cannot be punished when the purpose is simply “to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”

What stands out here is the American Courts’ rejection of the ideas that preserving the authority of judges by suppressing certain forms of speech is an end in itself, and that the Courts must be insulated to some greater degree than other officials of government. Consequently, it must be shown that the impugned expression presents a clear and present danger to the administration of justice, before it can be punished.

Now to England. The last successful prosecution of the offence was in 1931. In 2012, the Law Commission published a paper on contempt powers, in which it expressly recommended abolishing the offence of “scandalising the Court”; its recommendations were accepted, and the offence was abolished in 2013. Admittedly, the offence remains on the statute books in many commonwealth nations, although two months ago – in April 2014 – the Privy Council gave it a highly circumscribed interpretation while adjudicating a case on appeal from Mauritius: there must, it held, be a “real risk of undermining public confidence in the administration of justice” (something akin to clear and present danger?), and the Prosecution must demonstrate that the accused either intended to do so, or acted in reckless disregard of whether or not he was doing so.

What is particularly interesting is the Law Commission’s reasoning in its recommendations. Tracing the history of the offence back to 18th century England, it noted that the original justification was to maintain a “haze of glory” around the Courts, and it was crucial that the Courts not only be universally impartial, but also perceived to be so. Consequently, the Law Commission observed that this language suggests that “to be impartial” and “to be universally thought so” are two independent requirements, implying that the purpose of the offence is not confined to preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.” Obviously, this was highly problematic.

The Law Commission also noted the adverse impact of the law on free speech: the well-known chilling effect, whereby people would self-censor even justified criticism. This was exacerbated by the vagueness of the offence, which left unclear the intent requirement, and the status of defences based on truth and public interest. The Law Commission was concerned, as well, about the inherently self-serving nature of the offence, which give judges the power to sit in judgment over speech and expression that was directly critical of them. Lastly, the Law Commission noted that the basic point of contempt powers was similar to that of seditious libel: to ensure the good reputation of the State (or, in the case of scandalising, the judges) by controlling what could be said about them. With the abolition of seditious libel, the raison d’être of scandalising the Court was also – now – weakened.

We see, therefore, that the United States has rejected sweeping contempt powers as unconstitutional. England, which created the offence that India incorporated into its law, stopped prosecuting people for it in 1931, and formally abolished it last year. And even when its hands have been bound by the law that it is bound the enforce, the Privy Council has interpreted the offence in as narrow a manner as possible, in order to remain solicitous of free speech concerns. Unfortunately, as we shall see in the next essay, all these developments have utterly passed our Courts by.


The Negative Voting Case in Context: Exploring the Interface between Elections and Free Speech – I

In our analysis of the Supreme Court’s recent decision on the right to cast a negative vote, we argued that the central importance of the judgment lies not necessarily in its immediate impact upon the conduct of elections in the country, but its doctrinal reinforcement of the conceptual connection between voting and Article 19(1)(a). Recall that the Court held that the right to vote was only a statutory right, but the freedom of voting (effectively) in a free and fair election was a 19(1)(a) exercise of the freedom of speech. In other words, as we discussed, the modalities of voting (procedural regulations dealing with the time, place and manner of voting, and substantive regulations dealing, for example, with age eligibility) could be regulated by statute, but the act of voting itself is protected by 19(1)(a).

Yet why, it might well be asked, did the Court need to go into 19(1)(a) given the existence of Article 326, which specifies that elections to the House and the Assemblies will be on the basis of universal adult suffrage? There are at least three good reasons for so doing.

First, Article 326 assumes, but does not guarantee, the existence of elections in the first place. It provides that, given election to the House and Assembly, universal suffrage is the rule to be followed, but in itself, does not prevent the government, for instance, from not holding elections at all. Therefore, a separate constitutional foundation is needed.

Secondly, a secure constitutional foundation is needed to prevent politically motivated discriminatory voting laws that may or may not be captured by Articles 14 or 15. In his excellent book, The Right to Vote: The Contested History of Democracy in the United States, Alexander Keyssar details a whole host of legislative measures, spanning more than two centuries of American history, designed to restrict the vote in a manner that did not offend the Fourteenth Amendment’s prohibition of race-based discrimination. Laws excluding voters on the grounds of race, caste, sex or any of the Article 15 prohibitions are easy enough; but the history of the United States shows us that literacy tests, onerous residence requirements, property qualifications and a poll tax, to name just four, were regularly deployed as anti-vote weapons, and we ignore this history at our peril. It may well be argued that such such measures are prohibited by Article 14, but recall that Article 14 only requires intelligible differentia and rational nexus with policy – a fairly low standard of review (in addition to Naz Foundation’s specification of a legitimate constitutional purpose); and again, what American history shows us is that it is possible to construct arguments that would putatively be “rationally justified“: an argument, for instance, that only those who can understand the affairs of government are in a position to make an informed choice, and thus, only literates should be allowed to vote. Property qualifications were long justified on the ground that only those who owned property had a stake in the affairs of government. Ridiculous as these arguments sound now, we would do well to remember that the poll tax needed a constitutional amendment as late as 1964 before it was finally weeded out of American politics – and not only that the opportunities for restricting the vote in a manner that escapes Article 326 are manifold (see, for instance, the controversy over the present Voter ID laws in the US), but Articles 14 and 15 do not provide an adequate safeguard. In any event, it is questionable whether a Court, on finding a violation of Article 326, would be entitled to strike it down, an issue that dissolves into irrelevance if the vote finds a home in Part III.

Thirdly – and perhaps most importantly – some of the central issues around the vote aren’t Article 326 issues of voter discrimination at all, as recognised by the Court in a series of judgments. In Union of India v. Association for Democratic Reforms, the Supreme Court was called upon to adjudicate upon an appeal by the Union from a Delhi High Court’s decision directing the Election Commission to make it mandatory for candidates to reveal, inter alia, any prior criminal record, assets and educational qualifications. The Union’s principal contention was that the conduct of elections was regulated by the Representation of Peoples Act and the rules made thereunder, and so the appropriate remedy for the Delhi High Court was to direct the petitioners to approach the legislature for suitable amendments, and not the Election Commission to implement regulations not found in the Act or the Rules.

The Court addressed this contention in two stages. First, it invoked a series of precedents to hold that Article 324 of the Constitution vested a very wide discretion in the Election Commission regarding the conduct of elections, including imposing requirements not excluded expressly or by necessary implication by the legislature in the Representation of Peoples Act. This addressed the threshold objection of competence; but not only did the argument justifying the particular directions in this case remain to be made, but clearly, if the Court stopped at this point, it left itself open to the legislature undoing its decision by simply amending the RP Act (as Indira Gandhi had famously done before).

In other words, if the contours of the right to vote were exhausted by the Representation of Peoples Act as limited by the non-discriminatory provisions of Article 326, then while the Court could no doubt invoke its necessary-implication argument to hold for the petitioners in the present case, it would leave the question of politicians’ antecedents on an extremely weak footing legally. The Court therefore located the specific issue within the Constitution and, in particular, Article 19(1)(a):

“Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process.”

Of course, there was no direct case on the point. So the Court examined 19(1)(a) precedent more generally, used it to derive the philosophy of free speech that undergirded 19(1)(a), and then applied it to the case at hand. Citing Indian Express Newspapers (newspaper regulation), Romesh Thappar (censorship on grounds of national security) and Cricket Association of Bengal (television broadcasting) – cases that we have discussed previously on this blog – the Court noted that the common theme underlying these judgments was the centrality of 19(1)(a) to democracy. That is, 19(1)(a)’s central philosophical commitment to democracy was what informed its implementation in specific, concrete circumstances. Hence:

“Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must.”

There are two moves the Court makes here: first, from the purpose of 19(1)(a) being to preserve democracy, it concludes that the act of casting a vote in a election is a form of expression Article 19(1)(a) protects. Secondly, it holds that not only does Article 19(1)(a) protect the vote, it also protects – or mandates – all incidental acts that make the vote meaningful (in this case, an informed electorate aware of the antecedents of the candidates). In other words, the Court is not protecting the vote per se, but protecting the vote inasmuch as it is essential to sustaining democracy, and democracy itself is defined broadly to require not only free and fair elections, but free and fair elections with an informed electorate.

We are now in a position to understand the manner in which the Negative Voting case was grounded in precedent – it follows, more or less to the letter, the judgment and logic of UoI v. Association for Democratic Reforms. In the next post, we shall discuss the impact of this case upon the legal landscape through subsequent decisions on similar issues, and address other questions of substantive theoretical justification.

Copyright and Free Speech – I: Constitutional Arguments against OUP et al in the Delhi University photocopying lawsuit

The on-going copyright litigation between Oxford University Press, Cambridge University Press and Taylor & Francis publishing houses against Delhi University and the Rameshwari Photocopy Service is now well-known. Briefly, the publishing houses sued the University and the photocopying shop, alleging that the use of “course-packs”, that featured material from a number of books published by them, was a violation of the Copyright Act. The Delhi High Court is presently hearing oral arguments.

The importance of this litigation cannot be underestimated: all of us who have ever been students will remember the indispensability of our local photocopying shop to our student lives, the only possible substitute for unaffordable books, whether it was preparing for exams or researching for papers. If the Delhi High Court rules in favour of the publishing houses, future generations of students will no longer have that option. The reasons on both sides of the argument, therefore, must be carefully scrutinized.

What is at issue here is the interpretation of the fair dealing exception to copyright claims. Under S. 52(a)(i), fair dealing with literary works, for the purposes of private use, including research, does not constitute an infringement of copyright. Corresponding provisions in countries like the USA have been read in a highly limited way, to allow photocopying 10% of a book, for example. Naturally, the claims in this case go much further, and a related question (although not raised in this case) is whether photocopying entire books qualifies as “fair dealing” within the meaning of the Copyright Act.

The Spicy IP blog, in a series of thoughtful posts, has analysed the intellectual property and political aspects of this case. In this and the next post, I want to highlight a constitutional argument, grounded in Article 19(1)(a)’s guarantee of the freedom of speech and expression, that aligns in favour of the Court dismissing the suit. I do not claim this argument to be dispositive: only, that a well-reasoned judgment ought to accord it substantial weight, and that if the Court chooses to decide in favour of the publishers, it ought to provide good reasons for overriding important constitutional values.

I begin with three premises – one factual and two legal – that, I hope, are unexceptionable: the factual premise is that at present prices, buying textbooks is a matter of significant financial hardship for a significant number of Indian students. To prove this claim, of course, would require detailed information about the average price of textbooks, the distribution of income, expenditure on a number of indicators, and so on; for the purposes of argument, let us take it as given, with the rider that if the premise is false, then the argument, accordingly, fails.*

As to the legal premises: first, that the plaintiffs in this case are private entities, and not in any sense instrumentalities of the State. The argument, therefore, cannot be that fundamental rights may be enforced against them. Whatever the desirability of horizontally applying Part III between individuals, it is not the law of the land: indeed, most recently, it was proposed in oral argument in the Right to Education Case, passed over in silence by the majority, and explicitly rejected by the dissent. And secondly, it is an accepted principle of constitutional interpretation, not just in India, but in most other nations, that ordinary laws must be interpreted in a way that would conform with the text and purposes of the Constitution. Of course, one must guard against the dangers of a purely reductive analysis here: England, New Zealand and Germany, to name just three States, all permit differing degrees of latitude to judges interpreting statutes to bring them in line with constitutional (or Human Rights Act) provisions. Nevertheless, that need not detain us here – unlike the most vexing cases before the UK, New Zealand and German courts, this is not a case where the Court must choose between a linguistically more accurate interpretation of a provision that conflicts with basic law, and a linguistically strained interpretation that conforms with it; the words “fair dealing” are not self-contained indicators of meaning. It therefore seems at least safe to say – subject to the risk of oversimplification – that when interpreting the Indian Copyright Act’s doctrine of “fair dealing”, the Court ought to be guided by the background principles of the Constitution.

Let us start with a preliminary objection: it might be argued that it is conceptually impossible for copyright protection and free speech to be at odds with each other. Through doctrines such as the idea-expression dichotomy, that do not extend protection to ideas that have not been crystallized into specific forms of expression (so the argument goes), there is no restriction on free speech at all, because ideas are open to all; and even if there is, other concepts such as the fair dealing doctrine mean that the copyright regime internally strikes the balance between the rights of creators (who too, lest we forget, are exercising right of free speech), and the general freedom of expression. This seems to be the dominant position in the United States, as evidenced in the writings of  Professor Nimmer and the decision of the American Supreme Court in Harper & Row Publishers vs Nation Enterprises; and in the United Kingdom, as observed by the House of Lords in Ashdown. Whatever the validity of these claims, there is good reason for rejecting them in the Indian context: the freedom of expression under Article 19(1)(a) is more multifaceted than comparable American and English jurisprudence; there is no equivalent of Article 21A’s right to education in America or the United Kingdom; and furthermore, the Indian Copyright Act was passed in 1957 – before the development of Article 19(1)(a) jurisprudence began in earnest, and long before the passage of Article 21A. We cannot, therefore, assume that a common-law or American-doctrinal interpretation of the Copyright Act will, as an a priori matter, conform to the principles of our Constitution; rather, it is our Constitution that must inform our interpretation of the Copyright Act.

My argument, that I shall elaborate upon in the next post, shall be as follows: our Article 19(1)(a) jurisprudence does not require direct State censorship as a pre-requisite for an infringement of the freedom of speech; rather, it envisages that inequalities of resources acting as barriers to free expression, even though not directly caused by affirmative State action, nonetheless constitute an infringement of the 19(1)(a) right, since they are upheld by State legislation governing property, transfers of goods and, in this case, copyright; and that consequently, such legislation ought to be interpreted by the Courts in a manner that advances, instead of restricting, the freedom of speech and expression.

* For a taste, a quick trawl through OUP India’s website reveals, for instance,  Comparative Constitutionalism in South Asia priced at Rs 950, Romila Thapar’s Readings in Early Indian History at Rs 650, The Making of Modern Indian Art at Rs 3,950 and so on. This is only OUP India (many textbooks, as we well know, are not published in India Editions).

(A modified version of this post will appear here)

Free Speech and Newspaper Regulation – IV: Democracy and Freedom in Mathew J.’s Bennett Coleman Dissent

To conclude our discussion of the newspaper regulation cases, let us turn to Mathew J.’s dissent in Bennett Coleman. This opinion is important not only because it is closely reasoned and rigorously argued, but also because it represents a line of thought that the Majority rejected in both Sakal Papers and Bennett Coleman, and therefore illustrates the choice that the Court made in clearer manner.

We have already discussed Mathew J.’s opinion to the extent that he agreed with the Majority about the constitutionality of the Newsprint Order (see paragraphs 105, 108). Mathew J. then went on to discuss the Newsprint Policy which, as we recall, fixed a cap of ten pages for the calculation of newsprint quota, even for those dailies that were more than ten pages long. The important difference between the analysis of Mathew J. and that of the majority opinions in Sakal Papers and Bennett Coleman is that unlike the latter, who took the existing market conditions as something akin to a given, background feature of the environment, Mathew J. treated them as something imposed by deliberate governmental policy, and examined them from a historical perspective. He found that before the 1972 Newsprint Policy, newsprint allocation was based on the page level of 1957 and the circulation levels of 1961-62; that, as a matter of fact, this disadvantaged newspapers that were established after 1962; and that one of the objectives of the Newsprint Policy was to remedy this disadvantage. (Paragraph 112)

Mathew J. then entered into an analysis of the philosophical foundations of free speech. In line with judgments both before and after (see, for instance, Hamdard Dawakhana and Sakal Papers), he concluded that one of the crucial purposes that free speech served was that of sustaining and maintaining democracy. However, at this point, Mathew J. drew the opposite inference from that drawn in Sakal Papers: for a democracy to thrive, and to be meaningful in any sense, he observed, there must be a multiplicity of ideas, viewpoints and arguments available to the public, in order to achieve the ideal of an informed, aware electorate. (Paragraph 123) In other words, the “marketplace of ideas”, an image so beloved of John Stuart Mill and Oliver Wendell Holmes, would be a chimera if a few newspapers held a monopoly over the field.

Mathew J. then also observed:

“It is no use having a right to express your idea, unless you have got a medium for expressing it.” (paragraph 123)

 It is, of course, not entirely clear what work is being done here by the phrase “no use”; in the context of the entire judgment, however, it is safe to say that Mathew J. understood the freedom of speech and expression to include reasonable access to a medium of expression. In other words, directly contrary to Sakal Papers and Bennett Coleman, Mathew J. held that lack of access to the newspaper market because of insufficient means constituted an unfreedom in the sense of Article 19(1)(a) (for philosophical arguments justifying this stance, see our first two posts on newspaper regulation).

Mathew J. therefore concluded, in two paragraphs that deserve to be quoted in full:

What is, therefore, required is an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.” (Paragraphs 126 – 27)

Lastly, to buttress his opinion, Mathew J. cited a series of American authorities (in particular, Mikeljohn and Emerson) as well as the Directive Principles of State Policy, to argue that the right embodied in the free speech clause was not only the right of the individual to express herself, but also the right of the society to be informed, and to have access to, as wide a range of relevant and important ideas as possible. (Paragraphs 135 – 141) He found that the impugned Policy was designed to deepen and enrich the freedom of speech by ensuring a broadened and diversified reach to the general public. Consequently, Mathew J. dissenting in upholding the Policy.

Thus, in Mathew J.’s opinion, there emerges a complex vision of the philosophical ideas underlying Article 19(1)(a). Mathew J. finds three separate political ideals that characterize and justify the free speech clause: free speech is an individual right, the right of a person to express herself; it is a social good, instrumental in upholding democracy; and it is a community right, the right – in simple terms – to “hear”. Yet Mathew J. doesn’t stop here, but elaborates upon each of these ideas. His view of the individual right is one that assumes an ancillary right of reasonable access, and treats the market not as a background condition, but as an infringement of freedom. His vision of democracy is a substantive vision that goes beyond merely formal ideas, and presupposes an environment in which there is a genuine spread and proliferation of diverse and opposing ideas. And his sense of the community right departs from ideas of passive consumers of ideas to a vision of an active, civic-minded citizenry that deserves access to a genuinely wide range of thought, argument and debate. Nonetheless, that is not the view the Court takes, in Sakal or in Bennett Coleman. Which of the two visions is a better vision is a matter of individual judgment, but at least in the context of newspaper regulation, Mathew J.’s thought has not been accepted. Yet that might not be the end of the story: in subsequent posts, we shall see whether a version of Mathew J.’s arguments play a role in the context of election cases and cases involving the right of reply; and whether, in light of those decisions, the newspaper regulation judgments might now be anomalous – or at the very least, debatable.

Let us now sum up the state of play: our discussions of the Court’s newspaper regulation cases have shown us that the word “freedom” in Article 19(1)(a) is not a value-neutral term. It presupposes a series of political choices: in particular, a choice between those limitations upon a person’s scope of action that are treated as background conditions, under which he must exercise his right to freedom of speech – and therefore, do not count as limitations upon freedom – and those limitations that are treated as infringements of freedom, and therefore must be justified under Article 19(2). For example, let us – for the purposes of argument – follow Hayek in defining “freedom” strictly as “intentional interference by other human beings”. Then, while the fact that my bone-structure precludes me from flying unaided, and my being kept locked in a prison cell, are both instances of some limitation upon the scope of action I can undertake, the former is simply an incapacity, while the latter is unfreedom. Our search for such a principle that would justify the Court’s choices in the five important Supreme Court cases through the years – Express Newspapers, Sakal Papers, Bennett Coleman, Indian Express Newspapers and Express Publications – proved only partially successful. While it was clear enough, in each individual case, where the Court drew its line, we could not identify a general rule (such as, e.g., a Hayekian definition of freedom as intentional interference by human beings) that was guiding the Court in its decisions. Intellectually, Mathew J.’s dissenting opinion might provide us the most satisfactory set of principled arguments underlying, explaining and justifying Article 19(1)(a) in the context of newspaper regulation; for now, however, Mathew J.’s opinion remains just that: a dissent.

Free Speech and Newspaper Regulation – II: More on the Idea of Freedom

In the last post, we discussed whether, in the context of Sakal Newspapers, an economic inability to enter the newspaper market should be classified as lack of freedom or not. We suggested that Hayekian liberalism, which treats the exclusionary operation of the market as equivalent to a natural catastrophe such as an avalanche or a forest fire, and the consequent incapacity to access it as equivalent to a mere physical inability (such as an inability to fly unaided), suffers from certain flaws, and that in any event, there are strong reasons for holding that the Indian Constitution does not subscribe to such a philosophy. In this post, we shall examine other arguments against holding that the exclusion of small and new newspapers from the market does not constitute a lack of freedom.

Rawls and Berlin distinguish between freedom and the ability to use it. They argue that lack of means/resources falls into the latter category. Because of monetary incapacity, the small newspapers involved in the Sakal case were unable to meaningfully use their freedom of expression; it had no value to them, was worth nothing. But the freedom yet existed, and therefore, the status quo, no matter how unjust it was otherwise, was not a violation of the freedom of expression.

There are a number of fine terminological distinctions at play here, but the core question is this: if we accept the definition of freedom as the absence of interference by others, then does lack of money as a resource qualify as “unfreedom”? In Freedom and Money, G.A. Cohen argues that it does. For Cohen, in our society, money ‘structures’ freedom. In other words, if I want access to a certain good (Cohen’s example is a train ticket from place X to Y), then I can have it if I pay the asking rate; if I do not pay, and still try to access it (e.g., I board the train without a ticket), I shall be physically restrained from doing so. Therefore, without money, I will be subject to interference by others in accessing what I could otherwise have accessed had I had the money. Hence, absence of money means a lack of freedom. Or, to put it in another way, money serves to remove interference which would otherwise have operated without it. Therefore, in Cohen’s words, “therefore money confers freedom, rather than merely the ability to use it, even if freedom is equated with absence of interference.”

If Cohen is right, then the argument ends at this stage. Even if Cohen’s argument fails, however, we have to ask a further question: does the right to freedom of speech and expression carry with it a concomitant right to reasonable access (even if it does not come within the “definition” of freedom itself)? In the Indian situation, the answer is an unequivocal “yes”. Specifically, in the election cases, that we shall examine in a future post, the Court has held that the right to vote (which is an embodiment of the right to freedom of speech and expression) is “meaningless” without, for instance, secret ballots or background information on candidates. In other words, what is being protected by 19(1)(a) is not the formal expression of the right, but everything ancillary that makes it meaningful. In this context, then, it seems clear that inability of access certainly renders the right illusory, and that the right of access if therefore implicitly contained within 19(1)(a).

The third argument holds that every legal system must – by definition – settle upon a certain distribution of freedoms that elevate certain freedoms to the level of protection, and exclude others. For instance, if my legal system contains the right to private property, then not only do I confer upon private property owners the freedom to hold and dispose off their property according to their choice, but I also limit the freedom of every other person to trespass upon or in any other way use the property of another. Private use must necessarily exclude common enjoyment. Like any other freedom, the freedom of speech and expression is subject to similar distributional decisions. On this view then, the Sakal decision tells us that the freedom of speech and expression, when it comes to newspapers, actually means “the freedom of speech and expression under prevailing market conditions.” This would then justify the Court’s decision prohibiting the government from bringing about a change in the market conditions that, concomitantly, would bring about a change in the initial distribution of the freedom.

Do we have any reason for believing that our Constitution subscribes to this philosophy? There is no evidence that supports this point of view; indeed, certain observations made by the Court in the Cricket Association of West Bengal case(which we shall have occasion to discuss in a later post) appear to undermine it. In that case, which was about the distribution of broadcast frequencies, the Court observed:

“It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject.


“The monopoly in broadcasting and telecasting is often claimed by the Government to utilise the public resources in the form of the limited frequencies available for the benefit of the society at large. It is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can monopolise the dissemination of views and information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. The claim to monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably denied an access to broadcasting or the governmental agency claims exclusive right to prepare and relay programmes.”

When we read these observations along with the repeated insistence of the Courts (discussed in previous posts) that a fundamental point of the freedom of speech is to sustain democracy, that thrives on a free flow of information and ideas from all sections, as well as the Dworkinian principle of equal concern and respect, that mandates according to everyone an equal opportunity to shape the prevailing moral and social environment, we have strong reasons, grounded in constitutional precedent as well as political philosophy, that speak against reading the right to free speech as a right within prevailing market conditions; because that takes no account of the damaging and exclusionary impact of monopolies.

At other points in the Cricket Association of West Bengal case, the Court makes observations distinguishing broadcast media from print media in light of governmental control over one and the operation of market forces in another. This brings us to the last objection: that the interference with freedom here is by private entities using market conditions, and not by the government. But what that argument crucially ignores is that the structure of the market, far from existing in a state of nature, is constituted by the government-imposed legal system. The range, nature and scope of permissible transactions within the market is a direct function of the legal system; therefore, if the unfreedom of small newspapers is attributable to the prevailing market conditions, then – given that the market is constituted by the legal structure imposed by the government – it is not a stretch to attribute such unfreedom to the government itself. Which, in turn, makes it not only optional for the government to remedy that, but obligatory.

To sum up: we have argued that the inability of small and new newspapers to enter the market because of economic conditions, in the circumstances of Sakal, constituted an absence of freedom in the sense of Article 19(1)(a), that is attributable to governmental action. That does not, of course, mean that Sakal was wrongly decided, because the impugned laws certainly restricted the freedom of existing large newspapers, and it would take a complex balancing exercise to adjudicate upon the validity of those laws. Nonetheless, it is submitted that the Court was mistaken in describing the issue as one of “public interest”, and rejecting it on 19(2) grounds: the real issue turned upon Article 19(1)(a), and the meaning ‘freedom’.

In subsequent posts, we shall apply the arguments made here to the other important newspaper regulation cases decided by the Supreme Court.

Free Speech and Newspaper Regulation – I: What Does “Freedom” Mean?

Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. While the word “freedom”, in this context, appears to be uncontroversial enough, it actually is the site of much philosophical and political contestation; and the Supreme Court’s newspaper regulation cases provide us with a good point of departure to examine these issues.

In the first two posts on this blog, we discussed Sakal Papers v. Union of India. Let us briefly recall the facts: the government, by legislation, introduced a price-per-page policy, in accordance with which newspapers would either have to keep their price constant and reduce their page count, or keep their page count constant, and increase the price. This was ostensibly to break the monopoly of big newspapers and ease the conditions of entry for small newspapers who could not, under present conditions, compete. The Court held that the law violated the right to freedom of expression of the newspapers affected and that the government’s defence was, if anything, a public interest defence that found no place in Article 19(2). The legislation was, consequently, struck down.

Now, on the facts of Sakal Papers, this much is undeniable: if Individual X wished to start a newspaper, prevailing conditions (particularly, an inability to compete with established newspapers due to economies of scale) would make it prohibitively expensive for her to do so. In other words, Individual X wishes to speak. She cannot do so. Why is this not a violation of Article 19(1)(a)?

There are four reasons why it may not be so. First, inability and unfreedom are two very different concepts. Human physiology dictates that I am incapable of unaided flight. Yet it would be stretching the bounds of language to claim that I am not free to fly, or that my inability to fly is a constraint upon my freedom. On the other hand, if I am locked up in a prison, we could claim with perfect propriety, that I am not free to go out. Broadly, then, our concept of freedom isn’t one of limitations upon our range of action simpliciter but – it would seem – limitations brought about by human actions of a certain sort.

Secondly, certain liberal philosophers – in particular Isaiah Berlin and John Rawls – draw a distinction between freedom (liberty) and the use (or value) of freedom. Berlin, for instance, in Four Essays on Liberty, argues:

“If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated.”

Similarly, Rawls in A Theory of Justice argues that an inability to take advantage of your legal rights and opportunities because of lack of means merely affects the worth of that liberty (to you), but not liberty itself.

Thirdly, freedom itself is a politically loaded term. My right to private property restricts your freedom to trespass, and therefore curtails your freedom of movement. My right to bodily integrity restricts your freedom to assault me at will. Therefore, it is not entirely accurate to say – as it is often said – that the institution of private property and laws against violence are about protecting freedom. What is true is that certain kinds of freedom, accorded to certain persons, are deemed – for whatever reason – to be valuable, and worth protecting; while other freedoms are deemed to be worthless. In other words, the very presence of a coercive legal system, of any sort, necessarily implies restrictions upon freedom; this, in turn, implies – as Cohen argues – that every legal system makes a political choice about the initial distribution of freedoms. It is crucial to recognise this for what it is – a conscious choice, and not a fixed or embedded part of our natural environment.

And lastly, one may accept all of the above arguments, but simply hold that Article 19(1)(a) provides freedom against State interference; and while Sakal was certainly a case of interference, the small newspapers’ 19(1)(a) rights were not affected because their liberty wasn’t being interfered with by the State.

We are now in a position to see that underlying the Court’s seemingly obvious decision are a series of unstated political choices, and it is important to examine whether these choices are justified. Let us take the issues in turn. Is the inability to enter the market equivalent to an inability to fly unaided? One school of economic thought – led by Friedrich Hayek, in particular – would hold that it is. In The Constitution of Liberty, Hayek defines freedom as the absence of coercion, that is, control by the “arbitrary will of another”. One who can act in accordance with his own decisions and plans is therefore “free”. The range of choice open to one, argues Hayek, has nothing to do with freedom, but he question is whether one “can expect to shape his course of action in accordance with his present intentions, or whether somebody else has power so to manipulate the conditions as to make him act according to that person’s will.” For Hayek, this means that the legal system must contain only abstract, general and impersonal rules, so that “in most instances an individual need never be coerced unless he has placed himself in a position where he knows he will be coerced.” In other words, the more abstract and general the rules are, the more scope you have to plan your affairs. In the economic sphere, naturally, this implies an unregulated marketplace because, while people might exploit such an environment to “alter the social landscape to which I have adapted my plans…”, yet nonetheless, “though the alternatives before me may be distressingly few and uncertain, it is not some other will that guides my action… even if the threat of starvation to me and perhaps to my family impels me to accept a distasteful job at a very low wage, I am not coerced… so long as the act is not aimed at making me do or not do specific things, so long as the intent of the act that harms me is not to make me serve another person’s ends its effect is not different from that of any natural calamity.”

Hayek thus equates the economic impact of an unregulated marketplace to a “natural calamity”. In other words, my inability to access the marketplace is indeed equivalent to my inability to fly.

Readers may – or may not – find Hayek’s arguments convincing. Intuitively, however, it seems obvious that a market and an avalanche, or a forest fire, are two very different things. The market is structured and shaped entirely by human action. The legal system, with its interlocking arrangement of rights, liabilities, powers and privileges, determines the form that it will take; and after that, the actions of individuals determine the relative positions occupied by various actors within it. How then can one argue that my access (or lack thereof) to the market is not determined by human action? Hayek’s response is to concede that it is, but to argue that an unregulated marketplace proceeds through “spontaneous evolution“, one in which the individual actions of people are not aimed at making anyone do or abstain from doing a specific thing. The entire argument, therefore, rests upon what we make of the word “aimed”, and it is extremely unclear whether it can do the philosophical work that Hayek means it to do. I put a gun to your head and order you to do X – evidently, I “aim” at making you do X – but not if I exploit a depressed labour market and the legally established and enforced labour legislation that makes no provision for minimum wage in order to offer you a subsistence-wage employment that I know you have no realistic choice but to accept. Even if true as a matter of terminology, is there really a moral difference here? It seems bizarre to claim that in our society, where from cradle to the grave, the environment that we grow up in (e.g., the legal structure), the opportunities that are open to us (e.g., the availability of public transport for those born in remote areas) and the very persons we become (e.g., the presence or absence of state-sponsored free education) are not really determined by active human agency, that the lack of opportunities open to us are not caused by human action, and that this is not a relevant moral consideration.

In any event, whatever the force of Hayekian arguments in the abstract, it is abundantly clear that Indian Constitutional philosophy does not embody Hayekian liberalism. This is because a central tenet of Hayekian philosophy is the absence of force and fraud in the establishment of economic relations within the unregulated market. Yet, as we are well aware, and as the Constituent Assembly debates (especially the ones over property, and Article 31) make abundantly clear, one of the guiding principles of our Constitution was precisely to reverse relations of power and economic dominance obtained through force and fraud during a long period of colonial rule. Subscription to a Hayekian definition of freedom, therefore, could not have been a justification for the Court’s decision in Sakal. In the next post, we shall examine the other possible arguments at play.

Hierarchies of Expression: Commercial Speech, Hamdard Dawakhana and Tata Press

In our first post, on Sakal Papers, we had discussed the democratic justification for free speech, and how it affected the court’s decision upon monopolistic practices in the newspaper industry. We had observed that a corollary of the democratic justification was that only speech with certain content – that contributed in some way to democracy – would be protected under Art 19(1)(a). While this was an incidental issue in Sakal Papers, the Court faced it squarely in Hamdard Dawakhana v. Union of India (1959) and Tata Press v. MTNL (1995); and the different decisions in these two cases mark an interesting shift in the Court’s jurisprudence over 36 years.

In Hamdard Dawakhana, the constitutionality of Ss. 3 and 8 of the Drugs and Magical Remedies Act was impugned. The stated objective of the Act was to prohibit “misleading” advertisements that claimed certain drugs had magical or other remedies, arising out of a concern that a number of people were using these fake drugs for the purposes of self-medication, and worsening their own health. It was argued that this prohibition fell foul of Article 19(1)(a).

The Court found on fact that the evils of self-medication were indeed prevalent in India, and that there was a causal link between “unethical” advertisements, and physical harm caused due to self-medication. (Paragraph 12) It then went on to hold that:

“An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed…. when it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas-social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business… and [has] no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that the right to publish and distribute commercial advertisements advertising an individual’s personal business is a part of freedom of speech guaranteed by the Constitution.” (Paragraph 17)

This statement requires close scrutiny. At the very beginning, the Court concedes that an advertisement is a “form of speech”, but goes on to hold – nonetheless – that the advertisements in question are not protected by Article 19(1)(a) because they have “no relationship with the essential concept of the freedom of speech.” This is an unambiguous affirmation of the instrumental theory of free speech: speech is valuable not in itself and for itself, but insofar as it is found to bear a relationship with the propagation of ideas. Admittedly, the Court’s choice of phrase here is much broader than the democratic justification advanced in Sakal (surely, pornography conveys a social idea!) – but it remains, nonetheless, an instrumental justification.

The phrase “has no relationship with”, when read in conjunction with “essential concept of”, raises a further interesting possibility; “relationship” is not a zero-sum concept, and “essential concept” suggests the idea of gradation. Is the Court implicitly saying, therefore, that different forms of speech bear differing degrees of relationship with the essential concept (propagation of ideas), and the level of protection afforded to a particular instance of speech depends upon its proximity to the essential concept? Is the Court proposing hierarchies of speech, with different value attaching to each level? This position has been occasionally endorsed in the United States (e.g., the banning or regulation of “adult content” requiring a lower burden of justification from the State – see US v. Playboy). The differences between Article 19(1)(a) and the First Amendment (in particular, the existence of Art 19(2)) make any direct analogies risky at the best of times, but the question is open.

We now come to the MTNL case.  Rule 458 of the Telegraph Rules, 1951, prohibited the publication of a list of telephone subscribers without the permission of the Telegraph Authority. Tata Press was engaged in publishing “Yellow Pages” – that is, a compilation of advertisements given by businessmen, traders and other professionals. It was alleged that this violated Rule 458, since MTNL’s (the government body) telephone directory included something almost identical. The High Court found that, in substance and in purpose, the Yellow Pages amounted to a telephone directory, and therefore their publication contravened Rule 458.

In appeal before the Supreme Court, one of the key contentions of the appellant was that commercial speech was protected speech under Article 19(1)(a), notwithstanding the seemingly contrary decision in Hamdard Dawakhana. It was argued that the American case of Valentine vs Chrestensenwhich the Hamdard Dawakhana Court had relied upon, had itself been overruled by  Va. Pharmacy Board vs Va. Consumer Council – a case that explicitly brought commercial speech within the ambit of the First Amendment – with a lower threshold of protection than was accorded to speech dedicated to the propagation of ideas (paragraphs 15 – 16). Agreeing with this contention, the Court noted that advertisements were protected under Article 19(1)(a), while “deceptive, unfair, misleading and untruthful” commercial speech would be hit by Article 19(2) (presumably by the “morality” prohibition).

It remained to distinguish Hamdard Dawakhana. Relying upon Indian Express Newspapers v. Union of India, the Court held that the Hamdard Dawakhana decision was limited only to the specific type of advertisement at issue in that case, i.e., misleading advertisements for drugs – and was not authority for a general proposition excluding commercial speech from constitutional protection.

The Court then found three justifications for protecting commercial speech. First, advertisements were essential towards keeping prices down in a market economy; secondly, advertisements provided a crucial source of revenue to newspapers, and a free media was the life-blood of democracy; and thirdly, by maintaining the free flow of information, advertisements were necessary for consumers to make an informed choice (paragraphs 19, 22 and 23). Reading Rule 458 of the Telegraph Rules in light of these findings, it held in favour of Tata Press.

Two points may be made here. First, the Court is careful not to depart from the democratic justification of Sakal Papers. Each of the three reasons are brought back – if in a slightly circuitous way – to democracy (although perhaps controversially, the Court seems to have adopted, without argument, a conception of democracy that makes it synonymous with a market economy). As in Hamdard Dawakhana, however, the scope has been considerably broadened because, admittedly, commercial speech has nothing to do with social, political or cultural ideas. This has been done by allowing an indirect causal connection between the impugned speech and the overall maintenance and sustenance of democracy. It is an open question, then, whether the democratic justification – when read so broadly – provides any kind of limiting condition at all. To return to the vexing question of obscenity – it is entirely possible to argue – as Dworkin would – that democracy requires government to accord equal concern and respect to all citizens, and that this condition can be fulfilled only by allowing everyone an equal opportunity to contribute to the society’s moral environment. In other words, contrary to Hamdard Dawakhana, 19(1)(a) excludes no form of speech.

This provides a segue into the second point. There is an undeniable conflict between Hamdard Dawakhana and Tata Press. The former made it clear that misleading advertisements were not protected by Article 19(1)(a), whereas the latter makes it equally clear that they are, and are further hit by Article 19(2). Hamdard Dawakhana was a constitutional bench decision. Tata Press was decided by a bench of two judges. There is no doubt the the finding in question was part of the ratio in Hamdard Dawakhana (while the observation that commercial speech does not fall within Art 19(1)(a) was not). The position of law, therefore, would seem to be that there are forms of speech that are excluded from 19(1)(a) protection, such as those proscribed in Hamdard Dawakhana.

In either event, these cases demonstrate a good example of soft legal paternalism at work (see the last post). For the purposes of argument, let us ignore the interests of the advertisers, and focus on consumers. Presumably, consumers read advertisements (and take medicines) because they wish to be accurately informed (and get well). Misleading advertisements (and fake medicines) are therefore contrary to their interest, and they would hypothetically endorse governmental measures that corrected errors of this sort. Unlike Ranjit Udeshi, therefore, where interference was with questions of value and the ground rules of judgment, here governmental interference relates to questions of fact and evidence, and is thus easier to justify.

Sakal Papers – II: An Addendum – what is the government permitted to do?

In the previous post on Sakal Papers, we found that under certain theories of free speech, it would be permissible for the government to regulate the newspaper industry in order to prevent monopolies and create an economic environment that would permit the flourishing of smaller newspapers. In Sakal Papers, however, the government chose a particular form of intervention: direct curtailment of the scope and/or circulation of big newspapers. In other words, the government curtailed the rights of some entities in order to achieve a system in which, overall, the distribution of the right was more equitable and just; to put it yet another way, in order to give effect to the rights of some, the government curtailed the rights of others. Is such action justified? Our discussion so far on this point has been incomplete, and this post aims to complete it.

It will be useful at this stage to adopt a distinction drawn by Nagel: between agent-neutral values, and agent-relative values. Agent-netural values are those that attach themselves to particular states of affairs, and thus provide everyone with a reason to promote them. Agent-relative values, on the other hand, apply only to the individual agent, or actor. Take the case of murder. According to an agent-neutral account, murder is prohibited because a society in which fewer murders occur is a better society overall, whereas according to an agent-relative account, murder is prohibited because it violates the individual right to life. Consequently, in the first case, you would be justified – for example – in murdering someone to prevent two murders (all other things being equal) – while in the latter case, you would not be so justified.

(A similarity may be noticed here with the traditional debate between consequentialist and deontological theories of rights: a runaway trolley is careening down a mountain-track, en route to killing five people; you find yourself next to a diversion signal that will change its path to one in which only one person is killed – but it is you who must actively divert the train’s path. Are you justified in doing so? Consequentialist theories (aimed at selecting the consequential state of affairs that will be best) say that you are; deontological theories (holding that rights are trumps against goal-based justifications that would curtail them) say that you aren’t.

What then is the value that we place upon free speech? Do we value it for all the benefits of a community in which speech is free? Or as an inviolable right that the government cannot interfere with even to give effect to the enjoyment of the right on the part of others? (Notice that the two options aren’t exhaustive).

An important argument supporting the former point of view is made by Raz, who views free speech as a public good. Public goods – such as street lighting and clean air – are goods enjoyed in common by the members of society in a way that one – or many – persons’ use does not exclude anyone else from using the good. Raz argues that free speech is a public good because the scope and strength of the right to free speech accorded to an individual is partially determined by the interests of third parties. The reason why, in our society, we have such a strong right to free speech – despite its seemingly minor importance in most peoples’ everyday scheme of interests – is that it is in everybody’s interest (and deeply so) that the right to free speech exists in society (that, Raz argues in turn, is because it is the only way to make government responsive and accountable to its citizens).

This, therefore, is a classic argument in which the individual right to free speech is derived from the desirability of the overall state of affairs in which that right is provided protection; consequently, government’s efforts to bring about that state of affairs are unimpeachable.

It will be noticed that the path of this argument is similar to the intrinsic/instrumental distinction; the concepts remain different, however. What is clear is that agent-relative values operate where the nature of the right is instrumental; whereas the right being intrinsic is a necessary condition for the existence of agent-neutral values (a quick analysis will verify the point).

Over the last two posts, therefore, we can clearly see that the first question we must ask ourselves, on reading Sakal, is “why ought we to have the freedom of speech in the first place?” or, “what is it that we value about the freedom of speech?” The answer to that question – and since it is a philosophical question, it needs a philosophical answer – will then determine a series of succeeding questions and answers, that will ultimately inform us whether or not we agree with the court.

Sakal Papers v. Union of India – I: Why do we have the freedom of speech?

Sakal Papers v. Union of India [1962] 3 SCR 842 was a Constitution Bench decision concerning the interpretation of Article 19(1)(a).

In accordance with the Newspaper Act of 1956, and the Daily Newspaper Order of 1960, the government sought to regulate the number of pages a newspaper could contain by making it a direct function of newspaper’s price (i.e., in order to bring out more pages, the newspaper would have to be priced higher); it also prescribed the number of supplements that could be published, as well as the relative area that could be occupied by advertisements.

The constitutionality of these measures was impugned as being violative of – inter alia – Article 19(1)(a). The petitioners argued if they wished to keep the size of their newspaper constant, they would have to raise the price – and suffer a fall in circulation. If, on the other hand, they wished to keep their price constant, they would have to reduce the volume of news they were providing. In either event, there was an infringement of Article 19(1)(a).

The State made a number of arguments in response. For the purposes of this post, I will focus on the following: it argued that the object of the regulations was to prevent unfair competition and the rise of monopolies within the newspaper industry (the argument presumably being that due to economies of scale, established large newspapers were in a position to keep prices at a level at which newer – and smaller – newspapers were unable to compete, and would therefore either be unable to enter the market – or if already present – would be forced to exit by selling to one of the established newspapers). It argued that effectively – by freeing up the market – the regulations were designed to promote the freedom of speech and expression.

The Court agreed, in substance, with the petitioners. Mudholkar J., speaking for the Court, made the unexceptionable point that Article 19(1)(a) covered not only matter, but volume (paragraph 27); the effect of the impugned regulations would be to directly limit circulation (paragraph 32) or volume (paragraph 35); this was thus a clear case of infringement, and one that was not saved by the exceptions in Article 19(2) (in light of the unfair competition claim, the Court focused particularly upon the absence of a “public interest” exception in Article 19(2), as opposed to its presence in Article 19(6)) (paragraph 38). The Court parted with the case by stressing the important of the freedom of speech “under a democratic Constitution which envisages changes in the composition of legislatures and governments…“, and emphasised that any regulation that would necessarily “undermine… power to influence public opinion” was “capable of being used against democracy as well.” (Paragraph 45)

These parting remarks can be taken as the point of departure for an analysis of the Court’s decision. In this one sentence, the Court has already made a series of political and philosophical choices: at the most abstract level, it has made a choice between intrinsic/constitutive and instrumental justifications for free speech. Justifications of the first kind regard the freedom of speech – for whatever reason – as an essential component of a just political and moral order. According to Ronald Dworkin, for instance, freedom of speech is an essential aspect of government treating its citizens with equal concern and respect; while along similar lines, Scanlon argues that it is part of living an autonomous life. Instrumental justifications, on the other hand, locate the value of free speech in the contribution it makes towards securing or promoting other values. For instance, Mill famously argued that an open marketplace of ideas was the best means for arriving at truth. Here truth is the constitutive/intrinsic value that free speech serves instrumentally.

In choosing democracy as its fundamental value, therefore, the Court not only endorses instrumental justifications over intrinsic (and thus subscribes to a particular philosophy of the nature of rights), but also selects one particular justification, that is, the role that free speech plays in maintaining a functioning democracy (this argument has been made most famously by Mikeljohn in the context of the American First Amendment).

The immediate consequences of this are manifold. First, in Sakal Papers, it allowed the Court to hold as it did. What might have happened, for instance, if the Court had endorsed a different theory? For the purposes of argument, let us assume that the Court found Dworkin’s justification of free speech attractive, and decided to apply it. Dworkin argues that part of what it means for government to accord equal concern and respect to every citizen is to ensure that she has an equal opportunity of shaping the moral environment of society, the moral environment in which we all live. Equal opportunity here naturally entails the idea of equal – or at least, equivalent – access. Consequently, Dworkin’s argument does not permit an abstract account of interferences and infringements upon the freedom of speech – rather, it necessitates an enquiry into each particular situation, in order to determine whether the aforesaid equal opportunity is available to each citizen.

We are now in a position to appreciate the argument made by the Respondent-State through a Dworkinian lens: preventing monopolies and unfair competition is no longer a “restriction” upon free speech placed in the “public interest”, as the Court characterised it (paragraphs 47 – 49) – rather, it is an integral element of the freedom itself. By ensuring an economic environment that is conducive to the entry and survival of small newspapers, the State is not only doing something permitted to it, but in fact, fulfilling its obligation of ensuring the freedom of speech.

What would have happened if the Court had accepted the instrumental justification – as it did – tradition, but endorsed instead something akin to a Millian argument of the marketplace of ideas? Here the issue would have been more delicate, but it would have been possible for the Court to hold, for instance, that a monopolistic market is a distorted market, and in the traditions of liberal economic theory, State intervention to correct market imbalances justifies the regulations that it might choose for such purpose. 

The second consequence of the Court’s choice of the democratic justification is more long-term. If we accept the unexceptionable proposition that our Courts ought to act in a principled manner over a sustained period of time, then it would be arbitrary for the Court to invoke the democratic justification in newspaper regulation cases, but a Dworkinian-constitutive justification in a case involving – hypothetically – film censorship – unless the Court could demonstrate a principled reason why that need not be the case. The decision in Sakal Papers, therefore, is far-ranging, and provides a reason for the Court to decide in a certain way in cases as diverse as obscenity trials and pornography on the one hand, and seditious speech on the other.

Here’s how: if we are agreed that the justification of free speech lies in is protection of democracy, then it stands to reason that only those forms of expression that play a some kind of role in democratic governance are worthy of protection. It is highly plausible that this is not the case. For instance, imagine a case comes up before the Court that involves the closure of a pornographic website. The petitioners have invoked the protection of Article 19(1)(a). Now the Respondent Counsel stands up to argue:

RC: Your Lordship, in accordance with the judgment of this Hon’ble Court in Sakal Papersthe role of free speech is to protect our democracy by ensuring that citizens have complete information about important matters. We submit that access to pornographic websites is clearly irrelevant to the protection of democracy – no ideas of governing importance are found in the realm of pornography, and it provides no information that responsible citizens need in order to make an informed choice in the next election. Pornography is not protected under Article 19(1)(a).

This argument is not as far-fetched as it may sound – the term “matters of governing importance” is the precise term used by Mikeljohn in his own democratic justification of the First Amendment.

I hope I have done enough to demonstrate that the philosophy and politics underlying a constitutional judgment is not an exercise in dry academic theorising. On the contrary, it is crucial not only to understanding (and therefore, if necessary, being able to challenge) what justifies an actual judgment of the Court, but also crucial to understanding how a host of similar – and live – issues will be affected by it.

In the next post, I hope to examine briefly a few of the other interesting philosophical issues thrown up by the Sakal judgment.