Tag Archives: autonomy

Guest Post: The Trans Bill and Its Discontents – II

(In this Guest Post, Vasudev Devadasan concludes his analysis of the Transgender Bill.)

In the last post (here) we defined transgender persons as individuals who experience a conflict between the ‘gender identity’ assigned to them at birth, and ‘gender identity’ they develop through the course of their lives. Thus, an individual may be designated ‘male’ or ‘female’ at birth, but over time may come to identify with the opposite sex, or even outside the male-female binary as a transgender. In NALSA v UoI (NALSA) the Supreme Court affirmed both the right of the individual to choose their own gender and the existence of a third gender (transgender). The Court also ruled that discrimination against transgender persons for failing to conform with gender stereotypes (by choosing an alternative ‘gender identity’) amounted to discrimination on the grounds of ‘sex’ and was prohibited by Articles 15 and 16 of the Constitution. Lastly the Court held that transgender persons were members of ‘backward classes’ deserving of reservations under Articles 15(4) and Articles 16(4) of the Constitution.

When making these statements the Court had the benefit of speaking in the abstract. In implementing these guarantees the government faces the task of conferring benefits on a group whose membership is based on a subjective determination of conflicting ‘gender identity’ experienced only by the individual in question. How does the government provide reservations to ‘transgender persons’ when the only way to know whom a ‘transgender person’ is, is an internal conflict experienced by the transgender person?

In this post, I examine the anti-discrimination provisions in the new Transgender Persons (Protection of Rights) Bill and explore the difficulty of securing equality and affirmative action for a group whose membership cannot be objectively determined. I also examine the current Bill’s provisions on begging and residence (prohibiting transgender persons from being separated from their families) and question whether they are in tune with the developing concept of ‘autonomy’ under the Constitution.

Non-Discrimination

The current Bill provides a procedure for the ‘Recognition of Identity of Transgender Persons’. While we discussed the shortcomings of this procedure on the last post, the rationale for having a recognition procedure is clear. Non-discrimination rights arise when citizens belong to a class or category of citizen as distinguishable from other citizens. A claim to non-discrimination will be acknowledged when a citizen can demonstrate belonging to this class or category and then show that such belonging is the “ground” for the discrimination in question. Therefore, the current Bill provides a definition of ‘transgender person’, provides a procedure to recognise a ‘transgender person’, and then Section 3 of the Bill states, “No person shall discriminate against a transgender person…” by denying education, unfair treatment in employment etc. The provision thus protects individuals who are recognised as transgenders under the scheme of the Bill.

Before moving on, two points should be noted. Firstly, the Bill does not create reservations for transgender persons in education or employment. While the National Commission for Backward Classes did formally recommend that transgender persons be included in the category ‘Other Backward Class’, and while these recommendations are ordinarily binding on the Government, the current Bill does not create reservations for transgender persons. Secondly, the Bill does not define the term “discrimination”. By not defining “discrimination” the Bill is silent on how and when the protection guaranteed by Section 3 would be violated. In contrast, the 2014 Rajya Sabha Bill defined discrimination as “any distinction, exclusion or restriction on the basis of gender identity and expression which [restricts the exercise of human rights] on an equal basis with others.” Just as the Supreme Court did in NALSA, this definition states that where a person is treated differently because of their ‘gender identity or expression’, and such different treatment affects their enjoyment of rights, discrimination is deemed to have occurred.

The problem facing the government is that by creating a recognition procedure that the State controls, they have severely restricted the individual’s ability to self-identity with the gender of their choice (a choice the Court in NALSA held to be protected by Article 21). There are two seemingly conflicting goals here: (a) to fix and regulate the categories of sex (male, female and transgender), and (b) to allow individuals to freely move between these categories by choosing their own ‘gender identity’. The current Bill seeks to filter the subjectivity so essential to the transgender identity through a lens of legal certainty. The question is therefore whether the actual or potential mobility of ‘gender’ that NALSA and the very definition of transgender espouse can be accommodated within a regulatory non-discrimination framework.

Victoria and New South Wales for example dispense with the requirement of having a fixed legal identity when determining whether transgender persons have been discriminated against. The Victorian legislation (the Equal Opportunity Act) prohibits discrimination on the grounds of ‘gender identity’ which is defined as:

…the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):

  1. by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
  2. by living, or seeking to live, as a member of the other sex.

Thus, what matters is not whether the individual is recognised in law as a transgender person. Rather, whether they are perceived by society as being a transgender person. Thus, rather than the law having to recognise an immutable characteristic of ‘transgender’ which both violates the principle of self-identification and aims to ‘normalise’ transgender persons by creating a fixed gender/legal identity, discrimination occurs when an individual is discriminated against because they are perceived to be transgender, irrespective of whether they are actual transgender. For example, if an individual is denied employment on the ground that they are perceived to be transgender, a valid claim for discrimination can be made against the employer. Sharpe terms this the “interplay of performance and gaze” and this provides a framework within which the law is able to comprehend the fluid nature of the transgender identity and yet protect transgender persons from discrimination. Conferring rights without requiring a fixed legal identity.

While this solution may work for non-discrimination simpliciter, it still leaves the question of affirmative action open. Where legal benefits are positively conferred on a group, the State has a legitimate interest is ensuring that the individuals who are availing of these benefits belong to the group. The current Bill creates a ‘screening committee’ which includes medical personnel to verify and recognise an individual as a transgender person. This is likely to expose individuals to unwanted and intrusive scrutiny. Thus, a balance needs to be struck between the State’s interest to curb the abuse of affirmative action benefits, and an individual’s freedom to change genders with dignity.

In Secretary, Department of Social Security v HH, Justice Brennan moves the needle away from biological verification, to a slightly more holistic test. In determining an individual’s gender, he notes, “the respondent’s psychological and social/cultural gender identity are the matters of primary importance not sex chromosomal configurations or gonadal or genital factors…” The understanding that ‘sex’ is not a determinant factor, and that “psychological, social and cultural” factors can determine gender seems to be a step in the right direction. This ties in with the Indian Supreme Court’s understanding that an individual’s psyche is part of ‘sex’ within the meaning of Articles 15 and 16. If the ‘screening committee’ that the Bill creates was to examine this, a balance maybe struck.

Provisions on Residence

The current Bill also seeks to secure the right of transgender persons to stay in their own home. Section 13(1) states that, “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court…” Sub-clause 3 of the same Section goes on to note, “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall […] direct such person to be placed in a rehabilitation centre” The framework created by the Bill compels a transgender person to either continue living with their family, or be placed in a rehabilitation centre. The section makes no distinction between a ‘minor’ and an adult and creates a rather intrusive mechanism of regulation where a transgender person cannot choose where to live.

The Parliamentary Standing Committee raised concerns that the two options provided by the Bill would not guarantee protection given the realities present on the ground. Several transgender persons face significant abuse at the hands of their own families who deny them the right to self-identity with a gender of their choosing and restrict their gender expression. The nature of the rehabilitation centres is also unknown. The Committee noted that several transgender persons choose not to live at home, but rather within transgender communities where they form an alternative network of friends and family.

The Committees observations on Section 13 raise interesting constitutional questions given the understanding of ‘autonomy’ articulated in the Right to Privacy (Puttaswamy) earlier this year. At the core of the Court’s rationale in Puttaswamy was the idea that privacy protects an individual’s liberty by securing ‘dignity’ and ‘autonomy’. Privacy in the Court’s articulation is the right to determine how one should exercise the freedoms guaranteed by the Constitution. Thus, ‘autonomy’ guarantees the right of every person to make essential choices which affect the course of life.” (⁋113) The State cannot interfere with an individual’s decisions concerning several core areas that the Court describes (non-exhaustively) as including family, marriage, procreation, and even what to eat and drink.

By compelling transgender persons to either live at home or in a State run rehabilitation centre Section 13 seems to deny them the right to choose the community they wish to live in. Deciding to live at home or not would fall within an ‘essential choice’ relating to ‘family’. And by denying transgender persons the third alternative (of living within a transgender community) the case could be made that the State is interfering with their ‘autonomy’ as protected under Puttaswamy.

Provisions on Begging

Lastly, Section 19(a) of the Bill makes it an offence to ‘compel or entice a transgender person’ to commit the act of ‘begging’. Transgender persons have a well-documented history of suffering abuse at the hands of anti-vagrancy provisions such as this, simply because begging is often the only choice of income generation available. As the Standing Committee noted, transgender persons are often booked under analogous ‘begging’ provisions merely because they are present in public places. While the provision only penalises the offence of compelling a transgender person to beg, there is a thin line between criminalising an individual for begging out of their own volition and compelling another to beg, with the latter often being used against the former.

In Ram Lakhan v State, Justice Ahmed examined this distinction in the context of the implicit defences to the offence of ‘begging’. He noted that when an individual begs out of the sheer compulsion to stay alive, he is protected under the defence of ‘necessity’. Where an individual is compelled to beg he does so under threat of violence and even death and is thus protected under the defence of ‘duress’. In both cases, the individual has no real choice, and it is this involuntariness that provides the basis for both the defence of ‘necessity’ and ‘duress’ making it a “distinction without a relevant difference”. In the course of practical policing there may be obvious benefits to the distinction between a begging racket and a person begging to prevent the onset of starvation. However, the inclusion of the legislative provision as it is currently framed may be counter-productive, especially given the existence of parallel anti-begging laws.

Conclusion

We have seen how the current Bill fails to understand the core principle of ‘self-identification’ in defining a transgender person, how it struggles with the question of non-discrimination, and takes an approach to residence and begging that doesn’t appreciate the nuances of the law and its relationship with the ground realities faced by transgender persons. Creating a regulatory framework for transgender persons is undoubtedly a complex and delicate task. Certain questions, such as legal recognition for transgender persons, and the prevention of discrimination pose questions that expose the limits of law as crafted within the male-female binary. On the points of residence and begging however, the Bill seems to lack an understanding of ground realities required to upturn generations of neglect towards transgender persons. Even in their best possible forms, these provisions would require sensitive administration to have a meaningful impact in the long run. Perhaps what is most troubling is that none of the criticisms raised in this piece or the last are new. Given the excellent platform created for the government with the NALSA verdict, the original Rajya Sabha Bill and the various committee reports, the fact that the Bill remains in its current form is lamentable.

 

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Guest Post: The Trans Bill and its Discontents – I

(This is a guest post by Vasudevan Devadasan.)

This week the Transgender Persons (Protection of Rights) Bill is up for vote in the Lok Sabha. The Bill has had a comparatively short but turbulent history. On the back of the National Legal Services Authority v UoI (NALSA) judgement and an Expert Committee Report by the Ministry of Social Justice and Empowerment (here) the Bill was first introduced and passed as a Private Member Bill by the Rajya Sabha in 2015. A year later however, the Ministry introduced a modified version of the Rajya Sabha Bill and referred it to committee. The Standing Committee (whose report can be found here) lambasted the Bill on several points that we will discuss here and on subsequent posts. Despite the Standing Committee’s report, the provisions of the bill have not been modified and continue to raise some troubling constitutional issues.

Beginning with the distinctions of ‘sex’ and ‘gender’, as well as ‘gender identity’ and ‘gender expression’, this post examines the interpretation of Articles 19 and 21 in NALSA. While there are a host of practical and legal ramifications of introducing such legislation, this post focuses on the constitutional issues raised by the definition of “transgender” in the current Bill and the ‘screening process’ that individuals have to undergo to secure legal recognition of their gender identity.

The constitutional framework

Before looking at the multiple definitions of “transgender” that have been used by the bills in parliament, its crucial to understand the constitutional framework created by NALSA and Article 19 and 21. (There are other judgements before and after that contribute to this framework, but the relevant principles are discussed contextually in NALSA.) Firstly, the Court distinguishes between ‘sex’ and ‘gender’. The former is determined by biological characteristics such as chromosomes and internal and external sex organs, and is assigned to individuals at birth while the latter is constituted by an individual’s own experience, developed through innate belief, upbringing, society and culture. In the case of a transgender person there is a conflict between their “gender identity” assigned to them at birth, and the one they develop through the course of their life. Secondly, while ‘gender identity’ refers to an individual’s internal experience of gender, ‘gender expression’ refers to their outward expression, as perceived by society.

It is the right of transgender persons to choose their gender identity that the Supreme Court upheld in NALSA. In the Court’s own words, “self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed by Article 21”. Additionally, the Court held that ‘gender expression’ by way of dressing, speaking, or behaving was protected under Article 19. The invocation of ‘personal autonomy’ and ‘self-expression’ is crucial, because this means that the decision of a transgender person in choosing a gender (whether male, female) is made is made by the individual, as an expression of personal choice. In fact, the Court explicitly rejected an objective ‘medical’ or ‘pathological’ standard to determine an individual’s gender (¶75) The Court also recognised that “transgender” constituted its own, standalone, gender for individuals who did not wish to associate themselves with either the male or female gender. In summary, a transgender person could choose to be recognised as either male or female based on their choice, or alternatively could choose to be recognised as transgender.

Self-identification is a promising idea in principle and may work in practice as well. For example, Argentina passed a statute that recognises an individual’s right to gender identity, and allows a person to change their sex in public records by filing an affidavit. However, this is clearly more helpful to individuals who want to change their gender identity than individuals who wish to identify outside the male-female binary. Additionally, the Court in NALSA sought both non-discrimination and affirmative action to be taken for transgenders. To secure these goals, there needs to be some practicable process or method by which the State can identify transgender persons. The crux of the matter then becomes the suitable level of State-scrutiny over an individual’s decision to identify with a gender, be it male, female, or transgender. It is important to note that the purpose of scrutiny must not reach a level so as to interfere with the individual’s autonomy to choose a gender, but sufficient to enable recognition and efficient governance.

The (current) Transgender Bill

The primary issue with the current bill stems both from its definition of the term “transgender person”, but also from the fact that to be recognised as a “transgender person”, one must undergoe a ‘screening process’ conducted by, inter alia a medical officer and a psychologist/psychiatrist. Section 2(i) defines a “transgender person” as one who is:

  • Neither wholly female nor wholly male; or
  • a combination of female or male; or
  • neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.

The use of the word “and” after clause (c) makes the definition conjunctive. Thus, to fall under the definition both the sexual characteristics and the gender characteristics of the definition must be met. By adding a pathological aspect to the definition of transgender, the Bill continues to view transgender as a medical or biological anomaly outside the normal duality of male and female. As we noted earlier, sex and gender are two distinct concepts; yet the definition in the Bill conflates them, both narrowing the scope of people who fall under the Bill’s protection, and distorting the definition of a transgender person in the national discourse. The definition also runs contrary to the rationale espoused in NALSA which explicitly ruled out the use of a ‘biological test’ to determine if a person is transgender. When looked at in contrast to the definition provided by the Expert Committee Report and the Rajya Sabha Bill, the conflation of ‘sex’ and ‘gender’ is apparent. They specifically dispensed with the male/female binary, and defined “transgender person” as:

a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities…

In addition to the definition, the current Bill sets up a ‘screening procedure’. Section 4 states that a transgender person “shall have a right to self-perceived gender identity”. However, the recognition of this freely chosen gender identity is only possible when the procedures that the Bill stipulates are completed. Under Sections 5 through 7, a transgender person must approach a District Magistrate, make an application for issuing a ‘certificate of identity as a transgender person’. The application shall be evaluated by the ‘District Screening Committee’ which as noted above includes medical personnel. The inclusion of medical personnel as part of the identification procedure again hints at the legislature’s conflation of ‘sex’ and ‘gender’. By not specifying the criteria upon which the ‘Screening Committee’ shall grant or reject an application, the Bill risks the identification procedure, (a deeply personal choice originating in an individual’s internal experience of gender) morphing into an objective medical assessment. In NALSA the Court also grounded the principle of self-identification in an individual’s dignity. The Bill runs the risk of violating this principle by subjecting transgender persons to unnecessary medical scrutiny.

The Bill also makes the State (through the ‘Screening Committee’), as opposed to the individual, the final arbiter on an individual’s gender identity. Under the Bill, the Screening Committee acts as a gatekeeper to an individual being able to fully experience their self-perceived gender identity in society. This runs against the rights of ‘self-expression’ and ‘personal autonomy’ that Article 19 and 21 confer on citizens. As ‘gender expression’ is protected under Article 19(1) and the Supreme Court has recognised that individuals have a ‘positive right to make decisions about their life’ under Article 21 the constitutional validity of the ‘Screening Committee’ will certainly raise some constitutional questions as it poses a restriction on the legal recognition of an individual’s gender identity.

Lastly, Section 7 allows the District Magistrate to grant a “certificate of identity as [a] transgender person…” seeming to negate the possibility that a transgender person may choose to identify as a male or female. At its core, the idea self-identification would allow a transgender person to choose to identify with either the male, female, or transgender identity. Section 7 seems to relegate transgender persons as explicitly and eternally outside the male female binary that Indian society deems normal.

Conclusion

The current version of the Bill has received a lot of criticism on a wide range of issues. Since its inception it has seen the loss of several prominent aspects including exclusive courts for transgenders, reservation in educational institutions and incentives to the private sector to employ transgender persons. While these are notable lapses, far more troubling is that the Bill seems to misunderstand the very individuals it seeks to protect. By conflating the concepts of ‘sex’ and ‘gender’, and imposing an opaque recognition procedure, the Bill does little to uphold the core principle of self-identification and dignity as articulated in Article 19 and 21.

 

 

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The Striking Down of Section 66A: How Indian Free Speech Jurisprudence Found its Soul Again

In the best piece of free speech news since 1960, the Supreme Court on Tuesday struck down Section 66A of the IT Act, that criminalised “grossly offensive”, “menacing” and “annoying or inconvenient” speech over the internet. There has been a substantial degree of commentary about the judgment over the last two days. In this post, I will attempt a detailed excavation of the many fascinating strands of the judgment, from the point of view of free speech doctrine.

Use of American First Amendment jurisprudence

A month ago, I wrote a rather exasperated post about a bizarre Delhi High Court decision allowing the police to pull down political posters from the walls of private property, on the ground that “Delhites have short fuses”, and that political posters could therefore be a threat to public order.  In particular, when American free speech jurisprudence was cited before Justice Endlaw, he refused to consider those cases, on the ground that while the American First Amendment is “absolute” (“Congress shall make no law… abridging… the freedom of speech”), Article 19(2) is subject to reasonable restrictions. This cavalier dismissal highlights the highly opportunistic manner in which the Indian judiciary has engaged with American First Amendment law over the years. On occasions when it helps to buttress a point, judges have shown no compunctions in quoting the grand, eloquent pronouncements of the American judiciary on the freedom of speech; but of course, American First Amendment law has historically been far more speech-protective than its Indian counterpart. Consequently, when judges wishing to uphold far-reaching restrictions upon the freedom of speech are faced with contrary American cases, instead of engaging with the reasoning and demonstrating why it is invalid or inapplicable, they invariable invoke the “First Amendment is an absolute!” trope, and save themselves the trouble of having to consider contrary reasoning.

As I’ve tried to argue before, a refusal to engage with judicially trained minds grappling with very similar issues achieves nothing but stifling exposure to a range of rigorously thought-through and developed viewpoints, and harms the overall quality of reasoning. More importantly, though, the argument that the First Amendment is an absolute, and 19(2) contains reasonable restrictions, is a canard. The First Amendment is not absolute. No American judge, apart from Hugo Black, and possibly William Douglas, has held it to be. The First Amendment permits regulation of incitement to imminent lawless action, obscenity, fighting words, true threats, blackmail, copyright infringement, insider trading, consumer fraud and commercial speech. This was clearly understood by the framers. In the Constituent Assembly Debates, Ambedkar himself observed:

“It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and theDraft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court.”

He then specifically went on to cite an American judgment on restrictions upon free speech – Gitlow vs New York.

In Paragraphs 14 to 19, Justice Nariman clinically demolishes the aforementioned canard. Citing Chaplinsky vs New Hampshire, the classic American judgment affirming that the First Amendment is not absolute, he correctly points out that the American Supreme Court has never given literal effect to the “make no law” phrase. He then correctly notes that the crucial difference between the American and Indian positions is that while in the United States, a compelling public interest must be demonstrated in order to regulate speech, in India, a restriction must be covered by the eight themes specified in Article 19(2). In other words, there could be occasions when the Indian Constitution protects more speech than the American! In any event, subject to this rider, Justice Nariman notes:

“Viewed from the above perspective, American judgments have great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement.”

And this is exactly as it should be. There is much to disagree with in American free speech law. But what is undeniable is that over a hundred years, American judges have crafted a deep, thoughtful and complex set of principles for understanding the purposes of the freedom of speech in a constitutional democracy. We might reject their principles completely, but we need to engage with them.

Public interest cannot be a ground for restricting speech

In specifying that under the Constitution, speech can be restricted only under one of the eight listed grounds under Article 19(2), Justice Nariman states twice that “public interest” is not one of the grounds, and so cannot be invoked to justify a speech restriction. In paragraph 21, he notes:

“Under our constitutional scheme, as stated earlier, it is not open to the State to curtail freedom of speech to promote the general public interest.”

Immediately after, he cites Sakal Papers vs Union of India in support of this proposition.

This might sound like an innocuous statement, but it is critically important. This is because, over the years, judges have repeatedly ignored the fact that Article 19(2) exhaustively lists eight grounds of restriction, and that public interest is not one of them (unlike in Article 19(6)). Judges have upheld restrictions upon the nebulous grounds of “public interest” and “social interest”. In Ranjit Udeshi vs State of Maharashtra, for instance, while upholding obscenity law, Justice Hidayatullah traveled beyond the terms of the Constitution to observe that the freedom of speech “is subject to reasonable restrictions which may be thought necessary in the interest of the general public.” He then used that to elide the “decency and morality” clause with “public morality.”

In K.A. Abbas vs Union of India, while upholding a regime of pre-censorship upon cinema, that same Justice Hidayatullah observed:

“… social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity.”

In In Re Arundhati Roy, the contempt of court case, the Court held:

“… whether there can be a balancing between the two public interests, the freedom of expression and the dignity of the court.”

Examples may be multiplied, but there is a clear pattern here. The worst free speech judgments of the Supreme Court have come when the Court has traveled beyond its brief, collapsed the specific terms of 19(2) into a boundless and boundlessly manipulable vision of “public” or “social” interest, and then upheld the far-reaching restrictions that the government has sought to impose. There come times in the history of any constitutional court, when jurisprudence becomes so utterly untethered from the constitutional text and principles, that what is most urgently needed is simply a reaffirmation of the basic meaning of text and structure. In doing so, Justice Nariman has performed the incalculably important service of re-orienting free speech jurisprudence back towards its fundamental goals and purposes: interpreting the Constitution of a liberal-democratic polity.

“In the interests of”, “tendency”, and the requirement of proximity

Article 19(2) permits “reasonable restrictions” “in the interests” of the eight prescribed themes. The major contestation in Indian free speech law has turned upon the interpretation of “reasonable” and “in the interests of”. In Ramji Lal Modi and Virendra, two cases decided in 1957, the Supreme Court stated that the phrase “in the interests of” was wider in ambit than the phrase “for the maintenance of”, and consequently, authorised the government to regulate any speech that had a “tendency” towards, for instance, public disorder. In Modi, the Court upheld S. 295A on the ground that intentional outrage to religious feelings had the “calculated tendency” (sic!) to disrupt public order. In Virendra, the Court held prior restraint upon the press under the colonial era Press (Emergency Powers) Act to be constitutional, for the same reason. A plea that there must be proximity between speech and disorder was expressly rejected in Modi.

The word “tendency” is pernicious and damaging. It speaks back to American free speech jurisprudence in the 1920s, when the Supreme Court used a “bad tendency” test to persecute anti-war dissenters, trade-union leaders, leftists and pacifists of various hues. Understanding the sheer unworkability of this test, the Court abandoned it in the 1940s, adopting Justice Holmes and Brandeis’ test of “clear and present” danger. The reason is obvious: “tendency” can mean just about anything, from imminence to the faintest causality. If I start smoking now, I will have a tendency to cancer, even though cancer may set in forty years later. But “tendency” has attained an ubiquitous place in Indian speech restricting laws. The Contempt of Courts Act, for instance, criminalises speech that can have the “tendency” of lowering the repute of the Court; S. 292 of the IPC criminalises material that “tends” to deprave or corrupt. And so on.

Fortunately, we did not have to wait as long as the US to push back against the idea of “tendency”. In Ram Manohar Lohia’s Case (1960), the Supreme Court cleverly “distinguished” precedent, and held that there was a requirement of proximity between speech and the threatened disorder, and that the connection must not be remote, arbitrary or fanciful. In Lohia, a law criminalising instigating people to not pay their taxes was struck down, because it was held not to have a proximate connection to public disorder. Subsequent cases have tightened this test – in S. Rangarajan, the Court held that the connection must be that of a “spark in a powder keg”, and in Arup Bhuyan, that there must be “incitement to imminent lawless action.” But “tendency” has also continued to be invoked by the Courts with alarming regularity. Soon after Lohia, the Court upheld the crime of sedition in Kedar Nath Singh (1962), on the ground that the State could legitimately criminalise speech that had a “tendency” to public disorder.

As in the case of “public interest”, we can immediately see that “tendency” has been responsible – again – for some of the most regressive and speech-restricting decisions of the Indian Supreme Court.

In the 66A judgment, Justice Nariman emphatically adopts the requirement of proximity. He cites Ram Manohar Lohia’s case, highlighting the need for an “intimate connection” between speech and the prohibited 19(2) category.

Incitement vs advocacy: Collapsing “tendency” into imminence

The requirement of an intimate connection is expressed by Justice Nariman in the form of a crucial distinction: between advocacy and incitement. In paragraph 13, he observes:

Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder…”

The distinction between “advocacy” and “incitement” is grounded in the idea of proximity, or imminence. For instance, my “advocating” a violent revolution against the State by writing articles in magazines, or even delivering public lectures, does not constitute “incitement”. However, my whipping up a mob into a frenzy and directing it to imminent violent action does. The enquiry is contextual, and is clearly limited to emergent, specific situations. In other words, Justice Nariman emphatically rejects the proposition that an idea, or a message, can be criminalised because of its communicative content. It is only when there is a relationship of immediacy between speech and action – “speech brigaded with action”, in the words of Justice Douglas – that the law can kick in. I have argued elsewhere that this view is consistent with our most basic ideas of individual autonomy and responsibility. But what is most interesting here is that Justice Nariman then collapses “tendency” into the incitement requirement. He says that it is at the stage of incitement when the law kicks in, to curtail speech that tends to cause disorder.

In other words, the concept of “tendency” that motivated the Court in Modi, Virendra and Kedar Nath Singh is emphatically discarded here. Justice Nariman holds that even if speech has a “tendency” to disorder (say, for instance, a revolutionary tract), that in itself is not a ground for restriction: there must, further, be incitement. To come back to my smoking example – I have a tendency to cancer when I start smoking, but cancer is “imminent” (or “inexorable”) only at a much, much later stage.

Thus, even while maintaining continuity with precedent, by continuing to use “tendency”, Justice Nariman effectively knocks the bottom out of the entire rationale for upholding 295A and sedition.

In paragraph 36 onwards, he buttresses this by collapsing tendency into the American “clear and present danger” test, even citing Modi and Kedar Nath Singh! In paragraph 41, he concludes the public order enquiry by holding:

“Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.”

There is a small quibble here: in paragraph 37, Justice Nariman observes:

“The test of “clear and present danger” has been used by the U.S. Supreme Court in many varying situations and has been adjusted according to varying fact situations. It appears to have been repeatedly applied, see- Terminiello v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969)”

Strictly speaking, this is incorrect. The “clear and present danger” test was found to be prone to gross abuse during the McCarthy years, when the Court invoked it to convict communist party members and other dissidents. Far from using “clear and present danger”, Brandenburg vs Ohio was the case that rejected it, in favour of a more stringent “incitement to imminent lawless action” test. The Brandenburg standard was adopted by the Supreme Court in 2011, in Arup Bhuyan’s Case. In that respect, it is something of a pity that Justice Nariman endorses “clear and present danger” instead of Brandenburg. Nonetheless, it is also arguable that his disquisition on the distinction between “advocacy” and “incitement” effectively speaks to a Brandenburg level of protection, going forward.

Meaning of Public Order

The term “public order” is a term of art. In Romesh Thappar, independent India’s first free speech judgment, it was defined as “a state of tranquility which prevails amongst the members of a political society.” In Ram Manohar Lohia vs State of Bihar (a different case that also involved Ram Manohar Lohia), the Court conceptualised three concentric circles: “law and order” being the widest, “public order” being narrower, and “security of the state” being the narrowest. Thus, a disruption of public order is something graver than merely breaking a law, or disrupting “law and order”. In the free speech judgments since Lohia, however, this definition has been largely ignored (the Delhi High Court case cited above is a classic example). As in the case of rejecting “public interest” as a ground of restriction, the Court’s endorsement of Lohia provides a crucial reaffirmation of the fact that constitutional terms – especially terms that limit fundamental rights, cannot be arbitrarily expanded, and the Court must adjudicate constitutionality specifically upon the touchstone of their defined meanings.

On a combination of all these factors – that the terms of S. 66A did not establish a proximate link with public order, as defined, the Court held that Article 19(2) did not save that section, at least insofar as public order was concerned. The same analysis was applied to defamation, and decency and morality – the Court reaffirming its recent judgment in Aveek Sarkar’s case. The government’s attempt to escape unconstitutionality by adding an exhaustive set of guidelines (see para 48) was correctly rejected, on the ground that this was tantamount to rewriting the whole section. Consequently, the Court struck it down.

Vagueness

In Grayned vs Rockford, the American Supreme Court defined a vague statute as one which ensured that persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” In Kartar Singh v. State of Punjab, the Supreme Court – citing this case – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

There are, therefore, two problems with vague statutes. One is a rule-of-law problem: citizens do not have a fair chance to plan their affairs. The second is a delegation problem: the executive is given far too much discretion to implement vague laws on the ground. We have seen both issues at play with the abuse of S. 66A over the years.

While in K.A. Abbas, the Supreme Court admitted that vagueness could be a ground for striking down a law, it did not do so (despite the Central Guidelines for film certification, which were at issue, being bizarrely overbroad.) In Baldeo Prasad, the Court struck down a law that criminalised goondas, but did not define who a “goonda” was. But the 66A judgment is the first time – to my knowledge – that the Court has struck down a speech-restricting law on the grounds of vagueness. Crucially, the Court observes that it is not possible for the legislature to cast “a net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightfully detained and who should be set at liberty.”

After citing a copious degree of American and Indian jurisprudence to establish the principle of vagueness, Justice Nariman correctly observes, in paragraph 69, that “judged by the standards laid down in the aforesaid judgments, it is quite clear that the expressions used in 66A are completely open-ended and undefined.” Further contributing to the vagueness are the absence of mens rea, and a series of terms (such as “obstruction”, “danger” or “annoyance”) which are ingredients of an offence in the Indian Penal Code (that of public nuisance), but have become offences in themselves in the IT Act (para 72). Justice Nariman distinguishes other IPC provisions that use identical terms (such as Ss. 294 and 510) on similar grounds, and ends by noting the sheer subjectivity of the words that constitute offences under the IT Act:

“… every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise – suppose a message is sent thrice, can it be said that it was sent “persistently”?”

Over-breadth and the Chilling Effect

Over-breadth is a concept that is closely connected with – but not identical to – the chilling effect. A statute is over-broad if – in the words of the Indian Supreme Court in Chintaman Rao vs State Madhya Pradesh,  “the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”

Over-breadth directly implicates the reasonableness requirement of Article 19(2). In State of Madras vs V.G. Row, the Supreme Court held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” It is clear that if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.

While in Chintaman Rao, the Court struck down a statute for being over-broad, over-breadth as a constitutional concept has not yet managed to acquire a foothold in Indian constitutional jurisprudence. Here again, Justice Nariman’s judgment breaks new ground by expressly invoking over-breadth as a ground for striking down a speech-restricting statute. In paragraph 83, he observes:

Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.

And, in paragraph 86:

“[66A’s restrictions] fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.”

This is not all, however. Justice Nariman makes a further, crucial link: between vagueneness and overbreadth, and the chilling effect. The chilling effect refers to a situation where, faced with uncertain, speech-restricting statutes, which blur the line between what is permitted and what is proscribed, citizens are likely to self-censor, in order to be definitively safe. In the words of Justice Brennan, writing in New York Times vs Sullivan, citizens will “tend to make only statements which steer far wider of the unlawful zone… thus dampen[ing] the vigour and limit[ing] the variety of public debate.” In other words, the chilling effect – which applies across different areas of free speech law – ensures that self-censorship will extend even to entirely legitimate speech, and will impoverish the public discourse – the sustenance and enrichment of which is the entire point of free speech in the first place.

Yet again, it is crucial to note here that although past Indian cases have made vague references to the chilling effect (R. Rajagopal and Khushboo), again, the 66A judgment is the first that uses the concept to arrive at a positive legal outcome. In paragraph 83, after examining all the myriad kinds of speech that 66A will reach, Justice Nariman observes:

“Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

And, in paragraph 90:

“We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”

Article 14 and differences by medium

One last point remains to be noted. The core of the government’s argument was that the internet is a very different medium from print or cinema, and that consequently, the government should be allowed greater leeway to regulate it. In paragraph 27, Justice Nariman lists some of the facets of the government’s contention: that the internet has a much greater (global) reach, it reaches both literate and illiterate people, even cinema has pre-censorship rules (but the internet doesn’t), rumours can spread to “trillions” (sic!) of people, there is much greater scope for invasion of privacy, the internet provides much greater shelter to anonymity, there are no internal regulatory norms, and that the spread is much more rapid.

In contradistinction, the challengers made precisely the opposite argument. They contended that since S. 66A lacked the kinds of procedural and other safeguards present for the regulation of print media, there was an Article 14 violation of equality. According to the challengers, a principle of equivalence must apply across media of communication.

Interestingly, Justice Nariman rejects both contentions. He rejects the Article 14 argument, holding that the internet is indeed a medium with some unique qualities, and that it is possible that there might be certain offences that can only take place online. In paragraph 28, he notes that the government is entitled to draft narrowly-drawn provisions that specifically speak to those offences (such as website blocking). But in the very same paragraph, he also notes:

“[the differential nature of the internet would not]  relax the Court’s scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above.”

In effect, what kind of speech might be restricted is agnostic to media. Furthermore, when it may be restricted (i.e., the 19(2)) principles, and the relationship of proximity) is also impervious to the difference in media. The only place where this difference might be relevant is where the medium itself allows for certain kinds of offences (such as spam, or phishing) that were not possible before, and in such circumstances, the State may frame a law, which will nonetheless be tested on the anvil of Article 19(2).

This raises the following question: in K.A. Abbas, the Court held pre-censorship to be valid in the case of cinema on the ground that films had a much more striking impact upon the average “illiterate” Indian viewer. In other words, the difference in medium was held to justify a difference in the form of the restriction – in particular, doing away with the proximity test, or at least, diluting it to an unrecognisable degree. The logic of Justice Nariman’s judgment, I would suggest, knocks the bottom out of the prior-restraint regime of film-censorship. It is not as if films permit the commission some specific kinds of offences that were not possible before (unlike the internet). In fact, the Court’s reasoning in K.A. Abbas was specifically based on an (unproven) assumption of how an “illiterate” audience reacts differently to the written word and the visual image. Cases after K.A. Abbas (such as Anand Patwardhan’s Case) have rejected the “illiterate Indian trope”, thus undermining the foundations of that holding. The 66A judgment, however, rejects that form of reasoning entirely.

Consequences

Constitutionally, what follows? I would suggest the following. Ever since Ram Manohar Lohia, there has been a gradual, incremental chipping away at the philosophical foundations of some of our most regressive, speech-restricting laws. Consider the following:

(a) Ramji Lal Modi upheld 295A on the ground that proximity was irrelevant, specifically rejected an over-breadth argument, and held that deliberate insults to religion had a “calculated tendency” to cause public disorder.

(b) Kedar Nath Singh upheld sedition (124A) on the ground that disaffection against the government had the “tendency” to public disorder.

(c) K.A. Abbas upheld pre-censorship of films on the ground of how the medium differently affects viewers; it rejected a challenge to the Censorship Guidelines on the ground of vagueness, and did not even consider an over-breadth argument.

(d) Contempt of court judgments (unfortunately, rather consistently) have held that certain forms of criticism against the court have a “tendency” to undermine justice.

(e)  Apart from Rajagopal’s Case, which is limited to public officials, the Supreme Court is yet to examine defamation law on the touchstone of Article 19(1)(a), and a criminal law of defamation continues to exist on the statute books. In countries such as the US, Canada, South Africa, and England, the “chilling effect” of the common law of defamation (strict liability) has been expressly invoked to limit its reach, and its propensity to be used as a tool of harassing journalists and investigative reporters.

At the same time, however:

(a) Ram Manohar LohiaS. Rangarajan and Arup Bhuyan (the latter two coming after Modi and Kedar Nath Singh) have insisted on a proximity requirement between speech and disorder.

(b) Chintaman Rao and Kameshwar Prasad have struck down statutes on over-breadth grounds (while not directly invoking the concept).

(c) Rajagopal’s case has incorporated the Sullivan rule to protect writers from civil defamation claims brought by public officials, and indirectly invoked the chilling effect.

This latter group of judgments, it is clear, have indirectly, implicitly undermined the foundations of the former. The 66A judgment makes it direct and explicit. Proximity, over-breadth, vagueness and the chilling effect are all expressly invoked to strike down a statute. They have been specifically incorporated into Indian free speech jurisprudence, and may be invoked in future free speech claims.

So perhaps, at long last, the time has come to rethink fifty-year old judgments upholding blasphemy and sedition laws, rethink criminal defamation, throw off the oppressive fetters of civil defamation and contempt of court, and attack the censorship guidelines of both cinema and cable TV.

This judgment lays the constitutional, legal and philosophical terrain to do all of that. It creates the ground upon which we can erect a progressive, liberal understanding of free speech, based upon a vision of individuals as responsible and autonomous beings, who do not need “protection” from moral corruption, and who do not need a paternalistic State or court telling them what they need to read, see or here. Individuals, one and all, worthy of dignity and equal concern and respect.

This is the first judgment since 1960 that unequivocally affirms every one of those propositions.

It is the judgment that has given Indian free speech law its soul back.

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Sedition as Anti-Democratic Speech: The Paradox of Liberal Neutrality?

Let us briefly sum up the conclusions of our last post on sedition:

In Kedar Nath Singh, Section 124A was challenged as being violative of Art. 19(1)(a). Naturally, the Court could not have found that the test for sedition was broader than what Article 19(2) permitted. Nonetheless, there were three ways in which the Court could have effectively hamstrung any Article 19(2) barriers, and allowed the executive a free rein in the application of the sedition law:

(a) The Court could have held that seditious speech does not come within the protection of Article 19(1)(a) at all (as it did for commercial speech in Hamdard Dawakhana and – as we shall see subsequently – it has done in a case involving the flying of the Indian flag).

(b) The Court could have created a legal fiction by holding that inciting disaffection, or feelings of enmity, or of disloyalty (as per S. 124A) is deemed to proximately disrupt public order

(c) The Court could have weakened the public order test itself, holding that feelings of disaffection could conceivably affect public order by promoting disobedience towards the government, and that that is enough, considering the wide import of the phrase “in the interests of public order” (an argument used too many times to count, on behalf of the State).

As we have seen, the Court came dangerously close to both (b) and (c), but ultimately affirmed the existing interpretation of Article 19(2), and by implication, affirmed the strong protection of free speech. The law on sedition, therefore, is clear and unambiguous. Legally, there is no doubt that instances such as those of Aseem Trivedi, the 8000 sedition cases filed against the protesters at Koodankulam, Arundhati Roy’s arrest, and countless others are blatant abuses of law. It is submitted that a legislation that serves no discernible purpose (as argued in the previous post), and is regularly used as a tool for political persecution, has no business being on the statute books. It must go.

Let us now, however, examine another issue that arose out of the Kedar Nath Singh case, but one that has received comparatively little attention. In Paragraph 36, the Court stated:

“Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”

This is framed somewhat curiously. Presumably, my inciting disaffection against the ruling UPA Government does not amount to sedition, because the UPA only consists of people “for the time being engaged in carrying on the administration.” Who – or what – then, do I have to incite disaffection against in order to qualify as seditious? Is it the government as an abstraction, as a concept? Perhaps my target must be the institution of government, as governance is practiced in India – in other words, (liberal?) democracy – that is, liberal democracy embodied by the elements of our Constitution’s basic structure.

We may now describe the alleged paradox at the heart of liberal political theory. As we have discussed in many of the previous posts, political liberalism’s central tenet is neutrality – neutrality between competing conceptions of the good, between opposite ideas of what Rawls calls “comprehensive theories” – that is theories about what is good, true and beautiful, and how one ought to live one’s life. Now, if that was true, then political liberalism itself is merely one comprehensive theory, and cannot take either epistemic or moral priority over the others. And that, in turn, would imply that if I use liberal institutions to assume political power, and then systematically dismantle those very institutions, then liberalism itself gives no argument to stop me – for that would amount to privileging one conception of the good (liberalism itself) over others (say, fascism).

States that claim to be politically liberal have struggled with this issue for years. In the United States, Justice Holmes’ “clear and present danger” test, enunciated in Schenck v. United States, was notoriously used by the Supreme Court during the McCarthy era, to suppress communist-leaning entities (see, in particular, Dennis v. United States), before being narrowed to an “incitement to imminent lawless action” test by Justice Douglas in Brandenburg v. Ohio. It is interesting to note that Dennis, in particular, involved the advocacy of a philosophy that is explicitly hostile to political liberalism, but because of American free speech philosophy’s commitment to content neutrality, the ground of the decision, ultimately, was something akin to preserving public order.

Now compare this with a decision of the European Court of Human Rights (Refah Partisi v. Turkeyand the Israeli Supreme Court (Neiman v. Election Committee), and Article 21.2 of the German Basic Law. Refah Partisi was a Turkish political party that claimed, as part of its manifesto, its commitment to the abolition of secularism, the imposition of sharia law and the creation of a theocracy in Turkey. The Turkish Constitutional Court dissolved the party. The case went up in appeal to the ECHR, which held that if a political party wishes to change the legal and constitutional structure of the State, “the change proposed must itself be compatible with fundamental democratic principles.” Sharia law, it held, was not so compatible, and it also held that political parties could be forestalled from such action by their dissolution before they came to power, as long as the need was perceived to be urgent. In Neiman, the Israeli Supreme Court, apparently influenced by John Rawls’ insistence on the need to “tolerate the intolerant”, set a higher bar of “negating the existence of the State of Israel as one of its goals” as sufficient grounds for dissolving a political party. How a political party, using political mechanisms to assume political power can simultaneously negate the very existence of the State that it seeks to govern is, however, somewhat unclear. And lastly, consider Article 21.2 of the German Basic Law, stating that parties who “seek to undermine or abolish the free democratic basic order” are unconstitutional.

Are the ECHR and Israeli decisions, and German Constitutional provision, then, philosophically justified? Laurence Tribe is clear that they are not, arguing that:

“It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions – just as it must permit evolution from communitarianism to individualism.”

Rawls and Popper, on the other hand, argue strongly that in order for a liberal society to survive, it must set limits on what it is willing to tolerate. But this leads precisely to the paradox that we outlined above – and the mere statement that liberalism will be destroyed by untrammeled toleration of the intolerant, while emotively powerful, for the reasons described above, remains philosophically unsatisfactory.

Joseph Raz does indeed take a stab at a philosophical justification. Eschewing neutrality as the defining feature of liberalism, he focuses instead on autonomy – that is, the range of worthwhile choices open to an individual to make towards the shaping of his life. For Raz, coercion (read, banning of free speech) amounts to a loss of autonomy, since it restricts a person’s range of choices; hence, it can only be justified on the grounds of a corresponding autonomy gain. A Razian would thus argue that if a thriving democracy provides maximal autonomy for all its citizens, than the autonomy loss in restricting speech for the purpose of preserving the democratic order is justified. Of course, one may have philosophical disagreements with Raz’s conception of autonomy, with his distinct flavour of autonomy-utilitarianism, but that is a debate for another day.

These issues have not yet – to my knowledge – been tested on the touchstone of the Indian Constitution. Perhaps, one day, for instance, if a party with the agenda of turning India into a ‘Hindu Rashtra‘ comes to power, they will become particularly pertinent. For now, these arguments form an important piece of the puzzle in determining whether the Indian Constitution is committed to political liberalism – and whether it should be.

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