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Basic Structure – II: The Argument from Democracy

Let us now consider some possible arguments in defense of the basic structure doctrine. I will commence with political and philosophical defenses – are there principles that justify substantive limitations upon parliament’s amending authority? In what follows, I list various potential principles. (While I do not necessarily agree with them, I will nonetheless try to state them in their strongest form.)

The most common argument against the doctrine is that it gives unelected judges the power to restrict the activity of an elected legislature, thus encroaching upon its activity, and violating the doctrine of separation of powers. Furthermore, it goes against democracy, majoritarianism and popular sovereignty, as democracy mandates that the final say on all issues concerning society (including a bill of rights that constrains the very actions of the majority) must be left to the majority of the people, acting through their elected representatives (see, e.g., R. Ramachandran, The Supreme Court and the Basic Structure Doctrine, in Supreme But Not Infallible, and his review of Professor Sudhir Krishnaswamy’s book here).

To this, four separate responses may be made: first, even in a democracy, there are certain decisions which, in principle, must not be left to the majority; secondly, in practice, the degree of representation and public support political parties in power enjoy in modern democracies is questionable; thirdly, the framing of the Preamble to the Constitution suggests that it is meant to resemble a social contract, where the people have the power to reserve certain rights to themselves; and fourthly, India follows a model of Constitutional sovereignty, which places limits upon ordinary legislative power.

Democracy and Majoritarianism: The Argument from Principle

 The core of the basic structure debate revolves around a dispute about the true meaning of “democracy.” Opponents of the doctrine claim that the doctrine is “undemocratic” on the ground that it places limitations on the powers of the political majority (acting through the legislature). The unarticulated premise of this argument is that democracy must necessarily equal the majority will. Therefore (the argument proceeds) a violation of the latter automatically means a violation of the former, and hence is undesirable. (It is crucial to note here that arguments such as equal political participation or promoting efficiency, are arguments about the ends served, and not features intrinsic to, majoritarianism.)

The counter-argument from democracy would have it that this argument misunderstands the true nature of democracy, as well as the purpose of the basic structure doctrine. If a particular conception of governance is to be defended as good and desirable, it must be shown that either that it possesses certain intrinsic values that we consider basic or fundamental, or that it serves or promotes such values and ends. It is clear that majoritarianism does not possess any intrinsic qualities of this nature (recall Isiah Berlin’s acute observation that oppression is oppression, whether it is imposed upon me by one person or by ninety-nine out of a hundred). Professor Dworkin therefore argues for redefining “democracy” to mean a system of government where all citizens are treated with “equal concern and respect” (because it is only under such a regime, which grants everyone equal concern and respect, that an individual can legitimately be treated as a joint-author of all laws, including those that go against one’s interest, and thus be expected to obey them). By using a concept of “moral membership in a community” (a person is a moral member when every community decision treats him with equal concern and respect, and this, in turn, happens when he is provided a voice in, a stake in, and an independence from, the collective), Dworkin demonstrates how the most popular arguments in favour of majoritarianism, i.e., it promotes liberty, equality and community feeling, are fundamentally misplaced. Majoritarian institutions are to be upheld as long as they serve the democratic objective of fulfilling moral membership for all individuals, and not simply by virtue of being majoritarian institutions. In most cases, majoritarian institutions will and do end up serving the purpose; however, what this argument does is to abandon unqualified support for majoritarianism, and abandon equating it with democracy (see Dworkin, Freedom’s Law, Preface). The difference, as described by Professor Freeman, is between a purely procedural view of democracy on the one hand, and a substantive view on the other, which, in addition to the principle of majoritarianism, also incorporates other values such as respect for individual rights, the rule of law etc. within the definition of democracy (since it is only these rights, when allied with the majoritarian process), that actually serve the goal of equal concern and respect.

Two important points may be raised now: First, certain questions of grave Constitutional importance often arise that pit the interests of the majority against the minority. Allied to this is the fact that most of the basic human rights are rights against the majority. In such a situation, allowing the majority (through Parliament) to be the ultimate arbiter would be tantamount to it judging its own cause, and deciding upon matters that it has a close and intimate interest in. This problem is clearly recognized by Professor Sathe, who points out that the basic structure doctrine is essentially the “ultimate counter-majoritarian” check upon democracy” (see Sathe, Judicial Activism in India). The argument above, of course, is different in that it defines democracy itself as separate from majoritarianism, but the basic point remains that it is axiomatic that the deciding authority must be of a non-majoritarian character and so, cannot be the Parliament.

Secondly, certain principles are by their very nature beyond the pale of majoritarian authority. These include the most basic individual rights against the State, e.g., the right to life, equality and the fundamental freedoms, and the right to freedom of conscience. These are matters to be governed by individual autonomy, central to how an individual decides to order and determine his own life, and cannot be subjected to external majoritarian authority – because to make even those rights subject to majoritarian control would destroy individual autonomy in a way that would not be consistent with according equal concern and respect to all. Professor Dworkin gives the classic example of an orchestra conductor. “An orchestra’s conductor can decide, for example, how the orchestra will interpret a particular piece: there must be a decision of that issue binding on all, and the conductor is the only one placed to make it… but it would plainly be [unjustified]… if the conductor tried to dictate not only how a violinist should play under his direction, but what standards of taste the violinist should try to cultivate”. (see Dworkin, Freedom’s Law, Preface) Once again therefore, a counter-majoritarian check is required to ensure that such rights are not encroached upon, whether by legislation through an ordinary majority, or a Constitutional amendment through a super-majority.

The argument is extended by Professor Marneffe, who points out that the test of violation of democracy must be one of impact. If, therefore, the Court protects only those fundamental and basic rights that are essential to democracy as we understand it, and leaves all other political decisions to the legislature, this would not be undemocratic in impact.          

A necessary question then arises: who determines the content of those basic principles and values that lie beyond the power of the majority? For reasons explained above, the power cannot lie with the Parliament. For the same reasons, it cannot lie with the executive. Therefore, within the framework of separation of powers, the judiciary must be the authority within which this power is vested. To this argument by default, it may be added out of the three wings of State, the judiciary is undoubtedly and by far, the weakest. Unlike the legislature and the executive, the judiciary cannot take any positive action, it holds neither the “sword, nor the purse strings” (see Hamilton in Federalist 78), and the maximum impact it can have upon the society is negligible, as compared to the other wings. Therefore, it may be argued that ex majore cautela, the judiciary is the ideal organ within which to vest the highest power of the State (of overruling the decisions of the popular majority), as it has the least ability to abuse that power and all the vast implications that it carries. While in Kesavananda, the judges in the majority conceded that the “possibility of abuse” of the amendment power had no bearing upon determining its scope and the limitations – it nonetheless seems obvious that when deciding the question of whether the highest form of State power ought to be limited, and if so, the nature of such limitation, the possibility of abuse and the extent to which such abuse can be taken are crucial and relevant considerations.

In summation therefore, the strongest argument against the basic structure doctrine is premised upon the flawed assumptions that democracy equals majoritarianism, and that the power of the majority in a democratic society must be absolute and unfettered. It is flawed because on a substantive conception of democracy, legislative procedures embodying bare majority rule are not identifiable with democracy; instead, they are only a part of the institutional framework of a democratic regime. Furthermore, majoritarian power cannot be unrestricted, as this would entail sacrificing those rights that, as a matter of principle are morally independent, to the whims of a majority. Therefore, once the majoritarian premise is dissolved, the associated objection, i.e. the rhetoric against “unelected judges” sitting in judgment over the choices of the majority is also found to be without foundation. Both by default and by virtue of strong independent reasons, the judiciary is the correct and only authority to legitimately enforce the basic structure doctrine within the framework of separation of powers.

It must also be noted that this entire argument not only justifies the basic structure doctrine, but also provides a method of identifying the basic features. This issue, and the seeming conflict it brings up with the way the Supreme Court has actually gone about identifying the basic features, will be dealt with subsequently.

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Is there an Interpretive Methodology for Construing Colonial-era Statutes?

Much of the focus on Naz Foundation has centred upon how S. 377 of the IPC (the impugned provision that outlaws homosexuality) is a “colonial-era law“. That much is true. It is also true that, assuming the values of our colonial government were fundamentally different from the values that animate our democratically elected legislature, there is a strong case for legislatively repealing S. 377. However, what does the colonial nature of legislation imply for the Courts that are tasked with interpreting it, or adjudicating upon its constitutional validity? A change in values cannot, in itself, be a guiding principle, because surely the best judgment of societal values – at least in theory – will be made by the institution that is most accountable to the people. There is, therefore, a problem of institutional competence in the Court substituting its analysis of public values for the legislature.

At the same time, however, there is an important question of process to consider here. What is it that we value about democracy, and why do we consider democratic decisions presumptively legitimate? It surely cannot be simply because they are taken by a majority vote; as Isaiah Berlin rightly pointed out in his seminal Two Concepts of Liberty,  there is no real difference in being oppressed by a minority and being identically oppressed by a majority. Democratic theory scholars, therefore, focus on the manner in which decisions are arrived at. Dworkin, for instance, argues  that a functioning democracy must accord equal concern and respect to all members of the polity by ensuring that they have a voice in, a stake in, and an independence from, collective decisions (see the Preface to Dworkin’s Freedom’s Law). In other words, what is key here is participation: if I am allowed to participate in the decision-making process in a way that my interests and autonomy are given appropriate respect, then I can reasonably accept the final decision as being, in a sense, my own decision (and therefore binding upon me), even though I might substantively disagree with it.

What this implies is that the legitimacy we accord to democratic decisions is conditional – conditional upon substantive participation by the members of the polity. In a famous book called Democracy and Distrust, Harvard scholar John Hart Ely made this the central idea of his theory of judicial review. Ely recognised the centrality of process to the democratic legitimacy – and he understood that the democratic process often functions – in real life – in a way that is less than perfect. A process of periodic, nationwide elections could end up ensuring the systematic exclusion of “discrete and insular minorities” (a phrase that has its genesis in Footnote Four of the US Supreme Court’s famous Carolene Products case). And this is where the Court would step in – judicial review was consistent with democracy insofar as the Court’s decisions voiding or otherwise interfering with legislative choices played essentially a “representation reinforcing” role. Ely’s theory of democracy, therefore, is essentially a representative-participatory theory that combines majoritarianism with judicial protection of minority rights on the basis of their exclusion from meaningful participation.

The shape of the argument will now be evident: colonial-era statutes, being passed by the dominion legislature, suffer from a fundamental lack of democratic legitimacy, being the decisions of a distinctly unrepresentative process. But here’s the catch: the Indian Constitution has an express savings clause for dealing with precisely this issue. According to Article 372(1):

“… all the laws in force in the territory of India immediately before the commencement of this Constitution… shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”

So even if the democratic legitimacy of colonial laws was suspect, the Constitution itself, the ultimate source of law, validates them through inaction: parliament confers democratic legitimacy on colonial legislation by omitting to repeal them. This makes eminently good sense both as a matter of principle and pragmatically: as a matter of principle, legislative imprimatur can be given both by commission and by omission (as long as the omission is intentional, as it is here); and practically,  it would have been an administrative nightmare in 1947 to wipe out all laws and start from a clean slate.

So that seems to be the end of the matter. Article 372 indicates that colonial-era legislation is to be treated no different from ordinary legislation merely by reason of its origin. Yet, is it? Let us consider the following illustration:

Griswold v Connecticut and Roe v Wade are two famous American decisions that, by locating an “interstitial” constitutional right to privacy not found in the express words of the American Constitution, struck down laws prohibiting contraceptives and abortion respectively. Critics and defenders of the decision have divided over whether a right to abortion as a facet of the right to privacy can actually be extracted out of the text and structure of the Constitution. However, in his book, America’s Unwritten Constitution, Professor Akhil Amar offers a different argument: he points out that the laws at issue in Griswold and in Roe were both passed before the Nineteenth Amendment to the United States Constitution, that first accorded the right to vote to women, in 1920; in other words, both legislations were passed at a time when women could not vote. The Nineteenth Amendment recognised that not allowing women to vote was fundamentally illegitimate, and had always been so. Therefore, by virtue of this reason, laws before 1920 were undemocratic because unrepresentative; and in true John Hart Ely-esque fashion, the Court’s decisions in Griswold and Roe can be seen as protecting the interests of those who were blocked from participating in the decision-making process that gave rise to the impugned laws. 

But here’s the problem: by this logic, every law – and not just Connecticut’s anti-contraceptive law and Texas’ abortion statute at issue in Griswold and Roe – before the Nineteenth Amendment is illegitimate. Yet what Article 372 of the Indian Constitution makes explicit, is implicit more generally: in the ninety-three years after the Nineteenth Amendment, if certain laws haven’t been repealed, surely that means that whatever their democratic status before, they have been impliedly accepted by a democratic, participatory legislature’s failure to repeal them.

Yet let us now make a distinction between two kinds of law: laws that, while based on an exclusionary decision-making process, have little or nothing to do with the groups that have been excluded (e.g., contract legislation); and laws that directly affect the interests of excluded groups (e.g., an abortion statute). The implication-by-failure-to-repeal argument works well for the first kind of laws; but there are at least two reasons to question it for the second: first, that by reason of neutrality, the first kind would have come out much the same regardless of exclusion; and once the exclusion issues are corrected, because these laws are of general application, repealing them if they are generally inconvenient would not be too difficult. For the second kind of laws, which, because of their particularity, would be affecting a specific group, it is the group would then have to make the move to have them repealed. This explains why – even in the absence of Article 372 – we might consider the Indian Contract Act presumptively constitutional after 1947 – arguably, the unrepresentative nature of the colonial legislature did not significantly affect the law, and in any event, it would be very easy to have it repealed if it was no longer in conformity with the democratic will. These conditions are absent for the second kind of – interest-affecting – laws.

And secondly – and much more importantly –  if the second type was allowed to stand, then – in the words of Ely – you are essentially imposing a double-burden upon the once-excluded group (see p. 169, Democracy and Distrust): not only did they have no say in the framing of the original legislation that touched upon their interest, but now the burden is being placed upon them to drudge up the necessary parliamentary support to have them repealed. Not only is this more difficult because these laws are of a specific-interest type, but purely as a matter of fairness: surely it is far more equitable to reverse the onus: it should be for those who wish to maintain the legislation after the representation issued have been resolved, who should have to make the effort to do so. Here is Ely on point:

To put on the group affected the burden of using its recently unblocked access to get the offending laws repealed would be to place in their path an additional hurdle that the rest of us do not have to content with in order to protect ourselves – hardly an appropriate response to the realisation that they have been unfairly blocked in the past.

We now have strong reasons of democracy to question the presumptive constitutionality of pre-1947 laws of the second type; there is no doubt that S. 377 falls within this category, because it fundamentally affects the interests of a specific group (homosexuals), and was passed without their representation (some would argue that homosexuals are even now a discrete and insular minority, in Ely’s terms, but we need not go into that at the moment). Does Article 372 stand in the way? No, it doesn’t – because we are not arguing that S. 377 is impliedly repealed. What we are arguing, however, is that S. 377 should not be accorded the standard protection of the presumption of constitutionality – because for all the reasons above, the presuppositions that justify that presumption are conspicuously absent.

Let us summarise the argument in the following steps:

a) S. 377 is a piece of legislation that was passed without representation from the constituency that it negatively impacts, i.e., homosexuals; therefore, it cannot be treated as presumptively constitutional

b) After the entry into force of the Constitution, let us assume that homosexuals were fully represented; nonetheless, to argue that S. 377 became constitutional by virtue of the (now representative) legislature’s failure to repeal it imposes an unjust burden upon the previously unrepresented homosexuals

c) Article 372 provides a barrier to treating the law as void, but provides no barrier to removing the presumption of constitutionality

This, I would submit, is how the colonial-era nature of S. 377 is constitutionally relevant to the Court’s enquiry in Naz; and further, how the Court should – as a matter of principle – approach other legislation in which the law in question is a pre-1947 law.

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Filed under Colonial Statutes, Constitutional interpretation, Non-discrimination, Process and Representation Theory, Sexuality

Copyright and Free Speech – II: Constitutional arguments against OUP et al in the DU Photocopying Case

In the previous post, we discussed the background of OUP, CUP and Taylor & Francis’ lawsuit against Delhi University and the Rameshwari Photocopying Service. Let us now turn to Article 19(1)(a), which guarantees the freedom of speech and expression. If there is one thing that our cases agree upon, it is that the main justification for Article 19(1)(a) lies in its importance to maintaining democracy. That, in itself, tells us nothing, however, because it is an open question what democracy is, and how free speech contributes to maintaining it. Let us therefore discuss the philosophy of free speech itself, in the context of democracy.

Free speech has been extensively discussed on this blog before. The post most relevant to our present discussion may be found here. For the purposes of simplicity, I will posit two possible philosophical approaches to free speech, that I will label the “market-based approach” and the “social good approach”. The market-based approach, that may be found in the writings of John Stuart Mill and in the judicial opinions of Oliver Wendell Holmes, takes the existing structure of market-relations as a given, background fact, requires complete freedom of speech within the structure of that market, and disallows governmental intervention to alter the existing pattern of relations. For instance, suppose that Anil Ambani and I both want to broadcast public messages of support for the rival candidates in the next parliamentary election. Mr Ambani’s wealth allows him to buy advertising space on television and upon billboards to implement his wish; my (lack of) wealth does not allow me to do so. Under the market-based approach, if the government intervenes to – for example – limit the amount of advertising time or billboard space that Mr Ambani can buy in order to ensure that others can use that space as well, it would be an impermissible restriction upon his freedom of speech. My counter-argument that my freedom of speech is being violated by the current state of affairs would be rejected on the ground that it is not my liberty that is being restricted, but – in the words of Isaiah Berlin – my ability to exercise it, because of my lack of wealth. Cases such as Sakal Papers and Bennett Coleman are examples of the Supreme Court endorsing the market-based approach, where it disallowed the government’s attempts to bring down barriers to entry in the newspaper market by placing restrictions upon big newspapers. Mill’s claim – and one that has been echoed down the years – is that such an approach is maximally conducive to democracy, since it involves complete and unrestricted free play of ideas (the market itself is not treated as a restriction).

The social good approach, on the other hand, does not take the existing market as given, but questions the justice of the initial distribution of resources that directly affects the exercise of free speech, and most importantly, treats the market as we would treat a law explicitly banning all speech – as a potential restriction upon the freedom of expression, that must be judged on its own terms. The overall argument for this approach, that advocates the connection between freedom and barriers to market entry, can be found in this path-breaking article by Professor G.A. Cohen, called Freedom and Money, here; it is impossible to sum it up here, but very briefly, if I want to access a good but don’t have money to buy it, and I try to access it anyway, the government, acting under the laws of property and sale of goods (for example), will physically restrain (or punish) me. It is in that sense that there is an infringement of freedom.

So when Mill argues, for instance, that an open marketplace would guarantee the contestation of all possible ideas and the survival of the best, the free-speech-as-social-good approach accepts his goal, but rejects his premise: the purpose of free speech is indeed to provide an environment in which there is as wide a range and diversity of ideas as possible, available to the public. The market is instrumental towards achieving this goal, and not an end in itself.

And it is this approach that, it is submitted, the Supreme Court has endorsed in a majority of its cases. It is found in the dissenting opinion of Mathew J. in Bennett Coleman, where he argued that: “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.”

In the Cricket Association of West Bengal Case, the Court observed: “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.

And in Union of India v. Motion Picture Association, the Court observed interpreted Article 19(1)(a) as aimed at “promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues.”

     And perhaps most significantly, in LIC v. Manubhai D. Shah, by effectively holding in favour of a “right of reply” in the case of contentious newspaper articles (even in an in-house newspaper), the Court noted: “fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions.”

Let us now make the argument. Article 19(1)(a), as the Court has held repeatedly, is most fundamentally about democracy. Freedom of expression is essential to maintaining a functioning democracy. The Court has endorsed a rich, substantive conception of democracy, which envisages a broad and diverse range of ideas open and accessible to the public. The freedom, under Article 19(1)(a), is not just the right of a speaker to speak his mind, but a community right to access information, an individual right to be informed, and the social good of a vibrant and engaged public. And lastly, this freedom is not exercised within the constraining influence of existing market relations that determine access to the means of communication and information, but contrariwise, it is the market relations that must be judged – and if necessary, modified – to comport with the right since, like any other human or governmental action, they too can operate to restrict it.

The last step is easy enough. The educational system is the most important avenue for access to knowledge and ideas. There is no substitute for it. Unaffordable book prices constitute a heavy barrier to access. It doesn’t matter – for the purposes of the present argument – that the prices are imposed by private entities, because – as we have discussed above, that is still treated as an interference with freedom. In other words, if I can’t access crucial educational materials because of a government ban and if I can’t access them because of prohibitively high prices, in both cases, my freedom is being infringed (see G.A. Cohen’s argument, discussed above, for why this is so) The difference is that in the former case, I can sue the government to comply with its 19(1)(a) obligations, but I cannot sue the publishing houses for the same, since the Constitution does not permit us to enforce the fundamental right against the publishing houses. But that isn’t the argument anyway: because what is at stake here is the interpretation of a law (the fair dealing provision in the Copyright Act). It is submitted, therefore, that the Court ought to treat unaffordable book prices as impediments to a full exercise of Article 19(1)(a) rights and freedoms (as elaborated above), and interpret the Copyright Act in a manner that is most conducive to removing those barriers. This approach would be consistent with accepting that the actions of private parties and the structure of market relations act as barriers to freedom (which they do), and also avoid the constitutional impermissibility of imposing fundamental rights horizontally.


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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.

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