Exclusionary Covenants and the Constitution – III: Zoroastrian Cooperative and Political Liberalism

In the previous post, we discussed – and criticized – the 2005 Supreme Court judgment in Zoroastrian Cooperative on two grounds: first, the Supreme Court was incorrect in conflating statutory policy and public policy; and secondly, it was incorrect in failing to distinguish between holding an exclusionary covenant unconstitutional, and in refusing judicial enforcement of it.

While the judgment of the Court is, I submit, flawed as a general exposition of the law on exclusionary/restrictive covenants, that does not settle the question of whether the outcome of the case was correct. This is because, in addition to its arguments on the freedom of private transactions and restricting public policy to the four corners of the statute, the Court also invoked Article 19(1)(c) of the Constitution – the fundamental freedom to associate. Part of the Court’s public policy arguments, indeed, appear to turn upon the unconstitutionality of requiring persons to “associate” with others that they do not want to associate with, which – according to the Court – would have been the outcome had the exclusionary covenant been left unenforced.

There is, however, a problem with this argument. The statutory right to contract is not the same as the constitutional freedom of association. The Indian Contract Act, for instance, places numerous restrictions upon the freedom to contract that go beyond the Article 19(4)’s permissible limits upon the freedom to associate. More importantly, a quick glance at the Constituent Assembly Debates (here, here, and here) reveals, unsurprisingly, that the freedom of association was considered to be an essential aspect of personal civil liberty, akin to the freedom of speech and the freedom of movement, contractual rights being nowhere mentioned. Historically, the freedom of association has been about protecting the rights of labour unions, religious minorities and other unpopular groups to organize and defend their rights or their ways of life, as the case may be. The important Indian cases have also understood the freedom of association to be about such purposes (see here, here and here). And indeed, Daman Singh would appear to uphold this view, when it expressly rejected the application of 19(1)(c) to Cooperative Societies (the Supreme Court in Zoroastrian Cooperative did attempt to distinguish that case).

Therefore, it is clearly problematic when in Paragraph 29, Zoroastrian Cooperative observed:

“An aspirant to membership in a co-operative society, is at arms length with the other members of the society with whom he enters into the compact or in which he joins, having expressed his willingness to subscribe to the aims and objects of that society. In the context of Section 23 of the Contract Act, something more than possible or plausible argument based on the constitutional scheme is necessary to nullify an agreement voluntarily entered into by a person.” (Paragraph 29)

It is problematic because insofar as the Court speaks about arm’s-length transactions and holds membership in a Cooperative Society akin to a contract, Article 19(c) is not in play. There is, moreover, a bigger problem: to the extent that the Court does hold such membership akin to an arm’s-length contract, then the primary justification for its statutory-policy-equates-public-policy argument is clearly flawed. As we have argued in the previous post, public policy exceptions to contracts constitute a clear common law category, and are not restricted to the four corners of the statute. In Gherulal Parekh, for instance, the Court surveyed a vast body of common law precedent to hold that “public policy” was equivalent to “the public good”, and that there were clear common law categories (e.g., “sexual immorality”) of acts against public policy (for the common law exposition of the public policy exception, see Holman v. Johnson (the clean hands doctrine as an aspect of public policy), and Lord Sumption’s lecture here) . Subsequently, the scope of the public policy exception was vastly (and, in my submission, incorrectly) expanded in Brojo Nath Ganguly, but both these cases were united in implicitly – but clearly – rejecting the four-corners-of-the-statute argument in Zoroastrian Cooperative.** 

We are therefore faced with the following situation: to the extent that Zoroastrian Cooperative is based on principles of contract law, the two major bases for the decision – public policy and freedom of association – are unambiguously incorrect. The case, therefore, can be saved only by arguing that it is not, after all, about contract law – and therefore, crucially, is not precedent for the unconstitutionality of unenforceability of exclusionary/restrictive covenants generally – but about something else that justifies invoking the freedom of association. What might that be?

I suggest that the answer lies in a constitutional provision that was invoked in argument, but not directly relied upon by the Court: Article 29, that guarantees the the rights of “citizens… having a distinct language, script or culture of [their] own…to conserve [it].” This provision, I would argue, helps us to understand why the decision in Zoroastrian Cooperative might have been correct. To fully grasp the philosophical issues at stake, however, we must turn to the important work of John Rawls.

In his book, Political Liberalism, and in the essay Justice as Fairness, Rawls lays out the groundwork of political liberalism. He takes as given the fact that in a liberal democracy, with political institutions that allow reasonably free thought and discussion, over time, citizens will come to affirm very different world views, religions, moral codes and ways of life (these he calls “comprehensive doctrines”: examples would be christianity, hinduism, utilitarianism, and so on). This basic fact of pluralism is something that characterizes – and is a permanent feature of – a modern liberal democracy. Insofar as these differing philosophies, religions and world views are reasonable (that is, consistent with the basic liberal idea of society as a system of fair cooperation between free and equal persons), Rawls takes their existence (being the upshot of the free exercise of reason by autonomous individuals) to be of value.  The basic question, then, is this: how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical and moral doctrines? (PL, p. 4)

Rawls’ answer is to find an overlapping consensus – that is, a set of principles of justice, upon which public/State coercion is based and justified – that can be endorsed by – or at least, are consistent with – the plurality of reasonable comprehensive doctrines affirmed by the citizens of the polity. And that can happen only if these principles of justice are “independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm.” (PL, p. 9) This is what Rawls means by a “political conception of justice”: that is, a conception that applies to “society’s main political, social and economic institutions, and how they fit together into one unified system of social cooperation…” (PL 11, 39),  without affirming or denying the truth or validity of religious/moral ideas and philosophies, and what they have to say about life, personhood, character, familial and associational relationships, and so on. What is crucial to the political conception of justice is that: “its content is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of democratic society. This public culture comprises the political institutions of a constitutional regime and the public traditions of their interpretation, as well as historic texts and documents that are common knowledge. Comprehensive doctrines of all kinds – religious, philosophical and moral – belong to what we may call the “background culture” of civil society. This is the culture of the social, not of the political- it is the culture of daily life, of its many associations: churches etc. In a democratic society there is a tradition of democratic thought, the content of which is at least familiar and intelligible to the educated common sense of citizens generally. Society’s main institutions, and their accepted forms of interpretation, are seen as a fund of implicitly shared ideas and principles.” (PL, p. 14 – 16)

In other words, not only must the principles of justice that govern the social, economic and political structures of society be restricted to the domain of the political, but the arguments used to defend and justify them must belong to the domain of public reason – that is, modes of argument, proof and evidence affirmed by the plurality of citizens holding their diverse comprehensive doctrines. One major reason for this is the basic principle of liberal legitimacy, that holds that “coercive power is legitimately exercisable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” (PL, p. 217) And this, in turn, implies that, because given the fact of reasonable pluralism, a public and shared basis of justification that applies to comprehensive doctrines is lacking in the public culture of a democratic society… reasonable persons will think it unreasonable to use political power to repress comprehensive views that are not unreasonable, though different.”  (PL, p. 61)

In other words, as Dworkin puts it in this essay (and this chapter), the basis of political liberalism is a refusal to impose the majority’s idea of the good upon all of society, and allow everyone the freedom to pursue their own conceptions of the good (as opposed to perfectionism, which allows the State to choose one vision of the good and enforce it through law).

Let us now apply these abstract ideas. While political liberalism is based upon the idea of remaining neutral between competing visions of the good, and restricting the principles of justice and coercion to the political, it is also a simple fact that a majority of a polity’s laws go beyond the narrowly political sphere, and enact the moral sentiments of the majority. Often, then, obedience to such laws would be in conflict with other communities’ pursuit of the good, as they see it. Insofar as such pursuit does not clash with the basic liberal idea of society as a system of cooperation between free and equal citizens, political liberalism such communities should be permitted to follow their own vision of the good. To put the matter concretely: political liberalism would not grant minority groups exceptions from following basic criminal laws against, for instance, murder and violence, but it would – to take a Rawlsian example – grant them exceptions from compulsory public education (insofar as their own system of education did not violate the basic liberal principle mentioned above). The famous case in this context is Wisconin v. Yoder, where the US Supreme Court permitted the Amish community to homeschool its children, consistent with its own vision of what the ideal education should be, after confirming that the Amish system was not itself in violation of the principles of liberal citizenship.

The claim of the exclusionary covenant in Zoroastrian Cooperative to not just validity (contra legitimate public policy concerns), but actual judicial enforcement (contra the unimpeachable leal reasoning of Shelley v. Kramer) must surely rest upon this basic idea: insofar as a community believes that the survival of its own set of cultural values qua community depends on its members – and only its members – living together and in proximity with each other (and not upon a politically illiberal conception of race/cultural superiority, the eradication of which is the whole point of Article 15), the principles of Article 19(1)(c) and Article 29 are attracted, and the contrary non-discrimination principle of Article 15 is not. In such cases, the exclusionary covenant is both valid, and may be judicially enforced. Of course, the Court must look into whether the claim in question is actually justified on fact.

What I hope this demonstrates is that if Zoroastrian Cooperative is correct, then its very correctness, grounded in ideas of political liberalism, restricts its scope of operation to narrow sets of facts akin to the very facts of that case. It is not a general precedent for the validity and enforceability of exclusionary covenants (it would not, for instance, legitimate exclusionary covenants against Dalits, or Muslims, or women). As to enforceability, as I have argued before, Shelley v. Kramer applies squarely to India, and ought to be followed – the judiciary, as one wing of the State, must not enforce covenants that, had they been an instance of State action, would have failed an Article 15 test. As to validity, in the next – and last – post in this series, I shall analyze the impact of IMA v. UoI upon that very question.

** My thanks to V. Niranjan for clarifying this point.

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.

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.

Textualism vs Structural Analysis – or why the Court ought to Uphold Naz Foundation

In the previous post, we noted that the concept of the basic structure, in both India and Germany, takes its shape and form not from any one or multiple clauses of the Constitution, but from “overarching principles” that explain and justify the Constitution as a whole. This method of analysis, which we may call “structural analysis” (as opposed to “textual analysis”) has received some amount of judicial and scholarly attention in the United States.  In his dissenting opinion in Panama Refining Co v. Ryan, Justice Cardozo observed:

“… the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.”

One year later, in Duparquet Co v. Evans, this time writing for the Majority, he added:

“There is need to keep in view also the structure of the statute, and the relation, physical and logical, between its several parts.” 

This theme was taken up by the famous constitutional scholar, Charles Black (who, incidentally, authored the petitioners’ briefs in Brown v Board of Education). In a series of three lectures, brought together into a book titled Structure and Relationship in Constitutional Law, Black developed the basic thesis that constitutional analysis involves “inference from the structures and relationships created by the Constitution in all its parts or in some principal part.” In the book, he discussed a number of hypotheticals in which famous American cases like McCulloch v. MarylandCrandall v. Nevada, and Gitlow v. New York  would – he argued – have been decided in the same way even if the specific textual provisions that they relied upon did not exist – simply because of the inexorable logic of constitutional structure. In Crandall v. Nevada, for instance, Nevada’s imposition of a one-dollar tax upon leaving the State was held unconstitutional on the ground that the American constitutional structure, from the Preamble to the Supremacy Clause, clearly envisaged a unified people living in a unified nation, for which reason travel between states was a question of right, not of privilege.

This method is, of course, the exact antithesis of textualism. Textualism focuses on explicating the precise meaning of individual words at issue in important constitutional cases. It is a method championed by the American Supreme Court justice Antonin Scalia through various opinions from the bench, and in his book, A Matter of Interpretation. Broadly, Justice Scalia makes two arguments for preferring textualism over structural analysis: first, that structure affords much greater leeway for judicial discretion than does textualism; and secondly, textualism – in particular, Scalian textualism – that focuses on the original public meaning of disputed words – privileges the popular conception of these words, and is thus more faithful to democracy.

As to the first, the factual assertion is suspect, to say the least. District of Columbia v. Hellera case about the American Second Amendment right to bear arms, provides a classic example of textualism’s own interpretive uncertainties: in that case, using unimpeachable textualist methodology, marshaling a vast array of historical sources (much of which overlapped), Justices Scalia and Stevens nonetheless managed to come to exactly the opposite conclusion about the scope of the Second Amendment. The broader point – as Dworkin argues repeatedly, and as Professor William Eskridge examines in some detail here – is that it is a mistake to think that “meaning” exists external to and beyond the interpreter, that it simply exists to be discovered by an impartial interpreter; a more accurate way of understanding meaning is to acknowledge, in the spirit of hermeneutics, that it is constructed by interpreters who bring to the enquiry their own set of fore-understandings. Once this is acknowledged, the idea that texts operate as passive depositories of meaning that by virtue of themselves, limit and constrain the interpretive enquiry, dissolves.

Further, it is a popular – yet invidious – mistake – to equate structural analysis to a free-wheeling moral enquiry that “ignores text”; no structuralist would deny that the constitutional text is the point of departure, that it informs any constitutional analysis – and indeed, structure itself supervenes over text; as Black himself stated:

… the structure and relations concerned are themselves created by the text, and inference drawn from them must surely be controlled by the text.”

Justice Scalia’s second argument – about democracy – holds even less water. As Professor Akhil Amar points out, the American Constitution was not ratified clause-by-clause, but as a whole – the decision was essentially in the form of “take-it-or-leave-it”. In such a scenario, it would actually be more faithful to popular democracy to interpret the Constitution as a coherent whole, with individual clauses taking their meaning from a sense of the whole, rather than the other way around.

In India, of course, the Constitution was never ratified, so the Scalia-Amar disputation is perhaps academic. Nonetheless, the speeches in the Assembly Debates (for instance, Nehru’s famous Objectives Resolution) do seem to reveal that our framers were well aware that they were drafting a document animated by certain fundamental purposes, and that individual clauses were designed to fulfill those purposes. To this we can add Dworkin’s argument, discussed in the last post, that principled consistency in law-making is an essential pre-requisite for political legitimacy.

These scattered observations are not meant – in any way – to serve as a full-blown defence of structural analysis in the Indian constitutional context; they are meant only to serve as a point of departure, and at the very least, establish it as a credible (and perhaps intuitively more desirable) alternative to textualism (and what often comes to be – but by no means necessarily is – its corollary, originalism). Let us now consider what structural analysis would  look like in practice.

As we all know, the Delhi High Court in Naz Foundation v. NCT decriminalised homosexuality, holding that insofar as S. 377 of the Indian Penal Code made sexual intercourse between consenting adults a crime, it was unconstitutional. This decision was appealed, heard by a two-judge bench in 2012, and the decision is due within the next three months. The Delhi High Court grounded its judgment in many constitutional provisions; specifically, let us consider its holding on Art. 15(1), which states:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

The Court held that the word “sex” includes “sexual orientation”, and that therefore, discrimination on the basis of sexual orientation is impermissible.

Did the “public meaning” of the word “sex” in 1950 include sexual orientation? Perhaps not – that is, if the question makes any sense in a country where the majority didn’t even speak English. Did Nehru, Ambedkar, Patel and the rest contemplate that they were prohibiting discrimination on the basis of sexual orientation? Probably not – but then again, they probably didn’t think they were permitting it either – in all likelihood, the issue didn’t cross their minds. What would they have said if the question had been put to them? We don’t know – perhaps they would have gone with the dominant prevailing opinion that homosexuality was a form of disease (but perhaps not); what would they conceivably say if we could bring them back from the grave, put copies of the Wolfenden Committee Report, reams of medical evidence and the lead opinion of Lawrence v Texas before them – and ask them for their opinion? Again, we don’t know.  Textualism, originalism, original intent – these theories simply give us little to no purchase on the issue. Yet even if they did, their relevance would be limited at best – because as we have argued, the enquiry is not about determining the most accurate possible meaning of a given text.

So much for what we don’t know. Here is what we do know: Article 15 prohibits discrimination on a number of grounds: religion, race, caste, sex and place of birth. With the possible and partial exception of religion, what unites these features is that they are all essential aspects of any individual’s private and public identity (by public personality, I mean a series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change. To this we can add Article 16(2) (prohibition of discrimination in employment on similar categories); Article 17 (prohibition of untouchability – discrimination on the basis of birth); and Article 18 (abolition of titles – advantages (a form of discrimination), normally on the basis of birth). Let us – summarily – call this the “non-disrcimination principle”.

Now let us consider Articles 19 and 25. Article 19 guarantees the freedom of speech and expression, assembly, association, movement, residence and profession; each of these freedoms, it can hardly be disputed, are fundamental for two reasons: first, they are essential expressions of individual (and, for that matter, communitarian) personality; in the words of Justice Kennedy in Planned Parenthood v Casey:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life…. people have organized intimate relationships and made choices that define their views of themselves and their places in society.”

Secondly, as Dworkin puts it, these freedoms ensure that every citizen of the polity is provided the opportunity to contribute towards shaping the moral, cultural and political environment that she finds herself in – and that that, in turn, is the very essence of government according equal respect and concern to all its citizens. To this we add Article 25, that guarantees the freedom of conscience and religion (and further, the entire scheme from Articles 26 to 30); and indeed, arguable the two most important freedoms within this set (speech and conscience) are not limited by public interest concerns. Let us summarily call this the “autonomy principle”.

We are now in a position to understand why not only the Delhi High Court’s reading of “sexual orientation” into “sex” was not only correct, but the only possible correct decision. Our Constitution is structurally committed to a two-pronged principled attitude towards individuals: freedom in those matters that are related to the most fundamental expression of one’s humanity and personality (autonomy principle); and no discrimination on the basis of aspects of private and public identity that a person is born with and into (non-discrimination principle). And these principles stem not from any one provision, but a combination of Articles 14, 15, 16, 17, 18, 19, 25 and 26 to 30.

Can anyone seriously deny that sexuality is integrally – and centrally – consistent with both these principles? Constitutionally, therefore, there is no warrant for the Supreme Court to interfere with the judgment of the Delhi High Court; a contrary opinion would imply that our Constitution is committed to the non-discrimination and respect principles (as discussed above) – but in an entirely insupportable, capricious, arbitrary and unprincipled fashion, withholds that commitment from homosexuals. That certainly cannot be the Constitution we live under, or the Constitution to which we owe our allegiance.

The Basic Structure Doctrine: Notes from Germany

The basic structure doctrine is too well-known to merit detailed explanation: briefly, ever since Kesavananda Bharati v. State of Kerala, it has been judicially determined that the power of Parliament to amend the Constitution does not extend to the power to “damage or destroy” its basic structure. A corollary of this argument is that certain aspects of the Constitution are unchangeable, immutable and so bound up with the fabric of the Constitution itself, that as long as the Constitution exists, they too must necessarily exist. While the Court has steadfastly refused to provide an exhaustive list of unamendable “basic feature”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure. At the risk of gross oversimplification, let us note the following important implications:

(1) India now follows the doctrine of strict constitutional supremacy, where even a supermajoritarian amendment procedure (the closest analogue to a constituent assembly) is limited in its power to change the Constitution.

(2) The basic structure is not to be found in any one provision, or combination of provisions, but is found in abstract principles that explain and justify the architecture of the Constitution as a whole (for example, a combination of Articles 14, 15, 19, 25, 26, 29 and 30) would, together, constitute the principle of secularism that cannot be reduced to either one or many of them in conjunction. As the name itself suggests, you arrive at basic features not through an examination of individual constitutional clauses, but through a structural analysis.

(3) The constitutional status of amendments is subordinate to the text of the original Constitution, because no part of the original Constitution can be subject to a basic structure challenge.

(4) The basic structure doctrine presupposes a certain unity and principled integrity – if only as a legal fiction –  that binds and holds together the original Constitution as a single, coherent document.

We can best evaluate some of these assumptions by examining another constitutional democracy that has a basic structure doctrine as well, but with a few interesting – and important – differences.  Article 79(3) of the German Basic Law states:

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”

Articles 1 to 20 contain our equivalent of Part III – human dignity, personal freedom, equality before law, freedom of expression, and so on.

In The Southwest State Case 1 BVerfGE 14 (1951), the constitutionality of the First Reorganisation Law, which sought to extend the term of state legislatures pursuant to Article 118 of the Basic Law, was challenged. The Court held that this violated both democratic government (from Articles 20 and 28 of the Basic Law) as well as Federalism (Articles 20, 19 and 28); consequently, it read Article 118 in a manner that did not extend to the extension of state legislative terms; crucially, however, the Court stated, in a lengthy paragraph that deserves to be quoted in full:

“An individual constitutional provision cannot be considered as an isolated clause and interpreted alone.  A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions.  A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions.  Taken as a whole, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate. Artcle 79 (3) [the Eternity Clause] makes it clear that the Basic Law makes this assumption.  Thus, this Court agrees with the statement of the Bavarian Constitutional Court:  “That a constitutional provision itself may be null and void is not conceptually impossible just because it is a part of the constitution.  There are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution that they also bind the framers of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.” From this rule of interpretation it follows that any constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decisions of the framers of the constitution.” (c.f. Kommers & Miller, The Constitutional Jurisprudence of the Federal Republic of Germany)

Notice, immediately, the fundamental difference between German and Indian constitutional jurisprudence: it is accepted in both jurisdictions that the Constitution has a set of “overarching principles” that are grounded in – yet irreducible to, and conceptually prior to – individual provisions; and that these principles are derived from structural, holistic analysis of the Constitution as a unified document, projecting a coherent moral and political vision. Yet Germany takes this argument to its logical conclusion – if basic constitutional principles are not reducible to individual provisions, then conceptually, it is possible that an individual provision is not in consonance with that basic constitutional identity; this leads to the seemingly bizarre – yet logically quite defensible – corollary that “a constitutional provision can be unconstitutional.”

As far back as Golak Nath, however, the Indian Supreme Court rejected this argument. We have seen, however, that as a matter of logic, it cannot be faulted. What, then, justifies the contrary observations of the Court? Historically, we know that questions of legitimacy in the early years of the basic structure doctrine made the Court particularly wary of grounding the basic features in anything outside specific constitutional provisions (see, for instance, Mathew J.’s Holmes-ian observation in Indira Nehru Gandhi v. Raj Narain, denying that the basic structure was some “brooding omnipresence in the sky“). So the argument could be that the basic structure cannot – by definition – ignore any constitutional provision; rather, it is the combination of all the individual clauses that provide us with our architectonic basic structure.

The problem with this argument is that it stretches a legal fiction to the breaking point. There is no reason to imagine that all 395 articles of our Constitution actually come together in a seamless, structural unity – that could simply not be true as a matter of fact; in any event, that is a matter for investigation rather than a priori stipulation.

A valid question might be raised at this point: why structural unity at all? Why must we pick between the unpalatable alternatives of shoehorning 395 articles into some artificial moral whole, and holding provisions of the constitution unconstitutional? Indeed, in this powerful piece, Professor John Manning argues that imposing structural unity upon a Constitution (or a statute) could often amount to an interpretive betrayal by failing to respect the numerous compromises and bargains that went into producing the patchwork statute that eventually passes the all-important parliamentary vote.

Dworkin gives us one reason to strive for structural unity: recognising that the ultimate question here is one of political legitimacy, he argues in Law’s Empire that government can only claim citizens’ allegiance if it accords to each one of them “equal concern and respect”; and equal concern and respect is possible only if there is principled consistency in the laws that it frames and implements (for the full argument, see Ch. VII, Law’s Empire [“Integrity”] and the Preface to Freedom’s Law). We therefore have reason to depart from fact and accept the fiction of imputing a principled unity to our Constitution – because that is the only thing that justifies it as a political document that can claim legitimate political authority.

Accepting this to be true – and the basic structure doctrine does seem to need to accept some variant of the Dworkinian argument to justify its own existence – we are faced again with the untidy dilemma of the Indian Constitution. If both basic structure exists, and no provision of the Constitution is unconstitutional, we must accept a (in my mind, very unsatisfactory legal fiction) of a definitionally principled and unified Constitution.

There is, in addition, a further untidy corollary: as we pointed out in the beginning, this conclusion means that constitutional amendments are subject to the basic structure test, but constitutional provisions are not; that, in turn, can only be justified by according a higher place to the provisions of the original Constitution; above, we have argued that there is no logical warrant for doing so. Is there a justification in political morality? The only conceivable one might be that the original Constitution is treated as the authentic voice of “We the People“, whereas amendments – even though they require a supermajoritarian procedure – are, in the absence of referenda, one step removed from the people. Yet this argument is another one of those legal fictions that strains the imagination, especially given that the Indian Constitution (unlike, for instance, the American and the Brazilian) was not subject to popular ratification (no matter how sketchy or limited – it just wasn’t). Consequently, amendments – if anything – are more representative of “We the People” than the original Constitution! Unsatisfactory as it is, though, this seems to be the only justification that can even remotely whole water.

The basic structure doctrine has, of course, had a checquered and controversial life; it also rests upon – as I have tried to show in this post – a series of problematic and potentially contradictory assumptions. If only for constitutional clarity, it would be desirable if, in a future case, the Court was to develop a strong defence of the intellectual foundations of the doctrine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ranjit Udeshi – III: Paternalism and the Meaning of “Morality”

In the last post, we examined the first justification provided by the Court for banning Lady Chatterley’s Lover, i.e., the enforcement of public morals. The Court also made another argument: a ban was justified in order to protect individual morality from deterioration due to exposure to obscene works. This raises an important question about the limits of law: is a supposed moral ‘harm’ caused by an individual to herself sufficient justification for State intervention?

In On Liberty, Mill famously held that it was not:

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, whether physical or moral, is not a sufficient warrant.”

Joel Feinberg expands upon the Millian principle by adding “offence to others” as a good reason for proscribing a particular act. The harm principle and the offence principle must be distinguished from the two possible justifications underlying the Court’s opinion in Ranjit Udeshi: legal paternalism and legal moralism. Legal paternalism uses law to prevent a stated harm cause by the actor to herself, while legal moralism holds that it is justified to prevent an activity on the sole ground of immorality (private or public), regardless of any harm caused to anyone.

We discussed certain aspects of legal moralism in the previous post, and tentatively concluded that laws requiring justification through a judgment on the relative merits of different ways of life are inconsistent with a Constitution committed to political liberalism. In any event, a perusal of the relevant parts of the opinion makes it clear that the Court was not concerned with bare immorality. It repeatedly voiced the concern that Lady Chatterley’s Lover would “deprave and corrupt by immoral influence” (Paragraphs 19 and 21), and stated:

The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings.” (Paragraph 26)

The emphasis on protection makes it clear that the Court considered a tangible harm to be at issue, the harm of moral depravity and corruption. We are thus dealing with an instance of legal paternalism. It would be helpful, at this stage, to introduce two further terminological distinctions: soft paternalism limits interference to cases of imperfect knowledge or volition (e.g., a man about to cross a bridge not knowing it will break under him may be restrained), whereas hard paternalism acknowledges no such limitations (we prevent the man from crossing the crumbling bridge even if he knows about its condition, and wishes to commit suicide). A similar way of looking at this is that soft paternalism restricts interference to mistakes of fact, whereas hard paternalism permits interference to (alleged) mistakes of value. And secondly, welfare paternalism looks to improving the interests of persons, whether they consent to such improvement or not, while moral paternalism aims at enhancing their well-being by making them better persons through improving their moral character. In Ranjit Udeshi, it is clear that the Court subscribed to one version of hard moral paternalism.

To reiterate: moral paternalism assumes that by permitting or proscribing certain activities, the State compels a person to live a morally better life. Now, Dworkin makes a preliminary objection to the very idea of moral paternalism. According to his endorsement thesis, “[nothing]… may contribute to the value of a person’s life without his endorsement.” Let us take two examples: that of a smoker, who is well-aware that his life would be objectively better if he was compelled to give up smoking, but insists nonetheless on his right to continue to smoke; and an atheist, who rejects the idea that an enforced faith will improve the moral quality of his life. We are interested in the second kind of case, because here what is in dispute between the state and the individual is the very (moral) evaluation of the activity that is sought to be prescribed.

We may pause for a moment here to examine the issue of hypothetical endorsement, and the difference between questions of fact and questions of value. It is possible to argue that a person who rejects the view that smoking is injurious to health is simply mistaken, and would endorse a limitation upon smoking in his life if either he had full information, or was free from various possible biases. It is possible because the judgment that smoking is injurious arises out of a set of factual inferences that are based upon rules of evidence that – presumably – the person in question accepts in other areas of his life (say, for instance, driving without seatbelts is dangerous). He is therefore being inconsistent without any warrant in his evaluation of evidence. Such an argument is far more difficult to make in cases of value, however, because there – as observed above – it is the very ground rules of evaluation that are in dispute (you believe that homosexuality is a sin on the strength of your faith in the bible; I refuse to acknowledge the bible’s authority). Hard moral paternalism of the Ranjit Udeshi type, therefore, explicitly requires the authority (legislature or court) to label one set of values as good, or correct, or integral to well-being.

The endorsement thesis is controversial. However, does our Constitution subscribe to it – or some variant of it? I suggest that there are two reasons in favour of believing that it does so, at least in some form. First, an effect of the endorsement thesis – as may easily be recognised – is the rejection of externally-determined visions of moral good and well-being. As we saw in the last post, this is precisely one of the central tenets of a Constitution committed to political liberalism: and the ultimate philosophical basis, as Scanlon points out in his theory of free speech – is the idea that the very meaning of autonomy and responsibility lies in individuals determining for themselves what vision of well-being and the good life they wish to subscribe to. Moral paternalism denies them that.

Secondly, issues of this nature are not restricted to issues of free speech. In freedom of conscience cases under Article 25, the Court has held not only that the question of what religion to follow is a matter for individual choice, but also which elements of a particular religion to accept belong to the same domain. It is scarcely disputable that religion (whatever else one might think of it) constitutes a central plank of most persons’ world-view, system of values and well-being; and according to the Court, the question of what constitutes a religion is a question not for religious or secular authorities to determine, but for the individual – even against the viewpoint of the former. In another important area centred upon the determination of value, then, something akin to the endorsement thesis seems to prevail.

If, then, the word “morality” in Article 19(2) refers neither to public morality, nor to individual morality, what does it refer to? One possibility is that it refers to constitutional morality, a term applied by the Delhi High Court in the Naz Foundation case (citing Ambedkar, albeit out of context) in order to distinguish it from popular morality, in the following language:

Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.” (Paragraph 79)

Another statement of what this might mean may be traced back to Mr. Palkhivala’s submissions in the Privy Purses Case:

“the survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality.”

The distinction between constitutional morality and constitutional legality seems to suggest that constitutional morality consists of the set of (unstated) principles that underlies, characterises and justifies the important provisions of our Constitution. In other words, it contains the elements of the political and moral philosophy that our Constitution is committed to. Such  an interpretation of the word “morality” in Article 19(2) would forestall the difficulties that we have seen arising from both “public morality” and “individual morality”, and perhaps provide a principled guide to adjudicating free speech cases in the future.

Ranjit Udeshi – II: The Enforcement of Morals

In the previous post, we noticed that in Ranjit Udeshi, the Court upheld the constitutionality of obscenity laws. Two justifications emerge from a close reading of the decision: first, the enforcement of “public morality” via Article 19(2); and secondly, the need to protect people from “moral depravity and corruption.” While there are connections between the two, conceptually, they remain separate arguments; and we shall consider them in turn.

The Hart/Devlin/Dworkin debate, conducted in the aftermath of the publication of the Wolfenden Committee Report in the United Kingdom, remains the locus classicus on the point. The Wolfenden Committee Report, on homosexuality and prostitution, famously stated that “there is an area of private morality… that is none of the law’s business.” In an essay – later a book – called The Enforcement of Morals, Lord Devlin made two arguments against this position: first, that society had the right to protect itself against practices that threatened its existence; and secondly, that society had the right to follow its own moral convictions to prevent (what it considered to be) an adverse change in its moral environment. In the case of pornography, for instance, it may be argued that the institution of marriage and the family, being a fundamental feature of our society, will be eroded by the prevalence of pornographic material (the first prong of Lord Devlin’s case); or, it may be argued that the widespread availability of pornographic material will fundamentally change the way people view sex and relationships, and that is something society has the right to forestall through criminal legislation (the second prong).

Hart attacked the first prong of the argument, and Dworkin the second. Hart argued that “society” could mean one of two things: the physical fact of a collection of people – in which case, it was absurd to suggest that “society” in this sense could be destroyed by a simple change in practices; or – as Lord Devlin held – it could mean a community with “shared ideas on politics, morals and ethics.” But if that was the definition of society, and if, admittedly, these shared ideas were constantly shifting and changing, then on what principled basis could the majority of a moment arrogate to itself the power to freeze a transient moral status quo into permanence?

Dworkin argued (here) that Lord Devlin’s idea of a “moral conviction” was inconsistent with his definition of it (“a level of disgust, rising to intolerance”). Distinguishing a moral conviction (“homosexuality is immoral”) from questions of taste (“homosexuals make me sick!“), prejudice (“homosexuals aren’t real men), rationalisations stemming from verifiably incorrect facts (“homosexuality is physically debilitating“), and parroting (“everyone knows that homosexuality is immoral!), Dworkin argued that:

“the principles of democracy we follow do not call for the enforcement of the consensus, for the belief that prejudices, personal aversions and rationalizations do not justify restricting another’s freedom itself occupies a critical and fundamental position in our popular morality. Nor would the bulk of the community then be entitled to follow its own lights, for the community does not extend that privilege to one who acts on the basis of prejudice, rationalization, or personal aversion. Indeed, the distinction between these and moral convictions, in the discriminatory sense, exists largely to mark off the former as the sort of positions one is not entitled to pursue.”

It is important to note that the upshot of Hart and Dworkin’s arguments is not to defeat any enforcement of morality, but to set an extremely high threshold upon the use of that method. The question remains, however, whether it is permissible for the so-called moral majority to apply criminal sanctions to behaviour it deems immoral. In the previous post, some arguments were adduced to demonstrate that such is not the purpose of Article 19(2) of our Constitution. We can now add three further observations: Article 19 is part of our entrenched Bill of Rights, and one – if not the most important – function of a bill of rights in a democracy is to protect minorities against the legislative power of the extant majority. Justice Jackson’s statement in West Virginia Board of Education vs Barnette deserves to be quoted in full, at this point:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

If, therefore, the right to free speech is an entrenched fundamental right (which it is), and if obscene speech comes within the ambit of the right (which, it would appear from this case, it does), then the logic of a bill of rights makes it clear that majority opinion ought not to be a valid ground of restriction.

Secondly – and this is a matter of great controversy, so I shall only advance this claim in a very tentative fashion – the nature of the rights guaranteed by Part III of our Constitution (equal protection before the law; the fundamental freedoms; life and liberty; the freedom of conscience; cultural minority rights, and so on) suggest strongly that the underlying philosophy of our bill of rights is that of political liberalism. Now, whatever else may be in dispute about the nature and meaning of liberal political theory, this much is certain (endorsed, among others, by Rawls and Dworkin): liberalism is committed to neutrality, that is, it is not for government to adjudicate upon the desirability of competing world-views and forms of life – that is a matter for individual judgment. Naturally, then, it is not for the government to promote or to hinder particular world-views through the mechanism of law.

Now, as Raz points out, it is through speech, expression and – most of all – communication that we define and place ourselves within our society; and it is through unhindered public expression and portrayals of particular forms of life that we seek validation for them; correspondingly, censorship and bans on expression amount to:

“…not only a disapproval of the particular act in question, but a disapproval of the way of life that that act or expression has come to symbolize.” (emphasis supplied)

A government ban, therefore, on an allegedly obscene publication or a pornographic work is not only censorship of that individual creation, but in our society, comes to symbolise an authoritative condemnation of the entire style or way of life that such work forms part of, is an example of, or portrays. And that is a judgment that a liberal Constitution and a liberal polity is not permitted to publicly undertake.

Lastly – and as a matter of pure textual exegesis – the framers of our Constitution appear not to have viewed “morality” as referring to “public morality”; in the Constituent Assembly Debates on 1st December, 1948, while discussing the draft article 13(2) (later 19(2)), “public order” was not yet part of the wording, and a proposed amendment sought to insert the phrase “decency or morality” (sans “public”) into 13(2). The phrase “decency or morality” was used again on 2nd December 1948 in the specific context of discussing the limitations on free speech, while “public order” was being simultaneously discussed. I suggest that from a reading of the debates, it becomes clear that “public order” and “decency and morality” were discussed separately, as separate concepts. Our Constitutional text, therefore, does not expressly make “public morality” a ground for restricting free speech; and I have suggested, in this post and the last, that our Constitutional philosophy militates against such a conclusion.

What then does the word “morality” mean, if not public morality? One possibility is that it refers to individual morality. This, indeed, is the second line of argument pursued by the Court: it is permissible to ban obscene publications because they deprave and corrupt individual morals. In the next post, we shall discuss whether and to what extent that argument can be used to justify restrictions on free speech.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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