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Article 15 and Typologies of Discrimination – II: Disparate Impact

To recapitulate our discussion in the last post: disparate impact occurs when policies neutral on their face nonetheless place burdens upon particular groups (e.g., promotion policies dependent upon spending a specific number of days in a year at office have such an impact upon pregnant women). The question is whether Article 15 is attracted in such cases. We have noticed that opinion is divided in other jurisdictions, and the text and structure of Article 15 appears to militate against this conclusion.

Let us now turn to constitutional philosophy. What philosophical reasons exist for arguing against disparate impact generally? It is the Hayekian idea that a violation of liberty must necessarily be specific and intentional to be so. To repeat an example we have examined before on this blog: if someone locks me up in a house, that is a violation of my freedom; however, my inability to fly unaided because of my body structure and the forces of gravity cannot properly be called a violation of freedom – it is a simple inability. Analogising from this, Hayek argues (described here) that the background economic and social structure is much like the forces of gravity and my body structure: if I am too poor to buy a ticket to a movie theatre, that is terribly unfortunate, but it isn’t a violation of my freedom the way it would be is someone physically barred my access to the said theatre even after I had purchased the ticket. Against this, we can place the arguments of G.A. Cohen, for whom the social and economic structure, being State-created and then State-maintained (if I try to get into the theatre without a ticket, the police will physically bar me from doing so) is indeed a violation of freedom. Applying the arguments to disparate impact: let us assume – hypothetically – that because of various economic and social reasons, Dalits are by and large unable to access a good primary education. Correspondingly, they fail to do as well as others on “merit based” college entrance examinations. A Hayekian would argue that this is no discrimination, because the test itself classifies you on your intellectual ability, and the reasons why Dalits cannot make it have nothing to do with the intentions/purposes of the test itself. Readers can construct the opposing argument for themselves.

What about our Constitution? In discussing free speech, we have argued that our Constitution is more Cohen than Hayek, but leave that be for a moment: previously, we have discussed how many aspects of the Indian constitution are transformative in the sense that they seek to replace and transform prior value and ethical systems with different ones altogether. Article 15 is a classic example of this, seeking to transform India from a society in which caste, religion and sex-based discrimination was rife and invidious into one in which such discriminations were entirely invalidated.

But let us think deeper about this. Discriminatory practices did not exist in a vacuum – they were grounded upon a core set of ideas that linked a person’s worth with his birth. Various acts are simply the concrete manifestations of the ideas at play, and it is that that a transformative constitution attacks at its root. In other words, Article 15 doesn’t only seek to legally abolish discriminatory acts and policies – it seeks a transformation of the set of moral, ethical and political values that justified the said discrimination in the first place. But if this is true, then as long as the impact of that value-system continues, the central purpose of Article 15 has not been fulfilled. So suppose that for centuries, Dalits were socially and educationally suppressed because of assumptions about their human worth; because of this, their present social and economic situation is such that an access to good quality primary education is out of reach; and this, in turn, means that they do worse on college entrance examinations. Here, disparate impact is directly traceable to that very set of societal assumptions, policies and practices that Article 15 was seeing to transform out of existence.

Another example may make thing even clearer. Here is an excerpt from a famous article by Joan Williams:

“Western wage labor is premised on an ideal worker with no child care responsibilities. In this system men and women workers are allocated very different roles. Men are raised to believe they have the right and the responsibility to perform as ideal workers. Husbands as a group therefore do far less child care, and earn far more, than their wives. Women are raised with complementary assumptions. They generally feel that they are entitled to the pleasure of spending time with their children while they are small. Moreover, even upon their return to work, the near-universal tendency is to assume that women’s work commitment must be defined to accommodate continuing child-care responsibilities. This gender system results in the impoverishment of women, since it leads mothers systematically to “choose” against performing as ideal workers in order to ensure that their children receive high-quality care. The phenomena that comprise the gender system today are often noted, but the way the system functions as a coherent whole remains largely hidden.'”

Let us, for the purposes of argument, accept the truth of this critique – that is, wage differentials are directly linked to assumptions about the proper role of women in bringing up a family. But it is also a historically-accepted fact that such assumptions were themselves predicated upon assumptions of women’s ability and character that treated them as less worthy or deserving of respect than men – and furthermore, women themselves had no say in the construction of these assumptions.  Now if the purpose of Article 15 is to transform prior values celebrating oppression to new ones founded on equal respect and valid participation and consent, then we must also accept that a more concrete purpose of Article 15 is to replace the existing set of values that viewed the proper role of women as being confined to the home, the kitchen and child-care – because, as a matter of historical fact, these values are predicated on denying women both respect and agency (the fundamental Article 15 ideas). In which case, a disparate impact upon the earnings of men and women that is founded upon those very set of values (as the Williams’ article shows) is not only problematic, but constitutionally problematic.

In this context, President of the Republic of South Africa v Hugo,  decided by the South African Constitutional Court, is a classic example of transformative constitutionalism working in precisely this fashion. To celebrate his inauguration, President Mandela pardoned a number of prisoners, all of whom shared one common characteristic: they were mothers of children under the age of 12. This move was challenged on the grounds of sex-discrimination. President Mandela argued that his act was motivated by concern for the welfare of the children, who were deprived of the care of their mothers at a young age. Over a strong dissent from Kriegler J., the Constitutional Court upheld the pardons for certain reasons that we need not here go into; but what is of singular moment is how the Court dealt with Mandela’s reasoning:

“The generalisation upon which the President relied is a fact which is one of the root causes of women’s inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared… at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”

Readers will note that the argument bears the same structure and form as our discussion above.

What objections may be made to our contention? Now it may be argued that after the Constitution came into being, Article 15 lifted women (and Dalits) to an equal status, and therefore, if presently there is a disparate impact, it must be because of individual choice – an argument the US Seventh Circuit Court of Appeals accepted in EEOC v. Sears. But there are two problems with such a suggestion: first, as we have argued before in this blog, such an approach places the burden of change upon the wrong party; not only are we accepting that a set of oppressive values and practices existed, we are also requiring those subjected to that regime to take it upon themselves to change it once the formal barriers have been removed. That does not seem fair. Secondly, as Akhil Amar argues in the context of the American 19th Amendment that gave women the right to vote, constitutional changes of this sort are not merely prospective and forward-looking – they are also admissions of deep, prior historical wrongs, and a further promise to make amends. And if that is true for Article 15, then one obvious way of making amends is a disparate impact test, that places the burden upon the government to show that its actions, that negatively affect hitherto disadvantaged and wronged groups, are necessarily and appropriately called for in the specific circumstances.

This, then, is my suggestion: Article 15 does apply to disparate impact situations, but in a qualified way: where disparate impact is the result of those lingering prejudices, practices, values and ideas that it was the Article’s purpose to eliminate, a constitutional challenge is called for.

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

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

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

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

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

And it is this approach that, it is submitted, the Supreme Court has endorsed in a majority of its cases. It is found in the dissenting opinion of Mathew J. in Bennett Coleman, where he argued that: “an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion.”

In the Cricket Association of West Bengal Case, the Court observed: “That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject.

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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