To conclude our discussion of the newspaper regulation cases, let us turn to Mathew J.’s dissent in Bennett Coleman. This opinion is important not only because it is closely reasoned and rigorously argued, but also because it represents a line of thought that the Majority rejected in both Sakal Papers and Bennett Coleman, and therefore illustrates the choice that the Court made in clearer manner.
We have already discussed Mathew J.’s opinion to the extent that he agreed with the Majority about the constitutionality of the Newsprint Order (see paragraphs 105, 108). Mathew J. then went on to discuss the Newsprint Policy which, as we recall, fixed a cap of ten pages for the calculation of newsprint quota, even for those dailies that were more than ten pages long. The important difference between the analysis of Mathew J. and that of the majority opinions in Sakal Papers and Bennett Coleman is that unlike the latter, who took the existing market conditions as something akin to a given, background feature of the environment, Mathew J. treated them as something imposed by deliberate governmental policy, and examined them from a historical perspective. He found that before the 1972 Newsprint Policy, newsprint allocation was based on the page level of 1957 and the circulation levels of 1961-62; that, as a matter of fact, this disadvantaged newspapers that were established after 1962; and that one of the objectives of the Newsprint Policy was to remedy this disadvantage. (Paragraph 112)
Mathew J. then entered into an analysis of the philosophical foundations of free speech. In line with judgments both before and after (see, for instance, Hamdard Dawakhana and Sakal Papers), he concluded that one of the crucial purposes that free speech served was that of sustaining and maintaining democracy. However, at this point, Mathew J. drew the opposite inference from that drawn in Sakal Papers: for a democracy to thrive, and to be meaningful in any sense, he observed, there must be a multiplicity of ideas, viewpoints and arguments available to the public, in order to achieve the ideal of an informed, aware electorate. (Paragraph 123) In other words, the “marketplace of ideas”, an image so beloved of John Stuart Mill and Oliver Wendell Holmes, would be a chimera if a few newspapers held a monopoly over the field.
Mathew J. then also observed:
“It is no use having a right to express your idea, unless you have got a medium for expressing it.” (paragraph 123)
It is, of course, not entirely clear what work is being done here by the phrase “no use”; in the context of the entire judgment, however, it is safe to say that Mathew J. understood the freedom of speech and expression to include reasonable access to a medium of expression. In other words, directly contrary to Sakal Papers and Bennett Coleman, Mathew J. held that lack of access to the newspaper market because of insufficient means constituted an unfreedom in the sense of Article 19(1)(a) (for philosophical arguments justifying this stance, see our first two posts on newspaper regulation).
Mathew J. therefore concluded, in two paragraphs that deserve to be quoted in full:
“What is, therefore, required is an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.” (Paragraphs 126 – 27)
Lastly, to buttress his opinion, Mathew J. cited a series of American authorities (in particular, Mikeljohn and Emerson) as well as the Directive Principles of State Policy, to argue that the right embodied in the free speech clause was not only the right of the individual to express herself, but also the right of the society to be informed, and to have access to, as wide a range of relevant and important ideas as possible. (Paragraphs 135 – 141) He found that the impugned Policy was designed to deepen and enrich the freedom of speech by ensuring a broadened and diversified reach to the general public. Consequently, Mathew J. dissenting in upholding the Policy.
Thus, in Mathew J.’s opinion, there emerges a complex vision of the philosophical ideas underlying Article 19(1)(a). Mathew J. finds three separate political ideals that characterize and justify the free speech clause: free speech is an individual right, the right of a person to express herself; it is a social good, instrumental in upholding democracy; and it is a community right, the right – in simple terms – to “hear”. Yet Mathew J. doesn’t stop here, but elaborates upon each of these ideas. His view of the individual right is one that assumes an ancillary right of reasonable access, and treats the market not as a background condition, but as an infringement of freedom. His vision of democracy is a substantive vision that goes beyond merely formal ideas, and presupposes an environment in which there is a genuine spread and proliferation of diverse and opposing ideas. And his sense of the community right departs from ideas of passive consumers of ideas to a vision of an active, civic-minded citizenry that deserves access to a genuinely wide range of thought, argument and debate. Nonetheless, that is not the view the Court takes, in Sakal or in Bennett Coleman. Which of the two visions is a better vision is a matter of individual judgment, but at least in the context of newspaper regulation, Mathew J.’s thought has not been accepted. Yet that might not be the end of the story: in subsequent posts, we shall see whether a version of Mathew J.’s arguments play a role in the context of election cases and cases involving the right of reply; and whether, in light of those decisions, the newspaper regulation judgments might now be anomalous – or at the very least, debatable.
Let us now sum up the state of play: our discussions of the Court’s newspaper regulation cases have shown us that the word “freedom” in Article 19(1)(a) is not a value-neutral term. It presupposes a series of political choices: in particular, a choice between those limitations upon a person’s scope of action that are treated as background conditions, under which he must exercise his right to freedom of speech – and therefore, do not count as limitations upon freedom – and those limitations that are treated as infringements of freedom, and therefore must be justified under Article 19(2). For example, let us – for the purposes of argument – follow Hayek in defining “freedom” strictly as “intentional interference by other human beings”. Then, while the fact that my bone-structure precludes me from flying unaided, and my being kept locked in a prison cell, are both instances of some limitation upon the scope of action I can undertake, the former is simply an incapacity, while the latter is unfreedom. Our search for such a principle that would justify the Court’s choices in the five important Supreme Court cases through the years – Express Newspapers, Sakal Papers, Bennett Coleman, Indian Express Newspapers and Express Publications – proved only partially successful. While it was clear enough, in each individual case, where the Court drew its line, we could not identify a general rule (such as, e.g., a Hayekian definition of freedom as intentional interference by human beings) that was guiding the Court in its decisions. Intellectually, Mathew J.’s dissenting opinion might provide us the most satisfactory set of principled arguments underlying, explaining and justifying Article 19(1)(a) in the context of newspaper regulation; for now, however, Mathew J.’s opinion remains just that: a dissent.