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Free Speech and Newspaper Regulation – IV: Democracy and Freedom in Mathew J.’s Bennett Coleman Dissent

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.

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Free Speech and Newspaper Regulation – III: What does it mean to “abridge”?

In the previous two posts, we examined the case for treating the exclusionary effects of an unregulated newspaper market as a genuine impediment upon the freedom of speech and expression, attributable to the government, and thus a potential violation of Article 19(1)(a). Our case study was Sakal Papers v. Union of India. Three years earlier, in 1958, the Court was called upon to decide Express Newspapers v. Union of India. In that case, a statutory Wage Board had established a minimum wage that newspapers must compulsorily pay to all working journalists. This was challenged before a Constitution Bench on the ground that the wage in question was so high that it would drive newspapers out of business. Thus, the regulations of the Wage Board violated Article 19(1)(a).

After going into a detailed history of minimum wage fixation policies across the world, the Court examined American cases such as Grosjean, which made it clear that the press was not immune from general policies of taxation or labour welfare that the government might choose to pursue. Nonetheless:

“It would certainly not be legitimate to subject the press to laws which take away or abridge the freedom of speech and expression or which would curtail circulation and thereby narrow the scope of dissemination of information, or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid. Laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media, prevent newspapers from being started and ultimately drive the press to seek Government aid in order to service, would therefore be struck down as unconstitutional.” (Paragraph 207)

In the present case, the Court found that in substance, the impugned Act was designed to ameliorate the working conditions of journalists; neither the “intention” nor the “proximate effect” of the legislation was to abridge the freedom of speech. The feared consequences of a fall in circulation, the seeking of governmental aid etc. were only “incidental“, and “would be remote and depend upon various factors which may or may not come into play.” They were neither “direct”, nor “inevitable“. Hence, the 19(1)(a) challenged failed. (Paragraphs 218 – 219)

Yet what, precisely, is the distinction between Express Newspapers and Sakal Papers? How is it that the relationship between a price-per-page policy and newspaper circulation is proximate, but that between a fixed minimum wage and circulation is not? Why is legislative intent to open up the market and make it more equitable constitutionally suspect, but an intent of improving labour conditions not? A newspaper’s inability to access the market because it can’t compete with the economies of scale that established newspapers run upon is not treated as an impediment to freedom; but a newspaper’s inability to access the market because it is required, by law, to pay a certain wage to its journalists is not so treated. Why?

The intent and effect tests surely cannot refer to a mere statistical correlation between the policy and newspaper circulation. In neither Express Newspapers nor Sakal did the Court enter into the question of likelihood; and there is, of course, no evidence to suggest that a price-per-page policy has a greater chance of reducing circulation than a minimum wage. The proximity requirement, therefore (much as in the public order cases) contains an inbuilt set of moral assumptionsassumptions about what counts as “direct”, and what counts as an “external factor” that makes the relationship between, say, a tax and a fall in circulation “indirect”.

So, what are these moral assumptions? For the answer, we must return to the arguments of the previous post: freedom of speech and expression does not exist in vacuum, but exists enmeshed within an existing legal framework that, in turn, is predicated upon a series of political choices. This, recall, is the point that Cohen makes: when we’re talking about freedom, therefore, we aren’t talking about simple facts relating to ability to do things and interferences with that ability, but about explicit political choices: and every judicial decision, therefore, implicitly endorses one set of political choices, and rejects another. In Sakal Papers, the Court endorsed the existing market; in Express Papers, it made an exception for price-fixation. In other words, according to the Court, the existing market subject to tax and labour legislation, are not an impediment upon freedom, but conditions under which freedom is exercised.

And the Court re-emphasised this position more recently, in 2004, when in Express Publications (Madurai) v. Union of India, echoing the direct-intent-and-effect test laid down in Express Newspapers. Our agreement or disagreement with the judgments in Express Newspapers and Sakal depends upon our agreement or disagreement with the political choices that underlie those judgments.

The argument becomes clearer when we compare the decisions above with the famous case of Bennett Coleman v. Union of India (1973). In Bennett Coleman, the Newsprint Order (1962) and the Newsprint Policy (1972) were challenged; the Newsprint Order placed certain restrictions upon the import of newsprint (complementarily, publishing newspapers in material other than newsprint was prohibited); while the Newsprint Policy prohibited common ownership units from starting new newspapers, limited the maximum number of pages to ten, and allowed a twenty percent increase in page level to newspapers that had less than ten pages. The Court upheld the Order, reasoning that newsprint was a scarce resource, and that its allocation was a matter of governmental policy with which the Court would not interfere, as long as it was bona fide and in good faith. The Policy, on the other hand, was defended on the same grounds as Sakal (prevention of monopolies, growth of small papers), and struck down for the same reasons as in Sakal (no violation of the rights of big newspapers permitted in order to help small newspapers grow) (see Paragraphs 79, 81, 82). Once again, therefore, the availability of newsprint is deemed to be a background condition within which newspapers (i.e., journalists and editors, as held in this case) exercise their right to freedom of speech and expression, and not itself an infringement upon that right; whereas restrictions upon page limits, upon advertisements, and so on, do constitute an infringement. Bennett Coleman also departed from Express Newspapers in rejecting an object-cum-effect test in favour of a pure “direct effect” test; once again, though, it is abundantly clear that “direct effect” is not a question of statistical probabilities, since restricting availability of newsprint and curtailing the amount of pages a newspaper can have are surely both equally directly affecting circulation.

The issue is sharpened by a close look at Justice Mathew’s dissent (although not upon the point at issue). Justice Mathew, following the American Professors Mikheljohn and Emerson, distinguished between the abridgment of speech and the abridgment of the freedom of speech. The newsprint quota, for him, did abridge speech, but not the freedom of speech (paragraph 108). We must therefore repeat the question we have been asking in our previous posts on newspaper regulation: what is the principle that determines when my inability to do something amounts to an unfreedom to do it? We have seen earlier that the most common – and intuitively plausible distinction – is between the effects of natural events (such as a flood), and the acts that can be traced to human agency. If that is the line that Bennett Coleman draws, then we could say that scarcity of newsprint (and therefore the need to ration) amounts to a natural event, while controlling page limits is an infringement by the government. Yet it is unclear whether this distinction is philosophically plausible, because the scarcity of newsprint – which, in Bennett Coleman, was imported from abroad – also depends directly upon governmental action (in particular, issues of budgetary priorities). So it is difficult to draw the line in such a way.

A possible principle is provided in the case of Indian Express Newspapers v. Union of India. (1984) Responding to a challenge to an import duty placed upon newsprint, the Court differentiated between those general taxes or duties that would require newspapers to make a similar contribution to the exchequer as other individuals and business in a similar position, and those that imposed a fiscal burden over and above such contribution. In Indian Express Newspapers, the petition was allowed; perhaps then, the conclusion that is to be drawn, on a combined reading of all these cases, is that by framing a “direct effect” test, the Court has essentially distinguished between interferences with the freedom of speech and expression, and background conditions within which that freedom must be exercised. Two of those background conditions seem to be an unregulated marketplace and general legislative provisions dealing with taxation and rationing of newsprint that are applicable across the board. Whether all these cases provide a coherent principle for determining what is to count as a background condition, and what is to count as an infringement remains, at best, unclear.

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Free Speech and Public Order – II: Film Censorship and the Rangarajan Case

In the previous post, we discussed Scanlon’s liberal theory of free speech, which aims to reconcile restrictions in the interests of public order with individual autonomy and responsibility. One interesting area where the Court’s engagement with the issue can be examined is that of film censorship.

S. Rangarajan v. P. Jagjivan Ram (1989) is an important case that deserves close study. A Division Bench of the Madras High Court revoked the U-Certificate (“suitable for all ages”) granted to a Tamil film called Ore Oru Gramathile (“In One Village”), that dealt with the controversy surrounding affirmative action and the problems of caste. This was challenged before a three-judge bench of the Court. The State made two arguments: first, that the depiction of the government’s reservation policy was ‘biased’; and secondly, that the reaction in the State of Tamil Nadu was bound to be “volatile“.

The Court was concerned – as in the prior case of K.A. Abbas v. Union of India – and in light of the clearly contrary decision in Romesh Thappar (discussed here) – to justify the possibility of pre-censorship. In K.A. Abbas, it had been argued that films, in no substantial way, differed from other media of communication – and if, per Romesh Thappar, pre-censorship was unjustified in the case of newspapers, so it must be in the case of film. While the Court then declined to address the argument, basing its decision on general principles of free speech and pre-censorship, in this case, it ran the gauntlet, and held that film did, indeed, differ from other media. In an interesting paragraph, the Court held that films could not function in “the free marketplace” like newspapers. Why? Because:

“Movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective. The combination of act and speech, sight and sound in semi-darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators.” (Paragraph 10)

The Court went on to cite an academic study according to which “continual exposure to films of a similar character” would significantly affect the attitude of an individual or a group. On this basis, it deemed pre-censorship necessary. We can immediately see that this approach is at odds with Scanlon’s autonomy-based argument: in Scanlon’s terms, the Court is taking away the autonomous individual’s right to use reason in order to persuade and to be persuaded, merely on the grounds of the efficacy of the mechanism. This is buttressed by the Court’s conclusion that the purpose of the Censorship guidelines – indeed, the purpose of Art. 19(2), which the Court claimed the guidelines were based upon – is maintaining the “values and standards of society“. Now, the term “values and standards of society” is excessively vague, and cries out for clarification (Do you take opinion polls? Ask the man on the New Delhi Metro? Organise a referendum? Do “values” refer only to the deepest moral convictions that form one’s personality and defines one’s community, or do they include any kind of opinion, whatever its strength or nature?). But more importantly, as we have discussed before, values and standards are in constant flux and motion, and expression – as Raz points out – is the fundamental vehicle through which transient values are debated, argued over, dissented from, attacked and ultimately, changed. On what basis, then, does the Court grant the moral majority of a moment the power to crystallise, through legal sanctions, its own set of opinion against the processes of change? And how is this consistent with the individual’s right to shape her moral environment in a free society through the means of expression?

The underlying basis of the Court’s opinion is revealed a few paragraphs later: “moral values in particular,” it said, “should not be allowed to be sacrificed in the guise of social change or cultural assimilation.” Listing a series of “great sages and thinkers“, literary works like the Thirukkural, and “Indian” concepts like dharam, the Court observed that “these are the bedrock of our civilization and should not be allowed to be shaken by unethical standards.” (Paragraph 21) In essence, the Court enunciates, by necessary implication, a certain idea of a homogeneous Indian identity, stretching back into antiquity, defined by a set of values imbued with a sense of continuity and permanence. Historians, no doubt, will have much to say about that claim. We can remain neutral on the point, and still question the Court’s insistence on insulating that set of values – assuming it exists – against dissent or attack.

The Court’s analysis of the film itself contains some particularly disturbing elements. One particular scene was singled out for condemnation because it – ostensibly – sent out a “poisonous message” to the “depressed classes” not to educate their children. The Court examined the scene and found on fact that the message of the scene was the opposite (paragraph 26); a second controversy turned upon whether one of the characters in the film stated that Dr. Ambedkar did not work for equality, and the Court, dealing with the niceties of Tamil translation, held that in fact the heroine did not make that statement (paragraph 27); the implication being – and stated as much, on both occasions – that had either of the two accusations been correct, pre-censorship would have been justified.

The Court’s approach to these claims is particularly interesting, because it suggests that making factually false claims (education is not a good, Ambedkar did not work for equality) is a ground for censorship. This echoes the basic idea that the goal of free speech is to discover the truth. In its response to the third objection against, the film, however – that by its criticism of reservations and praise of colonial rule, it would generate a “volatile reaction” in Tamil Nadu, the Court expressly disclaims the truth-seeking justification for free speech.

“The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.” (Paragraph 38)

Immediately after that, the Court quoted Mikeljohn’s self-governance theory of free speech, emphasising again that “conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant.” It went on to quote a series of American First Amendment writers before reining itself in and returning to 19(2), emphasizing that:

“The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”. (Paragraph 42)

On this basis, the Court dismissed the public order objection (Paragraphs 47 and 48). Here it seems that the Court did, indeed, accept the liberal-autonomy justification: it stressed that the content of the message communicated was irrelevant, and that threats of violence could not compel a public order restriction. These twin claims can only be reconciled upon a philosophical rubric based on ideas of individual responsibility in judging and acting upon any message; the the powder-keg analogy is a classic case of situations or diminished responsibility (as discussed in the last post), where these considerations do not apply.

But that raises a serious problem: “public order” and “morality” occur next to each other in Article 19(2); yet, the Court seems to have adopted different tests of causation in each case. Content – and what disruptions of public order it may provoke – is deemed irrelevant; but content – in terms of the change it brings about in the “values and standards” of society is deemed to be of decisive relevance! It is not “in the interests” of public order to protect it by censoring content that will provoke its breach; but it is in the interests of morality to preserve it by censoring content that will provoke its modification or change. The Court ostensibly accepts political liberalism in the case of public order, but rejects it in the case of morality.

It is difficult to see what overall principle is at work here. We must therefore keep S. Rangarajan in the background for the moment, and look for consistency elsewhere.

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