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Infusing Values into a Transformative (and Post-colonial?) Constitution

The past is a foreign country: they do things differently there.” – L.P. Hartley

In his book, Constitutional Fate, Philip Bobbitt lists various “modalities of constitutional argument” – that is, methods of constitutional argument that are compatible with the institution of judicial review. His typology includes the following: textual, historical, doctrinal, prudential and structural arguments; the categories are largely self-explanatory, and we have discussed a few of them before on this blog. But then, Bobbitt adds one final “modality” – ethical argument. Here is how Bobbitt defines the term:

By ethical argument I mean constitutional argument whose force relies on a characterisation of American institutions and the role within them of the American people. It is the character, or ethos, of the American polity that is advanced in ethical argument as the source from which particular decisions derive.” (p. 94)

Bobbitt sees the case of Moore v. City of East Cleveland as an example par excellence of the use of ethical argument in constitutional law. In that case, an Ohio zoning ordinance that limited occupancy of a dwelling unit to members of a “single family” was struck down as a violation of due process clause. Justice Powell wrote:

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition… the tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots… venerable and… deserving of constitutional recognition… conditions of modern society… have not erased the accumulated wisdom of civilisation, gained over the centuries and honoured throughout our history… that supports a larger conception of the family.

Similarly, Bobbitt highlights the case of Meyer v. Nebraskawhere, in striking down a statute that criminalised teaching foreign languages to children below the eighth grade, Justice McReynolds defined “liberty” to include “… those privileges long recognised at common law as essential to the orderly pursuit of happiness by free men.”

Let us pause and consider the language used by the Justices. “Deeply rooted“, “history and tradition“, “accumulated wisdom… over the centuries“, “long recognised“, “at common law…“: these terms bring suggest, above all, the legitimation of values by virtue of their source in folk wisdom, and their enduring validation under principles of stability and continuity. Now, whatever might be the abstract merits of such an approach to determining the right and the good, we must also enquire about their place in constitutional argument; and that, in turn, requires us to to investigate the purposes of Constitutions themselves.

A Constitution, naturally, is something that “constitutes”. Political constitutions “constitute” the basis for the distribution of political power in a polity by setting up governing institutions and structuring their relationships with each other and with the people. But the very idea of “constituting” implies birth: and birth, in this context, can occur in two situations: the creation of something where nothing existed before, or the comprehensive replacement of what used to exist with something entirely new. A brief look at some of the important (written) Constitutions in the modern era proves instructive: consider the American Constitution, the French Declaration of the Rights of Man, and the Indian, South African and Irish Constitutions. All these occurred at the cusp of a historical fissure, at a moment when a decisive break was being made with the past, whether in the case of the violent overthrow of an ancien regime, the (relatively) peaceful transition of power from a colonial government to an independent one, or the end of apartheid.

Yet, it would be a mistake to assume that a decisive break with the past is necessarily a complete break with it. As Will Kymlicka demonstrates eloquently in his book, Multicultural Citizenship, our being embedded and located within an enduring culture, with its set of defined values and traditions, is often an essential precondition for living an autonomous and fulfilling life – and common sense tells us that no break with the past can sweep away everything that came before. To borrow some helpful terminology from John Rawls, let us define a political transformation as a transformation of the basic structure of the political institutions of society; and a comprehensive transformation as a transformation of its moral vision of the good, and its ideas of what it means to live a good life (Rawls makes this distinction in the context of political liberalism and comprehensive liberalism). Our discussion shows that constitutional moments normally presuppose the first kind of transformation, but it is an open question whether and to what extent they presuppose the second.

I now introduce a second typology: let us label those aspects of a Constitution that seek to preserve parts of the existing order as “conservative“; and those that it seeks to replace as “transformative“. I suggest that the impossibility of absolute change implies that every Constitution must have both conservative and transformative elements; what combination it will have them in is a contingent matter, dependent upon history and circumstance.

Consider, for instance, the American Constitution: the entire raison d’etre of the American War of Independence was that the American colonists felt that the King was denying to them the traditional rights and liberties enjoyed under common law by Englishmen. The Declaration of Independence, for instance, makes explicit reference to “the rights of the people“; the eighth amendment to the American Constitution borrows its language from the 1689 English Bill of Rights; Article IV makes reference to the “privileges and immunities” enjoyed by Citizens; and the Ninth Amendment holds that the enumeration of express rights does not mean the denial of others “retained by the people“. Thus, while the American constitution is transformative in its establishment of a new system of governance based on an idea of individual suffrage and functional separation of powers (See Articles I – III), its Bill of Rights is conservative in the sense that it seeks to write into law the “traditional” liberties enjoyed by the People, and seek recourse to established values in interpreting the scope of those liberties. We can now understand why it made eminently good sense for Justices Powell and McReynolds to engage in the kind of argument they did (and see also District of Columbia Heller (Second Amendment) and Crawford Washington (Sixth Amendment).

But if the American Constitution sought to entrench existing societal values of a largely homogenous culture against governmental invasion, the Indian experience is radically difference. Our constitution was framed at the moment when two centuries of colonial rule were coming to an end, when the break was being made not only with an alien ruler, but also, in some sense, with an alien ethos imposed upon society. Our bill of rights, therefore, isn’t conservative in the sense that the American bill of rights is, quite simply because there was nothing to conserve

The case of post-colonial Constitutions raises a more complex issue, however, because as we well know, nationalist independent movements (and ours is no exception) are substantially motivated by a narrative that seeks to regain a pre-colonial past, whether real or imagined. Now, if the objective of an independence movement is a call to return to the values that animated such a past, then this is one sense in which a potential post-independence Constitution could be conservative – seeking to conserve not its colonial heritage, but the heritage that existed before colonisation; i.e., a return to the past, but a discontinuous past. The classic example of this approach is found in South Africa. In v. Makwanyane, the South African Constitutional Court held the death penalty to be inconsistent with the new Constitution, and referred, in particular, to the constitutional value of “ubuntu“; ubuntu has been defined as an “ancient African worldview” that approximates what we would understand as “solidarity”. The Constitutional Court’s invocation of it, therefore, is precisely the call to the past and a reference to societal values that we have found, in a different avatar, in the American.

Now the case of India, I submit, is even more difficult, because not only does our Constitution mark a decisive repudiation of the colonial past by establishing a parliamentary democracy, but many clauses in our Bill of Rights also seek to abolish especially pernicious and invidious aspects of our society that were distinctly non-British (Ambedkar was particularly expressive on this point). See, for instance, restricting entry to temples and other public places (Article 15(2)), untouchability (Article 17) and bonded labour (Article 23), to name just three.

What, then, does our Constitution seek to conserve, and what does it seek to transform? Let us begin by noting that the question is vitally important, because Bobbitt’s ethical argumentation has found its way into some of the Supreme Court’s important opinions. We saw, earlier on this blog, how in Rangarajan the Supreme Court made express reference to enduring “Indian” values in the context of film-censorship; and how, in Ranjit Udeshi, it read Article 19(2)’s morality exception to free speech as referring to “public morality, and accordingly upheld a ban of Lady Chatterley’s Lover. And we have seen how the same arguments relying upon “Indian culture” and “Indian values” have been made before the High Court – and then the Supreme Court – in the ongoing Naz Foundation litigation. I do not argue here that the Court’s conclusions were wrong: I argue only that before invoking the values of an eternal, unchanging India (and entering the minefield of defining an “India” and “its” values in the teeth of near-unanimous historical skepticism), the Court needs to establish the legitimacy of that form of argument. It needs to show that a Constitution which is expressly transformative in its abolition of “Indian” values such as untouchability and religious discrimination (imagine a law that stifles the free speech of untouchables, which the government then attempts to justify on 19(2) grounds of public morality!) is nonetheless conservative where values coming from an identical source pertain to homosexuality or pornography. And that, in turn, requires a detailed excursion into the history of our independence movement, and more importantly, into the philosophy (or philosophies) of the Constituent Assembly Debates. In other words, we cannot have a satisfactory interpretive theory of our Constitution without understanding its conservative and transformative aspects, and that in turn requires an understanding of history and of the political theory of the Debates. As Lord Denning recognised long ago, good constitutional lawyers must also be good historians and good political philosophers!

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What is Decency?: Article 19(2) and the Bal Thackeray Case

The word “decency” in Article 19(2) is often run together with “morality”, forming the compendious term, “decency or morality“. Since judicial discussion tends to focus on the meaning of “morality” (see, for instance, our previous analysis of the Ranjit Udeshi case), the word “decency” tends to get subsumed within the meaning of “morality”. Bal Thackeray v. Prabhakar Kashinath Kunte (1996) is, however, a notable exception, and deserves close scrutiny.

S. 123(3) of the Representation of Peoples Act prohibited a person from appealing for votes on the basis of “his religion, race, caste, community or language.” In the Bal Thackeray Case, it was argued that S. 123(3) violated Article 19(1)(a), and was constitutional only if the said appeal was directly prejudicial to public order, as envisaged by Article 19(2). The Court rejected this contention. Naturally, then, S. 123(3) was either unconstitutional, or saved by another head under Article 19(2). The Court settled upon the latter course, and chose decency. Rejecting the appellant’s argument that the phrase “decency or morality” was limited to “sexual morality”, the Court held:

“The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the house.” (Paragraph 29)

The Court went on to add:

The fact that the scheme of separate electorates was rejected in framing the Constitution and secularism is the creed adopted in the Constitutional scheme are relevant considerations to treat this as a reasonable restriction on the freedom of speech and expression, for maintaining the standard of behavior required in conformity with the decency and propriety of the societal norms. (Paragraph 31)

These observations are crucial. Recall that in our discussions of Ranjit Udeshi (here, here and here), we had found that much turns upon what, precisely, “morality” means in Article 19(2). For reasons both textual and philosophical, I had argued that the Court was mistaken in equating “morality” with either “public morality” or “individual morality”; and that, in the alternative, the best interpretation was reading it to mean “constitutional morality“, that is, the moral principles espoused by the Constitution as a whole, and not those of a shifting, transient majority. In Bal Thackeray, the Court clearly accepted such a reading of the word “decency”. Because obviously, if decency means “public decency”, or the standards of decency maintained by a present majority, then it makes no sense to curtail election speeches on the grounds of decency, because – and this much, at least, is uncontroversial – the ballot box is, at present, one of the – if not the – most effective way of gauging public opinion. If I appeal to my religion to gain votes, and I do succeed in persuading the majority to vote for me, then it cannot really be argued that the public considers such an appeal contrary to decency.

The argument is buttressed by the specific observations of the Court. In Paragraph 29, it defines acceptable behaviour in the context of a secular polity. A secular polity, however, is not a matter of public opinion – it is a constitutional commitment, and has been repeatedly held to be part of the basic structure of the Constitution. In paragraph 31, the Court makes it explicit, holding that secularism is part of the constitutional scheme. Thus, the Court derives its meaning of decency not from a vague reference to public standards, but by directly invoking the philosophy of our Constitution.

This has important ramifications. Consider again, the phrase 19(2) phrase, “public order, decency or morality“. In our discussions on Udeshi, we asked whether the word “public” qualifies only “order”, or all three words, “order”, “decency” and “morality”. Clearly, both interpretations are grammatically unexceptionable. But if, per Bal Thackeray, “decency” means “constitutional decency”, then “public” doesn’t qualify “decency” after all. And if that is the case, then it would be grammatically absurd for it to quality “order” and “morality”, but not “decency”. Therefore, it is a necessary implication of the Bal Thackeray decision that the morality referred to in Article 19(2) is not public morality.

Regretfully, however, the Court’s overall jurisprudence in this area remains a tangled knot. In Odyssey Communications v. Lokvidayan Sanghatana (1988), the Court blithely employed the phrase “public morality”, without any argument. In Bobby Art International v. Om Pal Singh Hoon (1996), the case about the screening of The Bandit Queen, the Court allowed the screening of the film, including scenes of rape and frontal nudity, because it found on fact that the impugned scenes advanced the message of the film, and were not designed to “titillate the cinema-goer’s lust“. (Paragraph 30). Since the Court declined to expound upon the particular harm caused to self or others by this “titillating of lust”, we must assume that this is a case of legal moralism (see the analysis of Udeshi), predicated upon reading “morality” in Article 19(2) as referring to “individual morality”, with the Court taking upon itself the role of protecting individual morals from depravity. On the other hand, in Ajay Goswami v. Union of India (2007) the Court, dealing with an obscenity case, after citing a bewildering array of tests, from  “Hicklin” to “clear and present danger”, from “ordinary man” to “contemporary standards”, finally affirmed both a harm standard and a violation of morality standard within the same paragraph! (paragraph 44) And most recently, in S. Khushboo v. Kanniammal (2010) the question arose whether criminal proceedings against an actress who called for social acceptance for pre-marital sex in live-in relationships, could be sustained. It was argued that public morality was strongly supportive of limiting sexual intercourse to the marital relationship, and that such statements would lead to “deviant behaviour which would adversely affect public notions of morality.” (Paragraph 10) While the Court accepted the present state of the law on obscenity (which, it would seem, astonishingly enough, is still the Victorian-era Hicklin Test), it also observed:

Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.” (Paragraph 29)

The Court noted that those who viewed her remarks as an attack upon the centrality of the institution of marriage had every freedom to contest their merit through the existing channels of free speech, such as the media. This was precisely how dialogue and discussion took place in a democracy, “wherein people can choose to either defend or question the existing social mores.” (Paragraph 18)

And:

“An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.” (Paragraph 30)

Assuming – reasonably – that “conventional morality” and “public morality” refer to the same idea, it is clear, on a combined reading of the three observations of the Court, that preservation of “public morality” is not, after all, in itself, a ground for restricting free speech! Of course, the issue is more complicated, since the Court was undoubtedly influenced by the fact that the case was not about a pornographic film that depicted sex, but about a statement in a newspaper. Yet is there a principled difference between an influential actress persuading people about the desirability of pre-marital sex by making a statement, and a pornographic film doing the same by depicting it? If there is, the Court did not attempt to explicate it.

In conclusion, therefore, it is rather difficult to extract a coherent philosophy out of the Court’s “decency and morality” jurisprudence over the last fifty years. We saw that there are at least three possible ways of interpreting this phrase, each of which correspond to a different political philosophy, and a different vision of society: speaking very broadly, and ignoring all the nuances employed within this terms, these are legal paternalism, legal moralism and a strong, autonomy-respecting harm principle. The Court, in its decisions, has at various times endorsed all of them, some of them, or none of them. We await clarity on this important issue.

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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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