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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 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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