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Sedition as Anti-Democratic Speech: The Paradox of Liberal Neutrality?

Let us briefly sum up the conclusions of our last post on sedition:

In Kedar Nath Singh, Section 124A was challenged as being violative of Art. 19(1)(a). Naturally, the Court could not have found that the test for sedition was broader than what Article 19(2) permitted. Nonetheless, there were three ways in which the Court could have effectively hamstrung any Article 19(2) barriers, and allowed the executive a free rein in the application of the sedition law:

(a) The Court could have held that seditious speech does not come within the protection of Article 19(1)(a) at all (as it did for commercial speech in Hamdard Dawakhana and – as we shall see subsequently – it has done in a case involving the flying of the Indian flag).

(b) The Court could have created a legal fiction by holding that inciting disaffection, or feelings of enmity, or of disloyalty (as per S. 124A) is deemed to proximately disrupt public order

(c) The Court could have weakened the public order test itself, holding that feelings of disaffection could conceivably affect public order by promoting disobedience towards the government, and that that is enough, considering the wide import of the phrase “in the interests of public order” (an argument used too many times to count, on behalf of the State).

As we have seen, the Court came dangerously close to both (b) and (c), but ultimately affirmed the existing interpretation of Article 19(2), and by implication, affirmed the strong protection of free speech. The law on sedition, therefore, is clear and unambiguous. Legally, there is no doubt that instances such as those of Aseem Trivedi, the 8000 sedition cases filed against the protesters at Koodankulam, Arundhati Roy’s arrest, and countless others are blatant abuses of law. It is submitted that a legislation that serves no discernible purpose (as argued in the previous post), and is regularly used as a tool for political persecution, has no business being on the statute books. It must go.

Let us now, however, examine another issue that arose out of the Kedar Nath Singh case, but one that has received comparatively little attention. In Paragraph 36, the Court stated:

“Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”

This is framed somewhat curiously. Presumably, my inciting disaffection against the ruling UPA Government does not amount to sedition, because the UPA only consists of people “for the time being engaged in carrying on the administration.” Who – or what – then, do I have to incite disaffection against in order to qualify as seditious? Is it the government as an abstraction, as a concept? Perhaps my target must be the institution of government, as governance is practiced in India – in other words, (liberal?) democracy – that is, liberal democracy embodied by the elements of our Constitution’s basic structure.

We may now describe the alleged paradox at the heart of liberal political theory. As we have discussed in many of the previous posts, political liberalism’s central tenet is neutrality – neutrality between competing conceptions of the good, between opposite ideas of what Rawls calls “comprehensive theories” – that is theories about what is good, true and beautiful, and how one ought to live one’s life. Now, if that was true, then political liberalism itself is merely one comprehensive theory, and cannot take either epistemic or moral priority over the others. And that, in turn, would imply that if I use liberal institutions to assume political power, and then systematically dismantle those very institutions, then liberalism itself gives no argument to stop me – for that would amount to privileging one conception of the good (liberalism itself) over others (say, fascism).

States that claim to be politically liberal have struggled with this issue for years. In the United States, Justice Holmes’ “clear and present danger” test, enunciated in Schenck v. United States, was notoriously used by the Supreme Court during the McCarthy era, to suppress communist-leaning entities (see, in particular, Dennis v. United States), before being narrowed to an “incitement to imminent lawless action” test by Justice Douglas in Brandenburg v. Ohio. It is interesting to note that Dennis, in particular, involved the advocacy of a philosophy that is explicitly hostile to political liberalism, but because of American free speech philosophy’s commitment to content neutrality, the ground of the decision, ultimately, was something akin to preserving public order.

Now compare this with a decision of the European Court of Human Rights (Refah Partisi v. Turkeyand the Israeli Supreme Court (Neiman v. Election Committee), and Article 21.2 of the German Basic Law. Refah Partisi was a Turkish political party that claimed, as part of its manifesto, its commitment to the abolition of secularism, the imposition of sharia law and the creation of a theocracy in Turkey. The Turkish Constitutional Court dissolved the party. The case went up in appeal to the ECHR, which held that if a political party wishes to change the legal and constitutional structure of the State, “the change proposed must itself be compatible with fundamental democratic principles.” Sharia law, it held, was not so compatible, and it also held that political parties could be forestalled from such action by their dissolution before they came to power, as long as the need was perceived to be urgent. In Neiman, the Israeli Supreme Court, apparently influenced by John Rawls’ insistence on the need to “tolerate the intolerant”, set a higher bar of “negating the existence of the State of Israel as one of its goals” as sufficient grounds for dissolving a political party. How a political party, using political mechanisms to assume political power can simultaneously negate the very existence of the State that it seeks to govern is, however, somewhat unclear. And lastly, consider Article 21.2 of the German Basic Law, stating that parties who “seek to undermine or abolish the free democratic basic order” are unconstitutional.

Are the ECHR and Israeli decisions, and German Constitutional provision, then, philosophically justified? Laurence Tribe is clear that they are not, arguing that:

“It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions – just as it must permit evolution from communitarianism to individualism.”

Rawls and Popper, on the other hand, argue strongly that in order for a liberal society to survive, it must set limits on what it is willing to tolerate. But this leads precisely to the paradox that we outlined above – and the mere statement that liberalism will be destroyed by untrammeled toleration of the intolerant, while emotively powerful, for the reasons described above, remains philosophically unsatisfactory.

Joseph Raz does indeed take a stab at a philosophical justification. Eschewing neutrality as the defining feature of liberalism, he focuses instead on autonomy – that is, the range of worthwhile choices open to an individual to make towards the shaping of his life. For Raz, coercion (read, banning of free speech) amounts to a loss of autonomy, since it restricts a person’s range of choices; hence, it can only be justified on the grounds of a corresponding autonomy gain. A Razian would thus argue that if a thriving democracy provides maximal autonomy for all its citizens, than the autonomy loss in restricting speech for the purpose of preserving the democratic order is justified. Of course, one may have philosophical disagreements with Raz’s conception of autonomy, with his distinct flavour of autonomy-utilitarianism, but that is a debate for another day.

These issues have not yet – to my knowledge – been tested on the touchstone of the Indian Constitution. Perhaps, one day, for instance, if a party with the agenda of turning India into a ‘Hindu Rashtra‘ comes to power, they will become particularly pertinent. For now, these arguments form an important piece of the puzzle in determining whether the Indian Constitution is committed to political liberalism – and whether it should be.

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Ranjit Udeshi – II: The Enforcement of Morals

In the previous post, we noticed that in Ranjit Udeshi, the Court upheld the constitutionality of obscenity laws. Two justifications emerge from a close reading of the decision: first, the enforcement of “public morality” via Article 19(2); and secondly, the need to protect people from “moral depravity and corruption.” While there are connections between the two, conceptually, they remain separate arguments; and we shall consider them in turn.

The Hart/Devlin/Dworkin debate, conducted in the aftermath of the publication of the Wolfenden Committee Report in the United Kingdom, remains the locus classicus on the point. The Wolfenden Committee Report, on homosexuality and prostitution, famously stated that “there is an area of private morality… that is none of the law’s business.” In an essay – later a book – called The Enforcement of Morals, Lord Devlin made two arguments against this position: first, that society had the right to protect itself against practices that threatened its existence; and secondly, that society had the right to follow its own moral convictions to prevent (what it considered to be) an adverse change in its moral environment. In the case of pornography, for instance, it may be argued that the institution of marriage and the family, being a fundamental feature of our society, will be eroded by the prevalence of pornographic material (the first prong of Lord Devlin’s case); or, it may be argued that the widespread availability of pornographic material will fundamentally change the way people view sex and relationships, and that is something society has the right to forestall through criminal legislation (the second prong).

Hart attacked the first prong of the argument, and Dworkin the second. Hart argued that “society” could mean one of two things: the physical fact of a collection of people – in which case, it was absurd to suggest that “society” in this sense could be destroyed by a simple change in practices; or – as Lord Devlin held – it could mean a community with “shared ideas on politics, morals and ethics.” But if that was the definition of society, and if, admittedly, these shared ideas were constantly shifting and changing, then on what principled basis could the majority of a moment arrogate to itself the power to freeze a transient moral status quo into permanence?

Dworkin argued (here) that Lord Devlin’s idea of a “moral conviction” was inconsistent with his definition of it (“a level of disgust, rising to intolerance”). Distinguishing a moral conviction (“homosexuality is immoral”) from questions of taste (“homosexuals make me sick!“), prejudice (“homosexuals aren’t real men), rationalisations stemming from verifiably incorrect facts (“homosexuality is physically debilitating“), and parroting (“everyone knows that homosexuality is immoral!), Dworkin argued that:

“the principles of democracy we follow do not call for the enforcement of the consensus, for the belief that prejudices, personal aversions and rationalizations do not justify restricting another’s freedom itself occupies a critical and fundamental position in our popular morality. Nor would the bulk of the community then be entitled to follow its own lights, for the community does not extend that privilege to one who acts on the basis of prejudice, rationalization, or personal aversion. Indeed, the distinction between these and moral convictions, in the discriminatory sense, exists largely to mark off the former as the sort of positions one is not entitled to pursue.”

It is important to note that the upshot of Hart and Dworkin’s arguments is not to defeat any enforcement of morality, but to set an extremely high threshold upon the use of that method. The question remains, however, whether it is permissible for the so-called moral majority to apply criminal sanctions to behaviour it deems immoral. In the previous post, some arguments were adduced to demonstrate that such is not the purpose of Article 19(2) of our Constitution. We can now add three further observations: Article 19 is part of our entrenched Bill of Rights, and one – if not the most important – function of a bill of rights in a democracy is to protect minorities against the legislative power of the extant majority. Justice Jackson’s statement in West Virginia Board of Education vs Barnette deserves to be quoted in full, at this point:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

If, therefore, the right to free speech is an entrenched fundamental right (which it is), and if obscene speech comes within the ambit of the right (which, it would appear from this case, it does), then the logic of a bill of rights makes it clear that majority opinion ought not to be a valid ground of restriction.

Secondly – and this is a matter of great controversy, so I shall only advance this claim in a very tentative fashion – the nature of the rights guaranteed by Part III of our Constitution (equal protection before the law; the fundamental freedoms; life and liberty; the freedom of conscience; cultural minority rights, and so on) suggest strongly that the underlying philosophy of our bill of rights is that of political liberalism. Now, whatever else may be in dispute about the nature and meaning of liberal political theory, this much is certain (endorsed, among others, by Rawls and Dworkin): liberalism is committed to neutrality, that is, it is not for government to adjudicate upon the desirability of competing world-views and forms of life – that is a matter for individual judgment. Naturally, then, it is not for the government to promote or to hinder particular world-views through the mechanism of law.

Now, as Raz points out, it is through speech, expression and – most of all – communication that we define and place ourselves within our society; and it is through unhindered public expression and portrayals of particular forms of life that we seek validation for them; correspondingly, censorship and bans on expression amount to:

“…not only a disapproval of the particular act in question, but a disapproval of the way of life that that act or expression has come to symbolize.” (emphasis supplied)

A government ban, therefore, on an allegedly obscene publication or a pornographic work is not only censorship of that individual creation, but in our society, comes to symbolise an authoritative condemnation of the entire style or way of life that such work forms part of, is an example of, or portrays. And that is a judgment that a liberal Constitution and a liberal polity is not permitted to publicly undertake.

Lastly – and as a matter of pure textual exegesis – the framers of our Constitution appear not to have viewed “morality” as referring to “public morality”; in the Constituent Assembly Debates on 1st December, 1948, while discussing the draft article 13(2) (later 19(2)), “public order” was not yet part of the wording, and a proposed amendment sought to insert the phrase “decency or morality” (sans “public”) into 13(2). The phrase “decency or morality” was used again on 2nd December 1948 in the specific context of discussing the limitations on free speech, while “public order” was being simultaneously discussed. I suggest that from a reading of the debates, it becomes clear that “public order” and “decency and morality” were discussed separately, as separate concepts. Our Constitutional text, therefore, does not expressly make “public morality” a ground for restricting free speech; and I have suggested, in this post and the last, that our Constitutional philosophy militates against such a conclusion.

What then does the word “morality” mean, if not public morality? One possibility is that it refers to individual morality. This, indeed, is the second line of argument pursued by the Court: it is permissible to ban obscene publications because they deprave and corrupt individual morals. In the next post, we shall discuss whether and to what extent that argument can be used to justify restrictions on free speech.


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Sakal Papers – II: An Addendum – what is the government permitted to do?

In the previous post on Sakal Papers, we found that under certain theories of free speech, it would be permissible for the government to regulate the newspaper industry in order to prevent monopolies and create an economic environment that would permit the flourishing of smaller newspapers. In Sakal Papers, however, the government chose a particular form of intervention: direct curtailment of the scope and/or circulation of big newspapers. In other words, the government curtailed the rights of some entities in order to achieve a system in which, overall, the distribution of the right was more equitable and just; to put it yet another way, in order to give effect to the rights of some, the government curtailed the rights of others. Is such action justified? Our discussion so far on this point has been incomplete, and this post aims to complete it.

It will be useful at this stage to adopt a distinction drawn by Nagel: between agent-neutral values, and agent-relative values. Agent-netural values are those that attach themselves to particular states of affairs, and thus provide everyone with a reason to promote them. Agent-relative values, on the other hand, apply only to the individual agent, or actor. Take the case of murder. According to an agent-neutral account, murder is prohibited because a society in which fewer murders occur is a better society overall, whereas according to an agent-relative account, murder is prohibited because it violates the individual right to life. Consequently, in the first case, you would be justified – for example – in murdering someone to prevent two murders (all other things being equal) – while in the latter case, you would not be so justified.

(A similarity may be noticed here with the traditional debate between consequentialist and deontological theories of rights: a runaway trolley is careening down a mountain-track, en route to killing five people; you find yourself next to a diversion signal that will change its path to one in which only one person is killed – but it is you who must actively divert the train’s path. Are you justified in doing so? Consequentialist theories (aimed at selecting the consequential state of affairs that will be best) say that you are; deontological theories (holding that rights are trumps against goal-based justifications that would curtail them) say that you aren’t.

What then is the value that we place upon free speech? Do we value it for all the benefits of a community in which speech is free? Or as an inviolable right that the government cannot interfere with even to give effect to the enjoyment of the right on the part of others? (Notice that the two options aren’t exhaustive).

An important argument supporting the former point of view is made by Raz, who views free speech as a public good. Public goods – such as street lighting and clean air – are goods enjoyed in common by the members of society in a way that one – or many – persons’ use does not exclude anyone else from using the good. Raz argues that free speech is a public good because the scope and strength of the right to free speech accorded to an individual is partially determined by the interests of third parties. The reason why, in our society, we have such a strong right to free speech – despite its seemingly minor importance in most peoples’ everyday scheme of interests – is that it is in everybody’s interest (and deeply so) that the right to free speech exists in society (that, Raz argues in turn, is because it is the only way to make government responsive and accountable to its citizens).

This, therefore, is a classic argument in which the individual right to free speech is derived from the desirability of the overall state of affairs in which that right is provided protection; consequently, government’s efforts to bring about that state of affairs are unimpeachable.

It will be noticed that the path of this argument is similar to the intrinsic/instrumental distinction; the concepts remain different, however. What is clear is that agent-relative values operate where the nature of the right is instrumental; whereas the right being intrinsic is a necessary condition for the existence of agent-neutral values (a quick analysis will verify the point).

Over the last two posts, therefore, we can clearly see that the first question we must ask ourselves, on reading Sakal, is “why ought we to have the freedom of speech in the first place?” or, “what is it that we value about the freedom of speech?” The answer to that question – and since it is a philosophical question, it needs a philosophical answer – will then determine a series of succeeding questions and answers, that will ultimately inform us whether or not we agree with the court.

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