Tag Archives: scanlon

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.



Filed under Film Censorship, Free Speech, Public Order

Free Speech and Public Order – I: Before the Amendment, and the Idea of Responsibility

Article 19(2) allows for reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.” Much turns upon the meaning given to “in the interests of” and to “public order“. While the latter is a term of art, and has been judicially defined, the former is not. It is here that some of the most interesting philosophical issues arise. What happens if certain unflattering descriptions in my new book on a revered Maratha military leader “cause” a mob to go on a rampage and destroy public property? What happens if I write an article in an academic journal such as the New Left Review, advocating all material support to the Naxalite movement, whose stated goal is the overthrow of the Indian state? Is this different from standing upon a pulpit and urging an enraged crowd armed with grappling hooks towards “one more push” to tear down a mosque built upon a disputed religious site? And is this, in turn, different from shouting “fire!” in a crowded theatre? All these are examples of some connection between speech and the disruption of public order. Nonetheless, our intuitions – I assume – differentiate these four situations in terms of justifiable interference with free speech, and arrange them in ascending order of support for interference (the second and third perhaps being penumbral cases). Yet what principled difference could account for and justify our intuitions? And has the Court enunciated such a principle?

The original wording of Article 19(2), however, used the phrase “undermines the security of, or tends to overthrow, the State.” In Romesh Thappar v. State of Madras (1950), the first important case on free speech, the constitutionality of S. 9(1-A) of the Madras Maintenance of Public Order Act was challenged before a Constitution Bench of the Supreme Court. The section allowed the state government, for the purpose of securing public safety and maintaining public order, to control and regulate the entry and circulation of any set of documents (primarily, newspapers) in the state.

The Court, therefore, had to clarify the meanings of “public order”, “public safety” and “undermines the security of…” It defined “public order” as that “state of tranquillity which prevails among the members of a political society”; on technical grounds, it found that “public safety” meant, in this context, the same thing (paragraph 5). Undermining the security of the State – the 19(2) clause – meant “nothing less than endangering the foundations of the State or threatening its overthrow.”  (paragraph 8) Therefore, there was a clear difference in degree between the two clauses. The Court also cited the fact that the word “sedition” had been deleted and replaced by the present formulation of 19(2); and the narrow definition of sedition affirmed by the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao implied that there were “very narrow and stringent limits” enunciated in 19(2) – because “freedom of speech… lay at the foundation of all democratic organisations… without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.” (paragraph 9) S. 9(1-A), therefore, which used the broader phrase “public order“, was unconstitutional.

Fazl Ali J. dissented, and the reasons for his dissent were elaborated in Brij Bhushan v. State of Delhi, where the issue was essentially the same. In that case, S. 7(1)(c) of the East Punjab Public Safety Act, which allowed pre-publication scrutiny of material “prejudicial to public safety or the maintenance of public order” – essentially, pre-censorship – was challenged. The majority followed the decision and reasoning in Romesh Thappar. Fazl Ali J. held, on the other hand, that “public order”, “public safety”, “sedition” and “undermining the security of… the State” essentially amounted to the same thing. Applying somewhat convoluted logic, he held that because sedition “undermines the security of the State usually through the medium of public disorder… therefore it is difficult to hold that public disorder or disturbance of public tranquility are not matters which undermine the security of the State.

Readers wil note that this is a non sequitur, and the word “therefore” is used incorrectly. The dispute between the Majority and Fazl Ali J. in Romesh Thappar and Brij Bhushan is, however, crucial towards understanding what came after: these decisions did not please the legislature, and in the First Amendment to the Constitution (1951), “undermines the security of, or tends to overthrow the State” was replaced by “in the interests of… public order.” In the Statements of Objects and Reasons, it was stated that “the citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.” The legislature, therefore, accepted that there was a difference in degree between undermining the security of the State and undermining public order, and chose this latter standard.

We thus have a term of art (public order), and a working definition provided by the Court in Romesh Thappar. There is, however, a substantial amount of work to be done: in particular (see the opening paragraph), we need a principle for the causal connection between particular forms of speech, and disruptions of public order. 

In previous posts we have discussed, incidentally, Scanlon’s theory of free speech, that is part of the liberal political tradition. The public order question brings that to a head; I shall therefore provide a brief exegesis of Scanlon’s account, and in subsequent posts, examine judicial decisions through that lens.

Scanlon holds that a foundational principle of our legal system and our legal thought is that of responsibility: in the present context, we can censor someone’s speech on the ground of consequential harm only if we can show that she is responsible – in some way – for the alleged harm. This leads to an important distinction: restrictions based upon the communication of a particular viewpoint are unjustified, whereas those that refer to features (or, manner) of the expression (such as time, place, loudness) might be putatively legitimate (essentially, the American First Amendment doctrine of content neutrality).

Why is this so? Take two examples: a misanthropic inventor is prohibited from handing out copies of a homemade nerve-gas recipe at the nearest street corner; and ‘seditious propaganda’ aimed at challenging the authority of the government is banned. The crucial distinction between the two situations, Scanlon says, is that the latter moves people to act by providing them reasons for the proposed action, while the former provides them with means to do what they would have done anyway.

To elaborate: in the case of seditious propaganda, the acting agent “comes to her own judgment” about the merits of his action. Our basic intuitions of individual autonomy necessitate us attributing responsibility for the action to her. This then leads to the basic principle: you cannot censor free speech “where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing.” This is because “the harm of coming to false beliefs is not one that the autonomous man could allow the State to protect him through restrictions on expression.” The very concept of autonomy requires you, as an individual, to apply your own canons of rationality in coming to beliefs, decisions and the weighing of reasons for action.

This differentiates the four situations mentioned in the first paragraph. Shouting fire in a crowded theatre is a clear case where actors – temporarily – possess diminished rationality, and are not in a position to weigh reasons for action (fleeing and stampeding, or not); direct incitement of a mob is an arguable case of the same; seditious propaganda in the abstract is probably not such an instance; and an academic treatise that treats its theme as one of academic enquiry certainly isn’t. Scanlon’s argument, therefore, provides us with a principle of differentiation grounded in the liberal idea of the individual autonomous self; whether that principle works, and whether the Court has subscribed to it in any form, we shall now proceed to examine.


Filed under Free Speech, Public Order

Ranjit Udeshi – III: Paternalism and the Meaning of “Morality”

In the last post, we examined the first justification provided by the Court for banning Lady Chatterley’s Lover, i.e., the enforcement of public morals. The Court also made another argument: a ban was justified in order to protect individual morality from deterioration due to exposure to obscene works. This raises an important question about the limits of law: is a supposed moral ‘harm’ caused by an individual to herself sufficient justification for State intervention?

In On Liberty, Mill famously held that it was not:

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, whether physical or moral, is not a sufficient warrant.”

Joel Feinberg expands upon the Millian principle by adding “offence to others” as a good reason for proscribing a particular act. The harm principle and the offence principle must be distinguished from the two possible justifications underlying the Court’s opinion in Ranjit Udeshi: legal paternalism and legal moralism. Legal paternalism uses law to prevent a stated harm cause by the actor to herself, while legal moralism holds that it is justified to prevent an activity on the sole ground of immorality (private or public), regardless of any harm caused to anyone.

We discussed certain aspects of legal moralism in the previous post, and tentatively concluded that laws requiring justification through a judgment on the relative merits of different ways of life are inconsistent with a Constitution committed to political liberalism. In any event, a perusal of the relevant parts of the opinion makes it clear that the Court was not concerned with bare immorality. It repeatedly voiced the concern that Lady Chatterley’s Lover would “deprave and corrupt by immoral influence” (Paragraphs 19 and 21), and stated:

The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings.” (Paragraph 26)

The emphasis on protection makes it clear that the Court considered a tangible harm to be at issue, the harm of moral depravity and corruption. We are thus dealing with an instance of legal paternalism. It would be helpful, at this stage, to introduce two further terminological distinctions: soft paternalism limits interference to cases of imperfect knowledge or volition (e.g., a man about to cross a bridge not knowing it will break under him may be restrained), whereas hard paternalism acknowledges no such limitations (we prevent the man from crossing the crumbling bridge even if he knows about its condition, and wishes to commit suicide). A similar way of looking at this is that soft paternalism restricts interference to mistakes of fact, whereas hard paternalism permits interference to (alleged) mistakes of value. And secondly, welfare paternalism looks to improving the interests of persons, whether they consent to such improvement or not, while moral paternalism aims at enhancing their well-being by making them better persons through improving their moral character. In Ranjit Udeshi, it is clear that the Court subscribed to one version of hard moral paternalism.

To reiterate: moral paternalism assumes that by permitting or proscribing certain activities, the State compels a person to live a morally better life. Now, Dworkin makes a preliminary objection to the very idea of moral paternalism. According to his endorsement thesis, “[nothing]… may contribute to the value of a person’s life without his endorsement.” Let us take two examples: that of a smoker, who is well-aware that his life would be objectively better if he was compelled to give up smoking, but insists nonetheless on his right to continue to smoke; and an atheist, who rejects the idea that an enforced faith will improve the moral quality of his life. We are interested in the second kind of case, because here what is in dispute between the state and the individual is the very (moral) evaluation of the activity that is sought to be prescribed.

We may pause for a moment here to examine the issue of hypothetical endorsement, and the difference between questions of fact and questions of value. It is possible to argue that a person who rejects the view that smoking is injurious to health is simply mistaken, and would endorse a limitation upon smoking in his life if either he had full information, or was free from various possible biases. It is possible because the judgment that smoking is injurious arises out of a set of factual inferences that are based upon rules of evidence that – presumably – the person in question accepts in other areas of his life (say, for instance, driving without seatbelts is dangerous). He is therefore being inconsistent without any warrant in his evaluation of evidence. Such an argument is far more difficult to make in cases of value, however, because there – as observed above – it is the very ground rules of evaluation that are in dispute (you believe that homosexuality is a sin on the strength of your faith in the bible; I refuse to acknowledge the bible’s authority). Hard moral paternalism of the Ranjit Udeshi type, therefore, explicitly requires the authority (legislature or court) to label one set of values as good, or correct, or integral to well-being.

The endorsement thesis is controversial. However, does our Constitution subscribe to it – or some variant of it? I suggest that there are two reasons in favour of believing that it does so, at least in some form. First, an effect of the endorsement thesis – as may easily be recognised – is the rejection of externally-determined visions of moral good and well-being. As we saw in the last post, this is precisely one of the central tenets of a Constitution committed to political liberalism: and the ultimate philosophical basis, as Scanlon points out in his theory of free speech – is the idea that the very meaning of autonomy and responsibility lies in individuals determining for themselves what vision of well-being and the good life they wish to subscribe to. Moral paternalism denies them that.

Secondly, issues of this nature are not restricted to issues of free speech. In freedom of conscience cases under Article 25, the Court has held not only that the question of what religion to follow is a matter for individual choice, but also which elements of a particular religion to accept belong to the same domain. It is scarcely disputable that religion (whatever else one might think of it) constitutes a central plank of most persons’ world-view, system of values and well-being; and according to the Court, the question of what constitutes a religion is a question not for religious or secular authorities to determine, but for the individual – even against the viewpoint of the former. In another important area centred upon the determination of value, then, something akin to the endorsement thesis seems to prevail.

If, then, the word “morality” in Article 19(2) refers neither to public morality, nor to individual morality, what does it refer to? One possibility is that it refers to constitutional morality, a term applied by the Delhi High Court in the Naz Foundation case (citing Ambedkar, albeit out of context) in order to distinguish it from popular morality, in the following language:

Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.” (Paragraph 79)

Another statement of what this might mean may be traced back to Mr. Palkhivala’s submissions in the Privy Purses Case:

“the survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality.”

The distinction between constitutional morality and constitutional legality seems to suggest that constitutional morality consists of the set of (unstated) principles that underlies, characterises and justifies the important provisions of our Constitution. In other words, it contains the elements of the political and moral philosophy that our Constitution is committed to. Such  an interpretation of the word “morality” in Article 19(2) would forestall the difficulties that we have seen arising from both “public morality” and “individual morality”, and perhaps provide a principled guide to adjudicating free speech cases in the future.


Filed under Free Speech, Obscenity

Sakal Papers v. Union of India – I: Why do we have the freedom of speech?

Sakal Papers v. Union of India [1962] 3 SCR 842 was a Constitution Bench decision concerning the interpretation of Article 19(1)(a).

In accordance with the Newspaper Act of 1956, and the Daily Newspaper Order of 1960, the government sought to regulate the number of pages a newspaper could contain by making it a direct function of newspaper’s price (i.e., in order to bring out more pages, the newspaper would have to be priced higher); it also prescribed the number of supplements that could be published, as well as the relative area that could be occupied by advertisements.

The constitutionality of these measures was impugned as being violative of – inter alia – Article 19(1)(a). The petitioners argued if they wished to keep the size of their newspaper constant, they would have to raise the price – and suffer a fall in circulation. If, on the other hand, they wished to keep their price constant, they would have to reduce the volume of news they were providing. In either event, there was an infringement of Article 19(1)(a).

The State made a number of arguments in response. For the purposes of this post, I will focus on the following: it argued that the object of the regulations was to prevent unfair competition and the rise of monopolies within the newspaper industry (the argument presumably being that due to economies of scale, established large newspapers were in a position to keep prices at a level at which newer – and smaller – newspapers were unable to compete, and would therefore either be unable to enter the market – or if already present – would be forced to exit by selling to one of the established newspapers). It argued that effectively – by freeing up the market – the regulations were designed to promote the freedom of speech and expression.

The Court agreed, in substance, with the petitioners. Mudholkar J., speaking for the Court, made the unexceptionable point that Article 19(1)(a) covered not only matter, but volume (paragraph 27); the effect of the impugned regulations would be to directly limit circulation (paragraph 32) or volume (paragraph 35); this was thus a clear case of infringement, and one that was not saved by the exceptions in Article 19(2) (in light of the unfair competition claim, the Court focused particularly upon the absence of a “public interest” exception in Article 19(2), as opposed to its presence in Article 19(6)) (paragraph 38). The Court parted with the case by stressing the important of the freedom of speech “under a democratic Constitution which envisages changes in the composition of legislatures and governments…“, and emphasised that any regulation that would necessarily “undermine… power to influence public opinion” was “capable of being used against democracy as well.” (Paragraph 45)

These parting remarks can be taken as the point of departure for an analysis of the Court’s decision. In this one sentence, the Court has already made a series of political and philosophical choices: at the most abstract level, it has made a choice between intrinsic/constitutive and instrumental justifications for free speech. Justifications of the first kind regard the freedom of speech – for whatever reason – as an essential component of a just political and moral order. According to Ronald Dworkin, for instance, freedom of speech is an essential aspect of government treating its citizens with equal concern and respect; while along similar lines, Scanlon argues that it is part of living an autonomous life. Instrumental justifications, on the other hand, locate the value of free speech in the contribution it makes towards securing or promoting other values. For instance, Mill famously argued that an open marketplace of ideas was the best means for arriving at truth. Here truth is the constitutive/intrinsic value that free speech serves instrumentally.

In choosing democracy as its fundamental value, therefore, the Court not only endorses instrumental justifications over intrinsic (and thus subscribes to a particular philosophy of the nature of rights), but also selects one particular justification, that is, the role that free speech plays in maintaining a functioning democracy (this argument has been made most famously by Mikeljohn in the context of the American First Amendment).

The immediate consequences of this are manifold. First, in Sakal Papers, it allowed the Court to hold as it did. What might have happened, for instance, if the Court had endorsed a different theory? For the purposes of argument, let us assume that the Court found Dworkin’s justification of free speech attractive, and decided to apply it. Dworkin argues that part of what it means for government to accord equal concern and respect to every citizen is to ensure that she has an equal opportunity of shaping the moral environment of society, the moral environment in which we all live. Equal opportunity here naturally entails the idea of equal – or at least, equivalent – access. Consequently, Dworkin’s argument does not permit an abstract account of interferences and infringements upon the freedom of speech – rather, it necessitates an enquiry into each particular situation, in order to determine whether the aforesaid equal opportunity is available to each citizen.

We are now in a position to appreciate the argument made by the Respondent-State through a Dworkinian lens: preventing monopolies and unfair competition is no longer a “restriction” upon free speech placed in the “public interest”, as the Court characterised it (paragraphs 47 – 49) – rather, it is an integral element of the freedom itself. By ensuring an economic environment that is conducive to the entry and survival of small newspapers, the State is not only doing something permitted to it, but in fact, fulfilling its obligation of ensuring the freedom of speech.

What would have happened if the Court had accepted the instrumental justification – as it did – tradition, but endorsed instead something akin to a Millian argument of the marketplace of ideas? Here the issue would have been more delicate, but it would have been possible for the Court to hold, for instance, that a monopolistic market is a distorted market, and in the traditions of liberal economic theory, State intervention to correct market imbalances justifies the regulations that it might choose for such purpose. 

The second consequence of the Court’s choice of the democratic justification is more long-term. If we accept the unexceptionable proposition that our Courts ought to act in a principled manner over a sustained period of time, then it would be arbitrary for the Court to invoke the democratic justification in newspaper regulation cases, but a Dworkinian-constitutive justification in a case involving – hypothetically – film censorship – unless the Court could demonstrate a principled reason why that need not be the case. The decision in Sakal Papers, therefore, is far-ranging, and provides a reason for the Court to decide in a certain way in cases as diverse as obscenity trials and pornography on the one hand, and seditious speech on the other.

Here’s how: if we are agreed that the justification of free speech lies in is protection of democracy, then it stands to reason that only those forms of expression that play a some kind of role in democratic governance are worthy of protection. It is highly plausible that this is not the case. For instance, imagine a case comes up before the Court that involves the closure of a pornographic website. The petitioners have invoked the protection of Article 19(1)(a). Now the Respondent Counsel stands up to argue:

RC: Your Lordship, in accordance with the judgment of this Hon’ble Court in Sakal Papersthe role of free speech is to protect our democracy by ensuring that citizens have complete information about important matters. We submit that access to pornographic websites is clearly irrelevant to the protection of democracy – no ideas of governing importance are found in the realm of pornography, and it provides no information that responsible citizens need in order to make an informed choice in the next election. Pornography is not protected under Article 19(1)(a).

This argument is not as far-fetched as it may sound – the term “matters of governing importance” is the precise term used by Mikeljohn in his own democratic justification of the First Amendment.

I hope I have done enough to demonstrate that the philosophy and politics underlying a constitutional judgment is not an exercise in dry academic theorising. On the contrary, it is crucial not only to understanding (and therefore, if necessary, being able to challenge) what justifies an actual judgment of the Court, but also crucial to understanding how a host of similar – and live – issues will be affected by it.

In the next post, I hope to examine briefly a few of the other interesting philosophical issues thrown up by the Sakal judgment.


Filed under Free Speech, Newspaper regulation