Gautam Bhatia

The framing of India’s Constitution is popularly considered to be a transformative moment: the culmination of a decades-long movement for political and economic self-determination, and the marker of a transition from a colonial regime maintained by coercion to a democratic republic. The crowning glory of the Constitution-making process, which reflects this transformation, is Part III: the fundamental rights chapter. Guaranteeing core civil and political rights such as the right to freedom of speech and expression, life and personal liberty, and equality before law, Part III of the Constitution appears to place the autonomous, self-determining individual at the heart of the Constitutional order. Nonetheless, the rights guaranteed by Part III are not absolute. They are subject, in many cases, to “reasonable restrictions”. Over the course of its history, the Supreme Court has tended to interpret these clauses in a way that the restriction has often swallowed up the right, and the State has been allowed a more or less free rein to pass rights-infringing statutes, or take rights-infringing executive acts. The question then must be asked: is the Court’s civil rights jurisprudence consistent with the transformative character of the Constitution? In this essay, I will argue that it is: for the reason that a closer look at the framing of the Constitution reveals that Part III was not intended to be transformative in the classical sense of creating a set of rights to serve as a bulwark in service of liberal individualism. By examining the Constituent Assembly Debates around the framing of the free speech clause, and placing it in both its historical context of colonial free speech law, as well as the future trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that as far as the nature and structure of fundamental rights is concerned the framing is better understood as conservative, than a transformative moment; and that consequently, the Supreme Court’s conservative approach to freedom of speech is more, rather than less, consistent with the intent of the framers.

This essay explores a somewhat neglected facet of Indian free speech jurisprudence: the connection between the freedom of speech and the background economic structure and distribution of resources. Article 19(1)(a) of the Constitution guarantees to all citizens the freedom of speech and expression. Article 19(2) permits the government to impose, by law, reasonable restrictions upon the exercise of this freedom, in the interests of public order, decency or morality, defamation, and so on. Over the years, the Supreme Court has adjudicated a number of cases dealing with the scope of Article 19(2). In all these cases, what is undisputed is the existence of a law that restricts the freedom of speech. The disputed question has been whether that law is saved by any one of Article 19(2)’s terms. Such cases, therefore, have directly implicated the meaning of key terms such as “reasonable”, “in the interests of” , “public order” , “morality” , “decency” and “defamation” .

Through these cases, the Court has developed an extensive jurisprudence, in which questions about the nature and purpose of free speech in a democracy, have played a central role. There is, however, another set of cases, where a prior question has been at issue: is an impugned law, which admittedly curtails someone’s speech, a restriction upon it? Or, in other word, does everything that may affect my speech also, for that reason, affect my freedom of speech? To answer this question, one must first answer another question: what does the word “freedom” mean, in the phrase “freedom of speech”? This enquiry goes to the heart of Article 19(1)(a), and is inescapably moral and political. As we shall see, however, unlike its 19(2) cases, the Court has largely evaded the issue, and attempted to screen a set of moral and political choices by invoking seemingly “neutral”, objective concepts, to settle the issue.

In early 2014, it was widely reported that the Indian government had proposed the setting up of an “Equal Opportunities Commission”, [“EOC”] in response to the report of the Sachar Committee.  The task of the EOC, like its counterparts in the United States and European countries , would be to check discrimination against minority communities in employment, education, accommodation and so on. After the 2014 election, little has been heard about the EOC, and it would perhaps be safe to assume that it has been shelved for the foreseeable future. In this paper, I will address the core issue that necessitates the existence of an EOC. This is the problem of horizontal discrimination, i.e., discrimination suffered by private entities at the hands of other private entities (individuals or corporations), on the basis of constitutionally proscribed markers: sex, race, caste, religion, place of birth etc. I will argue that in contrast to countries like the United States, where horizontal discrimination had to be tackled by federal government legislation (such as the Civil Rights Act ), the Indian Constitution contains the tools to address horizontal discrimination within its fundamental rights chapter - specifically, under Article 15(2) of the Constitution.

Over the years, Justice Scalia’s approach to statutory interpretation has generated both controversy and analysis. Yet while scholars have debated various aspects such as textualism, originalism, the use of dictionaries and so on, there has been no comprehensive account that seeks to harmonize these diverse strands into one, seamless web of overall justification. With the 2012 publication of Reading Law, Justice Scalia’s composite account of the canons of statutory interpretation, the need is now even more acute. This article aims to do just that. It argues that careful attention to Justice Scalia’s judicial and extra-judicial writings reveals that underlying all the rules, canons and principles is a particular, normative vision of the rule of law and formal equality, values that he considers paramount and guiding. Furthermore, at an even deeper level, these values are derived from a vision of the good society that was most famously – and completely – articulated by the conservative 20th century philosopher, Friedrich Hayek. Concrete interpretive techniques, such as Justice Scalia’s use of dictionaries, his antipathy towards legislative history, his approach to precedent – are ultimately derived, via the rule of law, from foundational values that are pervasively and inescapably normative and political. Thus, the intellectual success of his interpretive account depends ultimately on how convincing and persuasive we – his interlocutors – find his philosophical foundations. The broader point is that any clash between philosophies of statutory interpretation, in the final analysis, is a clash between norms; and it is only by interrogating those underlying norms can we fully understand – and thus, defend or critique, as the case may be – the statutory interpretation accounts of judges and scholars.