Gautam Bhatia’s “Offend, Shock or Disturb” – A Review

Guest Post by Adithya Reddy
Gautam Bhatia’s book on free speech is a
first of its kind work on any Part III right. It will be indispensable reading
for any future research on the constitutional history of free speech, as also
on the contemporary status of this right in the country in comparison to other
common law jurisdictions. What Bhatia seeks to do in this book, however, is
much more than provide an exhaustive or even critical work on legal
developments in free speech jurisprudence. He discusses the philosophy of free
speech in some detail. He does so not through a single thread of argument or
theory but by offering snippets from the views of various philosophers. Some of
these views are used to buttress his own arguments while others help in
explaining philosophical underpinnings of hard facts in case law.
Right at the beginning of the book he
attempts to offer justification for the need to understand the philosophy of
this freedom. In choosing the example of the Sakal Papers case to do
this, he skips discussion on the more fundamental aspects of free speech
philosophy. Sakal Papers case and his entire discussion of the “meaning
of freedom” centres around the philosophy of market/ ‘background’ regulation as
a means of regulating free speech. This, just like his detailed discussions on
whether speech can be restricted through prior restraint or what should be the
content of free speech, is secondary to a larger philosophical question –
articulated by Professor Tom Nagel in his Dewey Lecture at the Harvard Law
School. The
question is whether a rule (in this case the protection of autonomy to express
oneself) should be followed only for the sake of its adherence or because of
the consequences of the failure to do so. While discussing John Stuart Mill,
Bhatia acknowledges the hazards of a purely consequentialist justification for
free speech. But Bhatia’s discussion of alternatives including Thomas Scanlon’s
theory of autonomy, Dworkin’s endorsement theory or Habermas’s
self-legislation, is not satisfactory. These views, as mentioned earlier, are
brought out only in the form of snippets and do not help Bhatia build any
cogent argument. Bhatia acknowledges that many of these anti-consequentialist
alternatives have their origins in Kant, without realising that in Kantian
philosophy dichotomies such as those highlighted in the book (for example,
between public morality and individual autonomy) blur to such an extent that
(while criticising Dworkin) the Legal Positivist Mathew Kramer misleadingly
points to the “manipulability of the Kantian ideal”.[1] 
While these shortcomings can justifiably be
overlooked since the book is not an exclusively philosophical work, Bhatia’s
attempt to weave a bit of his own philosophy on ‘constitutional morality’ in a
couple of chapters is the book’s weakest part. In his chapter on obscenity,
Bhatia concludes that morality as considered by Indian courts in various
judgments does not offer satisfactory basis for restricting free speech.
Therefore, he proposes, on the lines of Dworkin and many other writers, that
the morality that the courts should use to guide themselves in restricting free
speech should be ‘Constitutional morality’. According to Bhatia, constitutional
morality is morality that is located within the constitution as opposed to
morality reflected by perceived social standards or the individual morality of
the judge concerned. Therefore, for Bhatia, equality being such a fundamental
principle of our constitution should offer a valid basis for our courts to
determine the extent of any restriction. The first problem with this
postulation is that it requires reading of one part of the constitution in the
light of another, even if the latter was not meant to be of relevance to the
former. Taking inspiration from American feminists and the Canadian decision of
R. V. Butler, he postulates that the equality principle could be a
legitimate tool for interpreting ‘decency & morality’ in Article 19(2) to
restrict pornography since it has the effect of “subordination and silencing of
women”.    The effect of such a reading
may be quite drastic. It would mean that while some obscene material could be
restricted on the ground of perpetuating gender bias, material with far greater
degree of obscenity will escape restriction if it carries no offence to the
principle of equality or any other principle ‘located within the constitution’.
Bhatia’s juxtaposition of this theory of
constitutional morality in the context of hate speech (following Dworkin’s
pupil and critic Jeremy Waldron) is far more problematic. Holding that
restriction on hate speech should be viewed as a means of ensuring
inclusiveness also means that hate speech is permissible against the mainstream
and restriction should be independent of the level of hate involved. In the
Indian context the definition of marginal groups and groups that require ‘inclusive’
treatment can be deeply controversial. In at least a couple of places Bhatia
hints that this approach could have a caste dimension.
Neither Dworkin nor Dr. Ambedkar[2], while
laying down their versions of constitutional morality, required such morality
to be located in any individual principle located in the Constitution.
Constitutional morality is about reading the Constitution as a whole in the
light of the historicity of its founding principles. It can be nobody’s case
that any provision of the Constitution appeared out of thin air or even from
the pure intellect of its founding fathers. Justice Vivian Bose calls the right
under Art 14 “a way of life, rather than a precise rule of law”.[3] If
that is so, would it not be necessary to consider when and how such a
principle- gender equality, in the case of Bhatia’s example- became a part of
Indian way of life? It is fairly settled that Indian consciousness on gender
justice arose in the wake of the Bengali renaissance, which was essentially a
conservative movement rather than a liberal one. If Raja Ram Mohan Roy relied
on the rights of ancient Hindu women[4] to
demand equal share of property for women, would similar ancient principles not
be relevant today if the Supreme Court were to understand equality and gender
justice? In fact, Dworkin’s version of constitutional morality in the American
context requires precisely such a reading of the Constitution. He says that the
restriction on allowing judges to use their own morality in interpreting the
Constitution should be “the moral reading…that fits the broad story of America’s
historical record”.[5] His
example is even more telling –“Even a judge who believes that abstract justice
requires economic equality cannot interpret the equal protection clause as
making…collective ownership of productive measure, a constitutional requirement
because that interpretation simply does not fit American history or practice.”
Therefore, constitutional morality is not about reading one facet of the
Constitution in light of another merely because both are located in the same
text but by reading each facet through its own morality. Viewed in this
context, one should not feel so much indignation, like Bhatia does, at the
Supreme Court’s view in Rangarajan’s case that speech should be tempered
by concepts such as “Dharam” or the principles of “Thirukkural”.
Bhatia’s views on equality as a guide for
restricting free speech also exposes incoherence in his philosophical analysis.
After criticizing Ranjit Udeshi’s paternalistic view of morality using
Dworkin’s theory of endorsement, he relies on a school of thought termed by
Dworkin as the “strongest new attack on freedom of speech”[6] to
define morality. As mentioned earlier Bhatia believes that the American
feminist intellectual movement against pornography offers a reasonable example
of equality being used to restrict free speech. Dworkin was the strongest
critic of the works of Catharine Mackinnon and Andrea Dworkin which advocated
this approach.  Bhatia should not have
skirted this debate.
Some of Bhatia’s other individual views appear to be
ideological and are not adequately rationalized. For instance, he offers no
major justification for placing commercial speech on a lower pedestal under Art
19(1)(a) except that Indian circumstances don’t warrant wholesale importation
of “American Jurisprudence and Reasoning on Commercial speech”. Rather than
getting lost in the byways of argumentation, Bhatia should have focused efforts
on delving deeper into the philosophical positions of the several writers he
attempts to survey.
(Adithya Reddy is a lawyer practicing before the High Court of Madras)

[1] See M. Kramer, In the Realm of Legal and Moral
Philosophy: Critical Encounters
, pg. 67. It is however wrong to to call the
‘Kantian ideal’ manipulable.
To understand Kant’s views on autonomy and freedom, one must understand all
the complex preconditions he envisages for their ‘real’ and ‘rational’ exercise. For a good idea of these
preconditions see John Rawls, Kantian Constructivism in Moral Theory,
The Journal of Philosophy, Vol. 77, No. 9, 515
[3] Bidi Supply Co V. UOI, AIR 1956 SC 479
[4] Rammohun Roy (Raja), Brief Remarks regarding Modern
Encroachments on the Ancient Rights of Females, According to the Hindoo Law of
Inheritance,
1822.  
[6] R. Dworkin, A New Map of Censorship, Index on
Censorship, Vol 23 1994.

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