[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts indexed here discussing the public law themed articles featured in the recently released Volume 42 Issue 2 of the Statute Law Review. We are grateful to Prof. Arpita Sarkar for accepting our invitation to respond to the paper by Raghav Kohli. One can read the short summary of the paper by Raghav out here. The original article can be found here.]
The inalienable rights to equality, freedom and life are not conferred on the people through Articles 14, 19 and 21 of the Indian Constitution respectively. These provisions merely acknowledge the existence of these rights and also limit the authority of the state against intruding into these spaces.
In light of this, Raghav Kohli’s paper, “The Sound of Constitutional Silences: Interpretive Holism and Free Speech under Article 19 of the Indian Constitution” raises an important claim. The paper seeks to assert that restriction to free speech, guaranteed under Article 19 of the constitution, extends beyond Article 19(2). According to the author, the strict boundaries between rights have been blurred post R.C. Cooper v. Union of India. Therefore, limitations on such rights can also extend beyond these compartments. The author also questions the scope of limited legal discussions on the issue of conflict between rights.
I agree with both the major points of the author that is, firstly, only a holistic interpretation of rights instead of compartmental textual interpretation, brings out the spirit of the constitution and secondly, very little has been discussed on the possible conflict between rights and also of conflict between different individuals for the same right. The second point arises from the fact that the Indian constitution offers limited recognition of horizontal application of fundamental rights. However, I am unable to agree with the proposition that restrictions to a right extends beyond the scope of the same provision. I am also unable to agree that possible conflict among individuals for the enforcement of the same right, falls within the scope of the constitution.
The Myth around the Golden Triangle:
The author highlights the journey of the Supreme Court from A.K. Gopalan v. State of Madras to R. C. Cooper v. Union of India whereby the court transitioned from a restrictive compartmentalized reading of the rights to an interconnected reading. Thus, while in A.K. Gopalan, the court held that the preventive detention law cannot be construed to violate right to freedom of speech under Article 19(1)(a) of the constitution and can only be reviewed by the court for possible procedural due process, R.C. Cooper established that a law may be tested for possible violation of multiple fundamental rights.
While the author claims, and I agree, that once the logic behind the holistic interpretation is accepted, it is illogical to revert back to restrictive interpretation of compartmentalized rights. However, it is important to highlight that the holistic interpretation in Cooper was meant for the broadest enjoyment of rights under the constitution by individuals. The same interpretation cannot be used to determine the scope of restrictions on these rights which the state is authorized to impose.
Balancing of Rights:
According to the author, the Indian Supreme Court has often avoided the issue of contestation between rights within Part III of the Constitution. In making this claim, the case of Kaushal Kishor v. State of Uttar Pradesh is relied upon by the author. Interestingly, the Order dated 5th October 2016 does not mention Article 19(1) and the possible friction this right might have caused against right guaranteed under Article 21 of the Constitution. The question whether right to freedom of speech of expression can be restricted beyond the scope of Article 19(2) appeared in the Order of October 24th, 2019. The author’s proposal that “a strict textualist approach towards Article 19(2), which does not permit restrictions on speech by invoking other fundamental rights, leads to a distinct form of rights absolutism that is both doctrinally incoherent and inconsistent with Indian fundamental rights jurisprudence”, is not only a dangerous proposal for curtailment of fundamental rights but also a flawed equivalence drawn between interrelation of rights and restrictions.
Reading the Sakal Newspaper Case through the Lens of Right versus Right
The author has relied significantly on Sakal Newspaper case to argue that this case potentially presented an example of conflict of rights between the two parties within the bounds of Article 19(1) itself. Instead, the court framed the issue of conflict between free speech on the one side and restrictions imposed to prevent monopoly of newspaper in public interest on the other. This interpretation, according to the author, is absolutist in nature.
It is agreeable that the way the court frames an issue determines the fate of the case. Thus, framing issues is an important component of court decisions. It is difficult to construe however, as to how the court could have framed an issue of free speech conflict between the two parties in Sakal Newspaper case. This concern is awake to the fact that the Indian Constitution acknowledges horizontal application of fundamental rights in limited form. (Violation of Article 17 for example, can be claimed against both state and private individuals).
One of the reasons behind expansion of the ambit of Article 12 is that Part III of the constitution primarily guarantees protection of rights against the state. The respondent, in this case, was the Union of India. The competing newspaper did not approach the court seeking protection against curtailment of their fundamental right to free speech. Also, there was no direct curtailment of free speech of the competing newspaper. That, the monopoly of a single newspaper may put the other newspaper out of business cannot be construed as a direct curtailment of free speech of the competing newspaper. Had the state imposed ban on some newspaper to further the cause of some other newspapers, a case for violation of free speech could be made. Then in such a case, action could be taken against the state.
The Possible Contestation of Rights:
Once horizontal application of fundamental rights is acknowledged, the next probable step is to address the issue of possible conflict of rights between private parties, and to examine whether the same is accommodated by the constitution. The author mentions the example of the Noise Pollution case wherein the court states that ‘Article 19 cannot be pressed into service to defeat the fundamental right guaranteed by Article 21 of the constitution’. Yet, the court does not mention Article 19(2) in this case. Instead, the numerous legislations which regulate noise were interpreted by the court to regulate free speech. This approach may remind one about the principle of ‘proportionality’ which is slowly gaining traction in India. In his book, ‘Proportionality: Constitutional Rights and their Limitations’ Aharon Barak claims that rights are in fact absolute. They cannot be curtailed in any form whatsoever. The reasonable restrictions imposed through legislations do not act as elimination of rights. Rather, they function as exceptions which functions on an inferior sphere, but for which the rights remain absolute.
Secondly, R. C. Cooper did not blur the boundaries between Article 14, 19 and 21. It did not build a bridge to transcend from one right into the other either. The three rights remain distinct. R.C. Cooper merely declared that a single restriction may violate multiple numbers of rights at the same time while each of these rights remains distinct.
With the broadening of the ambit of Article 21 over the years, the possibility of conflict of Article 21 with other rights have become a concern although the inter-rights conflict and the intra-rights conflict in the constitution is yet to be explored. The issues raised in Kaushal Kishor also reflect this hesitation. The statement of Azam Khan who was then a Minister of the state government becomes relevant. One of the several questions raised for reference of this case to the constitution bench, is whether persons in such position could be possibly brought under Article 12 of the Constitution. This question reflects the lingering hesitation of the state in acknowledging the conflict of rights between private parties. Also, historically a fundamental right can be limited only by law under Article 13. Whether such rights could be limited by competing rights of other private individuals, do not fall within the scope of the constitution. At the most, laws have been enacted to smoothen the scope of individual rights for co-existence. In this case, the law against defamation is a primary example of the same.
The hesitation of the court in acknowledging a violation of fundamental rights by private parties is valid. One may enquire the possible situation when the Right to Free Speech between two parties is in conflict or when the right of one party prohibits the enjoyment of another right of another party guaranteed under Part III of the Constitution. In the first case, the exhaustive restriction in Article 19(2) ensures maximum enjoyment and coexistence of free speech for everyone. For the later instance, the example of Noise Pollution case may be taken. The use of loudspeaker drowned the cry of help of the girl who became a victim of rape and set herself on fire. While undisputedly, loudspeaker causes noise pollution and should be regulated, it may have caused law and order problems. Blazing loudspeakers cannot be held directly responsible for rape. Also, rape is not violation of Article 21 in the same way as murder is not violation of Article 21 of the Indian constitution.
While the author raises an important question of conflict of rights between private individuals, this discussion is implausible at the constitutional level which provides limited scope for horizontal application of fundamental rights. The Constitution remains a document which limits the authority of the state against individuals. It is undesirable according to me, to convert it into a document for individual conflict resolution. Based on the questions referred to the constitution bench in Kaushal Kishor case, the concerns raised by the author regarding possible conflict of rights between private parties is genuine. While the paper delves into the nuances of inter-rights and intra-rights conflict, it loses sight of some of the basic constitutional law principles which I have attempted to mention here. While the possible arguments for enhancement of rights under the constitution are desirable sites of exploration, one needs to be cautious and wary of arguments regarding enhancement of restrictions.