Unlike the First Amendment in the United States, Article 19(2) of the Indian Constitution expressly enumerates eight grounds on which the state may impose ‘reasonable restrictions’ on the right to freedom of speech. However, the question of whether or not Article 19(2) provides for an exhaustive list of restrictions remains unsettled. The latest site of contestations on the scope of the free speech clause has been the case of Kaushal Kishor, where the Supreme Court is currently hearing arguments on whether Article 19(1)(a) can be restricted by invoking other fundamental rights beyond Article 19(2). This blog piece seeks to briefly summarise the arguments presented in this article, where I argue that it can.

The three strongest arguments employed to justify the exhaustive nature of Article 19(2) come from a strict reading of the constitutional text itself. First, it is argued that since Article 19(2) explicitly provides for 8 grounds on which restrictions may be imposed, any ‘balancing’ between the freedom of speech and other interests has already been achieved within the constitutional text. Second, Article 19(2) does not provide for a ‘public interest’ limitation on the right, unlike Article19(5) for instance. Third, where balancing is intended by the constitutional text, it is specifically provided for. For instance, Article 25(1) makes the freedom of religion ‘subject to’ other fundamental rights. Let us call this the ‘strict textualist approach’.                                                                                            

While these are undoubtedly cogent arguments, this approach does not adequately engage with the shift in the Supreme Court’s interpretive outlook from strict textualism to interpretive holism in the 1970s. Put simply, interpretive holism argues that the meaning of a constitutional provision depends on the structure of the constitution and the relationships between its provisions. This is not a revolutionary argument; that words must be read in their context has long been a cardinal principle of statutory interpretation. Yet, strict textualism dominated constitutional adjudication for several years after Indian independence with infamous cases such as AK Gopalan.

It was only two decades later in 1970, when the Supreme Court beginning with RC Cooper rejected the strict textualist approach and found that AK Gopalan was incorrect in its ‘assumption’ that different fundamental rights were independent silos with exclusive substantive content. Provisions were to be interpreted in a ‘harmonious manner’, since no provisions of the Constitution were ‘superfluous or redundant’. No Indian constitutional scholar today denies the sound rationale behind the holistic approach adopted post RC Cooper. Even those who adopt a strict textualist approach agree on at least one implication of this holistic interpretation: that the inevitable overlap between fundamental rights has made it possible for multiple fundamental rights to be implicated simultaneously in constitutional adjudication. However, in viewing the impact of interpretive holism as restricted to cases of overlap, this approach does not adequately account for its impact on cases of conflict between rights.

In particular, the strict textualist approach to Article 19(2) fails to account for three types of conflicts. First, it incorrectly assumes that ‘intra-right conflicts’ cannot exist. By intra-right conflicts, I mean conflicts arising when the same fundamental right gives rise to ‘conflicting commitments’—as was the case in Sakal Papers, where the right to free speech was asserted on both sides in a challenge to the constitutionality of a set of press regulation measures enacted to equalise competition in the industry. In restricting the scope of limitations upon speech to Article 19(2), the Court conveniently dismissed the argument regarding equal access as a mere ‘public interest’ limitation which was not a stipulated ground under Article 19(2). Since Article 19(1)(a) only applies vertically, it becomes even more important to investigate how the petitioner’s right to circulation could be recognised in a more limited fashion.

Second, the strict textualist approach incorrectly assumes that ‘inter-right conflicts’ cannot exist. At the very least, they assume that free speech trumps other rights in most conflicts without adequate justification. For instance, a law regulating speech to curb noise pollution, or a law restricting speech to protect privacy interests can simply be struck down on the grounds that it does not fall under Article 19(2). Such an approach does a grave disservice to the principled and holistic interpretation of Part III of the Constitution adopted in a line of Supreme Court decisions that warn against rendering any fundamental right ‘superfluous’. Considering that coordinate benches have previously restricted speech by invoking other fundamental rights, it is also important to highlight the impropriety involved in allowing the five-judge bench constituted in Kaushal Kishor to overturn settled precedent.

Third, the strict textualist approach fails to account for ‘right-interest conflicts’. Several out of the eight grounds to restrict speech under Article 19(2) are not directly couched in terms of individual rights. They are better understood as ‘non-rights based interests’ of the state, evinced by grounds such as ‘sovereignty and integrity of India’ and ‘friendly relations with foreign States’. The strict textualist approach defies logic by permitting restrictions on free speech on the vague grounds of ‘friendly relations with foreign states’ but not in favour of the constitutional right to life.

Strict textualists may yet have two final responses to interpretive holism. First, they may deny the possibility of inter- and intra-right conflicts by adopting the specificationist view of rights. I argue that this approach is incompatible with Indian constitutional text and jurisprudence. Second, they may expand the scope of Article 19(2) in order to circumvent the need to invoke other fundamental rights by interpreting the grounds of ‘morality’ to mean ‘constitutional morality’. I argue that this approach would amount to not only a tacit acceptance of the merits of interpretive holism, but also a resounding acknowledgement of the limitations of strict textualism.

However, it is important to strike a note of caution while recognizing that other fundamental rights may permissibly restrict Article 19(1)(a). We must strictly guard against letting this principled interpretation degenerate into a carte blanche approach that subordinates free speech to any other interests that the Court may decide to balance it against. The outcome of Subramanian Swamy is a case in point, where the Supreme Court upheld the constitutionality of criminal defamation by invoking the right to reputation under Article 21 without any real balancing exercise. Any restrictions imposed on free speech, whether by Article 19(2) or otherwise, must therefore satisfy the thread of reasonableness that runs through the fundamental rights chapter. The five-judge constitutional bench in Kaushal Kishor must remain mindful of these dangers while upholding the non-absolutist vision of Article 19(1)(a) consistent with Indian fundamental rights jurisprudence

I would like to thank Shrutanjaya Bhardwaj for his constructive comments.