The Indian Constitution, Free Speech and Economic Structure

25 Pages Posted: 19 Jun 2015

Date Written: June 19, 2015

Abstract

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.

Keywords: freedom of speech, economic structure

Suggested Citation

Bhatia, Gautam, The Indian Constitution, Free Speech and Economic Structure (June 19, 2015). Available at SSRN: https://ssrn.com/abstract=2620520 or http://dx.doi.org/10.2139/ssrn.2620520

Gautam Bhatia (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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