“Balancing” Away Free Speech in India

- Parth Raman & Prishita Vatsayan

“Traditionally, the Supreme Court has maintained that Article 19(2) of the
Constitution exhaustively lists all grounds on which the freedom of speech
can be validly restricted.”

The doctrine of balancing a deviates from this rule. It states that when the
right to freedom of speech of a person “conflicts” with a separate
fundamental right of another, the two rights must be “balanced” to reach a
harmonious solution. Balancing thus allows speech to be restricted for
grounds other than those listed in Article 19(2). To do so, balancing relies on
a very specific understanding of fundamental rights, i.e., that they confer
“positive obligations” upon the State for their protection and fulfilment. This
post suggests that the current application of the idea of positive obligations,
and consequently the doctrine of balancing by the Supreme Court, is
unprincipled and requires careful attention.

Rights that 'conflict' with free speech

The Supreme Court’s case law suggests that at least three different
provisions could come into conflict with the right to freedom of speech, thus
inviting a balancing exercise. The first of these is Article 21. In the
controversial Sahara judgement, a Constitution Bench held that the right to
fair trial under Article 21 is a ground for restricting the right to freedom of
speech, and proceeded to restrain the media from publishing certain
information about the dispute. In the context of noise pollution, the Court
has held that when the exercise of the right to freedom of speech conflicts
with the right against “aural aggression” under Article 21, Article 19(1)(a)
“cannot be pressed into service” and would have to be restricted. In the
ongoing Sudarshan case, which revolves around the regulation of hate
speech, the Court reportedly suggested that Article 19(1)(a) had to be
balanced with the rights to dignity and equal citizenship flowing from Article
21. In fact, on a similar suggestion from the Court, this very question was
referred to a Constitution Bench in 2019, which reference is presently
pending. It would appear that Article 21 has been the most popular
candidate for invoking the doctrine of balancing over the years.

Positive but vertical rights: The conceptual gap

More fundamentally, the doctrine of balancing begs a conceptual question.

To recall, the doctrine works on the premise that two rights can “conflict”
with each other. But can vertical rights ever conflict? Take the two rights
from the Shaheen Bagh case, for instance: (i) State shall not prevent the
citizen from expressing herself, and (ii) State shall not hinder the citizen’s
mobility. It is conceptually impossible for these two rights to conflict if the
State does nothing. In fact, none of the petitioners before the Court had
claimed that the State had prevented anyone from moving about. The writ
petition was filed seeking a direction from the Court that the State must
clear the public sites of anti-CAA protestors because the 'protestors', i.e.,
other private actors, were preventing others from moving about freely.

To get around this conceptual hurdle, proponents of balancing would argue

that even though rights in Part III are vertical, they are not 'negative' in the
way I suggest. The State also has 'positive' obligations to fulfil fundamental
rights. Therefore, the two rights involved in the Shaheen Bagh case are more
appropriately described as: (i) State shall not prevent citizens from
expressing themselves, and (ii) State shall 'positively ensure' that public
ways are free of congestion. Viewed in this manner, the conflict – and hence
the need for balancing – becomes evident. Some proponents of balancing
would presumably even state that all the three provisions discussed above,
i.e., Articles 19(1)(a), 19(1)(d) and 21 impose such positive obligations on the
State.

Recommendation and Conclusion

What is the extent of the State’s positive obligations? Do all rights give rise
to positive obligations in this broad sense? If not, which ones do, and what
is the principled justification for making this distinction? The Court, in the
Shaheen Bagh case, did not discuss the State’s positive obligations in
respect of the freedoms of speech and assembly at all; it did not even ask
whether the State has an obligation to provide the anti-CAA group access to
a protest site that attracts public attention and allows the protest to be
meaningful. On the other hand, it readily held that the State had an
obligation to clear public ways of congestion, even when it is caused by
protestors.

Selective and unprincipled application of the idea of positive obligations in

this way invites the popular criticism that judges are merely enforcing their
personal or political preferences through their judgments. Insofar as the
doctrine of balancing relies on the existence of positive obligations,
invocation of the doctrine is likely to remain unprincipled and arbitrary
unless a coherent theory of positive obligations is developed and defended
by the Supreme Court. It is hoped that the Court will soon undertake that
task.

(The author is Research Assistant in Lok Sabha, Parliament and the views are
personal parth@cpra.co.in)