Article 19: A Libertarian Analysis

Article 19: A Libertarian Analysis

Local Coordinator, Anas Shoeb Khan analyses the Free Speech law in the Indian Constitution from a libertarian viewpoint. 

 

What does the Law state? 

Article 19 1 (a) and 19 (2) of the Constitution of India reads as “All citizens shall have the right to :

  1. (a) freedom of speech and expression; 
  2. Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

 

Libertarian Rights and Wrongs of the Law

It has been time and again reaffirmed by the Indian judiciary that the right to free speech and expression is recognized as the mother of all liberties. Free speech and expression can be either oral, written, pictures, caricatures, animations, movies and so on and so forth. It is pertinent to note the article under which the said right has been enumerated in the Constitution of India.

If one analyses Article 19 (1) (a), it states the word ‘all citizens’ to have the fundamental right to freedom of speech and expression, which is justiciable in the Courts. To include only ‘citizens’ in the exercise of free speech, would mean contradicting the libertarian ideals of liberty as inherent to every human being.

Thus, state and Constitutions were given the delegated right to protect the freedom of speech and expression and not to segregate the exercise of it into citizens and non-citizens. To identify a basic natural right such as this, exclusively to citizens is detrimental to the principle of limited government.

Criticisms aside, the right to free speech and expression has been time and again protected by the Indian judiciary and its ambit has been extended through various cases such as, the Sakal papers and the Bennet Coleman Case, in which the State in the exercise of its power tried to financially constrain the publishing of newspapers through illegitimate taxation.

However, much has been suffered because of the provisions of vague ‘reasonable restrictions’. A classic example of which is the Emergency Era of the mid-1970s. The Emergency era saw the rise of large-scale state despotism, almost the one Hobbes would have wanted us to suffer submissively.

This crack-down by the state, impacted a plethora of individual liberties including free speech and freedom of the press. Ayn Rand’s argument of Statism finds relevance in this context –  when coercive power of the state takes away individual liberty.

It was seen that the Constitution and the state-made law proved inefficient to protect the right to free speech, from the coercive power of the state. This was a clear case which provided evidence that the Constitutional provisions are not the sole repository of the ideals of liberty, even though they may enumerate some libertarian values.

Unlike the ‘First Amendment’ of the American Constitution, the Indian Constitution does lay down ‘reasonable restriction’ as to when free speech can be curtailed. Explicit statutory provisions do, at times, restrict the coercive nature of the state. However, they also make the case for the state’s explicit power to curtail.

The Constitutional article on freedom of speech and expression in India has so far fared well in the democratic process but much needs to be done from the libertarian standpoint before the primacy of individual rights is recognized. A Constitutional provision to be recognized as ‘law’ in the true libertarian sense, as Fredric Bastiat pointed out, has to be backed by the general and abstract law.

Thus, the law is the dictate of the reason of the spontaneous order and any encroachment on the right to free speech and expression, even during the exercise of general exceptions by the state, should be able to pass the test of the general and abstract law of free society.

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