Statute Law Review, 2020, Vol. XX, No.

XX, 1–11
doi:10.1093/slr/hmaa012

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

The Sound of Constitutional Silences:
Interpretive Holism and Free Speech
under Article 19 of the Indian
Constitution
Raghav Kohli*,

A B ST R A CT
Unlike the US First Amendment, Article 19 of the Indian Constitution expressly enumer-
ates eight grounds on which free speech may be restricted. Despite being a fundamental
issue of constitutional interpretation, the question of whether Article 19 provides for an
exhaustive list of restrictions has largely been neglected in academic literature and Indian
jurisprudence. 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 argu-
ments on whether speech can be restricted by invoking fundamental rights beyond
Article 19. This Article seeks to develop a principled answer by excavating the meaning of
constitutional silences on the relationships between fundamental rights under the Indian
Constitution. It argues that a strict textualist approach leads to a distinct form of rights ab-
solutism that is both doctrinally incoherent and inconsistent with Indian jurisprudence.
Examining the shift in the Supreme Court’s interpretive outlook from strict textualism to
interpretive holism, it finds that the Court’s rich fundamental rights jurisprudence allows
importing restrictions on speech from beyond Article 19. Such an approach also provides
a meaningful framework for resolving intra-right, inter-right, and right-interest conflicts
in the constitutional adjudication of free speech issues.

1.  I N T RO D U CT I O N
Article 19(1)(a) of the Indian Constitution guarantees the right to ‘freedom of speech
and expression’ to all citizens.1 However, unlike the First Amendment in the United
States, Article 19(2) expressly enumerates eight grounds on which the state may im-
pose ‘reasonable restrictions’ on the right.2 Current doctrine on the exclusive roles
played by Article 19(1)(a) and Article 19(2) in the constitutional adjudication of free
speech issues is unclear. While the court flushes out protected expression at the ini-
tial threshold of Article 19(1)(a) in some cases, it proceeds to examine it against the

* Gujarat National Law University, Gandhinagar, India. I thank Siddhant Kohli for his ever-instructive feedback.
1
Article 19(1)(a), Constitution of India.
2
Article 19(2), Constitution of India.

© The Author(s) 2020. Published by Oxford University Press. All rights reserved.
For permissions, please e-mail: journals.permissions@oup.com.

• 1
Page 2 of 11  •  Statute Law Review

restrictions set out in Article 19(2) in others.3 This confusion is compounded in light of
our chequered jurisprudence on the question of whether or not Article 19(2) provides
for an exhaustive list of restrictions that may be imposed on the freedom of speech.

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

The latest site of contestations on the scope of Article 19(2) has been the recent
case of Kaushal Kishor v. State of UP in the Indian Supreme Court.4 It arose out of a pe-
tition filed by the kin of the 2016 Bulandshahr gang rape victims,5 who were enraged
by the statements of Uttar Pradesh Minister Azam Khan calling the victim’s account a
‘political conspiracy and nothing else’ against the ruling Samajwadi Party government
at the time.6 It was contended that such statements by a minister of the ruling party
have the effect of impeding a fair investigation and trial after a complaint has been regis-
tered.7 Pursuant to the Court’s order, the concerned minister offered an ‘unconditional’
apology for his remarks, which put a quietus to his involvement in the case.8 I leave for
another time the question of whether the Supreme Court was correct in accepting an
apology as ‘unconditional’ when it began with the words ‘if by any statement made by
the answering respondent, the petitioner has felt insulted or humiliated…’.9
For our present purposes, it is sufficient to note that a five-judge bench of the
Supreme Court in October 2019 nonetheless decided to address the larger constitu-
tional issues raised by this case, including the question of whether Article 19(1)(a)
is only subject to the grounds specified in Article 19(2), or whether it can also be re-
stricted by invoking other fundamental rights.10 Despite being a fundamental issue of
constitutional interpretation, it has been largely ignored in academic literature and
Indian jurisprudence.
This article seeks to develop a principled answer by excavating the meaning of con-
stitutional silences on the structure and relationships between different fundamental
rights under Part III of the Indian Constitution. It argues 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. Examining
the shift in the Indian Supreme Court’s interpretive outlook from strict textualism to
interpretive holism in the 1970s, it finds that the Court’s rich jurisprudence on the re-
lationship between fundamental rights allows importing restrictions on speech from
beyond Article 19(2). Such an approach also provides a meaningful framework for re-
solving conflicts in the constitutional adjudication of free speech issues, by addressing
the limitations of a strict textualist approach in dealing with intra-right conflicts, inter-
right conflicts, and right-interest conflicts in India.

3
R Kohli ‘Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A  Purposivist Approach’ (unpublished
manuscript).
4
Kaushal Kishor v. State of UP, WP (Crl) No 113/2016 (Supreme Court of India).
5
‘Bulandshahr Gang-Rape: Azam Khan Offers Unconditional Apology’ (NDTV 18 November 2016) <https://www.ndtv.
com/india-news/bulandshahr-gang-rape-azam-khan-offers-unconditional-apology-1626744> (accessed 15 April 2020).
6
See Kaushal Kishor, n 4, Order dated 29 August 2016.
7
Ibid, Order dated 29 August 2016.
8
Ibid, Order dated 15 December 2016.
9
Ibid, Order dated 15 December 2016.
10
Ibid, Order dated 24 October 2019.
 Constitutional Silences and Free Speech in India  •  Page 3 of 11

2.  A ST R I CT T E X T UA L I ST A P P ROA C H : A   N E W R I G H TS
A B S O LU T I S M ?
Although it is today widely accepted that rights even when enshrined in the constitu-

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

tion are seldom absolute,11 several eminent scholars and judges did not always think so.
For instance, Justices Hugo Black conceived of and shared an absolutist notion of the
First Amendment in the United States.12 Comparably, Alexander Meiklejohn argued
that his vision of First Amendment Absolutism was imperative to make ‘self-govern-
ment a reality’.13 One of the most persuasive arguments used to justify absolutism
came from the constitutional text itself, since the drafters employed unqualified terms
and declared that ‘Congress shall make no law’ to abridge free speech.14 In Konigsberg,
Justice Black observed that this ‘unequivocal command’ of the First Amendment dem-
onstrated that ‘the men who drafted our Bill of Rights did all the “balancing” that was to
be done in this field’.15 This, of course, was a direct attack against the ‘First Amendment
balancing’ approach adopted by the likes of Justice Frankfurter16 and Justice Harlan,17
who chose to ‘balance’ the ‘competing interests’ involved in determining free speech
violations.18
Although such a divide never appeared in the history of Indian constitutional law
owing to the clear non-absolutist language of Articles 19(1)(a) read with 19(2), similar
arguments have been employed to justify the exhaustive nature of Article 19(2). Let
us call this the ‘strict textualist approach’. Proponents offer three strong arguments
grounded in constitutional text to support this approach. 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.19 Unlike the US First Amendment which is
couched in absolute terms, Article 19 does not envision the development of ‘implicit
restrictions’ by courts as Article 19(2) provides an ‘adequate sieve’ to restrict speech.20
Second, Article 19(2) does not provide for a ‘public interest’ limitation unlike Article
19(5) for instance, where the state is permitted to restrict the freedom of movement on
unenumerated grounds that may qualify as ‘public interest’.21 Third, where balancing is
intended by the constitutional text, it is specifically provided for.22 For instance, Article
25(1) makes the freedom of religion ‘subject to’ other fundamental rights.23

11
A Barak Proportionality: Constitutional Rights and Their Limitations (Cambridge, UK: CUP 2012).
12
Konigsberg v. State Bar of Cal, 366 US 36, 61 (1961) (Black, J, dissenting).
13
A Meiklejohn ‘The First Amendment Is an Absolute’ (1961) Supreme Court Review 245.
14
United States First Amendment (emphasis added).
15
Konigsberg, n 12.
16
Dennis v. United States, 341 US 494 (1951).
17
Barenblatt v. United States, 360 US 109 (1959).
18
LB Frantz ‘The First Amendment in the Balance’ (1962) 71 Yale Law Journal 1424.
19
M Divan ‘Written Submissions by Madhavi Divan, ASG, on behalf of the Union of India’ in K.  Kishor, n 4  <https://
scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/1124/AzamKhan_-_WS_
ASG_Divan_22Jan.pdf> (accessed 15 April 2020); G Bhatia, ‘The “Balancing” Test and Its Discontents’ (Indian
Constitutional Law and Philosophy, 20 May 2016) <https://indconlawphil.wordpress.com/2016/05/20/the-balancing-test-
and-its-discontents/> (accessed 15 April 2020).
20
Divan, n 19.
21
Sakal Papers (P) Ltd v. Union Of India, 1962 AIR 305; Express Newspaper (P) Ltd v. Union of India, 1959 SCR 12; Bhatia, n 19.
22
Bhatia, n 19.
23
Article 25(1), Constitution of India.
Page 4 of 11  •  Statute Law Review

These are undoubtedly cogent arguments. In fact, in line with the strict textualist
approach, the Indian Supreme Court has more often than not affirmed the exhaustive
nature of Article 19(2) in its jurisprudence.24 While these observations have been mere

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

obiter in some cases, they have had a material impact on the outcomes in several others.
For instance, in Sakal Papers,25 the constitutionality of a set of press regulation meas-
ures enacted in 1956 and 1960 was challenged, which included fixation of the price of
newspapers in relation to their pages, allocation of advertising space, and a cap on the
maximum number of pages that may be published. The Petitioners argued that such
measures infringed, inter alia, their right to free speech under Article 19(1)(a) by cur-
tailing their circulation. Interestingly, the state argued that such measures would instead
promote free speech by preventing ‘unfair competition amongst newspapers’ and ‘the
rise of monopolistic combines so that newspapers may have fair opportunities of freer
discussion’.26 Rejecting the argument, the Court found that freedom of speech could
not be ‘curtailed in the interest of the general public’ in the absence of corresponding
grounds under Article 19(2).27
While the deeper constitutional question of the place of equality in Indian free
speech law remains to be examined at another time,28 it is essential to acknowledge the
significant impact of the Court’s strict textualist interpretation of Article 19: it invali-
dated a legislation aimed at equalizing competition in the press industry. This is not to
say that the Court would have necessarily arrived at a different conclusion if it exam-
ined the restrictions against grounds beyond Article 19(2). In the context of campaign
finance reform, the US Supreme Court in Buckley29 and McCutcheon30 similarly found
that the First Amendment did not permit restrictions to ‘level the playing field’31 or
limits aimed at ‘equalizing the relative ability of all voters to affect electoral outcomes’.32
The idea that ‘government may restrict the speech of some…in order to enhance the
relative voice of others’ was found to be ‘wholly foreign’ to the First Amendment.33
While the Indian Supreme Court in Sakal Papers was faced with a similar dilemma,
it chose to frame it in different terms. By examining the legislation as a ‘public interest’
restriction on speech, it decided against viewing the conflict as one taking place within
the bounds of Article 19(1). In other words, the Court did not view the legislation as
a conflict between the freedoms of speech of different actors. In failing to do so, the
Court conveniently struck down the legislation since ‘freedom of speech’ is evidently
not a ground under Article 19(2) to restrict freedom of speech under Article 19(1). It is

24
Shreya Singhal v. Union of India, (2015) 5 SCC 1; Bennett Coleman v. Union of India, (1972) 2 SCC 788; In Re Ramlila Maidan
Incident, (2012) 5 SCC 1; Indian Express Newspapers (Bombay) v. Union of India, (1985) 1 SCC 641; LIC v. Manubhai D Shah
(Prof), (1992) 3 SCC 637; Odyssey Communications (P) Ltd v. Lokvidayan Sanghatana, (1988) 3 SCC 410; People’s Union for
Civil Liberties v. Union of India, (2003) 4 SCC 399.
25
Sakal Papers, n 21.
26
Ibid.
27
Ibid.
28
Kohli, n 3.
29
Buckley v. Valeo, 424 US 1 (1976).
30
McCutcheon v. FEC, 134 S. Ct. 1434 (2014).
31
Ibid.
32
Buckley, n 29.
33
Ibid.
 Constitutional Silences and Free Speech in India  •  Page 5 of 11

in this sense that the right to speech of some becomes absolutist when compared to the
rights of others, despite the existence of ‘reasonable restrictions’ under Article 19(2).
Interestingly, Justice Breyer’s dissent in McCutcheon criticized the majority’s ap-

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

proach in similar terms, noting that they failed to appreciate that ‘constitutional
interests—indeed, First Amendment interests—lie on both sides of the legal equa-
tion’.34 According to him, such a conflict ‘takes place within, not outside, the First
Amendment’s boundaries’.35 As we shall subsequently find out, a holistic interpretation
of Article 19(1)(a) vis-à-vis other fundamental rights provides a principled answer to
this conundrum.

3.   I N T E R P R ET I V E H O L I S M A N D A RT I C L E 19(1)( A ): A   P R I N C I P L E D
A P P ROA C H

(A)  Constitutional Interpretation in Indian Jurisprudence: From Strict Textualism

to Interpretive Holism
It is today trite to say that constitutional provisions are not to be read in vacuo but
must be interpreted harmoniously.36 There is now widespread consensus that a ‘dis-
integrated’ approach towards reading the constitution, which ‘ignore(s) the salient fact
that its parts are linked into a whole—that it is a Constitution, and not merely an un-
connected bunch of separate clauses and provisions with separate histories’,37 must be
rejected in favour of ‘interpretive holism’.38 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.39 This is not a revolutionary argument;
that words must be read in their context has long been a cardinal principle of statutory
interpretation.40
Yet, strict textualism dominated constitutional adjudication for several years after
Indian independence in 1947.41 Most infamously, this approach was employed in 1950
in the case of AK Gopalan,42 one of the earliest cases involving issues of fundamental
rights in independent India. The Court was confronted with a habeas corpus petition

34
McCutcheon, n 30 (Breyer, J, dissenting).
35
Ibid.
36
LH Tribe and MC Dorf On Reading The Constitution (Cambridge, MA: Harvard University Press 1991) 21–23. For one of
most famous Indian Supreme Court decisions espousing the principle of harmonious construction of constitutional provi-
sions, see Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
37
Tribe et al., n 36. For similar criticisms, see M.C. Dorf ‘Equal Protection Incorporation’ (2002) 88 Virginia Law Review 951;
Akhil Reed Amar ‘Intratextualism’ (1999) 112 Harvard Law Review 747;
38
MC Dorf ‘Interpretive Holism and the Structural Method, or How Charles Black Might Have Thought about Campaign
Finance Reform and Congressional Timidity’ (2004) 92 Georgetown Law Journal 833.
39
Although Charles Black’s structural approach in Structure and Relationship in Constitutional Law (Louisiana State University
Press 1969) is often confused with interpretive holism, it is better understood as being concerned with the structure of the
US government instead of the structure of the US Constitution and the relationship between its provisions. For an example
of writings that use Black’s structuralism to represent interpretive holism, see C Chandrachud ‘Constitutional Interpretation’
in S Choudhry et al. (eds) Oxford Handbook of the Indian Constitution (Oxford, UK: OUP 2016). For an excellent critique of
this approach, see Dorf, n 37.
40
Attorney General v. Prince Ernest Augustus of Hanover, [1957] AC 436; Black-Clawson Ltd v. Papierwerke AG, [1975] UKHL
2; Helvering v. Gregory, 245 US 418; Union Of India v. Sankal Chand Himatlal Sheth, 1977 AIR 2328.
41
Chandrachud, n 39.
42
AK Gopalan v. State of Madras, AIR 1950 SC 27.
Page 6 of 11  •  Statute Law Review

arising out of the detention of AK Gopalan, a prominent Indian communist leader,

under the Preventive Detention Act of 1950.43 He argued that his detention violated,
inter alia, his right to free speech and his right to life under Articles 19 and 21 of the

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

Constitution. Rejecting his plea, the Court held that Article 21, which guaranteed
against deprivation of one’s life or personal liberty ‘except according to procedure estab-
lished by law’, did not encompass the American concept of ‘due process’.44 Instead, ‘pro-
cedure established by law’ was interpreted to mean procedure stipulated by Parliament,
without any regard to abstract principles of natural justice.45
The Court’s strict textualist approach becomes even clearer in its approach to the
Article 19 contention. It held that the question of Article 19(1)(a) would only arise
in cases of ‘a legislation directly attempting to control a citizen’s freedom of speech’,
and not when one’s rights are infringed ‘as a result of the operation of other legisla-
tion, for instance, for punitive or preventive detention’.46 In other words, it found that
different fundamental rights were better understood as ‘separate’ and ‘complete’ codes
with no overlap.47 This approach was soon reaffirmed a year later in Ram Singh,48 where
the Court held that a preventive detention legislation could not be challenged against
Article 19 as the Constitution ‘treated these civil liberties as distinct fundamental
rights’.49
It was only two decades later in 1970, that the Supreme Court rejected the strict
textualist approach. In RC Cooper, famously known as the ‘bank nationalisation’ case, it
was found that AK Gopalan was incorrect in its ‘assumption’ that different fundamental
rights were independent silos with exclusive substantive content.50 Provisions were to
be interpreted in a ‘harmonious manner’, since no articles of the Constitution were
‘superfluous or redundant’.51 This approach was later firmly cemented by the Court’s
famous decision in Maneka Gandhi, which involved a challenge to the impounding of the
former Prime Minister’s daughter-in-law’s passport.52 Coming full circle, the Supreme
Court held that the phrase ‘procedure established by law’ in Article 21 encompassed
not only procedural due process, but also the contentious American doctrine of sub-
stantive due process.53 Significantly, it was observed that Articles dealing with different
fundamental rights ‘do not represent entirely separate streams’, but were part of ‘an in-
tegrated scheme in the Constitution’ whose ‘waters must mix to constitute that grand
flow of unimpeded and impartial justice’.54 These were the beginnings of what is now
popularly referred to as the ‘golden triangle’ of the Indian Constitution,55 after Chief

43
Ibid.
44
Ibid.
45
Ibid.
46
For an account of Indian jurisprudence on the test for invocation of fundamental rights, see Kohli, n 3.
47
AK Gopalan, n 42.
48
Ram Singh v. State of Delhi, AIR 1951 SC 270.
49
Ibid.
50
RC Cooper v. Union of India, 1970 AIR 564.
51
Ibid.
52
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
53
Ibid.
54
Ibid.
55
Bachan Singh v. State of Punjab, (1982) 3 SCC 24; TR Kothandaraman v. TN Water Supply & Drainage Board, (1994) 6
SCC 282.
 Constitutional Silences and Free Speech in India  •  Page 7 of 11

Justice YV Chandrachud in Minerva Mills eloquently articulated that Articles 14, 19,
and 21 together formed the golden triangle standing between ‘the heaven of freedom’
and ‘the abyss of unrestrained power’.56

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

No Indian constitutional scholar today denies the sound rationale behind the hol-
istic approach adopted in the post RC Cooper-Maneka Gandhi era. Even those who
adopt a strict textualist approach towards Article 19(2) agree on at least one impli-
cation of this holistic interpretation: that the inevitable overlap between fundamental
rights has made it possible for multiple fundamental rights to be implicated simultan-
eously in constitutional adjudication.57 However, in viewing the impact of interpretive
holism as restricted to cases of overlap, this approach does not adequately engage with
its impact on cases of conflict between fundamental rights.

(B)  Resolving Intra-right Conflicts, Inter-right Conflicts, and Right-Interest

Conflicts under the Indian Constitution
In particular, a strict textualist approach to Article 19(2) fails to account for three types
of conflicts that are more typically characteristic of Rights Absolutism.58 First, it incor-
rectly assumes that ‘intra-right conflicts’ cannot exist. By intra-right conflicts, I mean
conflicts arising when the same fundamental right gives rise to ‘conflicting commit-
ments’59—as was the case in Sakal Papers, where the right to freedom of speech was
asserted on both sides.60 In restricting the scope of limitations upon speech to Article
19(2), the Court failed to frame the issue in the language of equal access arising out
of the conflicting rights of free speech of smaller and larger newspapers. By only rec-
ognizing the competing right of circulation of big newspapers under Article 19(1)(a),
it became convenient for the Court to disregard the existence of an intra-right conflict
by relegating the other competing right of smaller newspapers to the status of a mere
‘non-rights based interest’—in this case, a ‘public interest’ limitation on the right of
circulation under Article 19(1)(a). Much has already been written about the dangers
of viewing rights as Dworkinian Trumps,61 which although sometimes inaccurately
equated with the absolutism of Black and others,62 does not offer a consistent theory of
rights non-absolutism.63 Even without entering the debate on the different theoretical
models that engage with the nature of rights,64 it is important to remain vigilant about

56
Minerva Mills Ltd & Ors v. Union of India, 1980 AIR 1789.
57
Divan, n 19, observing that ‘…it is to be noted that in the present matter, the question before us does not entail an overlap of
fundamental rights but involves a case of conflict between two fundamental rights’.
58
MD Rosen ‘When Are Constitutional Rights Non-absolute? McCutcheon, Conflicts, and the Sufficiency Question’ (2015)
56 William & Mary Law Review 1535.
59
Ibid.
60
Sakal Papers, n 21.
61
R Dworkin Taking Rights Seriously (Cambridge, MA: Harvard University Press 1977).
62
See eg RH Pildes ‘Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism’ (1998) 27
Journal of Legal Studies 725.
63
For a detailed critique, see Rosen, n 58; P Yowell ‘A Critical Examination of Dworkin’s Theory Of Rights’ (2007) 52
American Journal of Jurisprudence 93.
64
See eg, John Rawls’s idea of ‘basic liberties’ in Political Liberalism (1993); Frederick Schauer’s ‘Rights as Shields’ in ‘A
Comment on the Structure of Rights’ (1993) 27 Georgia Law Review 415; Schauer’s ‘Rights as Devaluers of Non-rights
Considerations’ in ‘Proportionality and the Question of Weight’ in G Huscroft et al. (eds), Proportionality and the Rule of Law
(New York: CUP 2014); J Balkin’s ‘Rights as Principles’ in Living Originalism (Cambridge, MA: Harvard University Press
2011), and Rosen’s “Rights as Values” in Rosen, n 58. For a comparative overview, see Rosen, n 58.
Page 8 of 11  •  Statute Law Review

the perils of arbitrarily recognizing conflicting commitments of rights as constitution-

ally protected trumps sans any analysis.
Second, the strict textualist approach incorrectly assumes that ‘inter-right conflicts’

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

cannot exist. At the very least, they assume that free speech trumps other rights in most
conflicts without adequate justification. Take for instance, the potential for conflict be-
tween Article 19(1)(a) and the bundle of unenumerated rights recognized as part of
the right to life under Article 21.65 In the absence of appropriate grounds under Article
19(2), 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 inter-
pretation of Part III of the Constitution adopted in RC Cooper and Maneka Gandhi.
In expressly holding that different articles were not separate codes but instead part of
an ‘integrated scheme’,66 the Court made it beyond clear that no right can claim auto-
matic superiority so as to render other provisions ‘superfluous’.67 Consistent with this
approach, the Court as recently as in 2019 held that the freedom to manage religious
affairs under Article 26 would be subject to other provisions of Part III even in the ab-
sence of an express proviso like in Article 25, in order to ensure ‘synchrony’ and ‘har-
mony’ in constitutional interpretation.68
In fact, the Court has in a few cases expressly affirmed that Article 19(1)(a) may be
‘balanced’ against other fundamental rights, without alluding to Article 19(2). For in-
stance, in Noise Pollution (V),69 the Court recognized that Article 21 protects the right
to freedom from noise pollution, and invoked it to justify restrictions on free speech.
Significantly, it held that ‘Article 19 cannot be pressed into service for defeating the
fundamental right guaranteed by Article 21’.70 Textualists offer a bleak response to such
instances; they argue that the decision turned on some other ground within Article
19(1)(a) or Article 19(2), thereby eliminating the need to invoke Article 21. For in-
stance, in this case, they argue that the Court’s recognition of the right to silence as a
facet of Article 19(1)(a) excludes the need to rely on Article 21.71 But this approach
takes us back to the problem of intra-right conflicts, where textualists arbitrarily choose
to recognize one competing facet of a right as constitutionally protected, and relegate
the other into the domain of ‘public interest’.72
The Court has adopted a similar approach to Article 19(1)(a) in cases such as
Subramanium Swamy,73 where it upheld the constitutionality of criminal defamation
after ‘balancing’ it against the right to reputation under Article 21, and in Sahara,74
where it held that the right to a fair trial under Article 21 was a ‘valid restriction’ on

65
Dr Justice DY Chandrachud ‘Adding Nuance to Our Human Rights Discourse’ (Lecture delivered on the occasion of Human
Rights Day on 10 December 2019)  <https://www.indialegallive.com/human-rights-news/justice-d-y-chandrachud-
human-rights-day-speech-77898> (accessed 28 May 2020).
66
Maneka Gandhi, n 52.
67
RC Cooper, n 50.
68
Indian Young Lawyers Assn v. State of Kerala, 2018 SCC OnLine SC 1690.
69
In Re Noise Pollution (V), (2005) 5 SCC 733.
70
Ibid.
71
Divan, n 19.
72
Sakal Papers, n 21.
73
Subramanian Swamy v. Union of India, (2016) 7 SCC 221
74
Sahara India Real Estate Corp v. SEBI, (2012) 10 SCC 603.
 Constitutional Silences and Free Speech in India  •  Page 9 of 11

free speech. Particularly interesting in the Court’s analysis in Sahara was its view of
rights as values, similar in some respects to Tom Scanlon’s theory of values, where rights
are viewed as institutionally defined means to secure values.75 It was observed that

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

the ‘underlying’ values of our constitutional system ‘sometimes conflict’ and must be
‘balanced against, other important, and often competing, values’.76 In other words, ‘no
values are absolute’ as ‘no single value’ could ‘bear the full burden of upholding a demo-
cratic system of government’.77 This is a rich, although overlooked, contribution to the
Court’s jurisprudence on the interrelationship between different fundamental rights in
Part III. Since articulated rights in Part III were viewed as overlapping instrumental-
ities to secure overarching constitutional values, balancing conflicts between different
provisions to meaningfully realize those values was understood as inevitable. Without
engaging with this rich jurisprudence, strict textualists again offer an inadequate re-
sponse to Sahara, arguing that invoking Article 21 was unnecessary in light of the spe-
cified ground of ‘contempt of court’ under Article 19(2).78
Third, the strict textualist approach fails to account for the distinction between inter-
right and intra-right conflicts on one hand, and ‘non-rights based interest’ conflicts
on the other. Several out of the eight grounds to restrict speech under Article 19(2)
are not directly couched in terms of individual rights.79 They are better understood as
‘non-rights based interests’ of the state, evinced by grounds such as ‘sovereignty and
integrity of India’, ‘friendly relations with foreign States’ and even ‘contempt of court’.80
By viewing Article 19(2) as exhaustive, the strict textualist approach invariably subor-
dinates rights-based conflicts arising out of fundamental rights such as Article 21, to
non-rights based interests found in Article 19(2). Let us refer to such conflicts as ‘right-
interest conflicts’.81 That a liberal constitution would permit restricting free speech on
the vague grounds of ‘friendly relations with foreign states’ but not in favour of the right
to life in such a conflict defies constitutional logic.

(C)  Some Responses from Strict Textualism

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.82 The specificationist believes that each right exists in a fixed ‘space’ de-
fined by a comprehensive set of qualifications that regulates when it would and would

75
TM Scanlon ‘Adjusting Rights and Balancing Values’ (2004) 72 Fordham Law Review 1477. However, the Court’s ap-
proach differed from Scanlon insofar as Scanlon distinguished between rights and values to demonstrate the impossibility of
rights-conflicts and possibility of value-conflicts. (‘Terms such as “freedom of expression,”…can be understood as referring
to goods, like privacy, which we properly value and wish to secure, or they can be understood as referring to institutionally-
defined rights, which are important means of securing these valued goods’). For an interesting ‘rights as values’ approach, see
Rosen, n 58, who treats values as building blocks of constitutional culture.
76
Sahara, n 74.
77
Ibid.
78
Divan, n 19.
79
Article 19(2), Constitution of India.
80
Ibid.
81
Rosen, n 58.
82
R Shafer-Landau ‘Specifying Absolute Rights’ (1995) Arizona Law Review 37; J Oberdiek ‘Specifying Rights Out of
Necessity’ (2008) Oxford Journal of Legal Studies 28; L Wenar ‘Rights’ in EN Zalta (ed) The Stanford Encyclopedia of
Philosophy (2020) <https://plato.stanford.edu/archives/spr2020/entries/rights/> (accessed 15 April 2020).
Page 10 of 11  •  Statute Law Review

not apply.83 In other words, although rights may often appear to conflict, they never
actually do; all rights are ‘compossible’.84 In the context of an apparent conflict between
Article 19(1)(a) and the right to fair trial under Article 21, the argument would go

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

something like this: since Article 19(1)(a) guarantees free speech only insofar as it does
not violate the right to fair trial under Article 21, no question of conflict arises.
Apart from the convincing doctrinal and pragmatic objections to this approach,85
there is conclusive evidence to demonstrate that this approach is inconsistent with the
Indian constitutional regime. The first rejection comes from the constitutional text it-
self, as Article 19(2) expressly adopts the language of restrictions, in particular ‘rea-
sonable restrictions on the exercise of the right’ to free speech.86 The second rejection
comes from the jurisprudence of the Indian Supreme Court, having categorically em-
phasized on the need to ‘balance’ between ‘overlapping’,87 ‘conflicting’, or ‘competing
rights’.88 Such a regime accepts the fact of conflict, and is better understood by speaking
of ‘defeated’ rights as being permissibly ‘restricted’ or ‘infringed’.89 The language of ‘re-
strictions’ and ‘conflicts’ is naturally foreign to the specificationist school.
Second, strict textualists may expand the scope of Article 19(2) in order to circum-
vent the need to invoke other fundamental rights. This may specifically be done by
interpreting the grounds of ‘morality’ under Article 19(2) to mean ‘constitutional mor-
ality’ instead of ‘public morality’, as has been done by the Supreme Court in its recent
jurisprudence.90 Relying on ‘constitutional morality’, which is a commitment to the ‘as-
surance of certain rights that are indispensable for the free, equal, and dignified exist-
ence of all members of society’,91 may permit textualists to import restrictions upon free
speech from other fundamental rights while remaining committed to the exhaustive
nature of Article 19(2). While this is an otherwise interesting development in Indian
constitutional interpretation with its own set of advantages and challenges,92 the use
of this doctrine by strict textualists would amount to not only a tacit acceptance of
the merits of interpretive holism, but also a resounding acknowledgement of the limi-
tations of their approach. Arguing that Article 19(1)(a) may not be balanced against
other fundamental rights on their own—as long as it is not done through the grounds of
‘constitutional morality’—necessarily recognizes that all balancing between free speech
and other interests has not been achieved within the constitutional text; that Article 19

83
Ibid.
84
H Steiner An Essay on Rights (Blackwell Oxford 1994).
85
P Montague ‘Specification and Moral Rights’ (2015) 34 Law and Philosophy 241; J Thomson The Realm of Rights
(Cambridge, MA: Harvard University Press 1990).
86
Article 19(2), Constitution of India.
87
Maneka Gandhi, n 52.
88
Sahara, n 74.
89
Thomson, n 85.
90
See eg Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, where the Supreme Court read down section 377 of the Indian
Penal Code to allow consensual homosexual sex, observing that one’s ‘sexual identity…under the constitutional scheme does
not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of
under the Constitution is constitutional morality.’; Joseph Shine v. Union of India, (2019) 3 SCC 39, where the Court decrim-
inalized adultery and observed that it ‘is not the “common morality” of the State at any time in history, but rather constitu-
tional morality, which must guide the law’.
91
Joseph Shine, n 90.
92
See eg PB Mehta ‘What Is Constitutional Morality?’ (India Seminar) < https://www.india-seminar.com/2010/615/615_
pratap_bhanu_mehta.htm> (accessed 15 April 2020).
 Constitutional Silences and Free Speech in India  •  Page 11 of 11

envisions the development of implicit restrictions; that unenumerated grounds may

be cited to restrict speech; and that Article 19(1)(a) is indeed subject to other funda-
mental rights even though it has not been explicitly provided for. Compared to inter-

Downloaded from https://academic.oup.com/slr/article-abstract/doi/10.1093/slr/hmaa012/5868440 by University of Exeter user on 14 July 2020

pretive holism, this approach attempts to makes a distinction without a difference.

4.  CO N C LU S I O N
Constitutional silences present innumerable challenges to scholars, practitioners, and
judges across the globe.93 Since constitutions are never fully comprehensive,94 consti-
tutional silences are both unavoidable and functional in that they significantly impact
the operation of constitutions across different domains.95 Viewed in this way, it is apt
to suggest that successful constitutionalism may require embracing ‘the reality of con-
stitutional silence’.96 Understanding the relationships and structures between different
fundamental rights presents us with one such challenge to successful constitutionalism
in India.
In light of the convincing constitutional logic and settled precedent in favour of a
non-absolutist vision of Article 19(1)(a), the referral of Kaushal Kishor to a larger con-
stitutional bench for deciding this issue was unwarranted. By interpr+eting the fun-
damental rights chapter holistically since the 1970s, the Court’s jurisprudence has
unequivocally affirmed that no fundamental right can operate in a manner as to render
other rights meaningless. The right to freedom of speech under Article 19(1)(a) is no
exception.
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 blache 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 to ferret out
impermissible state purposes.97 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.98 This, however, is not a risk exclusive to
interpretive holism, but a criticism of Indian judicial reasoning more generally. 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.

93
M Loughlin ‘The Silences of Constitutions’ (2018) 16(3) International Journal of Constitutional Law 92; LB Solum
‘Originalism and the Unwritten Constitution’ (2013) University of Illinois Law Review 1935.
94
J Gardner ‘Can There Be a Written Constitution?’ in L Green and B Leiter (eds) Oxford Studies in Philosophy of Law
(Vol 1, Oxford, UK: OUP 2011).
95
R Albert and D Kenny ‘The Challenges of Constitutional Silence: Doctrine, Theory, and Applications’ (2018) 16(3)
International Journal of Constitutional Law 880; Loughlin, n 93.
96
Ibid.
97
Kohli, n 3.
98
Shayara Bano v. Union of India, (2017) 9 SCC 1.