“Balancing” Away Free Speech: Some Thoughts
Updated: Dec 16, 2020
- Shrutanjaya Bhardwaj*
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 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 judgment, 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.
The second provision is Article 19(1)(a) itself. In 1999, the Supreme Court rejected the argument that “must carry” norms — i.e., rules requiring mandatory exhibition of informative content in cinema halls, on cigarette packs, etc., — violate Article 19(1)(a) by impinging on the freedom of speech of those who are compelled to exhibit the information.  On the contrary, the Court held that such norms further Article 19(1)(a) by securing the right of the audience to receive information. The Court did not expressly invoke the doctrine of balancing in support of its conclusion; in fact, the Court did not give any sound doctrinal justifications for its conclusion. But the only way to rationalize the judgment in terms of constitutional doctrine is to view the decision of the Court as having “balanced” the Article 19(1)(a) rights of the audience with those of the speakers.
Finally, the third provision – a recent addition – is Article 19(1)(d). In the Shaheen Bagh judgment delivered last month, the Supreme Court declared that the freedom of speech of protestors must be balanced with the “rights of commuters”.  While the Court did not specify which rights of commuters it was referring to, it is reasonable to assume that it had the right to move freely under Article 19(1)(d) in mind (perhaps in addition to Article 21, which includes within its domain the right of “freely moving about and mixing and commingling with fellow human beings”). 
These instances show that the doctrine of balancing makes the list of permissible grounds for restricting speech virtually elastic. Once we commit to the position that the freedom of speech can be balanced against some rights, we would have to concede that it can be balanced against all. The grounds for placing limitations on the freedom of speech would thus increase manifold. This is even more so because of the Supreme Court’s passionately undertaken project of expanding the scope of fundamental rights, especially of Article 21. For instance, the doctrine of balancing would allow speech to be curtailed if it disturbed an individual’s right to sleep peacefully.  The use of paper for poster-printing and letter-writing could be prohibited to preserve the environment.  Demonstrations by workers could be curbed for harming the business rights of the employer under Article 19(1)(g). Different forms of expression could be restricted for the protection of somebody else’s right to protection of their “tradition, culture and heritage” in “full measure”.  Who knows where Article 21 is headed next? One unique problem that balancing poses, therefore, is that it pits rights against each other. A future judge intending to read one right expansively would fear that she is simultaneously diminishing the width of other rights.
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.
But this is only wordplay. To say that “the State has a positive obligation to compel private citizens to respect others’ mobility rights, and the private citizens in turn have an obligation to follow the State’s lawful commands” amounts to saying that rights are horizontal, no matter how many logical or logistical steps are injected before reaching the same result. It may be that writ petitions can only be filed against the State for the enforcement of those rights, but it would be wrong to say that the rights are not 'available against' private actors. Positive obligations understood in this way are merely a proxy for horizontal application of rights. Of course, there could be a narrower view of positive obligations that does not qualify as horizontality. For instance, one could say that the State must provide food to all, which does not necessarily require the State to place responsibilities on other private actors. But it would be a different matter to say, e.g., that the State also has a positive obligation to compel private persons to donate food to those who cannot afford it. The latter would amount to horizontality, for it effectively requires one private actor to protect the right of another. Unless positive obligations are understood in this second, broad sense, a “conflict” cannot logically exist between two rights.
Such a broad understanding of positive obligations – which amounts to horizontality – has never been discussed and defended by the Supreme Court, though it has certainly been inchoately applied in the instances discussed above (and in other contexts, such as in the case of data protection).  The unprincipled nature of this approach is harmful for the freedom of speech and the right to dissent. Before invoking romantic ideas of positive obligations in the broad sense, the Court must think of the consequences of its approach and define its principled boundaries. 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.
* Shrutanjaya Bhardwaj is an advocate practicing in Delhi and Sonipat and an alumnus of NLU Delhi (LL.B. '17) and University of Michigan Law School (LL.M. '19). He is grateful to Ms. Anushka Pandey for helping him bring out these thoughts better.
 Sakal Papers Ltd. and others v Union of India AIR 1962 SC 305 (Supreme Court of India).
 Sahara India Real Estate Corp. Ltd. and others v SEBI and others (2012) 10 SCC 603 (Supreme Court of India).
 In re Noise Pollution and Restricting Use of Loudspeakers AIR 2005 SC 3136 (Supreme Court of India).
 Sanya Talwar, ‘A balance is to be drawn between free speech and the dignity of a community in this case’ Justice Chandrachud in Sudarshan TV case’ (Live Law, 21 September 2020), accessed 04 December 2020.
 Kaushal Kishore v State of Uttar Pradesh, Govt. of U.P Home Secretary W.P. No. (Cri) 113/2016 (Supreme Court of India).
 Union of India and others v Motion Pictures Association and others Civil Appeal no. 3766-67 of 1999 (Supreme Court of India).
 Amit Sahni v Commissioner of Police and others Civil Appeal No. 3282 of 2020 (Supreme Court of India).
 Common Cause v Union of India (1999) 6 SCC 667 (Supreme Court of India).
 In Re Ramlila Maidan Incident Suo Motu Writ Petition (Cri.) No. 122 of 2011 (Supreme Court of India).
 Virendra Gaur v State of Haryana 1994 Suppl. (6) SCR 78 (Supreme Court of India).
 Ramsharan Autyanuprasi and another v Union of India and others AIR 1989 SC 549 (Supreme Court of India).
 K.S. Puttaswamy v Union of India (2017) 10 SCC 1 (Supreme Court of India).