Gautam Bhatia (Yale Law School) has posted The Conservative Constitution: Freedom of Speech and the Constituent Assembly Debates on SSRN. Here is the abstract:
The framing of India’s Constitution is popularly considered to be a transformative moment: the culmination of a decades-long movement for political and economic self-determination, and the marker of a transition from a colonial regime maintained by coercion to a democratic republic. The crowning glory of the Constitution-making process, which reflects this transformation, is Part III: the fundamental rights chapter. Guaranteeing core civil and political rights such as the right to freedom of speech and expression, life and personal liberty, and equality before law, Part III of the Constitution appears to place the autonomous, self-determining individual at the heart of the Constitutional order. Nonetheless, the rights guaranteed by Part III are not absolute. They are subject, in many cases, to “reasonable restrictions.” Over the course of its history, the Supreme Court has tended to interpret these clauses in a way that the restriction has often swallowed up the right, and the State has been allowed a more or less free rein to pass rights-infringing statutes, or take rights-infringing executive acts. The question then must be asked: is the Court’s civil rights jurisprudence consistent with the transformative character of the Constitution? In this essay, I will argue that it is: for the reason that a closer look at the framing of the Constitution reveals that Part III was not intended to be transformative in the classical sense of creating a set of rights to serve as a bulwark in service of liberal individualism. By examining the Constituent Assembly Debates around the framing of the free speech clause, and placing it in both its historical context of colonial free speech law, as well as the future trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that as far as the nature and structure of fundamental rights is concerned the framing is better understood as conservative, than a transformative moment; and that consequently, the Supreme Court’s conservative approach to freedom of speech is more, rather than less, consistent with the intent of the framers.
Posted at 6:50 AM