Sakal Papers v. Union of India (1962) is something of a classic in Indian free speech law. It has been widely discussed in the literature on Article 19(1)(a), and may even be found on occasions in books and discussions over Part III more generally. A lecture clip by Nariman J. recently sent me back to the case. And after a rather long spell away from the blog, it felt like as good a case as any, to return and do what I do here from time to time.
An understanding of the case, needless to say, is important. For now, however, three things in view suffice:
The Nehru Government, through the Newspaper (Price and Page) Act 1956 and the Daily Newspapers (Price and Page) Order 1960 – to prevent unfair competition and, ostensibly, in keeping with its Socialist commitments – set about regulating the number of pages a newspaper could publish by reference to its price.
Sakal Papers – a Marathi daily based out of Poona – challenged the scheme. Interestingly, the Union of India defended it on counter intuitive grounds that the regulations would actually promote – rather than restrict – free speech. They argued that the regulations would leave smaller newspapers more room to survive and compete, and preserve a plural press (larger newspapers – after all – could produce at a lower cost, keep prices low, and still be in a position to indefinitely expand circulation).
Speaking for the Court, Mudholkar J. held that if a newspaper must raise its price to retain its existing volume, such a measure necessarily bears upon its circulation, and therefore upon its capacity to communicate. As for the Article 19(2) question: given it contained no general “public interest” exception – unlike Article 19(6) – the State’s justification found no home.
Let us start with the Court’s syllogism: regulation reduces volume; volume is speech; therefore, regulation reduces speech.
Nothing in this chain is particularly bad or troublesome, until one notices what it holds as a constant – the number of speakers. For then the question becomes: what the regulation does to the output of each individual newspaper? But that – if one thinks about it – is precisely the point that the State was asking the Court to consider: the market itself produced an asymmetry between speakers and regulating the larger papers might allow room for the smaller ones.
The Court's application limitedly focuses on the newspaper's individual burden – i.e. a standard frame for cases of direct censorship – to what was essentially a market design claim. The two are fundamentally different kinds of free speech problems, and therefore should have called for a different kind of enquiry. The latter enquiry concerns itself with the structure of the marketplace, and whether it produces more or less of ideas that the right to free speech is meant to protect. [A good example is the approach undertaken by the SCOTUS in Associated Press v. United States (1945 decison). It found that the Associated Press – a cooperative news gathering organisation – through its membership rules was effectively excluding competing newspapers from its service and thereby violating US antitrust regulations. What is worth noting is that the same was done by treating the problem as one of access to a channel of communication).]
For a market design claim such as the one we see in Sakal Papers should similarly have looked at whether the regulation preserved or diminished the plurality of voices available in the market? and whether limiting the advantages of larger newspapers actually created space for smaller ones, and increased the overall supply and diversity of information and viewpoints? The Court, however, found no merit in the argument and there was no engagement to this end at all.
The reason I push for this so much is ultimately a fairly simple one. And t0 be clear, I do agree that more volume is more speech. But if volume is a relevant factor to the value of free speech under the Constitution, then so too – I would submit – is entry into the marketplace of ideas. More newspapers, of course –– mean more speakers –– meaning more viewpoints –– and potentially a more plural public sphere (also if one were to choose between a speaker who gets to speak considerably more and a larger number of speakers saying somewhat less, one might well prefer the latter).
Admittedly, all of this is a personal choice. It is, however, also, I would submit: a reasonably good instinct for free speech and constitutional law.