Free speech and its impact on policymaking


The manner in which a society organizes itself, in particular its political economy, has a significant bearing on the manner in which the concept of public morality is evolved and enforced. For instance, a theocratic state traces its moral precepts to religion and scripture, with there being almost no room for participation by the average citizen except for unquestioned compliance. In a monarchy, the source of public morality depends on the conception of monarchy itself in a given society. For instance, in some societies, the monarch was seen as an earthly representative of the divine whose authority was recognized and sanctioned by the clergy, and in a few other societies he was seen as a public servant whose personal good lay in the good of the people. In the former case, the source of public morality was the monarch who was, in turn, answerable to the guardians of the faith. Therefore, the duty of the monarch was to enforce what was deemed moral by the guardians of the faith, which is just a few degrees of separation from a theocracy. In the latter case, public morality revolved around the concept of and perhaps even emanated from what was considered good for the society by the monarch, which usually translated to the greatest good for the greatest number of people. A democracy too places a premium on maximising good for the maximum number of people, but what makes it different is the premise that there is a lot more room for accommodation of diverse voices with every voice, in theory, being equal in the eyes of law notwithstanding its station in the society’s unwritten pecking order. The inherent participatory premise of democracy and the promise of egalitarianism, howsoever illusory, ephemeral and superficial, is what makes it seem so attractive. 

The reason for this cynical view is that in reality, democracy is vulnerable to special interest groups which have a knack for survival and manage to find politically correct language and frameworks to justify their hold over the strings of power. Consequently, public morality is rarely the morality of the public. Instead, it is the morality of a powerful few which is legitimised through the façade of democracy. As has been suggested by quite a few scholars, notwithstanding the noble intentions with which democracy was introduced, the only change that democracy has arguably brought about is that those who wield power have to placate and keep in good humour more individuals and groups than perhaps a monarch would have had to tolerate and entertain. While this does expose the hollowness of the democratic promise, its strength equally lies in the fact that more people can influence public morality and hence law, than was possible in a monarchy. It is this possibility that keeps the democratic churn going because every group hopes to reach a point where it can influence public morality through law and remain in that position for as long as it can. And since democracy by design requires that group to accommodate as many groups as possible in its journey to power, other groups and therefore the society benefit incidentally owing to this policy of compromise and accommodation. That said, what makes democracy seem truly attractive is that the average citizen gets the freedom to vent his or her ire even if it leads to nothing.

 By satisfying that fundamental human urge to give expression to exasperation and also present a punching bag in the form of the State at which that ire can be directed, democracy manages to make a case for itself in the eyes of the average citizen as the ideal form of political organization that a civilised society can choose for itself. However, over time, free speech and expression have acquired more teeth and have been instrumental in pushing the envelope in the right direction to ensure that groups which lack muscle too are heard and paid heed to. This could be because democracy puts stock in good optics which, perhaps, did not matter as much in a monarchy where the monarch’s relatively unbridled power did not need the aid of good optics to remain in power as long as a few powerful stakeholders were kept happy. While democracy, as it is practised, is far from ideal, it can be certainly argued that the recognition of certain fundamental freedoms, even in the absence of absolutism, has contributed to greater participation by the average citizenry in the process of policy making. Clearly, there exists a nexus between free speech and expression, and the inclusive nature of policy making. Having said that, what tangible and credible mechanisms, if any, have been envisaged by the Indian Constitution which enable and mandate gathering of public opinion in order to arrive at a consensus on what constitutes public morality?

 After all, if free speech and expression merely result in impotent ventilations without there being a binding mechanism which requires the powers that be to pay attention to the will of the people, where in the enforceable link between the will of the people, and the will of the people as represented by the elected representatives? This shall be addressed in the next piece.

 J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.