Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A Purposivist Approach

Abstract

AbstractUnlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.