Mill's Influence on the Indian Constitution

The word "reasonable" puts the burden on the State. A restriction is not valid because a legislature enacted it. It must be shown to be reasonable, and the courts decide, which means the citizen's liberty is not at the disposal of a majority.

The grounds are exhaustive. The State may restrict only for the purposes clause (2) to clause (6) name, and a restriction imposed for any other purpose is void however sensible it may be. That closed list is the practical form of Mill's insistence that a reason must be given.

Freedom of speech is given the widest protection, with its own clause and its own list, which reflects the special place Mill gives to discussion.

Article 21's personal liberty, and articles 25 and 26 on freedom of conscience and religion, extend the same structure to the areas Mill called the liberty of tastes and pursuits and of thought and feeling.

Where the Constitution departs from Mill

This is the part of the answer that earns the marks, because it requires reading the grounds against the principle.

"Decency or morality" is not harm. Mill's principle expressly excludes the fact that others regard conduct as immoral. Clause (2) makes it a ground for restricting speech and clause (4) for restricting association.

"Public order" is wider than harm. It reaches conduct that disturbs the tranquillity of the community without injuring any person.

"Defamation" and "contempt of court" are grounds Mill would have examined much more sceptically than the Constitution does.

"The general public" in clauses (5) and (6) is the widest formula in the article, and it covers restrictions imposed for the collective benefit rather than to prevent harm to identified persons.

Paternalism is permitted in practice. Legislation requiring helmets, restricting alcohol and regulating dangerous employment is sustained under these clauses, and each is precisely the interference Mill said may never be justified by a person's own good.

So the correct statement is this. The Constitution adopts Mill's method, that liberty is the rule and restriction the justified exception, and rejects his test, that only harm to others may justify it. A student who says the Constitution enacts the harm principle is contradicted by the words "decency or morality" in clause (2).

Where Mill's argument has actually been used

Facts. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. Section 377 of the Indian Penal Code punished carnal intercourse against the order of nature, and as applied it criminalised consensual sexual acts between adults of the same sex. Its earlier reading down by a High Court had been reversed. The petitioners challenged it on equality, expression, privacy and personal liberty.

Held. A Constitution Bench held section 377 unconstitutional so far as it criminalised consensual acts between adults in private. The provision was manifestly arbitrary and over-broad, since making a consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness; it violated article 15; and it offended dignity, privacy and the freedom to express one's identity. The Court held that a classification treated as valid when adopted may cease to be valid as social norms change, and that constitutional morality and not popular morality governs.

Why it belongs in this chapter. The reasoning is Millian in substance without invoking him. Conduct between consenting adults in private harms nobody who has not consented; disapproval by others is not a reason for compulsion; and the Court's phrase constitutional morality does exactly the work Mill's principle does, by ruling out the community's distaste as a ground. It is also the answer to the objection above: the word morality appears in the Constitution, and the Court held that the morality that counts is the Constitution's own and not the public's.

A worked example

A State proposes three restrictions and each must be tested twice, once against Mill and once against article 19.

One, prohibiting a film that portrays a religious figure in a manner many find offensive.

On Mill: not permitted. Offence at an expression is precisely what the argument for free discussion protects against.

On article 19(2): the State would rely on public order and on decency or morality. It must show the restriction is reasonable, and the courts have required a proximate connection with the disorder apprehended rather than a remote or conjectural one. So the Constitution permits the ground and controls it through reasonableness, which is not Mill's answer and is not the opposite of it either.

Two, requiring a licence to practise as a diagnostic laboratory.

On Mill: permitted. False results harm patients who have not consented to the risk.

On article 19(6): permitted as a reasonable restriction in the interests of the general public.

Three, prohibiting an association formed to campaign for a change in the law on inheritance.

On Mill: not permitted. Advocating a change in the law is the central case of protected discussion.

On article 19(4): the State could only invoke public order or morality, and neither is available for peaceful advocacy, so the restriction fails on the Constitution's own terms as well.

The three together show the useful conclusion: the Constitution and Mill agree at both ends and differ in the middle, and the middle is where the litigation is.

Distinctions that carry marks

What this topic is NOT

It is not a claim that the framers read Mill and copied him. The influence is through a tradition of constitutional thought and through the Government of India Act and the American Bill of Rights, and an answer should claim structural influence rather than direct transcription.

It is not the claim that article 19 is the harm principle. The word morality in clause (2) refutes that on the face of the text.

Article 19 does not apply against private persons, while Mill's principle expressly reaches the coercion of public opinion. That is a real and often overlooked difference.

The absence of a Millian ground does not mean a restriction is valid. It must still be reasonable, and reasonableness has done most of the work in Indian free speech law.

Quick revision

1. Article 19(1) confers on citizens: (a) speech and expression, (b) peaceable assembly without arms, (c) associations, unions and co-operative societies, (d) movement, (e) residence and settlement, (g) profession, occupation, trade or business.
2. Sub-clause (f), property, was omitted by the Forty-fourth Amendment, with effect from 20 June 1979; property is now article 300A.
3. Clause (2) grounds for restricting speech: sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, incitement to an offence. Sovereignty and integrity was added by the Sixteenth Amendment 1963; the clause was substituted by the First Amendment 1951 with retrospective effect.
4. Millian: the structure, the burden on the State through the word reasonable, the exhaustive list of grounds, and the special protection of speech.
5. Not Millian: decency or morality, public order, the general public, and the acceptance of paternalism.
6. The formula to write: the Constitution adopts Mill's method and rejects his test.
7. Navtej Singh Johar: section 377 manifestly arbitrary and over-broad; constitutional morality, not popular morality. Millian reasoning without Mill.

Test yourself

1. Set out the structure of article 19 and say why it is Millian. Clause (1) confers six freedoms on citizens: speech and expression, peaceable assembly without arms, associations and unions, movement, residence, and profession or occupation. Clauses (2) to (6) permit the State to restrict each of them, but only by law, only for the purposes those clauses name, and only by restrictions that are reasonable. The structure is Millian because the freedom is stated first and without qualification, the power to restrict is an exception, and the burden of justifying the exception falls on the State rather than on the citizen, with the courts deciding.

2. Where does article 19 depart from Mill's principle? In the grounds it permits. Clause (2) allows restrictions on speech in the interests of decency or morality, which Mill's principle expressly excludes since disapproval by others is never a warrant for compulsion. It allows public order, which is wider than harm to identified persons. Clauses (5) and (6) allow restrictions in the interests of the general public, which is the widest formula in the article. And in practice paternalistic legislation is sustained under these heads, which is precisely the interference Mill said may never be justified by a person's own good.

3. What is the correct formula for describing Mill's influence? That the Constitution adopts Mill's method and rejects his test. The method is that liberty is the rule and restriction a justified exception, with the burden on whoever restricts; that is faithfully reproduced by the requirement that restrictions be reasonable and confined to a closed list of purposes. The test is that only harm to others may justify interference; that is not adopted, since the closed list includes decency or morality, public order and the interests of the general public.

4. How does Navtej Singh Johar illustrate Millian reasoning in Indian law? Section 377 as applied criminalised consensual acts between adults in private, and a Constitution Bench held it unconstitutional to that extent as manifestly arbitrary and over-broad, violative of article 15, and destructive of dignity, privacy and the freedom to express identity. The reasoning is Mill's in substance: conduct between consenting adults harms nobody who has not consented, and the disapproval of others is not a reason for compulsion. The Court's distinction between constitutional morality, which governs, and popular morality, which does not, performs exactly the function Mill's principle performs, and it answers the objection that the Constitution names morality as a ground.

5. Name one difference between Mill's principle and article 19 that students usually miss. That article 19 operates only against the State, while Mill's principle expressly extends to the moral coercion of public opinion, which he regarded as the greater danger. A person whose employer, caste association or neighbours compel conformity has suffered exactly the interference Mill's essay is about, and article 19 gives them nothing, since it is a right against the State. Indian law reaches such conduct, if at all, through other provisions, and the gap is a real limit on the parallel between the two.