To speak or not to speak: The lingering question of compelled speech in India

On 20 September 2024, the Bombay High Court ruled that the 2023 amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, was unconstitutional. Previously on 31 January 2024, a two-judge bench consisting of Justices G. S. Patel and Dr Neela Gokhale had reached opposite conclusions, necessitating having a third judge—A.S. Chandurkar—to play a tie-breaker. In accordance with Chapter-I Rule 7 of the Bombay High Court Appellate Side Rules, 1960 and Section 98 of the Code of Civil Procedure, 1908, a third judge can be called in to deliver an opinion on points of law that two judges differed on.

Among other things, the amendment proposed empowering Fact Check Units attached to the Press Information Bureau, a government agency, to access factual claims about the government. Of particular importance is Rule 3(1)(b)(v), which stated that websites should take “reasonable efforts” not to publish information that “in respect of any business of the Central Government, is identified as fake or false or misleading by such Fact Check Unit of the Central Government.” Websites could keep the content up along with a disclaimer. But if no action is taken, then the website’s safe harbour protections would be revoked, leaving it open to third-party suits. 

Justice Chandurkar ultimately ruled against the implementation of the amendment. However, most of his discussion only touched on one of the issues of the case—whether false information could be taken down. The issue of applying a disclaimer was left unaddressed because of his reading of the 2021 Rules. In his opinion, disclaimers were already prohibited by the rules since they implied that false information was being displayed. 

This technicality meant that the potential legality of disclaimers—and the power of the government to compel speech—would live to be decided another day. While questions on censorship make appearances in the transcripts of court proceedings and judgements, the somewhat different issue of a government compelling a person or entity to speak does not. 

Compelled speech theory is an important doctrine for courts around the world to elucidate, given the potential for governments to use it as a backdoor to circumvent the rights to free speech. The ability to express what one thinks is diminished if the government can order them to do so. In instances where the speaker is compelled to speak for the government, free speech is diminished even more, since the government can use the speaker to espouse what views ought to be accepted and orthodox.

But before doing a deep dive into the implications of compelled speech, discussing its various forms across different mediums, and lessons to learn from abroad, one question needs to be answered: Is there a need for a separate compelled speech jurisprudence in the first place?

Can the proportionality test be extended to instances of compelled speech? 

Judges need not waste ink manufacturing new doctrines if the protections they seek to create can be found in existing law. Before a Supreme Court judge deems it necessary to discuss compelled speech in the courtroom, it would be prudent to see if the existing framing would suffice to address those unique concerns. 

In this context, the proportionality principle finds its place. This principle states that fundamental rights can be curbed when there is sufficient legislative cause to do so. This is a concept that is familiar to Indian courts. In Modern Dental College and Research Centre v State of Madhya Pradesh (2016), the Supreme Court listed four factors to consider when deciding whether a fundamental right should be subjugated: 

“(i) It is designated for a proper purpose; 

(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; 

(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally 

(iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.”

Modern Dental College makes it clear that fundamental rights are only as fundamental as the Supreme Court deems them to be. When these rights get in the way of some “proper purpose” of the government, the Court can allow the government to skirt them, subject to conditions such as a relationship between the limitation and the fulfilment of the purpose. Since free speech is a fundamental right found in Article 19(1), it is also subject to proportionality analysis. 

However, applying the proportionality principle to a compelled speech case presents a challenge because preventing free speech lends itself to being easily recognised as a violation of a fundamental right, but forcing speech does not. Compelled speech does not prevent one from the freedom to express themselves, it only demands that they express additional things that the government requires. A justification for this is that the government requires speech in some circumstances in the public interest. For example, requiring food companies to post truthful information about the nutritional facts of their products increases transparency. 

The Supreme Court crafted the proportionality test so that fundamental rights do not stand in the way of progress and the needs of society. However, because compelling speech is not afflicted with the same draconian perception as restricting it, the proportionality test may end up being nothing but a turnstile for government laws. 

Versions of the proportionality test exist elsewhere, such as the Oakes test in Canada and the tiers of scrutiny tests in the United States. Academician Aparna Chandra writes:

“[…] [A]t a low-level of scrutiny the court determines whether the impugned measure is pursuing a legitimate aim. At a comparatively higher level of scrutiny, the court asks not only whether the law serves a legitimate aim but also whether the aim is of sufficient importance to warrant overriding a fundamental right.”

When writing about the ‘Aadhar case’ in Puttaswamy v Union of India (2019), Chandra writes about the balancing that the Court did as part of the fourth prong of the proportionality test:

“… Per the majority opinion, this prong of the test requires the Court to examine the proportionality between the ‘importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.’ … The Court highlighted the importance of the measure … the Court then had to decide whether … the impugned measure required them to give up their right to privacy to an impermissible extent … Instead of examining the working of the law, the Court based its analysis on the purported aims and purposes that the law sought to secure.” 

The Court’s analysis in the Aadhaar decision makes it clear that all fundamental rights are not created equally. The degree of the state’s interference with the right will depend not only on the purpose for limiting the right, but also on how important it is to prevent the limitation of the right. If the right is not “important” enough, the government may steamroll it flat. At the opposite end of the spectrum, an important right is protected by all limitations unless the restriction is motivated by the most benevolent of intentions, the ‘proper purpose’ in question. 

Compelled speech fails to stand upright in the winds blown by the proportionality test. While compelled speech is important, it suffers from a lack of evidence of its importance. The seemingly benign nature of its dangers, coupled with the fact that “compelled speech” does not appear in Supreme Court judgements as often as “free speech,” means that courts would likely not hold the government as accountable to produce the legislative aim with which the speech was compelled. One of the few ways of fighting the perception of benignity is to make the forms of compelled speech and its effects known.

The implications of compelled speech and examples

Speech comes in many forms. The same is true for compelled speech as well. Be it online message boards, television programs, newspaper ads, or speeches heard contemporaneously, the spectre of compelled speech looms over them all. Disclaimers attached to online articles have already been mentioned as a potential way for the government to force individuals or entities to speak. 

It is also worth noting the petitioner who moved the Bombay High Court against the Fact Check Units was comedian Kunal Kamra. Compelled speech, especially in the context of Fact Check Units, would have yielded bizarre results for the comedy scene in this country. Jokes embellished for comedic effect would have to be rewritten for factual accuracy. Applying Fact Check Units to comedy would not only check falsity, but dilute humour itself.

More generally, a right against compelled speech can be seen as a facet of the ‘freedom of expression’. A freedom to express entails a freedom to share one’s innermost opinions without fear of retaliation. When the government compels speech that one disagrees with, it could mean forcing them to betray their conscience by expressing an opinion different from their own.

Compelled speech has had its deepest imprint on jurisprudence in the United States, where the doctrine has been discussed in a variety of different contexts. Perhaps the most prominent case involving compelled speech is West Virginia State Board of Education v Barnette (1943). Public school officials in West Virginia had required students to salute the American flag and recite the Pledge of Allegiance, patriotic verses distinct from the American national anthem. The US Supreme Court struck this down, holding that it violated the freedom of expression and religion. 

Barnette is a case so obviously seen as an instance of the government compelling speech that it requires no explanation as to why it is. But in the 81 years since the decision, the United States Supreme Court has found or interpreted other instances where its government has tried to sneakily compel speech, though the extent of the government’s ability to compel speech has varied in each case: 

Miami Herald Publishing Co. v Tornillo (1974): a Florida state law required newspapers that provided print space for the endorsement of political candidates to also provide an equal amount of space for the opponents of said candidates to reply.

Wooley v Maynard (1977): The state of New Hampshire required motorists to display an unobstructed view of the ‘Live Free or Die’ message that was on license plates issued by the state.

Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston (1995): Boston city officials insisted that a St. Patrick’s Day parade organised by veterans include a group advocating for LGBT rights.

United States v United Foods, Inc. (2001): A law required fresh mushroom handlers to subsidise generic mushroom advertisements.

National Institute of Family and Life Advocates v Becerra (2018): The state of California required ‘crisis pregnancy clinics’ to display posters that included certain notices, including the availability of abortions in state-sponsored clinics.

Janus v American Federation of State, County, and Municipal Employees, Council 31 (2018): Public-sector unions required non-union members to pay agency fees for collective bargaining on their behalf.

303 Creative LLC v Elenis (2023): A state agency said a website designer was required to provide their services to a same-sex couple for their wedding announcements.

Compelled speech comes in a variety of forms if one takes the time to squint. By comparison, anything resembling compelled speech does not find mention in too many Supreme Court cases in India. 

A sample of compelled speech cases in India

The Supreme Court of India has its own version of Barnette, but replacing the mountains of West Virginia with the beaches of Kerala. In Bijoe Emmanuel & Ors v State Of Kerala (1986), state officials had expelled three children who were Jehovah’s Witnesses. As Jehovah’s Witnesses, the children could not sing the national anthem, which they interpreted as an act of veneration that defied the tenets of their faith. At school assemblies, where children were required to stand and sing the national anthem, the Jehovah’s Witnesses would only stand and not sing, an act that went against departmental circulars.

But the hallmarks and ordinary talking points of compelled speech cases are not found in Bijoe Emmanuel. Instead of saying that the students could not be compelled to sing the national anthem without qualification, the judges in the case provided a language that makes it less clear what the case actually stands for. 

For one, the Court said that one of the reasons why the students did not have to sing the anthem was that they only violated departmental circular, and not a ‘law’, an act of Parliament. It said so because Article 19(2), which lays down the ‘reasonable restrictions’ for the freedom of speech and expression under Article 19(1)(a) necessitates that the restriction can only be brought in through a ‘law’, or legislative enactment. This left the question unanswered: would the children be obligated to sing the anthem if the policy was passed by Parliament? 

Two, the Court took great pains to mention that the reason for the failure to sing was because of earnestly held religious beliefs, and that no disrespect was meant by their actions. By including this, the Court makes it seem as though the requirement that one must sing the national anthem depended on the tenets of one’s religion. If a student belonged to a religion that had no qualms about singing a national anthem but did not want to do it anyway, it is unclear whether the Court would have decided the same way. 

Compelled speech entered the consciousness of the Supreme Court of India at an earlier point in its history than it did in the United States, which first considered the issue in 1940 in Minersville School District v Gobitis. Despite that early promise, however, compelled speech has not developed that expected jurisprudence, with cases often being fact-dependent.

Despite the limited number of cases in Indian jurisprudence, the Supreme Court often made movie theatres the venue where compelled speech issues were hashed out. In R.M. Seshadri v The District Magistrate, Tanjore (1954), the Court struck down notifications from Madras State, acting in pursuance of the Cinematograph Act of 1918, which stated “the licensee shall exhibit at each performance one or more approved films of such length and for such length of time, as the Provincial Government or the Central Government may, by general or special order, direct [emphasis added].” 

According to the Court, the statute gave the government “unregulated discretion” to require a theatre to show films of any length, since there was no maximum time in the statute. The Court noted that the minimum length of the reels to be used in the required films was 2000 feet, which would take 20 minutes to go through. If the average film in India was two hours and 15 minutes long, the Court said, the film required by the government to be shown would take up one-seventh of the time spent in the theatre. Since the statute let the government require reels even longer than 2000 feet, those portions of the statute were held to be unreasonable. 

The Court showed in Seshadri that the amount of compelled speech could not be so overwhelming so as to dilute the speech of the speakers themselves to an insignificant level. However, the ultimate issue requiring theatres to show films was not questioned until Union Of India v Motion Picture Association (1999). The movie theatres in West Bengal and Uttar Pradesh challenged the ability of their respective state governments to require them to play short “scientific films, films intended for educational purposes, films, dealing with news and current events, [and] documentary films” before every film and during intermissions. West Bengal in particular had a state statute that was modeled on the Union Government’s Cinematograph Act, 1952.

Motion Picture Association features the most the Court has been willing to say on the issue of compelled speech. The Court termed it a “must carry” provision when it is mandated by “statute, rule or regulation.” According to the Court, whether compelled speech violates Article 19 hinges on the nature of the “must carry” provision. It noted: 

“If a ‘must carry’ provision furthers informed decision-making which is the essence of the fight to free speech and expression, it will not amount to any violation of the fundamental freedom of speech and expression. If, however, such a provision compels a person to carry out propaganda or project a partisan or distorted point of view, contrary to his wish, it may amount to a restraint on his freedom of speech and expression.”

The Court then provided different examples of compelled speech— ingredients lists on food products and health warnings on cigarette cartons, which enable “the public to decide on a correct basis whether a particular product should or should not be used” and “impart[s] relevant information which will enable a user to make a correct decision.” 

However, such reasoning could not be applied to the movie theatre context. It is not as though the government required theatres to show movie trailers to “impart relevant information which will enable a user to make a correct decision” regarding what movie to watch next. The justification the Court used to uphold the government’s actions was different: 

 “When a substantially significant population body is illiterate or does not have easy access to ideas or information, it is important that all available means of communication, particularly audiovisual communication, are utilised not just for entertainment but also for education, information, propagation of scientific ideas and the like. The best way by which ideas can reach this large body of uneducated people is through the entertainment channel which is watched by all—literate and illiterate alike.”

The Supreme Court returned to the issue of movie theatres on 30th November 2016, when it inextricably ordered them to play the national anthem before a movie starts, to be accompanied by the display of the Indian flag on the screen. Those in the theatre would be required to stand, and the doors of the theatre would be closed to create a captive audience, compelling them to participate. Immediately afterwards, the order was challenged in Shyam Narayan Chouksey v Union Of India (2018). Those challenging the order argued that no exception was made for those physically disabled and unable to stand, putting their violation of the order on equal footing as those who would deliberately sit during the anthem. 

It was also claimed that while the national anthem deserved respect, the movie theatre might not be the appropriate place to show it. The Court quietly backtracked from its 2016 position, changing the order so that playing the national anthem before films became optional. It decided to create an Inter-Ministerial Committee to recommend regulations related to decorum when the anthem was played. 

While it appears as though the Court had a lot to say about compelled speech, the variety of fact patterns under which the topic of compelled speech is mentioned in Indian case law is lacking compared to the United States. Language in Motion Picture Association makes it seem as though there have been Supreme Court judgements ruling food content disclosures and cigarette warnings to be constitutional forms of compelled speech, since they “enable the public to decide […] whether a particular product should or should not be used.” But those specific issues have not reached the Supreme Court. 

Instead, such issues have been decided by either government rules or High Courts such as in Ozair Husain v Union Of India (2002), where the Delhi High Court directed companies to share the contents for food, drugs and cosmetics, and for amendments to relevant statutes to include instructions of cosmetics and life-saving drugs. The closest the Supreme Court has come to deciding those issues was staying a Karnataka High Court decision which had struck down a government rule that required cigarette warnings to cover 85 percent of the carton. Cigarette cartons now have their own Seshadri to dictate the manner of compelled speech, but not their own Motion Picture Association. 

Because of the piecemeal nature with which the Supreme Court has developed its theories on compelled speech, the law is clear in some areas but not in others. For example, movie theatres have a reasonable understanding of what they may be compelled to show or not. But is the same true for television, newspapers or even actual speeches themselves? 

Even within the context of movie theatres, some questions still linger, such as how to define impermissible compelled “propaganda” and who decides whether something is made to educate the public. With the pervasiveness of the internet becoming a fait accompli in the years since Motion Picture Association, yet another unforeseen avenue for compelled speech has created questions for the Supreme Court to answer. The Bombay High Court had the opportunity to answer said questions but did not take it, and one wonders when the internet will get its own version of Motion Picture Association when it has not even had its own Seshadri.

Kevin Sebastian was an intern at the Supreme Court Observer between August and October 2024. He is currently an attorney based in the United States, working with the Northeastern Judicial Circuit of Georgia as a public defender.