The Sound of Constitutional Silences: Interpretive Holism and Free Speech under Article 19 of the Indian Constitution

Unlike the US First Amendment, Article 19 of the Indian Constitution expressly enumerates eight grounds on which free speech may be restricted. Despite being a fundamental issue of constitutional interpretation, the question of whether Article 19 provides for an exhaustive list of restrictions has largely been neglected in academic literature and Indian jurisprudence. The latest site of contestations on the scope of the free speech clause has been the case of Kaushal Kishor, where the Supreme Court is currently hearing arguments on whether speech can be restricted by invoking fundamental rights beyond Article 19. This Article seeks to develop a principled answer by excavating the meaning of constitutional silences on the relationships between fundamental rights under the Indian Constitution. It argues that a strict textualist approach leads to a distinct form of rights absolutism that is both doctrinally incoherent and inconsistent with Indian jurisprudence. Examining the shift in the Supreme Court’s interpretive outlook from strict textualism to interpretive holism, it finds that the Court’s rich fundamental rights jurisprudence allows importing restrictions on speech from beyond Article 19. Such an approach also provides a meaningful framework for resolving intra-right, inter-right, and right-interest conflicts in the constitutional adjudication of free speech issues.