Where should the state's power over you stop?

Can the State stop you from saying something offensive? From doing something risky to yourself? From living in a way your neighbours dislike? Every one of these is a question about where the State's power over you should stop, and John Stuart Mill's On Liberty gives the answer every later debate has had to answer back.

What is the harm principle?

It is one test for every use of power over a person. Mill states it in chapter I:

“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” (On Liberty, chapter I)

Two things follow, and an answer should name both. First, the test applies to society as well as the State: Mill worries about the pressure of opinion as much as about law. Second, it rules out paternalism, limiting someone for their own good. You may argue with a person about a risk they take with their own life; you may not force them.

The principle does not say harmful conduct must be punished. It says only harm to others can justify punishing it. Whether a given harm is serious enough is a further question.

Who did Mill leave out?

Mill limits the principle in the same chapter, and the limit matters to an Indian reader. It is meant for adults, not children, and he says it can leave out “backward states of society in which the race itself may be considered as in its nonage”. He goes further:

“Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement.” (chapter I)

The book that founds liberal freedom of speech sets aside, in its first chapter, whole societies its author judged unready for it. An answer can quote this without settling what it means for the rest of Mill: whether the principle survives once the exclusion is dropped, as most later liberals assume, is the question.

What does Mill say about speech?

That opinion itself is almost never harm. In chapter II he puts it at its strongest:

“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” (chapter II)

But words can become acts. Mill's example in chapter III is an opinion “that corn-dealers are starvers of the poor”. In print it should be left alone. Spoken to “an excited mob” gathered outside a corn-dealer's house, the same words may be punished, because they are now close to causing harm. The line is not the opinion; it is how near the words stand to harm.

What did his critics say?

That the line between conduct that concerns only oneself and conduct that affects others cannot hold. L. T. Hobhouse, a liberal himself, wrote in Liberalism (1911) that so far as Mill rested his case on that distinction, “he was still dominated by the older individualism” (chapter VI). Almost anything a person does touches someone else, so the test either catches too much or depends on a judgment the principle cannot make for us.

A different objection came up as India wrote its Constitution: that the draft's fundamental rights came hedged with too many limits. Moving the draft in the Constituent Assembly on 4 November 1948, B. R. Ambedkar answered that no rights are absolute anywhere: “It is therefore wrong to say that the fundamental rights in America are absolute, while those in the Draft Constitution are not.” American courts limited rights through their own doctrines; the draft named the limits itself. The difference, he said, was “one of form and not of substance”. “What one does directly the other does indirectly. In both cases, the fundamental rights are not absolute.”

Mill would agree that rights have limits. He would ask what the limit is for. Ambedkar's answer was a list in the text; Mill's was a single test.

Where does India draw the line?

In a list. Article 19(1)(a) gives every citizen the right to freedom of speech and expression, and Article 19(2) allows “reasonable restrictions” on it, but only on these grounds:

“in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” (Article 19(2))

The list has grown: the First Amendment (1951) and the Sixteenth (1963) widened it. A restriction must fit one of these grounds and must be reasonable, which courts decide. Some grounds sit easily with Mill, such as defamation and incitement, where someone else is harmed. “Decency or morality” is the hardest to square with his rule that a person's own moral good is not a warrant for compulsion.

What did Shreya Singhal decide?

That a law punishing online speech for being offensive went too far. Section 66A of the Information Technology Act, inserted in 2009, punished sending information that was “grossly offensive or has menacing character”, or false information sent to cause “annoyance, inconvenience” and the like. On 24 March 2015, in Shreya Singhal v Union of India, the Supreme Court struck it down.

The judgment, by Justice R. F. Nariman, set out three stages of speech:

“There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.”

Section 66A had no such link to incitement: a message could be pure discussion and still be a crime. The Court also held the section vague and overbroad, and since no part of it could be saved, struck it down in its entirety. It noted that causing annoyance or inconvenience, or being grossly offensive, are not offences under the Penal Code at all.

Mill and Article 19(2) side by side