The Software Freedom Law Centre has just published an analysis of the Information Technology (Intermediary Guidelines) Rules, 2011. This is a fairly extensive empirical and doctrinal report about the effects of the Intermediary Guidelines on various aspects of internet freedom. The full report may be downloaded here.
Previously, we discussed some textual approaches to Article 12′s definition of “State”. Recall the key question: against which entities can claims of fundamental rights be raised? At one end of the spectrum is the State itself, and at the other end are private individuals performing private acts . There can be no quibble against the early decision of the Supreme Court in Shrimati Vidya Verma v. Shiv Narain Verma, where the Court refused to find an Article 21 violation in the case of one individual being detained by another. Quoting Patanjali Shastri J.’s opinion in A.K. Gopalan, the Court held that “as a rule, constitutional safeguards are directed against the State and its organs and that protection against violation of rights by individuals must be sought in the ordinary law.“
But there are – as we discussed previously – a host of problematic cases that lie between “State” and “individual”. Bodies created by a statute, bodies that whose management has government representatives, bodies under the administrative control of the government, bodies funded entirely by the government, bodies performing government-outsourced tasks, and so on. Which of these fall within Article 12, and why?
The first time the Court was called upon to seriously grapple with these issues was in the 1967 case of Rajasthan State Electricity Board v. Mohan Lal. The case involved a promotion dispute between some workmen and the Rajasthan State Electricity Board. Articles 14 and 16 claims were raised, and consequently, the preliminary question that fell to be determined by the Court was whether the Board came within the purview of Part III, by virtue of being “State” (other authority) under Article 12.
The Rajasthan State Electricity Board was a corporate body that had been constituted under an Act (the Electricity Supply Act, 1948), for the purposes of supplying electricity within the State of Rajasthan. The Board argued that the phrase “other authority” must be read “ejusdem generis” – that is, when a law refers to a number of specific categories, and then ends with a general clause, that general clause must be understood only to contain those things which are part of the common genus to which the specific categories belong. To take a banal example, “BJP, Congress, AAP, TMC and other political parties” does not include the American Democratic Party, because clearly, what is being referred to is Indian political parties. According to the board, the common class running through Article 12 was bodies exercising governmental functions. The Electricity Board, on the other hand, was set up by a statute to carry out commercial activities. Thus – the Board argued – it could not be brought within the ambit of Article 12. It cited decisions from the High Courts of Madras, Mysore and Punjab to contend that Article 12 was limited to “a person or a group of persons who exercise the legislative or executive functions of a State or through whom or through the instrumentality of whom the State exercises its legislative or executive power. In those cases, State Universities had been found not to fall within the ambit of Article 12.
Rejecting this argument – and overturning the judgments of the High Courts – the Supreme Court declined to apply the principle of ejusdem generis, holding that there was no common “genus” running through Article 12. Instead, it turned to the dictionary for the meaning of the word “authority”:
“[Authority means] a public administrative agency or corporation having quasi- governmental powers and authorised to administer a revenue- producing public enterprise.” This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression “other authorities” is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India.”
According to this language, the test appears to be two-pronged: either the body is created by a statute, or it is under the control of the government. Subsequently, however, the Court appears to run them together, holding that “the expression “other authorities” in Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law.” Or, in other words, they key test is a statutory connection between the government and the body in question (“control”, perhaps, is a function of creation by statute). The fact that the functions were commercial were irrelevant, since the State itself could clearly carry out trade and business. Thus, the Board – having been established by Statute – was found to come within the scope of Article 12.
Justice Shah concurred in the judgment, but differed on the reasoning. He approached the issue not from the standpoint of the meaning of “Authority”, but from the place of Article 12 in the Constitution – in particular, at the beginning of Part III. According to Justice Shah, Article 12 must be interpreted in the context of Part III, which guaranteed that fundamental individual rights would not be encroached upon. Therefore, what mattered was whether “the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms… authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression “State” as defined in Art. 12. Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of “State” in Art. 12.“
Justice Shah thus placed special importance on “sovereign power”, which he appeared to understand as an ability to affect fundamental freedoms in a far-reaching. Therefore, his reasons for holding that the Board fell within Article 12 was not that it was created by statute, but that:
“The Board is an authority invested by statute with certain sovereign powers of the State. It has the power of promoting coordinated development, generation, supply and distribution of electricity and for that purpose to make, alter, amend and carry out schemes under Ch. V of the Electricity (Supply) Act, 1948, to engage in certain incidental undertakings; to organise and carry out power and hydraulic surveys; to conduct investigation for the improvement of the methods of transmission; to close down generating stations; to compulsorily purchase generating stations, undertakings, mains and transmission lines; to place wires, poles, brackets, appliances, apparatus, etc; to fix grid tariff; to issue directions for securing the maximum economy and efficiency in the operation of electricity undertakings, to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The Board is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulations and to administer the Act is in substance the sovereign power of the State delegated to the Board.”
The majority and the concurrence represent two approaches to Article 12, which we may label the “legal approach” and the “functional approach”. The legal approach begins with a certain understanding of the paradigm case of the “State” (the government itself”, and assimilates to “State” those entities that seem to bear a close family resemblance to it. This translates into entities that the government itself creates, or seems to have near-complete control over. The “functional approach”, on the other hand, starts from the perspective of the individual, and the individual’s guaranteed rights that act as limits upon the sovereign power of the State. Bodies that can affect those rights in a manner similar to that of the State, are – under this view – assimilated to the State. The crucial difference between the two approaches is evident if we consider the fact that under Justice Shah’s approach, had the electricity distribution been entirely outsourced to a private party (say, Reliance), it too would have fallen within the ambit of Article 12.
Subsequently, however, in Sukhdev Singh v. Bhagat Ram, a majority of the Court read Rajasthan Electricity Board to have established the narrower proposition that Article 12 was attracted if the body had the power to issue directions whose disobedience could be punished by criminal law, or if it had the power to make, administer and enforce rules and regulations. That case involved three public corporations – the Oil and Natural Gas Corporation, the Life Insurance Corporation and the Industrial Finance Corporation. The majority’s narrow decision holding all three corporations to fall within the meaning of “State”, although clearly correct under both the majority and the concurrence opinions in Rajasthan Electricity Board does not, however, get us very far in a conceptual understanding of Article 12.
Such an analysis was provided by Justice Mathew, in a concurring opinion, although it is extremely difficult to determine a coherent ratio from that judgment. In the beginning, Justice Mathew seemed to adopt both the legal and the functional approach, merging them into one test, which he called “the agency and instrumentality” approach. Entering into a lengthy historical disquisition, he argued that as the role of the State changed from merely establishing law and order to providing for the public welfare, much of those welfare functions began to be performed through the means of corporations. The key observations comes in paragraph 90 of the judgment:
” The Constitution was framed on the theory that limitation should exist on the exercise of power by the State. The assumption was that the State alone was competent to wield power. But the essential problem of liberty and equality is one of freedom from arbitrary restriction and discrimination whenever and however imposed. The Constitution, therefore, should, wherever possible, be so construed as to apply to arbitrary application of power against individuals by centers of power. The emerging principle appears to be that a public corporation being a creation of the State is subject to the Constitutional limitation as the State itself. The pre-conditions of this are two, namely, that the corporation is created by State, and, the existence of power in the corporation to invade the Constitutional right of individual.”
The intriguing point about this paragraph is that it is based on a non-sequitur. If the Constitution ought to apply to wherever there is arbitrary application of power be centers of power, it does not follow – at all – a corporation must be State-created to fulfill those conditions (again, Reliance is a classic example). In other words, in substance, Justice Mathew put forward an argument for the functional approach, but in conclusion, he subordinated it entirely to the legal approach. In fact, he takes the majority and concurring opinions in Vidya Verma, and holds that the requirements laid out in both must be satisfied for Article 12 to be attracted!
Immediately afterwards, however, he moved away from that conclusion, noting that:
“Generally speaking, large corporations have power and this power does not merely come from the statutes creating them. They acquire power because they produce goods or services upon which the community comes to rely.”
The rest of the opinion is devoted to a meandering analysis that seems to constantly shift back and forth between some variants of the legal and the functional approach, talking about financial aid, tax exemptions, control over management policies, public functions… and ultimately comes to rest somewhere midway, expressed as:
” The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public.”
“Agency or instrumentality” is not a self-interpreting term, however, and the true test, after the judgments in Rajasthan Electricity Board and Bhagat Ram, was still fuzzy. It would be up to later judgments to clarify it.
(This post first appeared on the CIS website, here)
In the previous post, we discussed Vincent Blasi’s pathological perspective on free speech. The argument forms part of a broader conception that Blasi calls the “checking value of the First Amendment”. Blasi argues that the most important role of free speech is to “check” government abuses and reveal to the public information that government wants to keep secret from them. Naturally, in this model – which is a specific application of the democracy-centred theory of free speech – the press and the media become the most important organs of a system of free expression.
In addition to the checking value of free speech, there is another consideration that is now acknowledged by Courts in most jurisdictions, including our Supreme Court. When we speak about the “right” to free speech, we do not just mean – as might seem at first glance – the right of speakers to speak unhindered. We also mean the rights of listeners and hearers to receiveinformation. A classic example is the Indian Supreme Court’s opinion in LIC v. Manubhai D. Shah, which used Article 19(1)(a) to vest a right-of-reply in a person who had been criticised in a newspaper editorial, on the ground of providing a balanced account to readers. Furthermore, instruments like the ICCPR and the ECHR make this clear in the text of the free speech right as well. For instance, Article 19 of the ICCPR states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds.”
In addition to the individual right to receive information and ideas, free speech need not be understood exclusively in the language of a right at all. Free speech also serves as a public good – that is to say, a society with a thriving system of free expression is, all things considered, better off than a society without it. The unique value that free speech serves, as a public good, is in creating an atmosphere of accountability and openness that goes to the heart of the constitutive ideals of modern liberal democracies. As Justice Hugo Black noted, a good system of free speech “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Unsurprisingly, he went on to add immediately after, that “a free press is a condition of a free society.”
If free speech is about the right to receive information, and about the public good of a society in which information circulates freely and widely, then the vehicles of information occupy a central position in any theory or doctrine about the scope of the constitutional right. In our societies, the press is perhaps the most important of those vehicles.
Establishing the crucial role of the free press in free speech theory is important to understand a crucial issue that has largely gone unaddressed in Indian constitutional and statutory law: that of source-protection laws for journalists. A source-protection law exempts journalists from having to compulsorily reveal their sources when ordered to do so by government or by courts. Such exemptions form part of ordinary Indian statutory law: under the Indian Evidence Act, for example, communications between spouses are “privileged” – that is, inadmissible as evidence in Court.
The question came up before the US Supreme Court in Branzburg v. Hayes. In a 5-4 split, the majority ruled against anunqualified reporters’ privilege, that could be invoked in all circumstances. However, all the justices understood the importance of the issue. Justice White, writing for the majority, held that government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” Justice Powell’s concurring opinion emphasised that the balance must be struck on a case-to-case basis. Since Branzburg, there has been no federal legislation dealing with source protection. A number of states have, however, passed “shield laws”, albeit with broad national security exceptions.
Perhaps the reason for the American Supreme Court’s reticence lies in its reluctance – notwithstanding Justice Black’s ringing oratory – to place journalists on any kind of special pedestal above the rest of the public. The European Court of Human Rights, however, has felt no such compunctions. In Goodwin v. UK, the ECHR made it clear that the press serves a crucial function as a “public watchdog” (a consistent theme in the ECHR’s jurisprudence). Compelled disclosure of sources would definitely have a chilling effect on the functioning of the press, since sources would be hesitant to speak – and journalists would be reluctant to jeopardise their sources – if it was easy to get a court order requiring disclosure. Consequently, the ECHR – which is normally hesitant to intervene in domestic matters, and accords a wide margin of appreciation to states, found the UK to be in violation of the Convention. Journalists could only be compelled to reveal their sources if there was an “overriding requirement in the public interest.”
Where both the United States and Europe have recognised the importance of source-protection, and the simple fact that somedegree of source protection is essential if the press is to perform its checking – or watchdog – function effectively, Indian jurisprudence on the issue is negligible. The Law Commission has twice proposed some manner of a shield law, but no concrete action has been taken upon its recommendations.
In the absence of any law, Article 19(1)(a) could play a direct role in the matter. As argued at the beginning of this post, the Supreme Court has accepted the democracy-based justification for free speech, as well as the individual right to receive information. Both these arguments necessarily make the role of the press crucial, and the role of the press is dependant on maintaining the confidentiality of sources. Thus, there ought to be an Article 19(1)(a) right that journalists can invoke against compelled disclosure. If this is so, then any disclosure can only be required through law; and the law, in turn, must be a reasonable restriction in the interests of public order, which – in turn, has normally been given a narrow interpretation by the Supreme Court in cases such as Ram Manohar Lohia.
It is unclear, however, whether the Courts will be sympathetic. As this article points out, while the Supreme Court has yet to rule on this issue, various High Courts have ordered disclosure, seemingly without much concern for the free speech implications. One thing is evident though: either a strong shield law, or a definitive Supreme Court ruling, is required to fill the current vacuum that exists.
(This post first appeared on the CIS website)
Towards the end of the last post, we saw how the Law Commission traced the genealogy of the “scandalising the Court” offence, inasmuch as it sought to protect the “standing of the judiciary”, to that of seditious libel. The basic idea is the same: if people are allowed to criticise state institutions in derogatory terms, then they can influence their fellow-citizens who, in turn, will lose respect for those institutions. Consequently, the authority of those institutions will be diminished, and they will be unable to effectively perform their functions. Hence, we prevent that eventuality by prohibiting certain forms of speech when it concerns the functioning of the government (seditious libel) or the Courts (scandalising the Court). This, of course, often ties the judges into knots, in determining the exact boundary between strident – but legitimate – criticism, and sedition/scandalising the Court.
Seditious libel, of course, went out in the United States with the repeal of the Sedition Act in 1800, and was abolished in the England in 2009. Notoriously, it still remains on the statute books in India, in the form of S. 124A of the Indian Penal Code. An examination of the Supreme Court’s sedition jurisprudence would, therefore, be apposite. Section 124A makes it an offence to bring or attempt to bring into hatred or contempt, or excite or attempt to excite, disaffection, towards the government. The locus classicus is Kedar Nath Singh v. Union of India. I have analysed the case in detail elsewhere, but briefly, Kedar Nath Singhlimited the scope of 124A to incitement to violence, or fostering public disorder, within the clear terms of Article 19(2). In other words, prosecution for sedition, if it was to succeed, would have to satisfy the Court’s public order jurisprudence under Article 19(2). The public order test itself – as we discussed previously on this blog, in a post about Section 66A – was set out in highly circumscribed terms in Ram Manohar Lohia’s Case, which essentially required a direct and imminent degree of proximity between the speech or expression, and the breach of public order (in that case, the Court refused to sustain the conviction of a speaker who expressly encouraged an audience to break the law). Subsequently, in S. Rangarajan v. P. Jagjivan Ram, the Court noted that the relation ought to be like that of a “spark in a powder keg” – something akin to inciting an enraged mob to immediate violence. Something that the Court has clearly rejected is the argument that it is permissible to criminalise speech and expression simply because its content might lower the authority of the government in the eyes of the public, which, in turn, could foster a disrespect for law and the State, and lead to breaches of public order.
Unfortunately, however, when it comes to contempt and scandalising, the Court has adopted exactly the chain of reasoning that it has rejected in the public order cases. As early as 1953, in Aswini Kumar Ghose v. Arabinda Bose, the Court observed that “it is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.”
Subsequently, in D.C. Saxena v. CJI, the Court held that “Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.” Notice the chain of causation the Court is working with here: it holds faith in the administration of justice as a necessary pre-requisite to the administration of justice, and prohibits criticismthat would cause other people to lose their faith in the judiciary. This is exactly akin to a situation in which I make an argument advocating Marxist theory, and I am punished because some people, on reading my article, might start to hold the government in contempt, and attempt to overthrow it by violent means. Not only is it absurd, it is also entirely disrespectful of individual autonomy: it is based on the assumption that the person legally and morally responsibly for a criminal act is not the actor, but the person who convinced the actor through words and arguments, to break the law – as though individuals are incapable of weighing up competing arguments and coming to decisions of their own accord. Later on, in the same case, the Court holds that scandalising includes “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority.” As we have seen before, however, disrepute or disrespect of an institution cannot in itself be a ground for punishment, unless there is something more. That something more is actual disruption of justice, which is presumably caused by people who have lost their confidence in the judiciary, but in eliding disrepute/disrespect with obstruction of justice, the Court entirely fails to consider the individual agency involved in crossing that bridge, the agency that is not that of the original speaker. This is why, again, in its sedition cases, the Court has gone out of its way to actually require a proximate relation between “disaffection” and public order breaches, in order to save the section from unconstitutionality. Its contempt jurisprudence, on the other hand, shows no such regard. It is perhaps telling that the Court, one paragraph on, adopts the “blaze of glory” formulation that was used in an 18th century, pre-democratic English case.
Indeed, the Court draws an express analogy with sedition, holding that “malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes in their mind to obey them.”Even worse, it then takes away even the basic protection of mens rea, holding that all that matters is the effect of the impugned words, regardless of the intention/recklessness with which they were uttered. The absence of mens rea, along with the absence of any meaningful proximity requirement, makes for a very dangerous cocktail – an offence that can cover virtually any activity that the Court believes has a “tendency” to certain outcomes: “Therefore, a tendency to scandalise the court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.”
The assumption implicit in these judgments – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it – was made express in Arundhati Roy’s Case, in 2002. After making observations about how confidence in the Courts could not be allowed to be “tarnished” at any cost, the Court noted that “the respondent has tried to cast an injury to the public by creating an impression in the mind of the people of thisbackward country regarding the integrity, ability and fairness of the institution of judiciary”, observed that the purpose of the offence was to protect the (presumably backward) public by maintaining its confidence in the judiciary, which had been enacted keeping in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledly (sic) have the tremendous faith in the dispensers of Justice.” So easy, indeed, to mislead, that there was no need for any evidence to demonstrate it: “the well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society.”
The American legal scholar, Vince Blasi, has outlined a “pathological perspective” of free speech. According to him, heightened protection of speech – even to the extent of protecting worthless speech – is important, because when the government passes laws to regulate speech that is hostile towards it, it will, in all likelihood, over-regulate purely out of self-interest, sometimes even unconsciously so. This is why, if the Courts err, they ought to err on the side of speech-protection, because it is quite likely that the government has over-estimated public order and other threats that stem out of hostile speech towards government itself. The pathological perspective is equally – if not more – applicable in the realm of contempt of Court, because here the Court is given charge of regulating speech hostile towards itself. Keenly aware of the perils of speech suppression that lie in such situations, we have seen that the United States and England have abolished the offence, and the Privy Council has interpreted it extremely narrowly.
The Indian Supreme Court, however, has gone in precisely the opposite direction. It has used the Contempt of Court statute to create a strict-liability criminal offence, with boundlessly manipulable categories, which is both overbroad and vague, entirely inconsistent with the Court’s own free speech jurisprudence, and at odds with free speech in a liberal democracy.
This post first appeared on the CIS website, here)
On May 31, the Times of India reported some observations of a two-judge bench of the Supreme Court on its contempt powers. The Court noted that the power to punish for contempt was necessary to “secure public respect and confidence in the judicial process”, and also went on to add – rather absurdly – to lay down the requirements, in terms of timing, tone and tenor, of a truly “contrite” apology. This opinion, however, provides us with a good opportunity to examine one of the most under-theorised aspects of Indian free speech law: the contempt power.
Indeed, the contempt power finds express mention in the Constitution. Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “… in relation to contempt of court.” The legislation governing contempt powers is the 1971 Contempt of Courts Act. Contempt as a civil offence involves willful disobedience of a court order. Contempt as a criminal offence, on the other hand, involves either an act or expression (spoken, written or otherwise visible) that does one of three things: scandalises, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the administration of justice. As we can see, contempt can – broadly – take two forms: first, obstructing the proceedings of the Court by acts such as disobeying an order, holding up a hearing through absence or physical/verbal disturbance etc. This is straightforward enough. More problematically, however, contempt also covers instances of what we may call “pure speech”: words or other forms of expression about the Court that are punished for no other reason but their content. In particular, “scandalising the Court” seems to be particularly vague and formless in its scope and ambit.
“Scandalising the court” is a common law term. The locus classicus is the 1900 case of R v. Gray, which – in language that the Contempt of Courts Act has largely adopted – defined it as “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” The basic idea is that if abusive invective against the Court is permitted, then people will lose respect for the judiciary, and justice will be compromised.
It is obvious that this argument is flawed in many respects, and we shall analyse the Supreme Court’s problematic understanding of its contempt powers in the next post. First, however, it is instructive to examine the fate of contempt powers in the United States – which, like India, constitutionally guarantees the freedom of speech – and in England, whose model India has consciously followed.
America’s highly speech-protective Courts have taken a dim view of contempt powers. Three cases stand out. Bridges v. California involved a contempt of court accusation against a labour leader for calling a Court decision “outrageous”, and threatening a strike if it was upheld. Reversing his prior conviction, the Supreme Court noted that “public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist.”Given the strong public interest, the burden of justifying restrictions upon this speech was particularly high. The Court identified two possible justifications: respect for the judiciary, and the orderly administration of justice. On the first, it observed that “an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” On the second, it held that since striking itself was entirely legal, it was no argument that the threat of a strike would illegally intimidate a judge and subvert the course of justice. Throughout the case, the Court stressed that unfettered speech on matters of public interest was of paramount value, and could only be curtailed if there was a “clear and present danger” that the substantially evil consequences would result out of allowing it.
Similarly, in Garrison v. Lousiana, an attorney accused certain judges of inefficiency and laziness. Reversing his conviction, the Supreme Court took note of “the paramount public interest in a free flow of information to the people concerning public officials, their servants…. few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.” Consequently, it held that only those statements could be punished that the author either knew were false, or were made with reckless disregard for the truth. And lastly, in Landmark Communications v. Virginia, the Court held that “the operations of the courts and the judicial conduct of judges are matters of utmost public concern”, and endorsed Justice Frankfurter’s prior statement, that “speech cannot be punished when the purpose is simply “to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”
What stands out here is the American Courts’ rejection of the ideas that preserving the authority of judges by suppressing certain forms of speech is an end in itself, and that the Courts must be insulated to some greater degree than other officials of government. Consequently, it must be shown that the impugned expression presents a clear and present danger to the administration of justice, before it can be punished.
Now to England. The last successful prosecution of the offence was in 1931. In 2012, the Law Commission published a paper on contempt powers, in which it expressly recommended abolishing the offence of “scandalising the Court”; its recommendations were accepted, and the offence was abolished in 2013. Admittedly, the offence remains on the statute books in many commonwealth nations, although two months ago – in April 2014 – the Privy Council gave it a highly circumscribed interpretation while adjudicating a case on appeal from Mauritius: there must, it held, be a “real risk of undermining public confidence in the administration of justice” (something akin to clear and present danger?), and the Prosecution must demonstrate that the accused either intended to do so, or acted in reckless disregard of whether or not he was doing so.
What is particularly interesting is the Law Commission’s reasoning in its recommendations. Tracing the history of the offence back to 18th century England, it noted that the original justification was to maintain a “haze of glory” around the Courts, and it was crucial that the Courts not only be universally impartial, but also perceived to be so. Consequently, the Law Commission observed that “this language suggests that “to be impartial” and “to be universally thought so” are two independent requirements, implying that the purpose of the offence is not confined to preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.” Obviously, this was highly problematic.
The Law Commission also noted the adverse impact of the law on free speech: the well-known chilling effect, whereby people would self-censor even justified criticism. This was exacerbated by the vagueness of the offence, which left unclear the intent requirement, and the status of defences based on truth and public interest. The Law Commission was concerned, as well, about the inherently self-serving nature of the offence, which give judges the power to sit in judgment over speech and expression that was directly critical of them. Lastly, the Law Commission noted that the basic point of contempt powers was similar to that of seditious libel: to ensure the good reputation of the State (or, in the case of scandalising, the judges) by controlling what could be said about them. With the abolition of seditious libel, the raison d’être of scandalising the Court was also – now – weakened.
We see, therefore, that the United States has rejected sweeping contempt powers as unconstitutional. England, which created the offence that India incorporated into its law, stopped prosecuting people for it in 1931, and formally abolished it last year. And even when its hands have been bound by the law that it is bound the enforce, the Privy Council has interpreted the offence in as narrow a manner as possible, in order to remain solicitous of free speech concerns. Unfortunately, as we shall see in the next essay, all these developments have utterly passed our Courts by.
(This post first appeared on the CIS blog, here)
In the immediate aftermath of the elections, free speech issues have come to the fore again. In Goa, a Facebook user was summoned for a post warning a second holocaust if Modi was elected to power. In Karnataka, a MBA student was likewise arrested for circulating an MMS that showed Modi’s face morphed onto a corpse, with the slogan “Abki baar antim sanskaar”. These arrests have reopened the debate about the constitutional validity of Section 66A of the IT Act, which is the legal provision governing online speech in India. Section 66A criminalises, among other things, the sending of information that is “grossly offensive or menacing in character” or causes “annoyance or inconvenience”. The two instances cited above raise – not for the first time – the concern that when it comes to implementation, Section 66A is unworkable to the point of being unconstitutional.
Like all legal provisions, Section 66A must comply with the fundamental rights chapter of the Indian Constitution. Article 19(1)(a) guarantees the freedom of speech and expression, and Article 19(2) permits reasonable restrictions in the interests of – inter alia– “public order, decency or morality”. Presumably, the only way in which Section 66A can be justified is by showing that it falls within the category of “public order” or of “morality”. The precedent of the Supreme Court, however, has interpreted Article 19(2) in far narrower terms than the ones that Section 66A uses. The Court has held that “public order” may only be invoked if there is a direct and immediate relation between the offending speech and a public order disturbance – such as, for instance, a speaker making an incendiary speech to an excited mob, advocating imminent violence (the Court has colloquially stated the requirement to be a “spark in a powder keg”). Similarly, while the Court has never precisely defined what “morality” – for the purposes of Article 19(2) – means, the term has been invoked where (arguably) pornographic materials are concerned – and never simply because speech has “offended” or “menaced” someone. Indeed, the rhetoric of the Court has consistently rejected the proposition that the government can prohibit individuals from offending one another.
This raises two constitutional problems with Section 66A: the problems of overbreadth and vagueness. Both doctrines have been developed to their fullest in American free speech law, but the underlying principles are universal.
A statute is overbroad when it potentially includes within its prohibitions both speech that it is entitled to prohibit, and speech that it is not. In Gooding v. Wilson, a Georgia statute criminalized the use of “opprobrious words or abusive language”. In defending the statute, the State of Georgia argued that its Courts had read it narrowly, limiting its application to “fighting words” – i.e., words that by their very nature tended to incite an imminent breach of the peace, something that was indisputably within the power of the State to prohibit. The Supreme Court rejected the argument and invalidated the statute. It found that the words “opprobrious” and “abusive” had greater reach than “fighting words”. Thus, since the statute left “wide open the standard of responsibility, so that it [was] easily susceptible to improper application”, the Court struck it down.
A statute is vague when persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” InGrayned v. Rockford, the American Supreme Court noted that “a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” There are, therefore, a number of problems with vague laws: one of the fundamental purposes of law is to allow citizens to plan their affairs with a degree of certainty. Vagueness in legislation prevents that. And equally importantly, vague laws leave a wide scope of implementing power with non-elected bodies, such as the police – leading to the fear of arbitrary application.
While overbreadth and vagueness are problems that affect legislation across the board, they assume a particular urgency when it comes to free speech. This is because, as the American Supreme Court has recognized on a number of occasions, speech regulating statutes must be scrutinized with specific care because of the chilling effect: when speech is penalized, people will – out of fear and caution – exercise self-censorship, and the political discourse will be impoverished. If we accept – as the Indian Courts have – that a primary reason for guaranteeing free expression rights is their indispensability to democracy, then the danger of self-censorship is one that we should be particularly solicitous of. Hence, when speech-regulating statutes do proscribe expression, they must be clear and narrowly drawn, in order to avoid the chilling effect. As the American Supreme Court euphemistically framed it, “free speech needs breathing space to survive.” Overbroad and vague speech-restricting statutes are particularly pernicious in denying it that breathing space.
There seems to be little doubt that Section 66A is both overbroad and vague. However ill-judged a holocaust comparison or a morphed corpse-image may be, neither of them are like sparks in a powder keg, which will lead to an immediate breach in public order – or “immoral” in the way of explicit pornography. We can therefore see, clearly, that the implementation of the law leaves almost unbounded scope to officials such as the police, provides room for unconstitutional interpretations, and is so vaguely framed that it is almost impossible to know, in advance, what actions fall within the rule, and which ones are not covered by it. If there is such a thing as over-breadth and vagueness par excellence, then Section 66A is surely it!
At various times in its history, the Supreme Court has acknowledged the problems of overbreadth, vagueness and the chilling effect, but never directly incorporated them into Indian law. As we have seen, each of these elements is connected to the other: over-broad and vague speech-regulating statutes are problematic because of the chilling effect. Since Section 66A is presently being challenged before the Supreme Court, there is a great opportunity for the Court both to get rid of this unconstitutional law, as well as strengthen the foundations of our free speech jurisprudence.
Previously on this blog, Manish has criticised the Supreme Court’s opinion in Subramanian Swamy v. CBI, which was handed down earlier this month (I have done the same here). To recap: S. 6A of the Delhi Police Special Establishment Act (“DSPE”) required governmental sanction for investigation of offences under the Prevention of Corruption Act, in case the allegations concerned senior government officials (Joint Secretary or above). The Court struck down this provision on Article 14 grounds, holding that different rules for different classes of officials with respect to investigating corruption were unconstitutional, but – as I’ve tried to demonstrate – got its reasoning hopelessly entangled. The case, however, provides us with an opportunity to reflect upon the current state of Article 14 jurisprudence.
One particularly worrying trend – exemplified in the DSPE case – is the increasing reliance that the Court is placing on the “legitimate state interest” prong of its Article 14 analysis. Traditionally, Article 14 scrutiny of governmental classification consisted of two prongs: an intelligible differentia between the classes that the challenged law had created, and a rational nexus with a governmental purpose. In cases like the Delhi High Court’s Naz Foundation judgment, and now in DSPE, the Court has also required that the State purpose itself be legitimate, and this requirement has played a pivotal role in the outcomes of these cases.
This, however, is extremely problematic. Who judges whether a State purpose is legitimate or not? Traditionally, the Court has the power to strike down laws enacted by a democratically elected legislature under two circumstances: first, if the legislature lacks the competence to pass that law (for example, if it is a State legislature passing a law upon a central subject, like defence); and secondly, if the law violates a fundamental right. In other words, the touchstone for legal legitimacy is the Constitution itself – which lays down rules of competence, and enshrines fundamental rights. As long as those two requirements are satisfied, it is not for the Court to examine the merits of the law, its wisdom or its desirability, or its efficiency – that is within the domain of the parliament, and the remedy for bad laws lies at the ballot box. Lack of competence and violation of fundamental rights, however, are independent grounds for striking down legislation – so on what basis then is the Court creating this extra criterion of legitimate state purpose, which is neither related to competence nor to fundamental rights, as part of its Article 14 analysis?
It is easy to see why the Court feels the need to bring in this analytical construct: a traditional Article 14 enquiry is very easy to satisfy. In most cases, the government will be able to construct some purpose that can bear a rational connection with the classification (in the DSPE case, for instance, the government’s stated purpose was administrative efficiency). Consequently, the legitimate purpose prong is one way for the Court to ensure that Article 14 doesn’t become almost entirely toothless. Yet this is not the right way to go about things, because it essentially transforms the Courts into super-legislatures, passing judgment on the “legitimacy” of laws, based upon standards of its own creation.
There is, however, another ways in which Article 14 can be given some bite. The first is to create a tiered structure of scrutiny, based on the model adopted by the United States Supreme Court. In the US, equal protection violations are judged on three levels: rational review, intermediate scrutiny and strict scrutiny. Rational review – like a standard Article 14 analysis – requires only a “rational connection” between the classification and the purpose. In certain cases, however, which involve “fundamental rights” (for example, if the classification is based on race), the Court requires the government to show a compelling interest, and also that the challenged legislation is the narrowest method of achieving that interest (strict scrutiny has been used to strike down affirmative action policies). Government almost never succeeds under this standard. In between rational review and strict scrutiny, there is “intermediate scrutiny”, which the Court uses in its sex-discrimination cases. Intermediate scrutiny requires the government to show a substantial interest (in between compelling and any interest), and a reasonable connection (in between rational and narrowly tailored) between the law and the purpose. The government’s success rate, unsurprisingly, lies somewhere in between rational review (almost always successful) and strict scrutiny (almost never successful).
The key question, of course, is to determine which tier of scrutiny will apply to which set of cases. Judgments of institutional competence and the gravity of the interests involved play a part in this determination, which is ultimately the task of the judiciary. For instance, adjudication upon the merits of economic policy will – given concerns of institutional competence – necessarily involve the weakest form of review (rational review). The DSPE case, however, involved setting up two different legal procedures for different classes of persons, involving fundamental rule of law concerns (as the Court itself acknowledged). Given that the classification raised rule of law concerns, there is a clear argument in favour of ratcheting up the level of scrutiny to intermediate or strict. Under intermediate scrutiny, for example, the Court would have required the government to come up with evidence to demonstrate that administrative efficiency was actually served by the classification in question (as opposed to taking the government’s claims on face value, as it would do in a rational review case).
This leads us to another important point: tiers of scrutiny also involve questions of burdens and standards of proof. Under rational review standards, the Court will not itself look into whether the government has shown beyond doubt that is classification actually serves its stated purpose. As we move up the levels, however, given the importance of the interests involved, the government has a heavier burden of making such a demonstration to the satisfaction of the Court. The basic idea here is to prevent the government from invoking legislative purposes as a colourable method for screening otherwise illegitimate classifications. So, for example, in the DSPE case, the idea behind requiring the government to show – by evidence – that there is a connection between its classification and administrative efficiency, is to prevent the efficiency argument from acting as a screen, shielding corrupt high officials from investigation.
The tiered scrutiny framework does away with the problems of the legitimate-purpose enquiry. Of course, a full version of the argument will need to be developed, over time, by the judiciary. The present state of the law, however, is untenable: “legitimate purpose” is an entirely free-floating concept that will, in the end, become a plaything of individual judges. Tiered scrutiny, I suggest, is one coherent method by which to bring a degree of order to Article 14, while performing the same function that legitimate purpose does – prevent the government from doing an end run around its constitutional obligations by coming up with false or colourable purposes.