Free Speech and Public Order – III: Causation, Respecting Autonomy and the Lohia Case

Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “in the interests of public order”. In the last two posts, we have discussed the scope of the public order exception, with respect to the meanings both of “public order” and “in the interests of”. It needs no deep philosophical discussion to conclude that mere statistical probability, no matter how strong, between the speech in question, and a public order disruption, cannot justify a 19(2) restriction. This – as the Court was at pains to point out in S. Rangarajan – essentially means sacrificing the rule of law at the altar of groups strong enough, loud enough and lawless enough to take to the streets with clubs and machetes at any perceived slight or offence, and is the very antithesis of a well-ordered society. If, therefore, likelihood of disturbance is not sufficient, what principle is at work here? We have proposed an autonomy-based justification that the Court implicitly seems to have adopted in Rangarajan. Rangarajan was a case of film censorship, however; and it has been noticed, worldwide, that Courts’ resolve to protect free speech weakens starkly when we move from the realm of art to that of politics (see Dennis v. United States and Refah Partisi v. Turkey for two striking examples). Let us therefore now examine the Court’s public order jurisprudence in the broader political arena.

Ramji Lal Modi v. State of UP and Virendra v. State of Punjab are two early cases on point. In Ramji Lal Modi, the appellants challenged the constitutionality of S. 295A of the IPC, that penalizes acts done with the “deliberate and malicious intent of outraging the religious feelings of a person or a class of persons.” The petitioners proposed a “likelihood test” for the public order exception, and argued that the section did not discriminate between acts likely to – and not likely to – disrupt public order, and therefore was not saved by 19(2). The Court, however, held that the use of the phrase “in the interests of”, as opposed to “for the maintenance of” implied a “very wide” ambit of protection (paragraph 8), extending to acts that had a “tendency” to cause public disorder, not just acts that actually did so (paragraph 9); the Court then distinguished between “unwitting insults” and those issued with a “deliberate and malicious intent”, and held that it was the latter that had a clear “calculated tendency” to cause public disorder. The Section was upheld.

Yet what, precisely, is a “calculated tendency” to disrupt public order? Either something has a tendency towards such disruption, or it doesn’t; the Court here conflates subjective and objective tests: either bare likelihood is sufficient for the public order exception; or – for some unexplained reason – intent – or lack thereof – makes a difference; or intentional insults are more likely to disrupt public order, which brings us back to the bare likelihood test. The position of law, after Ramji Lal Modi, is entirely unclear. Similar, however, was the decision in Virendra v. State of Punjab, where the Court upheld a ban on the publication of any material having anything to do with the “Save Hindi Agitation”, under a law that granted non-justiciable powers to the government to ban any publication prejudicial to communal harmony, or likely to affect public order.

We now come to the locus classicus on the point: Superintendent, Central Prison v. Ram Manohar Lohia. S. 3 of the U.P. Special Powers Act of 1932 criminalised instigating a class of persons against paying dues recoverable as arrears of land revenue. Ram Manohar Lohia, the General Secretary of the Socialist Party of India, did just that, was duly arrested, and duly challenged the constitutionality of the Section at issue.

Interestingly – and unusually – the Court began with providing a philosophical justification for the public order exception. Public order, it held, was essential in creating and maintaining an environment in which fundamental rights in general – and the freedom of speech in particular – could be effectively enjoyed (paragraph 9). This lends support to our argument against any statistical test, outlined in the first paragraph of this post; an environment in which public order disruptions are used as a tool to restrict free speech is clearly anything but conducive to the enjoyment of the right. It also provides us with a principled yardstick to judge governmental interference stated to be on the grounds of public order: the ultimate objective must be to secure and maintain fundamental rights by securing and maintaining an environment in which they are neither stifled nor suppressed.

Ramji Lal Modi v. State of UP and Virendra v. State of Punjab were invoked to support the familiar “wider ambit of restriction” argument. Here, however, the Court gave it short shrift. It insisted that that the restriction in question must have a reasonable relation with the object sought to be achieved, and must not go in excess of the object (proportionality); and it defined “reasonable” as being “proximate”, that is not remote, arbitrary and fanciful. (paragraph 13)

The Court’s invocation of the proportionality test is very interesting, because it introduces the possibility of an additional moral dimension to the public order exception that was not present in Ramji Lal Modi or Virendra. The extent of interference with free speech could be weighed against the extent and likelihood of public order disruption.  Alternatively, it could be weighed against not only extent and likelihood, but also against the manner of disruption – for instance, is this a case of diminished rationality, such as shouting “fire” in a crowded theatre, or alternatively, a case of presenting arguments urging certain action before a group of thinking, rational people, and leaving them to make up their own minds about whether or not to take the action? The former test – as we have argued – fails to respect the autonomy of persons, while the latter does.

And indeed, it is this latter test of proportionality that the Court seems to have adopted. It held that the proximity test was not satisfied because the Section was overbroad – it sought to punish any kind of visible representation instigating a person to break the law – including “innocuous speeches”. The Advocate-General’s objection that the successful instigation of one individual against paying taxes might start a movement that would destroy the social order was rejected out of hand. But what is more interesting is the terms in which was rejected. The Court did not use the word “unlikely”, but “far-fetched, hypothetical, problematical or too remote in the chain of relation with public order.” (Paragraph 13) The last phrase is particularly interesting, because the Court uses two concepts that have their home in tort law: remoteness and chain of relation (which can only refer to causation). Now, there is some judicial controversy over the relationship between remoteness and causation*, but this much is clear: chains of causation between breach and damage are broken by novus actus interviniens (intervening acts, one type of which are acts by individuals) precisely on the ground – as Hart and Honore tell us – that our law ascribes responsibility upon autonomous individuals for “free, deliberate and informed” actions, and not upon others who might have acted prior to them in a strictly but-for causation chain. It is therefore at least arguable that the Supreme Court’s proximity-and-proportionality test – as enunciated in Ram Manohar Lohia – has an inbuilt autonomy-respecting limitation (see the discussion on Scanlon’s theory here, for a detailed analysis): that is, the chain of causation (and, by extension, responsibility) between speech and public order disruption is broken when the actions of autonomous, rational individuals intervene.

At this stage, therefore, we have two divergent streams of thought: Ramji Lal and Virendra propose an uneasily ad-hoc test for public order disruption that seems to require neither actual disruption nor likelihood of disruption (what then, does it require), and does not seem to be grounded in any constitutional principle. Ram Manohar Lohia, on the other hand, proposes a test of proximity that appears to respect ideas of autonomy and responsibility that are – indisputably – integral building blocks in our constitutional architecture. In the next post, we shall chart the progress of the public order exception after Ram Manohar Lohia to understand which path the Court has followed.

* I thank V. Niranjan for clarifying this point to me.


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