Yesterday, in Anil Bhatia vs NCT, a division bench of the Delhi High Court held that under the Delhi Prevention of Defacement of Property Act, the State may prohibit people from putting up political posters upon their private property, without the prior consent of municipal authorities. Insofar as the Court also clarified that the regulation of posters on private property must only be on content-neutral grounds, it is arguable that the case arrives at a correct outcome (for reasons which will be explained). Nonetheless, the judgment suffers from numerous conceptual confusions, which effectively continue and accelerate the creeping expansion of Article 19(2) (and correspondingly, the creeping evisceration of Article 19(1)(a), which has long been a staple feature of Indian free speech jurisprudence.
Section 3 of the Defacement Act penalises the defacement of property “in public view”. Defacement is defined as “marking with ink, chalk, paint or any other material”. Section 6 authorises the Lieutenant-Governor to order the erasure of any such defacement. It was argued by the petitioners – members and volunteers of the Aam Aadmi Party – that in light of Article 19(1)(a) of the Constitution, the Defacement Act was not applicable to the act of putting up political posters on the walls of their own homes – and that in the event and to the extent that it was, it was unconstitutional.
A bench of the Chief Justice and Justice Endlaw rejected the argument. They relied upon the Supreme Court judgments in Novva Ads (regulation of public hoardings) and In re Noise Pollution (regulation of use of loudspeakers) for the proposition that “advertisements / hoardings erected on private properties also are required to be licensed and regulated as they generally about (sic) on and are visible on public roads and public places and that hoardings erected on a private building may obstruct public roads, they may be dangerous to the building and to the public, they may be hazardous and dangerous to the smooth flow of traffic by distracting traffic, and their content may be obscene or objectionable.” (para 19)
The Court then observed that if people were granted freedom to do whatever they wanted with their property, then their would be “no need for town planning and all towns/cities will become slums.” (paragraph 21) Unregulated posters, it held, would “create ugliness, visual blight and clutter, tarnish the residential and commercial architecture, impair property values and impinge upon the privacy and special ambience of the community.” (paragraph 21) It noted that “no parallel can be drawn by the petitioners with the freedom of speech. Unlike oral speech, signs/hoardings/posters take up space, obstruct view, distract motorists, displace alternative uses for land (??!!), are a source of litter and all of which legitimately call for regulation.”
At this point, it is important to pause and notice a crucial distinction between two kinds of speech-regulation. First, there is content-based regulation, that restricts speech on the basis of its communicative message. Obscenity laws and hate speech laws are classic examples of content-based speech restriction. Secondly, we have time-place-manner regulation, which is content-neutral, but regulates speech on the basis of its effects. For instance, a rule prohibiting loudspeakers in a park after 10 PM is content-neutral, because it is not based on what a person is saying, but on the fact that there is a legitimate State interest in maintaining tranquility in public spaces after a certain time. To take a more extreme example – laws against arson are content-neutral not because they prohibit a pyromaniac from “expressing” his philosophy, but because they are aimed at protecting public property.
The last example shows us that a content-neutral law is not, strictly speaking, a restriction (in the constitutional sense) upon the freedom of speech. It affects how one can speak (what medium one can use, in which spaces and at what times), in service of State purposes that are entirely independent of what the speaker is saying. The distinction is not absolute, because the more extensive time/place/manner restrictions become, the closer they get to actually restricting vast swathes of free speech; it is also possible to justify most content-based restrictions under some time/place/manner grounds. The enquiry, therefore, must be sensitive to fact and context.
The core point, however, is that once a restriction is classified as a content-neutral, time/place/manner regulation, then the issue of 19(2) does not arise. 19(2) tells us when the State may, by law, place reasonable restrictions upon the freedom of speech; T/M/P regulations, however, ex hypothesi are not restrictions upon the freedom of speech, but regulations determining the method of its exercise. This explains why in Novva Ads and In Re Noise Pollution, the two Supreme Court cases the High Court relied upon, 19(2) was not at issue. In Novva Ads, the regulations on public hoardings were justified on T/P/M grounds, and consequently there was no 19(1)(a) violation; in In Re Noise Pollution, the Court held that the right to live in a tranquil environment was an Article 21 right, and therefore, the freedom to use loudspeakers could be curtailed in the interests of protecting the citizenry’s Article 21 rights.
If the Court had limited itself to classifying the Defacement Act as a T/P/M, it would have remained over-broad and problematic, but legally defensible. However, the Delhi High Court then proceeded to justify the Defacement Act under Article 19(2). This raised an immediate problem, because 19(2) categories were never meant to deal with T/P/M restrictions. Consequently, the Court was required to perform numerous contortions to fit the Defacement Act within the contours of 19(2). It did so through an expansion of “public order” and “decency”.
In paragraph 28, it held:
“We are of the opinion that once unregulated putting up of posters /banners / hoardings even if on one‟s own property, is a public nuisance, a law regulating the same would be a law „in the interest of ‟public order within the meaning of Article 19(2). Just like requirement of taking permission for dharnas/rallies/processions has been held to be not unreasonable, similarly the requirement of taking permission for putting up posters / banners / hoardings even on one’s own property but visible to others and affecting the view of and becoming an eyesore for others, cannot be said to be unreasonable.”
With due respect, this is utterly absurd. A building that is an “eyesore” for someone else has nothing to do with public order! Public order is a term of art, and in a series of decisions in the 1950s and 60s, the Supreme Court clarified its meaning. In Ram Manohar Lohia, for instance, the Court famously propounded its concentric circles theory: “security of the State” belonged within the genus of “public order”, which, in turn, belonged within the genus of “law and order”. This makes it clear that “public order” is a term that is about preventing public disturbances and maintaining public peace.
What did the Court do to get around this? It went one step further, in the next paragraph:
“We cannot also be unmindful of the realities of today’s life in the city as Delhi, where residents are on short fuse and altercations on issues, earlier treated as trivial, like parking, traffic accidents, often turn fatal. The possibility of unregulated political posters becoming a similar cause, cannot be ruled out.”
It is hard to imagine a more callous attitude towards core civil liberties, like the freedom of speech. In Rangarajan’s Case, the Supreme Court had made it clear that the heckler’s veto could not be a ground of restricting speech; here, the Court constitutionally sanctifies the heckler’s veto by holding that the “short fuses” of Delhi’s residents constitute a ground for restricting political posters.
Immediately after that, the Court held:
“The Supreme Court, as far back as in Ramji Lal Modi Vs. The State of U.P. AIR 1957 SC 620 held that if certain activity has a tendency to cause public disorder, a law penalizing such activity cannot but be held to be a law imposing reasonable restriction “in the interest of public order”.”
The Court’s invocation of the 1957 Supreme Court judgment in Ramji Lal Modi as the only authority for this proposition is baffling, because much water has flown under the bridge in the fifty-eight years after Ramji Lal Modi was decided. In Modi, the Court rejected the argument that there must be a proximate link between speech and public disorder for it to be legitimately restricted. Three years later, however, in Ram Manohar Lohia, the Supreme Court reversed its position, and held (correctly), that 19(2) authorised the State to make restrictive laws not simply “in the interests of public order” (which was a boundless and boundlessly manipulable standard), but satisfying the requirements of “reasonableness” as well. This requirement could be fulfilled only by demonstrating a proximate connection between speech and public disorder. This position has been consistently upheld since Lohia, in cases such as O.K. Ghosh and Kameshwar Prasad; in Rangarajan’s Case, the Court explicitly said that the requirement of proximity must be like that of a “spark in a powder keg”, and in Arup Bhuyan’s Case, the Court adopted the American standard of “incitement to imminent lawless action”. It is submitted, with respect, that no matter how short the fuses of Delhites might be, and however many violent parking disputes might take place, putting up a political poster upon the walls of one’s privately-owned property is neither incitement to imminent lawless action, nor a “spark in a powder keg” towards public disorder. In relying solely upon Ramji Lal Modi for the proposition that Delhites’ short fuses imply that political advertisements will have a “tendency” towards public disorder, and that therefore the State can restrict them, the Court simply ignores the reasonableness requirement under Article 19(2), and all the cases that have interpreted it.
The Court then added the additional 19(2) ground of “decency”, holding that:
“Not only so, the expression “decency” in Article 19(2) has in Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte (1996) 1 SCC 130 been held to indicate that the action must be in conformity with current standards of behaviour and propriety. If the act of putting up posters, on own property but in view of others, is a public nuisance, it will be an indecent act.”
With respect, this misreads and misinterprets Kunte’s case entirely. In that case, the Supreme Court held that “current standards of behaviour and property” must be located within the Constitution. In that case, which was about the regulation of election speech, the Court held, in lines that immediately followed the ones quoted above:
“In a secular polity, the requirement of correct behaviour or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the House.”
Decency, therefore, refers to constitutional decency – that is, conforming to the standards and values espoused by the Constitution. It is unclear what the Court intends it to mean here, but it does not seem to match what the Supreme Court actually said in the case that it relies upon.
But there is worse to come. In trying to buttress its decision, the Court referred to numerous regulations upon advertising, before holding that political posters amount to advertising a product! It noted, in para 34:
“Advertising‟ is defined in Black‟s Law Dictionary 8th Edition as the act of drawing public attention to something to promote its sale and informative advertising is defined as advertising that gives information about the suitability and quality of a product. The Shorter Oxford English
Dictionary 6 the Edition defines the word „advertisement‟ as having its origin in French and as meaning information/notification, a written statement calling attention to something, a public announcement in newspapers, on posters on television etc. We are thus of the opinion that the political posters which the petitioners have affixed/want to affix on their buildings/houses would fall within the meaning of advertisement and would also be governed by the Municipal Laws.”
This strange and twisted interpretation eviscerates the distinction between political and commercial speech, that has been accepted by the Court (with some modifications) from as far back as Hamdard Dawakhana’s Case, in 1959. Supreme Court cases, without exception, have recognised the crucial importance of political speech to a thriving democracy, which rests upon informed political decision-making. Sometimes, the Court has held that commercial speech also deserves a similar protection to political speech, because it plays the crucial role of informing consumers in a market economy (Tata Press vs MTNL). So there is some authority for the proposition that the protection accorded to commercial speech can be scaled up; here, however, the Court decides to scale down the protection accorded to political speech because, in its opinion, it is simply identical to hawking a product on a market. Whatever the normative arguments for and against this proposition, it is entirely inconsistent with the idea of republican democracy, that lies at the heart of Article 19(1)(a), and has been so held consistently by the Supreme Court.
Ultimately, in paragraph 37, the Court asked the municipality to frame a policy regulating the putting up of posters on private property, and required the policy to be content-neutral. Depending upon how the policy is ultimately framed, the actual damage to free speech might not be great. The Court’s reasoning, on the other hand, recklessly expands the scope of Article 19(2) to an extent where Article 19(1)(a) retains little meaning.
Before concluding, two brief points: in paragraph 27, the Court rejects relying upon an American precedent, on the ground that the American First Amendment is absolute, while Article 19(1)(a) is subject to reasonable restrictions. It is astonishing how deeply this canard has taken hold in Indian free speech jurisprudence. The American First Amendment is not absolute. It authorises obscenity laws, consumer fraud legislation, medical malpractice laws, copyright, laws prohibiting true threats and blackmail, and fighting words. With respect, refusing to engage with carefully reasoned American judgments on the basis of a cosmetic difference in text is no more than intellectual lethargy.
Secondly, after noting a series of cases in which it was held that the right to vote/contest elections is a statutory right (and not a 19(1)(a) right)), the Court observed: “It thus appears doubtful that asking for votes and/or propagating political ideology during the time of elections would qualify as a Fundamental Right under Article 19(1)(a) of the Constitution.”
At this point, one might ask: if propagating political ideology is not a fundamental right under Article 19(1)(a), then what is?
The Delhi High Court judgment in Anil Bhatia is deeply damaging judgment to civil liberties and – it is submitted – ought to be overruled.