In an order dictated today, a two-judge bench of the Supreme Court, headed by Dipak Misra J., directed all cinema halls across the country to play the national anthem before every film, along with the Indian flag on the cinema screen. The Court then directed cinema-goers to stand up to “show respect” while the anthem was being played, and – apparently upon a suggestion from the Attorney-General – that the doors of the cinema hall be locked while the anthem was being played. A number of other rather vague “interim reliefs” were also granted.

What passes for “reasoning” in this “order” ought not to be dignified with legal analysis. I will say no more about it. And the case for the opposition can scarcely be better made than Justice Jackson’s opinion in West Virginia vs Barnette. However, there is a deeper issue that goes beyond the behaviour of this particular bench of the Supreme Court, and merits some examination. This is something that I have referred to before as “judicial censorship“. Judicial censorship is suo motu judicial action restricting the freedom of speech, in the absence of an existing law. In my view, judicial censorship is not contemplated by the Constitution, and judicial orders that engage in this form of censorship are illegal and void.

Article 19(1)(a) guarantees to all citizens the freedom of speech and expression. Article 19(2) allows speech to be restricted only by an existing law or a law made by the State. It does not contemplate restriction upon free speech through any other mechanism.

Are judicial orders “law” for the purposes of Article 19(2)? Article 13(3) of the Constitution, which defines “law” for the purposes of Part III as “any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law“, when read noscitur a sociis, seems not to include judicial orders. Now, it may be argued that various judgments have held that Article 141 of the Constitution speaks of the “law” declared by the Supreme Court, and that consequently, Supreme Court judgments or orders constitute “law”. That is true, but textually, Article 141 only envisions the Supreme Court “declaring” law; more importantly, however, it does not follow that the word “law” used in Article 141 carries the same meaning as “law” under Article 13/19(2). To start with, textually, Article 13(3) prefaces its definitional terms with the phrase “In this article… law includes…” The definition, therefore, is specific to Part III of the Constitution.

Secondly, if Supreme Court judgments and orders were to constitute “law” under Article 13, then every such judgment or order would be subject to a further fundamental rights challenge. Dipak Misra J.’s order, for instance, could be challenged in a separate writ petition by either the cinema owners or cinema-goers as a violation of Article 19(1)(a) of the Constitution. Perhaps this might not be such a bad thing, but in Naresh Mirajkar vs State of Maharashtra, a nine-judge bench of the Supreme Court categorically held that this could not be done.

In Mirajkar, the High Court of Bombay passed an order in a libel case, directing that certain evidence tendered in Court could not be made public. Aggrieved journalists moved the Supreme Court under Article 32, arguing that this order violated their Article 19(1)(a) right to freedom of speech and expression. By an 8 – 1 majority, the Supreme Court dismissed their petition. Gajendragadkar CJI’s majority opinion, and the concurring opinions of Sarkar, Shah and Bachawat JJ differed on some points, but all agreed that a judicial order (of the High Court) could not be challenged in writ proceedings under Article 32 of the Constitution. The majority and concurring judgments engaged in a detailed analysis of whether the High Court had jurisdiction to pass the order that it did; having found that it did so, they then held that there was no scope for an Article 32 challenge. Shah J.’s concurring opinion was particularly clear on underlying reasons for this:

“In granting relief to a party claiming to be aggrieved or in punishing an offender, the Court in substance declares that the party who claims that he is aggrieved has or has not a certain right and that the right was or was not infringed by the action of the other party, or that the offender by his action did or did not violate a law which prohibited the action charged against him. Such a determination by a Court therefore will not operate to infringe a fundamental right under Art. 19.

He then observed:

The argument that the inherent power of this Court which may have existed prior to the Constitution must still be tested in the light of Art. 19(2) of the Constitution does not require any serious consideration. If a plea of infringement of a fundamental right under Art. 19 against infringement by a judicial determination may not be set up, in petition under Art. 32, it would not be necessary to consider whether on the footing that such a right is infringed by a judicial determination of the rights of the parties or an order made in aid of determination that the law which confers such inherent power of the Courts is within Art. 19(2). The function of Art. 19(2) is to save laws-existing laws or laws to be made by the State in future-which otherwise infringe the rights under Art. 19. Where the action is such that by its very nature it cannot infringe the rights in Art. 19(1) of the Constitution, an investigation whether the law which authorises the action falls within cl.(2) of Art. 19 may not be called for.

The Supreme Court cannot have it both ways, however. It cannot both curtail speech by equating judicial opinions to “law” under Article 19(2), and simultaneously insulate itself from its decisions then being challenged in writ proceedings for violating Article 19(1)(a) of the Constitution. Admittedly, the Majority and Sarkar J. did not expressly hold that judicial opinions “could not” infringe 19(1)(a) (in fact, both of them went into the merits of the order vis-a-vis 19(1)(a)) – however, having found at the threshold that there was no 19(1)(a) violation, they did not examine the question of whether Article 19(2) was applicable to such cases at all.

There is a deeper reason, however, why judicial censorship violates the Constitution, and that has to do with the separation of powers. As the Supreme Court held in Kharak Singh vs State of UP, if the State action is to be upheld against Part III claims, the State must “satisfy that… the fundamental rights are not infringed by showing that there is a law and that it does amount -to a reasonable restriction. within the meaning of Art. 19 (2) of the Constitution.” The phrase “there is a law” is crucial, because it sets up a threshold safeguard for the protection of fundamental rights. Plain executive action cannot infringe fundamental rights, even if it is “reasonable” within the meaning of Article 19(2). This is because “law”, which ultimately traces its authority to Parliament (whether it is in the form of legislation, or delegated law-making, such as rules or regulations), envisions a public, deliberative process during which – presumably – civil liberties concerns are taken into account at the time of framing. And  after the State makes the law, the Constitution envisages a second layer of safeguards, in the form of judicial review. After the State makes the law, aggrieved citizens can approach the Courts arguing that it violates their fundamental rights.

By engaging in direct judicial censorship, the Court short-circuits this crucial two-step safeguard, and bypasses Parliament altogether. By directly restricting speech, it ensures that the deliberative process envisaged by the Constitution when it requires the State to “make a law” under Article 19(2) is rendered chimerical. This is why such judicial action violates the separation of powers.

Lastly, it may be argued that the Court’s order is justified under Article 142 of the Constitution, which authorises the Court to pass any decree or order “necessary for doing complete justice in any cause or matter pending before it.” However, Article 142 also specifies that this must be done in “the exercise of its jurisdiction.” If my argument is correct, the Court does not have the jurisdiction to restrict speech in the absence of a law, simply by passing orders. And Article 142 cannot be a carte blanche to do anything that takes judicial fancy on any given day.

Writing about the Habeas Corpus judgment, H.M. Seervai wrote that “ordinary men and women would understand Satan saying ‘Evil be thou my good,’ but they were bewildered and perplexed to be told by four learned judges of the Supreme Court, that in substance, the founding fathers had written into the Emergency provisions of our Constitution ‘Lawlessness be thou our law.’” If Mr. Seervai was alive today, I wonder what he would think of judicial orders that do not even seem to consider whether there is a legal basis for what they seek to accomplish.