Judicial Evasion, Book Bans, and the Unreasoned Order

[Update: A previous version of this post mistakenly stated that the Supreme Court had dismissed the appeal in a single-line order. What the Court did was to state in court that it would not interfere with the High Court judgment, and indicate that there would be no detailed order. The updated post reflects this. Once the formal order is out, a separate post will be written.]

On this blog, we have discussed a phenomenon I have labeled “judicial evasion“: when the Supreme Court effectively decides cases without handing down a reasoned judgment on merits. In previous posts, we have examined two forms of judicial evasion: refusal to hear a case when status quo is to the benefit of one of the parties (in our cases, that party has been the government), and agreeing or declining to “stay” a lower court judgment. In both cases, ultimately, evasion is constituted by judicial inaction.

Judicial evasion, however, is a broader term, and an example of a case in which the Court acted – while also evading – is yesterday’s order upholding a ban on a book called Basava Vachana Deepthi, written by one Maate Mahadevi. Elsewhere, I have discussed in some detail the issue of book banning and the freedom of speech and expression, the Supreme Court’s deeply speech-hostile jurisprudence on this issue, and how – in my view – Courts should interpret the relevant legal provisions. This post, however, is about something else: it is about banning by evasion, and this should cause serious alarm.

The book was written in 1996. In 1998, it was banned by the Karnataka state government under Section 95 of the Code of Criminal Procedure, a provision that has its roots in colonial law, and authorises state governments to ban and forfeit books if it “appears” that they might violate certain provisions of the Indian Penal Code (such as sedition, hurting of religious sentiments etc.) Section 96 of the CrPC allows persons aggrieved by the State government order to approach the High Court for relief.

In 2003, the High Court of Karnataka upheld the ban. The High Court’s judgment is an extraordinary one, endorsing the complete subordination of the individual right to freedom of speech and expression to the vague and amorphous category of community sentiments. The apparent offence was that the writer – claiming religious inspiration in her own right – had changed the pen-name that had been used by the 12th-Century saint and social reformer, Basavanna, while authoring his “vachanas“, from Kudalasangama Deva to Linga Deva.

Now, one may ridicule the writer for having delusions of grandeur, and one may criticise her and hold her in contempt for attempting to use a famous historical figure to advance a personal cause. But it should be immediately clear that banning a book for this reason renders a right to free speech entirely worthless. This was not a case of religiously-motivated hate speech. This was not a case where someone was inciting violence or discrimination against a set of people on the basis of their religion. This was, on the contrary, a classic example of cultural dissent – an individual advancing her own interpretation of her faith, that was at odds with the prevailing and dominant view. If there is anything that the right to free speech and expression has to protect, it is this.

None of that weighed with the High Court. The High Court noted that:

“… the petitioner has absolutely no right to substitute that word by any other word which has the effect of changing the original script of the author. It it is changed, naturally it will affect the religious feelings and sentiments of certain community which holds said Vachanas of Lord Basaveshwara in its original scrip in high esteem and reverence.” (para 7)

It is unclear how the High Court arrived at a conclusion that the Petitioner had “no right” to substitute the pen name (at worst, she had a right which could be restricted). More notably, however, the High Court relied entirely on how a “certain community” would react to this text. There was no analysis on what, objectively, was problematic about the text itself. As I have argued elsewhere, this effectively gives the “community” (or what a Court considers to be a “community”) a complete and entirely subjectively-enforced veto upon the freedom of speech and expression. And if every community is granted its own personal veto, then having a guaranteed constitutional right to freedom of expression is quite pointless.

In fact, the Court went on to make a logical leap: Section 295A of the IPC – which was at issue – required not only insulting religious sentiments, but also that it be done with “malicious intent.” To prove malicious intent, the Court held – in logic that can only be described as viciously circular – that “… the petitioner says that it was done for a noble cause. But we do not find any such noble cause behind such wrongful act of the petitioner. In fact the petitioner herself says in her petition that “Kudalasanga” is nothing but “Linga.” if that is so, where is any justification for the petitioner to cause any such change in the Vachana of Basaveshwara. Therefore in our considered view the wrongful act done intentionally by the petitioner is without just cause or excuse. Therefore it is a malicious act.”

The “justification”, of course, was the petitioner exercising her constitutionally guaranteed right to freedom of speech and expression, but once again, that idea seems not to be on the Court’s radar very much. The Court then put a seal on this “reasoning” by observing that:

It may be pointed out that section – 295A has been intended to respect the religious feelings of certain class of persons and Courts have to be very circumspect in such matters and to pay due regard to the feelings and religious emotions and sentiments of different class of persons with different beliefs irrespective of the consideration whether or not they share those beliefs and irrespective of the consideration whether or not they are rational or otherwise in the opinion of the Court. The petitioner cannot impose her philosophy on others.”

But this is grotesque reasoning. In the view of the Court, the petitioner writing a book (that nobody is compelled to read) amounts to “imposing her philosophy on others”, but the State banning her book (so that nobody can read it) does not. In the view of the Court, it is not the right to free speech that must be respected whether or not the Court agrees with a particular act of expression, but it is community beliefs that must be respected by banning a book that the Court disagrees with.

When this case came up in appeal, therefore, one would have expected the Supreme Court to engage with this reasoning in some detail. This is especially the case for two reasons: first, book bans strike at the heart of free speech, one of the most important constitutional guarantees. A book ban is not like the rent control disputes or the transfer petitions that are heard by the Supreme Court on a daily basis. And secondly, the High Court judgment  – under the CrPC – was the first and only time that a Court had considered the issue. Consequently, when the case came up to the Supreme Court, it was not like a run-of-the-mill special leave petition, where multiple judicial fora had already adjudicated and decided the case. It was, effectively a first appeal, and there is a general rule that judicial fora ought to consider first appeals carefully and in detail.

The bench of Bobde and Rao JJ, however, heard the matter for four days, and then suddenly stated in open Court that they were not inclined to interfere with the High Court’s judgment, that they would not be writing any detailed order, and that there was no need for the parties to file written submissions or the authorities on the point.

Why did the Supreme Court do this? It is difficult to say; but nonetheless, the effect of what looks like being a minimalist order by the Court will be that there will be almost nothing one can engage with, disagree with, or critique. Although, in this case, the Court acted – that is, it passed an affirmative order dismissing the appeal and upholding the ban – in effect, what is happening is the same as what happens in the more classic cases of judicial evasion: the Supreme Court effectively decides a case with far-reaching constitutional consequences, which affects the fundamental rights of people, but gives virtually no reasons (or at best, inadequate reasons) for why it is doing what it is doing. And this is deeply problematic, because the authority of the Court is founded entirely on reason – reasoning from text, from statute, and from the Constitution, to arrive at a conclusion about whether and to what extent rights have been infringed in a particular case.

As I have written above, book bans are a very serious issue. If there is anything that raises important constitutional concerns in a democracy, it is the State’s power to censor speech. That the Supreme Court saw fit to uphold a ban without even reserving judgment and considering the issue in detail, is unfortunate; however, if this was to now become a regular feature, that would be truly tragic.

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5 Comments

Filed under Free Speech, Hate Speech

5 responses to “Judicial Evasion, Book Bans, and the Unreasoned Order

  1. JD

    Perhaps we should also investigate why this critical Fundamental Right (it occurs in the Constitution even before the right to life) is so woefully not understood, by the citizens, the State and the Courts. The Courts also need to remember that the fundamental unit of the Constitution is not the community, but the individual. Individual rights should always be privileged above community rights, as an obvious corollary.

  2. vijay mehta

    Mr. Gautam Pl keep it up. Always bear in mind that ours is the Rule of Judges and not Rule of Laws till date….I am with you and you ought to fight it out till it bears fruit…I say to the extent that reasons given by the judges are the sole criteria to decide whether the judge is corrupt or just and fair and reasonable….you have a long way to go but the goal post should be clear….Corrupt word now is to be properly understood it is alike to what we call in computer language that the file is corrupt i.e. you do not get proper reading of facts and/or logics and you do not get fair output and/or wrong output…human brain(judges brain) are to be evaluated on this scale….

  3. Pingback: The Party of the Extreme Normal | Verfassungsblog

  4. Abhisar Dev

    Well sir, it was disheartening to know that chearished Right is being cowered down due to popular belief and the clear abdication of court’s responsibility manifestedly mentioned by you (in the words of Bobde J.). While it is happening day in,day out in different HCs, i am ashtonished to know that Judges of SC harbour same reasoning and picture will continiue to remain gloomy for years to come. Our judges are more concerned about pomp and show (supremacy of judiciary) rather than uphoalding the true intent of law (supremacy of Constitution).With every passing day reading your book ‘Offend, Shock or Disturb’, i can say, we have almost subverted the Constitution, in one way or another. I find your reasoning in that regard most appropriate. Thank you and keep writing.

  5. Pingback: Karnataka HC's Order Upholding The Ban On Mate Mahadevi's Book Is In Consonance With Law, Says SC [Read Order] | Live Law

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