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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


More than three years ago – in August 2016 – I’d written about an odd Supreme Court hearing where “questions” were framed (inter alia) about whether the freedom of speech could be restricted on grounds of “constitutional compassion.” The case had come to Court when UP politician Azam Khan had labeled a gangrape as a “political controversy”, and then-Justice Dipak Misra had taken the opportunity to also ask whether political functionaries had a more restricted right to free speech than ordinary citizens.

Subsequently, Azam Khan apologised to the Supreme Court, and his apology was accepted. However, the case continued. In an order dated 5th October 2017, the matter was referred to a Constitution Bench (!) to decide. On that same day, Mr Fali Nariman and Mr Harish Salve, acting as amici in the case, framed further “questions” to be decided. Among Mr. Nariman’s questions was the following:

Whether, and if so under what circumstances (if any) would a private individual or group of private individuals (including private corporations) be required to conform to the rigor and discipline of Article 21 (in the Fundamental Rights chapter) of the Constitution – whether as “State” as broadly defined, or otherwise.

CJI Misra himself retired last year, with no further progress on this case. One would have thought, then, that this little piece of judicial buccaneering would meet a quiet and deserved end. But no: it turned out last week that the Constitution Bench of the Supreme Court – consisting of Mishra, Banerjee, Saran, Shah and Bhat JJ – would indeed sit and hear this case. And in a hearing on 24th August, events took an alarming turn, when the Attorney-General “reframed” his questions, and the Court’s order finalised them as follows: 

  1. Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
  2. Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
  3. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?
  4. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?
  5. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

There are a few points I want to note about this Order. While questions (4) and (5) have at least some relationship with the original case of Azam Khan, and are relatively focused, the first three questions are simply broad-ranging enquiries into general constitutional philosophy. It is entirely unclear why they have been framed in the first place, and why a Constitution Bench needs to answer them, in the absence of a specific lis that brought them to Court. Question (2), for example, is a question about horizontal rights – a vexed and fraught question that jurisdictions across the world have been grappling with. Question (3) is a question about positive obligations – another issue that Courts all over the world have spent years engaging with, and incrementally developing jurisprudence. These questions are too complex, too multi-layered, and too poly-centric to be answered in an abstract enquiry; they don’t become any simple just because a Senior Counsel has “framed” them. To take just one example: if you hold that Article 21 is indeed horizontally applicable, then how does that affect the entire swathe of Indian criminal law, whose task is precisely to protect the life and liberty of individuals from encroachment by other individuals, through legislation? Does it even affect criminal law? Should it? Legal scholars have written entire books grappling with the complex engagement between horizontal constitutional rights and existing private and public law regimes. And therefore, the correct way of addressing these issues – and the correct way for constitutional courts to behave –  is to address them in light of concrete cases that are called before it for determination, because it is only then that it can actually be seen how horizontal rights – or positive obligations – play out in the real world. Without that, this is nothing more than whistling in the dark.

But if questions (2) and (3) raise the prospect of a headless jurisprudence, question (1) is profoundly dangerous. To start with, where on earth did it come from? It wasn’t in the original four questions framed by Dipak Misra J.’s court. It is not connected to questions (4) and (5), which are the ones that are really about what speech a minister may or may not engage in, and which basically deal with the question of how and when you can attribute a minister’s speech to the State. But most importantly, this question has already been answered. It has already been answered by the Supreme Court. It has already been answered by the Supreme Court multiple times. In fact, it has been answered by a Constitution Bench of the Supreme Court. In Sakal Papers v Union of India, a five-judge bench held:

It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19 … Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public … For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.

Sakal Papers is one of those landmark judgments in Indian free speech jurisprudence. The fundamental propositions that it articulates have never been seriously doubted in sixty years, and were accepted by the Supreme Court as recently as Shreya Singhal (2015). Most importantly, as a five-judge bench, it is binding upon the present Constitution Bench. There has been no referral to reconsider its correctness. So then, why was this question framed? Why did the five learned judges on the Bench accept it? Perhaps we’re going to find out shortly that Sakal Papers has been per incuriam these six decades, and we just didn’t know it? Who knows.

In short, therefore, a case about a Minister making a statement about a gang-rape – crass and condemnable as it was – has somehow morphed into a Constitution Bench hearing where the Supreme Court is going to opine about horizontal rights, positive obligations, and the prospect of additional limitations on free speech, all in the abstract (as the original lis has long been lost in the mists of time). And that, in a nutshell, is the problem with what PIL has become today:  it is no longer about expanding the concrete fundamental rights of the most vulnerable, but something else entirely, something that has become hostage to the fancies of individual judges and senior lawyers.

Indeed, the history of this case reveals something important about that last relationship. The history of these orders show that while the initial four questions were framed by the Court, the questions that the Constitution Bench is now going to “answer” have been framed by the two amici mentioned above. While Mr. Fali Nariman was appointed initially by the Court, Mr. Salve’s appointment came about in an order dated 29.3.2017, which records that “Mr. Harish Salve, learned senior counsel, who was present in Court, expressed his intention to assist the Court.”

Now I wonder how many of us are accorded this unique privilege of simply standing up and “expressing our intention” to assist the Court, being promptly being made an amicus, and then framing questions that are going to affect fundamental rights across the country. And this is not the first time: in the famous 1997 phone tapping case, PUCL v Union of India, while PUCL’s lawyer, Mr. Sanjay Parikh was arguing, there was another courtroom intervention. The judgment records it thus:

At this stage, Mr. Kapil Sibal & Dr. Dhawan, who are present in Court, stated that according to them the matter is important and they being responsible members of the Bar, are duty bound to assist this Court in a matter like this. We appreciate the gesture. We permit them to intervene in this matter. They need a short adjournment to assist us.

 

Mr. Sibal then went on to justify telephone interception and proposed a “non-judicial” oversight mechanism – a proposal that was accepted by the Court, and continues to haunt our surveillance jurisprudence till today. Similarly, in the notorious Devidas Tuljapurkar case, the framing that “historically respectable personalities” should be given some kind of different protection against “obscene speech” was propounded by Mr. Nariman, who had been appointed as an amicus.

None of this is the mark of an egalitarian, democratic, or even healthy legal culture, where seniority has become a kind of special-access gateway (for more on the outsize role of the amicus in PIL cases, see Anuj Bhuwania’s Courting the People). And apart from its iniquitous character, it is particularly problematic in civil rights cases, where what is at stake are fundamental liberties: these fundamental liberties should not become playthings of whatever fancy takes a Senior Counsel at a particular time. The first three “questions” that this Constitution Bench of five learned judges is now proposing to “answer” shows us the perils of such a legal culture.