Category Archives: Free Speech

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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The Supreme Court’s Right to Privacy Judgment – VIII: Privacy and the Right to Information

In the aftermath of the Puttaswamy judgment, it was reported that a committee of MPs had written to the election commission, asking that the disclosure of the assets of candidates’ spouses should not be required. They made their request on the basis of Puttaswamy. This has led to (legitimate) worries that privacy can now be invoked to stifle or hobble the right to information.

For the reasons I advanced in the previous essay (dealing with the right to privacy and free speech), I believe that this concern is mistaken. To briefly recap the previous essay: the judgment(s) in Puttaswamy are concerned only with privacy as a fundamental right, that is, as a shield for individuals against intrusive State action. They do not deal with when and how privacy may be used as a sword to limit the amplitude of other rights, such as the right to freedom of expression, and its cognate right, the right to information. In a number of judgments at both the High Court and the Supreme Court level, Courts were engaged in balancing privacy against freedom of speech and the right to information even before Puttaswamy. The question then is whether Puttaswamy added anything to that debate – i.e., whether it granted privacy an even higher pedestal than it occupied before. As I argued in the last essay, it did not: Puttaswamy only stated that privacy is a fundamental right, clarified its contours, and indicated when the State might be justified in limiting it. Nothing more.

The Right to Information Act 

In the case of the right to information, the issue is even more straightforward, because the Right to Information Act already protects privacy. Section 8(j) of that Act exempts from disclosure:

“… information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

Section 8(j) lays down the uncontroversial proposition that as far as “personal information” goes (and the Section specifically makes this clear through the succeeding phrase – “which has no relationship to any public activity or interest“) – the presumption is against disclosure, unless a larger public interest exists. Section 8(j) requires information officers and Courts to interpret the scope of terms such as “personal information”, “public activity or interest”, “unwarranted invasion”, and to also create a jurisprudence balancing the right of individuals to protect their personal information against the larger public interest.

Does the judgment in Puttaswamy affect any of this? The only aspect that it might possibly impact is the meaning of the phrase “personal information.” But even here, a close reading of the judgment dispels that impression. The phrase “personal information” occurred and recurred multiple times through the separate opinion, but it was only Justice Bobde’s opinion that defined it in any meaningful way, and that too in the context of State surveillance (“…the non-consensual revelation of personal information such as the state of one’s health, finances, place of residence, location, daily routines and so on efface one’s sense of personal and financial security.”) Justice Kaul, who had a full section dealing with the concept of “personal information” (in the context of data collection) refrained from defining it either.

In fact, more importantly, the separate opinions in Puttaswamy specifically acknowledged the Right to Information Act as an example of how the legislature had balanced the two constitutional values of access to information, and the right to privacy. For example, Justice Chandrachud observed that “legislative protection is in many cases, an acknowledgment and recognition of a constitutional right which needs to be effectuated and enforced through protective laws… for instance, the provisions of Section 8(1)(j) of the Right to Information Act, 2005 which contain an exemption from the disclosure of information refer to such information which would cause an unwarranted invasion of the privacy of the individual.” (para 153) Justice Nariman cited Section 8(j) for the proposition that, in the Right to Information Act, the legislature had recognised the right to privacy (para 89). Both Justice Chandrachud and Justice Nariman cited the prior judgment of the Supreme Court in Bihar Public Service Commission vs Saiyed Hussain Abbas Rizwi, where Justice Swatenter Kumar had specifically held that “thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.”

The point, therefore, is this: the judgments in Puttaswamy acknowledge the fact that, in the Right to Information Act, the legislature has already struck a balance between two competing constitutional values: the right to privacy, and the right to information. This balance has been struck in the following manner: (1) define “personal information” in terms of that which has no relationship to any public interest or public activity; (2) presumptively protect personal information in cases where disclosure would amount to an “unwarranted interference in privacy”, and (3) override this presumption where the larger public interest requires it. To come back for a moment to the candidates’ spouses assets question: this disclosure does not fall within Section 8(j) because, given the social realities in India, spouses’ assets are often inseparable, and often deliberately so. In disclosing a spouse’s assets, there is, therefore, a definite relationship with a “public activity” (that is, candidature for public office), and even if not, a larger public interest exists.

Conclusion

The Right to Information Act contains a detailed and fine-grained legislative balancing act between the right to privacy and the right to information. Puttaswamy does not in any way override this balance, because the judgments in Puttaswamy expressly affirm and endorse it. Nor does Puttaswamy modify or change the balance, tilting it towards privacy: as we have seen, the issue of balancing privacy against public interest in the context of disclosure of information is not addressed in the judgment at all, and the definition of “personal information” is considered in only one opinion.

This is not to suggest, of course, that the existing jurisprudence under Section 8(j) is satisfactory. On the contrary, it has been seriously – and legitimately – criticised as providing far too much sanctuary to privacy, at the cost of the right to information. The purpose of this post, however, has been to show that that jurisprudence is entirely independent of the judgments in Puttaswamy. All that Puttaswamy does is recognise privacy as a fundamental right – or, in other words, all it does is affirm the fact, as already held before, that the Right to Information Act balances two constitutional values through Section 8(j). How that balance is to be achieved in concrete terms is the task of future benches.

 

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The Supreme Court’s Right to Privacy Judgment – VII: Privacy and the Freedom of Speech

Last week, in a series of six essay, we discussed various aspects of what the Supreme Court did in Justice Puttaswamy vs Union of India. The Court held that there existed a fundamental right to privacy (essays I and II), that its elements were the bodily and mental privacy, informational self-determination, and decisional autonomy (essays III, IV, and V), and it also indicated the broad standards for limiting the right (essay VI). It is equally important, however, to discuss what the Court did not do. The Court did not hold that there existed a fundamental right to privacy horizontally (that is, between private parties), and the Court did not decide how it would adjudicate cases where there was a clash between privacy and other rights, such as the freedom of speech and the freedom of information.

Clarity on this point is important, because privacy has two uses: it can be used as a shield against intrusive State conduct (such as surveillance, data mining, or criminalisation of personal choices); and it can also be used as a sword against other individual rights. Examples of this include public figures citing privacy to block (potentially critical) books or films, and public information officers citing privacy to deny right to information requests. Over the course of the next couple of posts, I will show that the judgment in Puttaswamy was concerned only with privacy as a shield, and not with privacy as a sword. For the latter, there exists an evolving jurisprudence that remains untouched by Puttaswamy.

Privacy as a Horizontal Right

To start with, it is important to remember that the right to privacy has long been recognised as a “common law right” (in fact, the Union of India’s argued that privacy should remain only a common law right). As such, it was being applied between private parties, as an aspect of tort law, long before the issues in Puttaswamy became salient. On the other hand, the central question in Puttaswamy was whether privacy is a fundamental right under the Indian Constitution. This the judges answered in the affirmative.

It should therefore be clear that the very framing of the question precluded the Court from going into the specifics of privacy as a horizontal right, between private parties. The Court was precluded by the language of the fundamental rights chapter itself: apart from certain specific exceptions (such as Articles 15(2) and 17), the fundamental rights chapter operates vertically, regulating the relationship between the individual and the State. There is little doubt that the provisions within which the Court ultimately located the right to privacy (Articles 14, 19, 20(3), 21, 25) operate against the State. The separate opinions’ formulation of the limitations upon privacy were also directed at the State (the most important requirement that all the judges highlighted was the existence of a “law”). Consequently, Puttaswamy was simply not dealing with issues such as unauthorised biopics (freedom of expression v privacy), or right to information requests.

There is a limited exception to this: the Court has often held (most recently in the liquor ban cases) that Article 21 does not merely prohibit the State from taking away an individual’s life or personal liberty without due process, but often requires the State to act affirmatively and protect life and personal liberty. We find this issue discussed in the plurality opinion of Justice Chandrachud and the separate opinion of Justice Kaul, in the limited context of data protection. Both Justice Chandrachud and Justice Kaul argued that the issue of data collection and data mining was an extremely complex one, and individual’s rights could only be protected by a detailed data protection law, enacted by Parliament. Notably, the Justices made it clear that the obligation was Parliament’s alone.

There is an important distinction, however, between the Court stating that Parliament had an obligation to pass a law under Article 21 that adequately protected individual rights to informational self-determination (which it did), and the Court holding that individuals could invoke the Constitution in private disputes against private parties to vindicate their privacy rights (which it did not) (although, in the context of privacy, the Court has been rather unclear about this distinction, and created messy jurisprudence as a result). In fact, the Court could not have done the latter, not only because it was entirely outside the scope of the referral questions, but also because that would amount to rewriting the Constitution.

Privacy and Free Speech

However, in the view of some scholars, there exist various observations in Justice Kaul’s separate opinion, which might undermine this position – and specifically, subordinate free speech to privacy. To start with, let us remember that Justice Kaul’s is a separate opinion which did not, by itself, carry a Majority of the Court. More importantly however, in my view, Justice Kaul did not, at any point, endorse the view that privacy qua a fundamental, constitutionally guaranteed right, can be applied horizontally. In paragraph 12, he observed that privacy may be claimed against State and non-State actors, and in the latter case, there may be need for legislative regulation. He specifically addressed the issue of privacy claims against non-State actors (paragraphs 15 – 22), which was focused exclusively on data mining and data collection by corporate giants.

It was at a much later point in the judgment, while dealing with privacy as the right to informational self-determination, he observed:

“An individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives – people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments…  which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy.” (paragraphs 56 and 57)

And:

“Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent.” (paragraphs 58)

While these paragraphs have caused some disquiet, when read objectively, they lay down two entirely innocuous propositions, that are accepted in jurisdictions across the world. The first proposition is that private life cannot be invaded unless there is an element of public interest involved. The second proposition is that private life cannot be commercialised without consent. Notice that, judicially interpreted, neither of these propositions will stifle (to take, once more, the central example) biopics, documentaries, or biographies of public figures: as Justice Kaul made clear through his celebrity-sexual relationship example, the primary factor in determining whether there has been an actionable breach of privacy is whether there is an element of public interest involved in the disclosure of what is claimed to be “private information.” This is an accepted standard in, for example, the ECHR, as well as in South Africa. To get a taste of how it might work in practice: South African courts have held that publishing compromising photographs of a pair of well-known lawyers was a breach of privacy, because although the lawyers were indeed “public figures”, there was no “public interest” in broadcasting to the world what they did in their private lives. On the other hand, when a minister who was undergoing rehabilitation therapy went on a binge, knowledge of that fact was held to be in the public interest, because the public was certainly entitled to know and judge for themselves whether such conduct from a public servant was responsible or not.

What this shows us is that it is the task of the Courts to fashion a jurisprudence that balances privacy rights, public interest, and the right to freedom of expression (as multiple other Courts are doing, and have done). This would require courts to define ambiguous phrases such as “public interest” and “commercialisation”, with a view to the larger issues involved. Puttaswamy does not decide the questions, or even indicate how that balance may be achieved: it wisely leaves that determination to future courts.

Puttaswamy also has nothing to say about another vexed issue, that has caused a split in various High Courts over the last two decades, ever since the judgment of the Supreme Court in R. Rajagopal vs State of Tamil Nadu: the question of whether a privacy claim can be used to injunct a book or a film, and stop it from entering the public sphere; or whether the only remedy for a breach of privacy is monetary compensation, after publication. In Khushwant Singh vs Maneka Gandhia judgment authored by Kaul J himself, when he was a judge of the Delhi High Court, it was clearly held that because privacy disputes between two individuals took the form of tort claims, and not constitutional claims, an injunction could not be granted:

“The interim order granted by the learned Single Judge is a pre-publication injunction. The contents of subject matter had been reported before and the author stands by the same. In view of this we are of the considered view that the respondent cannot make a grievance so as to prevent the publication itself when the remedy is available to her by way of damages.

The Court then noted:

“An important aspect to be examined is the claim of right of privacy advanced by the learned counsel for the respondent to seek the preventive injunction.This aspect was exhaustively dealt with in the case of Auto Shankar reported as R.Rajagopal’s case (supra) . The Supreme Court while considering these aspects clearly opined that there were two aspects of the right of privacy. The first aspect was the general law of privacy which afforded tortuous action for damages from unlawful invasion of privacy. In the present case we are not concerned with the same as the suit for damages is yet to be tried. The second aspect, as per the Supreme Court, was the constitutional recognition given to the right or privacy which protects personal privacy against unlawful governmental action. This also is not the situation in the present case as we are concerned with the inter se rights of the two citizens and not a governmental action. It was in the context of the first aspect that the Supreme Court had given the illustration of the life story written – whether laudatory or otherwise and published without the consent of the person concerned. The learned counsel for the respondent Mr. Raj Panjwani, sought to draw strength from this aspect i.e., the lack of consent of the respondent to publish her life story in the autobiography written by appellant no.1. However, this will give rise to tortuous action for damages as per the Supreme Court since this is the aspect which is concerned with the first aspect dealt with by the Supreme Court in respect of the invasion of privacy.”

And then:

“The remedy would thus be by way of damages and not an order of restraint.”

On the other hand, the Madras High Court did injunct the publication of a biography of Jayalalithaa on privacy grounds, also relying upon certain ambiguous formulations in R. Rajagopal vs State of Tamil Nadu. At the present moment, therefore, there exists a split in the jurisprudence on this point. It would take us too far afield to commence a discussion on why the Delhi High Court was right, and the Madras High Court wrong (I have dealt with the issue in some detail in Chapter Eight of my book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution); the limited purpose of this post is to reiterate that in Puttaswamy, the Supreme Court was concerned with identifying and locating privacy as a fundamental right within the Constitution. This leaves entirely open the questions pertaining to balancing privacy and free speech when these interests clash with each other in a private setting. That jurisprudence will need to be evolved on an incremental basis, through litigation in the High Courts (or the Supreme Court), and hopefully in a progressive direction.

 

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Judicial Censorship, Prior Restraint, and the Karnan Gag Order

When the only weapon you have is a hammer, every problem looks like a nail. In recent times, the judiciary’s approach to the freedom of speech and expression seems to be proving this adage true. In response to people saying things that may not be to a judge’s liking, the response has invariably been to reach for the hammer, to ban, prohibit, or compel. Jolly LLB has a few scenes mocking lawyers? Make a committee and order cuts. Fundamental duties don’t have enough of an impact among people? Force them to stand up for the national anthem in cinemas. Condom packets have racy pictures? Direct the Additional Solicitor-General to come up with a way of “regulating” them. People are losing touch with cultural values? Force all schools in Tamil Nadu to teach the ThirukkuralThere are bandhs in Meghalaya? Ban the press from carrying statements about them. And so on.

The judicial hammer was in exhibition again today, in the seven-judge bench order convicting Justice C.S. Karnan of contempt, and sentencing him to six months in prison. The broader contempt case is not something I want to spend time discussing here, apart from noting, as an aside, that a Supreme Court that has no time to hear crucial constitutional cases for years on end on the ground that its judges are overworked and dealing with a backlog, nonetheless found the time to have multiple seven-judge sittings between February and May. Be that as it may, it is the last line of today’s order that I want to focus on. After convicting Justice Karnan to six months imprisonment, the Court states:

“Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.”

The scope of this order is breathtaking. The Court takes one individual – Justice Karnan – and gags the media from carrying any statement made by him. In my view, apart from overreaching and violating Article 19(1)(a), the Court has passed an order that it had no power to pass.

Prior Restraint

The order imposes what, in free speech law, is called “prior restraint”: “… [State] action that prohibits speech or other expression before it can take place.” It has long been a position in common law that prior restraints upon speech are impermissible unless exceptional circumstances exist. As early as 1765 in England (a time not exactly known for liberties of speech and of the press), Blackstone famously wrote that “the liberty of the press… consists in laying no previous restraints upon publication.” The American Supreme Court has held repeatedly that “any prior restraint on expression comes to this Court with a `heavy presumption’ against its constitutional validity.” In Brij Bhushan vs State of Delhi, the Indian Supreme Court held, as well, that prior restraint upon speech is presumptively unconstitutional. Prior restraint is considered specially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere. In other words, it gives the State exclusive control over “exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.”

The Media Guidelines Case

In Sahara vs SEBI, popularly known as the “Media Guidelines Case”, the Supreme Court carved out a specific exception to the rule against prior restraint. In SEBI, the Court was concerned about the issue of media trials causing prejudice in sub judice matters. In that context, the Court held that it had inherent powers under the Constitution to “prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.” Drawing this power under Article 129 of the Constitution, which authorised the Supreme Court to punish for contempt of itself, the Court held that the power to punish included the power to prevent as well. On this basis, the Court held that it could pass “postponement orders” (i.e., temporary injuncting the media from reporting on a particular event) in order to ensure the proper administration of justice, a fair trial, and the protection of the rights of the accused under Article 21. The Court warned that:

“Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period.”

Consequently, in SEBI, the Supreme Court authorised prior restraint only in the narrow context of an ongoing trial, where media reporting presented a “real and substantial risk of prejudice to the fairness of the trial.” The Court stressed that the postponement order must be narrow and limited, both in its scope and its duration.

The Karnan Gag Order

The SEBI case has come under serious criticism, but for the purposes of this post, let us take it as binding law, and test the Karnan order against it. It is quite obvious that none of SEBI’s pre-conditions for imposing prior restraint are not even remotely satisfied. There is no ongoing trial – by the same order in which it imposed the media gag, the Court convicted him of contempt. Consequently, the prospect of prejudicing an ongoing trial and thereby interfering with the administration of justice – the basis of the judgment in SEBI – does not exist. The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order. Consequently, the Karnan gag order does not fall within the scope of the SEBI judgment.

What, then, is the justification for this sweeping exercise of judicial power to silence speech? The answer is clear: Justice Karnan has, over the course of the last few months, made a number of statements, which formed the basis of his conviction for contempt by the Supreme Court. The Court presumes that he will make more such statements, and many of them will amount to contempt of court. To prevent these statements from being given the oxygen of publicity, the Court decides to gag the media from reporting on them, in advance.

This is the case for the Court, taken at its highest. And at its highest, it is no case at all. There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here). There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance. There is no counter-veiling interest: no ongoing trial, no sexual harassment claim where reputations may be destroyed, no grave imperilment of national security. There is absolutely nothing here apart from a man who has made some statements that the Court has found to be contemptuous, and on that basis the Court has decided to gag the media from publishing anything he says. Even if it could possibly be argued that the Court had the power to do this under Article 129 (since, as has been held, the power to punish for contempt includes the power to prevent it), the Karnan order clearly violates Article 19(1)(a), and fails all the proximity and reasonableness tests laid down under Article 19(2).

Needless to say, I don’t believe that the Court does have the power to pass an order under Article 129. SEBI – which held that the power to “punish” contempt includes the power to “prevent” contempt – was already stretching language to its limits. But even if there is some way to justify SEBI on the grounds of its narrowly focused nature, to say that the Karnan gag order falls within the Supreme Court’s power to “prevent contempt” is to act like Humpty Dumpty, and make words mean what you want them to mean, because you are the master.

Now, if the gag order cannot be traced back to Article 129, then – in my view – there is no constitutional source for it at all. As I have argued before in my analysis of the national anthem order, under Article 19(2), speech can be restricted only by the “State”, acting through “law”. It is, by now, well-settled, that under Article 19(2), the judiciary is not “State”, and judicial orders are not “law”. The judiciary’s task is to protect citizens’ right to free speech from executive and legislative tyranny, not to get into the business of censoring speech itself! In my view, therefore, the gag order is entirely illegal and unconstitutional.

Judicial Censorship

I have written before that over the last few years, we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech. The Karnan gag order is the latest trend in what fast seems to be becoming an established jurisprudence of (what I have called) “judicial censorship”.

The Karnan gag order was written by the Chief Justice, but co-signed by the next six senior-most judges of the Supreme Court. Three of those six judges will serve as Chief Justice in the coming years. What this suggests is that the problem is not with individual judges, but with the fact that, as an institution, the Supreme Court simply doesn’t view the freedom of speech and expression to be of much importance.

That is, in equal parts, alarming and tragic.

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Filed under Contempt of Court, Free Speech, judicial censorship

The Constitutional Challenge to S. 139AA of the IT Act (Aadhaar/PAN) – II: The Union’s Arguments

In the previous post, I detailed the petitioners’ arguments in the constitutional challenge to S. 139AA of the Income Tax Act, which effectively makes enrolling for an Aadhaar number compulsory for taxpayers. After Petitioners completed their arguments, the Union of India – through the Attorney-General, Mr Arghya Sengupta, and Mr Zoheb Hossain – responded in defence of S. 139AA. Mr Shyam Divan and Mr Arvind Datar then replied for the Petitioners. In this post, I shall provide a brief account of the arguments, isolate the issues that the two-judge bench of the Supreme Court must address, and outline the possible outcomes.

The Attorney-General’s Arguments: A Limited Right to Bodily Integrity

The Attorney-General argued that the Petitioners’ Article 21 challenge to S. 139AA – focusing on bodily integrity – was nothing but a camouflaged privacy challenge, which the Court could not examine at this stage (see previous post on the dropping of privacy arguments from the present proceedings). However, assuming that there was an independent right to bodily integrity under Article 21, the thrust of the Attorney-General’s argument was that this right could be limited by the State – and in fact, was limited by the State in a number of other domains, in ways equally, or more, intrusive than Aadhaar. For instance, Section 32 of the Registration Act, 1908, required all ten fingerprints as a pre-requisite for registering property. People routinely subjected themselves to biometric collection while traveling abroad. More broadly, the Attorney-General argued that Aadhaar only did something that was already normalised and routinised in society: in an era of ubiquitous photography, what was so unacceptably intrusive about an iris scan? Given the ubiquity of online transactions through smartphones, what was so intrusive about having to part with one’s data for the purpose paying taxes? To accede to the Petitioners’ arguments would be to set a legal standard that could only be fulfilled by hermits living alone in the mountains, and not citizens part of the modern, digital economy.

Although the Attorney-General did not specifically use the term, what he appeared to be doing was borrowing the American doctrine of “reasonable expectation of privacy“: that is, the scope of one’s right to privacy – or, in the language in which this case was argued – “bodily integrity” – is determined by what is socially sanctioned and understood as reasonable at any given time. Briefly put, the Attorney-General’s case was that Aadhaar calls upon citizens to give up only that which they voluntarily and regularly give up as part of their daily lives; consequently, there was no constitutional violation to start with.

The Attorney-General then argued that in any event, citizens had no absolute rights over their bodies. In this case, there was a larger public interest that justified the level of infringement. For instance, the Medical Termination of Pregnancy Act regulated the conditions under which a woman could abort her foetus. Random breath checks for drunken driving were required in the interests of road safety. At this point, Justice Sikri interjected, and wondered whether those examples were analogous, because in those cases, the restrictions were clearly reasonable. To this, the Attorney-General replied that in the present case as well, there was a larger public interest: the effective and efficient collection of taxes, which was an integral part of life in an ordered society.

To substantiate this argument, the Attorney-General took the Court through the history of PAN Cards, and the perceived need to replace them with Aadhaar. He argued that on a random verification of 0.2% of all PAN Cards, a number of duplicate PANs were thrown up. Besides, over the previous twenty years, the existence of shell companies, the presence of directors in multiple companies, and multiple PAN holders, had all come to light. India was a highly tax non-compliant society. Furthermore, in addition to tax dodging, there were also problems of black money, which was used to finance terrorism. For all these reasons, it was important to develop a system in which identification could not be faked. The Attorney-General submitted that the only way to accomplish this was to digitise fingerprints and iris scans, and keep them for posterity. At present, fingerprints and iris scans could not be duplicated, and consequently, the shift to Aadhaar was necessary. Furthermore, this data would be encrypted and stored in a centralised server, and shared only with the police in case it was needed for resolving a crime.

Aadhaar itself, the Attorney-General submitted, was originally conceputalised to prevent leakages in the public distribution system, in payment of wages under the NREGA, in the payment of pensions, and so on. He argued that with Aadhaar, more than Rs 50 crores had been saved by plugging leakages. Consequently, even if there was some infringement of individual rights, it was balanced by the larger public goal, as mandated – according to the Attorney-General – by Rousseau’s conceptualisation of the social contract. Individuals were in a contractual relationship with the State from their birth, reliant upon it for a host of benefits; how then could they refuse to pay their taxes in the manner mandated by the State?

Indeed – according to the Attorney-General – the Supreme Court had itself sanctioned the use of Aadhaar in PDS schemes in 2011, and in SIM card verification just a couple of months before. Furthermore, an accurate identification system such as Aadhaar was needed to ensure that India was in compliance with its obligations under international agreements such as the FATCA. For all these reasons, the Attorney-General submitted that Aadhaar was entirely within the parametres of Article 21 of the Constitution.

He concluded his arguments by submitting that within the contours of the social contract, nobody had a right to make themselves invisible: “you may want to be forgotten. But the State does not want to forget you.

Returning to this argument at a later point in his submissions, the Attorney-General also argued that a number of Supreme Court cases – such as Kathi Kalu Oghad – had held that compelling persons accused of a crime to provide their fingerprints had been held not to violate the constitutional right against self-incrimination. So why couldn’t the State put in preventive measures to check tax dodging in advance? Justice Sikri interjected to say that the Kathi Kalu line of cases might not be apposite, because they involved accused in criminal cases; surely it was not right to treat the entire country as presumptively accused of tax dodging. The Attorney-General replied that he was only arguing that the right to bodily integrity was not absolute – it could be taken away in certain cases. “Which cases, is the question“, Justice Sikri responded. “Even your life can be taken away under Article 21“, the Attorney-General continued. “But only with due process,” Justice Sikri replied. “We must balance individual dignity with State interests.” The Attorney-General responded: “at the end of the day, if you can give your fingerprints for registering property, why can’t you give your fingerprints for this?

Still later in his submissions, the Attorney-General cited precedents from the American Supreme Court about urine testing for school athletes, DNA testing of a rape accused, and – perhaps paradoxically – Roe vs Wade – to reiterate that the right to bodily integrity was not absolute.

Article 19(1)(g)

The Attorney-General’s rebuttal to Mr Datar’s argument on Article 19(1)(g) was brief. He stated that there was no violation of Article 19(1)(g), and expressed surprise that in this day and age, someone was making a constitutional argument based on Article 19(1)(g).

S. 139AA and the Aadhaar Act

The Attorney-General submitted that there was no conflict between Section 139AA and the Aadhaar Act. Responding to Mr Shyam Divan’s submission that the coercive character of 139AA could not stand alongside the voluntary nature of Aadhaar, the Attorney-General argued that Section 7 of the Aadhaar Act was at least partially mandatory: the State could tell citizens “either you should have an Aadhaar Act, or you jolly well apply for it.” Furthermore, under S. 57 of the Aadhaar Act, Aadhaar could be used for purposes other than those stipulated in the Act itself. And in any event, he argued, Parliament’s power to prescribe uses for Aadhaar was plenary, and subject only to the Constitution. The Attorney-General added that the Aadhaar Act came built in with safeguards: Section 29, for instance, prohibited the sharing of information. True, there had been some leaks of late; but those leaks, he argued, had not come from the UIDAI, or the central government, but the Jharkhand state government; and in any event, biometric details had not been compromised – only bank account information had.

Parliamentary Legislation and Court Orders

The Attorney-General’s final argument was that whatever the status of the pre-2016 Supreme Court orders stipulating that Aadhaar could only remain voluntary, all these were overridden by subsequent legislation. There was no such thing as “legislative estoppel“. No Court could injunct Parliament from passing laws as it deemed fit. By passing the Aadhaar Act – and then s. 139AA – the Parliament had simply exercised its plenary powers, and passed validating legislation taking away the basis of the prior court orders.

The Attorney-General concluded his arguments by citing a World Bank Report praising the Aadhaar system. Everyone needed an identity, he argued. Many people in India had no identity. Aadhaar was a method to bring them into the mainstream, prevent exclusion, and guarantee them their dignity.

The Arguments of Mr. Arghya Sengupta: Article 14 and Proportionality

Continuing the case for the Union, Mr Arghya Sengupta argued that Mr Datar’s claim that 139AA violated Article 14 of the Constitution was incorrect, because Article 14 did not require the Court to undertake a proportionality analysis. He cited K.T. Plantations for the proposition that a proportionality test effectively amounted to judges substituting their wisdom for that of Parliament. Taking the Court through comparative law, Mr Sengupta submitted that traditional judicial review claims in the United Kingdom had never included a proportionality test. While the European Court of Human Rights did incorporate a proportionality analysis into its rights-analysis, this only caused greater confusion than resolution. Relying upon Lord Pannick and Lord Hoffman, Mr Sengupta submitted that “the reasons for not treating people equally often involve considerations of social policy.” Justice Sikri interjected to observe that equality claims in the United Kingdom – which didn’t have a Constitution – might be treated differently from how they were in India. Mr Sengupta responded that the broader point was that proportionality only entered the picture when some balancing of rights was involved. Article 14 only required the Courts to ask whether there existed a valid reason for treating people differently from one another. There was no question of balancing. In fact, Article 14 was not about “rights” at all; fundamentally, it was about “wrongs”. Mr Sengupta concluded this argument by citing Professor Rebecca Dixon for the proposition that even the proportionality test had begun to collapse into the traditional test, and argued for the retention of the traditional Indian test of intelligible differentia and rational nexus.

On the merits of Article 14 itself, Mr Sengupta argued that Mr Datar was incorrect in arguing that the disproportionate penalty for not complying with Article 139AA rendered it violative of Article 14. Relying upon the McDowell Casehe repeated his submission that proportionality could not be invoked to strike down a statute under Article 14. Nor could a statute be struck down on grounds of arbitrariness. Justice Sikri interjected that, by virtue of Mardia Chemicals, it might be possible to invalidate a statute on grounds of arbitrariness. In response, Mr Sengupta cited Rajbala vs State of Haryana, which had rejected the arbitrariness doctrine (for a previous discussion of this debate on this blog, see here; for an analysis of Rajbala, see here).

Coming to the traditional classification test under Article 14, Mr Sengupta opposed Mr Datar’s argument that by making Aadhaar compulsory only for individual assessees, S. 139AA violated the rational nexus test. He argued that, by definition, only individuals could have Aadhaar numbers (as opposed to companies, or HUFs). Consequently, Parliament had chosen to first focus on the problem of black money and tax evasion committed by individuals, and had brought in Aadhaar to check that. No enactment, Mr Sengupta argued, could completely solve a social problem. Parliament had decided to make a start with individuals, and at a future date, would devise ways for dealing with the other categories of assessees as well.

Justice Sikri said that he understood that there was no discrimination if companies were incapable of even having Aadhaar numbers. However, the question was why discriminate between two people, both of whom were willing to pay tax, if one of them was willing to enrol for an Aadhaar number, and the other was not. Mr Sengupta replied that the purpose of 139AA was not to discriminate, but to prevent duplication of PAN cards. So the discriminatory object test under Article 14 – as Mr Shyam Divan had argued – was inapplicable. In fact, much like in the US, when TIN was replaced by SSN, in future, the State might choose to replace PAN with Aadhaar entirely.

Conscientious Objection

Mr Sengupta submitted that Mr Divan calling his clients “conscientious objectors” who were being discriminated against was entirely misplaced. Citing texts on civil disobedience and conscientious objection, he argued that what Mr Divan was essentially arguing for was a license to break the law. You may not want to stand up for the national anthem, he pointed out, but that did not mean you could sit down. Justice Sikri observed that that might not be an entirely accurate framing; the petitioners had, after all, approached the Court to have the law struck down. Mr Sengupta replied that there could be conscientious objection to all kinds of laws, but that in itself did not make them discriminatory.

Informational Self-Determination

Mr Sengupta’s final argument was on informational self-determination. He submitted that there was no absolute right to informational self-determination. The State could – and did – collect a wide range of information from individuals: births, deaths, marriages. The information that the State required from its citizens was extensive, and nobody challenged it. In any event, Mr Sengupta argued, whatever right to informational self-determination – in the apparent guise of privacy – did exist, it would have to be conditioned and defined by cultural factors. India was very different from Germany, from where Mr Divan had drawn his doctrine. There would have to be devised an Indian doctrine of informational self-determination, drawn from Indian conditions. Citing Mark Tushnet on the dangers of comparative law, Mr Sengupta argued against “importing” the conception of privacy into India.

At this point, Mr Divan interjected and said that his argument was not a privacy argument, but an argument about his right to his body. Justice Sikri observed that there might be overlaps between the two concepts. Mr Divan responded that there might indeed be overlaps, but that his right to bodily integrity was not subsumed within his right to privacy. Mr Sengupta argued that it was not open to this Court to draw a distinction between privacy and informational self-determination; given that the very question of privacy was pending before the Constitution Bench, it was for the Constitution Bench to decide what the scope of privacy was, and whether or not it included informational self-determination. Returning to his argument about importing foreign law into India, Mr Sengupta cited Justice Antonin Scalia of the American Supreme Court who, in a death penalty case, had resisted the use of comparative precedent, arguing that in judging whether the death penalty in a particular case was “cruel and unusual punishment”, only “American standards of decency” ought to be looked at.

In any event, Mr Sengupta continued, even the German Constitutional Court required a balancing between individual and community interests. He repeated his submission that the right to informational self-determination was fundamentally about privacy, since the right to control information about oneself was a facet of privacy. If the Court was going to go into that, then there was a compelling State interest in the present case: that of preventing duplicate PANs, and ensuring efficient collection of taxes. Justice Sikri stated that the Petitioners would have to show why they had a right to pay taxes in the manner that they desired. Mr Sengupta continued by saying that biometric collection was the most sophisticated system presently known. PAN was the technology of 1975, he concluded; but Aadhaar was the technology of 2016.

The Arguments of Mr Zoheb Hossain

Mr Zoheb Hossain observed that India is a progressive tax regime. Progressive taxation was itself a facet of Article 14 of the Constitution. 139AA served this progressive goal by eliminating the inequality between taxpayers and tax evaders, by making duplication of PANs impossible. There was no discrimination against individuals; in fact, there were other provisions of the Income Tax Act – such as dividend distribution tax – applicable only to companies.

Mr Hossain then argued that Mr Divan was incorrect to argue that compelled taking of biometric details and iris scans amounted to compelled speech. Citing United States vs O’Brien, he argued that not every act or conduct amounted to “speech”.

Mr Hossain concluded by arguing that the standard for injuncting a parliamentary legislation was extremely high. There could be no injunction unless the statute was manifestly unconstitutional. Consequently, if the Court was inclined to refer the case to the larger bench, it ought not to grant a stay on the operation of S. 139AA.

(Disclaimer: The writer assisted the Petitioners in the constitutional challenge before the Court.)

 

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Filed under aadhaar, arbitrariness, Article 14, Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Equality, Free Speech, Privacy

The (Hoary) Roots of Vagueness

When, in 2015, the Supreme Court handed down its judgment in Shreya Singhal vs Union of India, it was celebrated for many reasons. One of them was that the Court’s invocation of vagueness – along with the chilling effect – as a ground for striking down Section 66A of the IT Act represented an important conceptual breakthrough. While in Baldeo Prasad (1960) the Supreme Court had struck down a law criminalising “goondas” on the basis that it did not define who a “goonda” was, in K.A. Abbas (1970) the Court had admitted that in certain circumstances vagueness might make a statute void, and in Kartar Singh (1994) the Court had more or less imported the concept of void-for-vagueness from American jurisprudence, Shreya Singhal was believed to be the first time that the Court actually struck down a speech-restricting statute for being unconstitutionally vague.

Apparently not. It turns out that the origin of the vagueness doctrine in the context of speech-restricting statutes is far older than 2015; in fact, it goes back to 1951, to the beginnings of our constitutional jurisprudence, and a good two decades before the classic American judgment on the point, Grayned vs Rockford.

The case is State of Bombay vs F.N. Balsara, which is part of the constitutional canon, although for very different reasons. We know of Balsara because of its upholding of prohibition, its exposition of the doctrine of pith and substance in determining legislative competence, and its restatement of the classification test under Article 14. However, there was also an Article 19(1)(a) issue in Balsara, which the Court dealt with in a terse paragraph towards the end of its judgment. Not only did the Bombay prohibition law ban liquor, it also penalised people – and advertisements – which would “commend, solicit the use of, or offer any intoxicant or hemp” or “incite or encourage any member of the public or any class of individuals or the public generally to commit any act which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder,” [Sections 23 and 24 of the Act]

With respect to these provisions, the Court had this to say:

“Sections 23(a) and 24(1)(a) in so far as they refer to “commending” any intoxicant are said to conflict with the fundamental right guaranteed by article 19 (1) (a) namely, the right to freedom of speech and expression and there can be no doubt that the prohibition against “commending” any intoxicant is a curtailment of the right guaranteed. and it can be supported only if it is saved by clause (2) of article 19 which, as it stands at present, provides that “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.” It seems to me that none of the conditions mentioned in clause applies to the present case, and therefore the provisions in question must be held to be void. Section 23 (b) must also be held to be void. because the words “incite” and “encourage” are wide enough to include incitement or encouragement by words and speeches and also by acts. The words “which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder” are so wide and vague that it is difficult to define or limit their scope. I am therefore in agreement with the view of the High Court that this provision is invalid in its entirety. So far as article 24(1)(b) is concerned the judgment of the High Court in regard to it cannot be upheld. The learned counsel for the petitioner also conceded before us that he was not going to assail this provision.”*

While the major premise of the Court’s argument was that there was no sub-clause under Article 19(2) that could be used to justify prohibiting the “commending” or “encouraging” or “inciting” the sale and consumption of alcohol, it also made it clear that in any event, the gravamen of the offence – “frustrating or defeating the provisions of the act” – consisted of such vague terms, that the provision could not be sustained under Article 19(2). Interestingly, the Court also gave a nod to a concept often associated with vagueness in free speech jurisprudence – that of overbreadth – when it noted that the impugned words “are so wide and vague that it is difficult to define or limit their scope.” The issue of definition speaks to vagueness, while the issue of limit speaks to over-breadth (i.e., when a statute is worded so broadly that it ends up prohibiting speech that may constitutionally be restricted, as well as speech that may not).

Consequently, six decades before Shreya Singhal, a Constitution Bench of the Supreme Court had already struck down a speech-restricting statutory provision on grounds of over-breadth and vagueness. This conceptual advance, however, was largely forgotten in the intervening years (Abbas makes no reference to Balsara), and Balsara is never taught as a free speech case.

It does make you wonder, though, about how many hidden gems are lying scattered about in the Constitution Bench decisions from the 1950s. Chintaman Rao’s exposition of over-breadth was forgotten until Shreya Singhal resurrected it in 2015; In Re Kerala Education Bill’s doctrine of unconstitutional conditions was cited once in a concurring opinion in Ahmedabad St Xavier’s Education Society, but has been submerged ever since; Basheshar Nath’s invitation to develop a theory of fundamental rights as constituting an objective order of values, following German jurisprudence (via the doctrine of waiver), has never been seriously taken up; and of course, Balsara’s account of vagueness has been lost to the canon. All these judgments were delivered by benches of five judges or more, and consequently, remain good law.

How might the jurisprudence of 2017 be affected if the jurisprudence of the 1950s was to be taken seriously once more?

*Notice also that for the Court, the question of finding limitations upon free speech imported from outside 19(2) don’t even arise (much as they didn’t arise in its 1960 judgment in Sakal Papers). This is a good indication of why a two-judge bench’s recent framing of issues pertaining to whether Article 21 can “limit” 19(1)(a) is entirely misguided; the two-judge bench is bound by the Constitution Benches in Balsara as well as in Sakal: restrictions upon free speech are not to be imported form beyond Article 19(1)).

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Filed under Chilling effect, Free Speech

Notes from a Foreign Field: The High Court of Kenya Strikes Down Criminal Defamation

In an interesting judgment handed down yesterday, the High Court of Kenya held that criminal defamation unjustifiably restricted the right to freedom of speech and expression, and consequently, was unconstitutional and void. The judgment is part of a growing worldwide trend (with a few noticeable exceptions) to decriminalise defamation, whether judicially or legislatively.

The Constitutional Provisions

Article 33(1) of the Kenyan Constitution guarantees the right to freedom of speech and expression. Article 33(2) provides that this right shall not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. Article 33(3) provides that every person must “respect the rights and reputation of others.”

In addition, Article 24 of the Constitution contains a general limitation clause that states:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; (e) and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” 

It is important to note that Article 24 lays down a test of proportionality, which is broadly similar to the test laid down by the Indian Supreme Court in State of Madras vs V.G. Row, where the Supreme Court had held that under Article 19 of the Indian Constitution, the relevant test required consideration of:

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

As we can see, there is an overlap between four of the five prongs of the two tests.

The Court’s Analysis

The Petitioners argued that “criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose.” (pg. 3) To buttress this submission, they cited comparative law, including the judgment of the African Court on Human and Peoples’ Rights, the judgment of the High Court of Zimbabwe, and the 2008 Report of the U.N. Special Rapporteur on Freedom of Opinion.

The Court agreed. First, it held that criminal defamation was not saved by Article 24, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed). To substantiate this argument, the Court applied the doctrine of noscitur a sociis (a word is known by the company it keeps), on the authority – interestingly – of the Indian Supreme Court. Consequently:

“It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest and, therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which in my view aims at largely protecting public interest.”

And, with respect to Section 33:

“Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under article 33 of the Constitution, for Article 33 is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. I base this argument on two grounds:- (i) the common thread that runs through the various grounds engrafted under Article 33 (2) (a)-(d) are relatable to the protection of the interest of the State and the public in general and the word “defamation” has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, “defamation” remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same.”

(There is a parallel worth thinking about here, because the Indian Supreme Court has often held that the purpose of Article 19(2) is to protect “social interests“.)

However, given that Section 24 spoke about the “rights of others“, and Section 33 spoke about “reputation”, was that not a basis for the constitutionality of criminal defamation?  The Court responded that the question was whether criminalising defamation was a proportionate method of protecting the rights of others. It held that it was not. To start with, the Court observed:

“Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” (p. 8)

Within this framework, the Court held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.” (p. 11)

On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.” (p. 11)

While, admittedly, this problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to the Court:

“The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” (p. 11)

Additionally:

“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.” (p. 11)

Furthermore, if proportionality was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. The Court held:

“I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” (p. 14)

Finding that this view was also in accord with international practice as well as the decisions of the African Court, the Kenyan High Court struck down criminal defamation.

Comparisons with India

It is interesting to note that all the arguments that proved decisive with the High Court of Kenya, were argued before the Supreme Court last year in Subramanian Swamy vs Union of India – and almost completely ignored. It was argued that defamation was primarily aimed at protecting individual reputation, and therefore inconsistent with the very purpose of criminal law (to provide public remedies). It was argued that criminalising defamation was a disproportionate response under Article 19(2), because of the nature of the criminal process. And it was also argued that the Court was required to be particularly solicitous to the question of balance as far as the freedom of speech was concerned, because of the reality of the chilling effect. However, instead of engaging with these issues, the Court decided to elevate reputation to the status of the right to life, invented a doctrine of “constitutional fraternity” out of thin air, and upheld criminal defamation in a rambling, 270-page long judgment, which was notable for its failure to address the precise arguments that – as pointed out above – the High Court of Kenya found convincing.

It is not only for its verdict, but also for its lack of reasoning, that Subramanian Swamy needs an urgent rethink. The Kenyan High Court’s terse and lucid 14-page judgment provides us with a good template of what such a rethinking might look like.

 

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