Category Archives: 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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Filed under Comparative Constitutional Law, Constitutional Scholarship, Defamation, Free Speech, freedom of speech, Kenya, Uncategorized

Judicial Censorship and Judicial Evasion: The Depressing Story of Jolly LLB 2

In 2013, Jolly LLB, a comedic satire about the Indian legal profession, ran into legal trouble. Two lawyers initiated “public interest litigation” in the Delhi High Court, asking the Court to direct the Film Certification Board to cancel the license that it had granted to the film under the Cinematograph Act. The Court dismissed the PIL, finding nothing of “public interest” in it, and also finding it to be premature, because it had been filed purely on the basis of trailers. An appeal to the Supreme Court was dismissed in limine, Justice Lodha memorably remarking, “if you don’t like it, don’t watch it.”

Four years later, the sequel, Jolly LLB 2, was not so lucky. This time, another petitioner tried his luck in the Bombay High Court, and after a series of proceedings that I shall proceed to describe, succeeded in having the Court direct “cuts” to the film. In between, the filmmakers went to the Supreme Court, which declined to interfere.

What has happened with Jolly LLB 2 over the last two weeks reveals a confluence between two alarming trends that I have highlighted before: judicial censorship (the Court censoring speech without the authority of any law) and judicial evasion (the Court effectively deciding cases without adjudicating them – i.e., without passing reasoned judgments – simply by keeping them hanging).

The Events

On January 20, it was reported that a lawyer had filed a petition before the Aurangabad Bench of the Bombay High Court, arguing that the trailers of the film revealed an “attempt to project the Indian Judiciary and the Indian legal system in a derogatory manner.” The petitioner had a problem with the fact that scenes in the film showed lawyers dancing in the court, and people playing cards, and asked that the word “LLB” be dropped from the the title of the film.

Instead of dismissing this petition at the threshold, the Bombay High Court issued notice on January 27 and asked the filmmakers to reply. On January 30, the Court found that there was a “prima facie” case of contempt of court. It ordered that the petition be converted into a PIL, and constituted a three-member committee (out of which two members were lawyers) to watch the film, and submit their report on Monday (February 6).

Since the film was scheduled to be released on Friday, February 10, the producers moved the Supreme Court on February 3. Before the Supreme Court, it was argued that the Bombay High Court had no jurisdiction to pass the order that it did, because, effectively, it was setting up a parallel censorship mechanism that had no basis in any law. Instead of deciding the jurisdictional question, the Supreme Court reposted the case for hearing on Tuesday, one day after the Bombay High Court-appointed “committee” was to submit its “report”.

On Monday, February 6, the “Committee” submitted its “Report”, recommending the deletion of four scenes from the film. The producers attempted a compromise, promising a partial deletion. The Bombay High Court accepted this compromise, and passed an order requiring deletion and re-certification of the film.

On Tuesday, February 7 (i.e., today morning), the producers appeared before the Supreme Court, and withdrew their petition challenging the Bombay High Court’s order of January 30, while keeping the question of law open.

Judicial Censorship by the Bombay High Court

Let us first consider the Bombay High Court’s actions in finding a prima facie case of “contempt”, and deciding to set up a “Committee” to watch the film. The procedure for the certification of films is contained in the Cinematograph Act of 1952. The Act makes it clear that film certification is to be conducted by a Board of Censors, who are to take their decision in accordance with the freedom of speech provisions in the Constitution, and government-mandated guidelines. If a person is aggrieved by the Board’s refusal to grant a certificate, or to grant a certificate that only allows restricted viewing, she may appeal to an appellate Tribunal (note that the Act only contemplates an appeal in the case a certificate is denied or restricted; it does not contemplate a person appealing in cases where a certificate is granted – for obvious and good reasons).

What role does a Court have in these proceedings? The short answer is: none. The statutory body that decides on the issue of certifying films for public exhibition, and on requiring cuts and modifications, is the Censor Board, with an appeal lying to an Appellate Tribunal (under the Act, the Government also has revisional powers). Under the Cinematograph Act, the Courts have no power to certify, modify, or refuse certification of films.

Of course, this does not mean that the Courts are excluded altogether. Film-makers and producers who believe that the Board – and the Appellate Tribunal – have acted illegally in denying a certificate or requiring cuts, and have violated their right to free speech, can approach the High Court (and, if that fails, the Supreme Court). The Courts can – and have – set aside decisions of the Board and the Tribunal on this basis.

Another way in which the Courts get involved is if, notwithstanding the Censor certificate, there is an allegation that the film has broken the law. To what (limited) extent a censor certificate grants film producers “safe harbour” from prosecution has been long-debated in the Courts, but is not of relevance to this case.

The third way in which the Courts can get involved is if third parties object to the grant of a certificate by the Censor Board, and move the Court against that decision. This is what was famously done in the Phoolan Devi CaseThe grant of an “A” certificate to the film was challenged by members of the Gujjar community before the High Court. The High Court quashed the certificate. The Supreme Court set aside the judgment of the High Court.

One might begin by asking what standing a third person has to challenge the grant of a film certificate by a Tribunal to a film-producer; however, the limitless rules of standing that now exist in Indian Courts have made that question more or less redundant. Let us assume, then, that a third person approaches the Court (as in this case), and argues that the Censor Board misapplied the provisions of the Cinematograph Act and the Guidelines, and wrongly granted the Certificate. In the first instance, it is important to note that, in light of the fact that the Cinematograph Act clearly envisages the Board as the certifying authority, the Court should not lightly substitute its views for those of the Board (a proposition that has been repeatedly upheld); the Court should only intervene when there is a clear illegality in the grant of the certificate. There is, however, a further question: what form should that intervention make? It is here that it becomes crucial to note that in the absence of a law that authorises it to do so, a Court cannot censor speech. As I have pointed out before, under Article 19(2) of the Constitution, speech can only be restricted by a “law” made by the “State”. For the purposes of Article 19(2), it has been held multiple times that the Court is not the State, and its orders are not “law”.

Consequently, in the absence of a law, it is not for the Court to order cuts to a filmAt best, the Court can find that the Censor Board made an error, point out what the error was, and then remand the case back to the Board to decide once more in accordance with law (the Bombay High Court’s 6th February order does ask the Censor Board to re-certify the film, but also makes it clear what the cuts are).

What the Court certainly cannot do is to set up an entirely parallel censorship authority – in this case, a “committee” of three people to watch the film and suggest cuts. No law contemplates that, and since Article 19(1)(a) is abundantly clear on the requirement of a “law” for censoring speech, the Bombay High Court’s setting up of the “committee” was entirely without jurisdiction. It is an instance of what I have called “judicial censorship“, a trend that is growing frighteningly in recent times.

Judicial Evasion by the Supreme Court

Before the Supreme Court, this exact plea – that the Bombay High Court had no jurisdiction to set up a parallel censorship authority – was taken. To this threshold question, the Supreme Court made a truly astonishing remark: it told the film producers to go and raise this objection at the High Court itself. On being informed that the objection had been made only to be rejected, the Supreme Court then said: “the Committee will make its report on Monday. We’ll keep the matter for Tuesday. Come back to us then if you have a problem.”

In other words, when it was argued before the Supreme Court that the Bombay High Court had illegally set a procedure (for censorship) in motion, the Supreme Court’s answer was “let’s wait and see what the outcome of this disputed procedure is, and then you come back to us.” This is patently illogical. The Supreme Court had to decide the question one way or the other: either to uphold the High Court’s jurisdiction in setting up a “committee”, or to set it aside. It elected to do neither.

However, the Supreme Court’s non-action was scarcely neutral. By the time that the “Committee” released its “report” on Monday recommending cuts, the film’s release date was four days away. The producers had a simple choice: contest this, risk a potentially costly delay and a potential defeat at the end of it – or accept the cuts, and ensure that the film was released on time. In view of everything that the Bombay High Court had done until then, and the Supreme Court’s clear disinterest in protecting the free speech rights of the filmmakers and producers, they took the sensible course of action: accepted the cuts, and moved on.

The Supreme Court’s refusal to hear and decide the question of jurisdiction on Friday, therefore, was a case of what I’ve described as judicial evasion. When faced with a crucial constitutional issue, and one that requires a decisive decision one way or another, the Court’s response is to refuse to decide, and to keep the case hanging. In doing so, the Court effectively decides – in favour of the status quo, which more often than not amounts to contracting rights – but also exempts itself from the necessity and responsibility of giving reasons for what would be perceived as a regressive and anti-rights decision. This is precisely what happened in the Jolly LLB 2 case.

Misapplication of Law

Lastly, not only was the Bombay High Court’s decision to set up a “committee” entirely illegal and without jurisdiction, its two orders – on January 30 and February 6 – are patently erroneous. Its initial prima facie finding of “contempt” on the basis of online trailers goes against a range of Supreme Court judgments that make it clear that films have to be seen as a whole (in fact, this was the exact reason that the Delhi High Court dismissed the PIL against Jolly LLB 1). And secondly, the findings of the “Committee” that four scenes did amount to contempt is erroneous on two counts. First, no deference is shown to the findings of the Censor Board. The “Committee” – whose existence has no legal basis –  acts as if it is an entirely fresh censor board, and thus reduces the statutory Board itself to a nullity.

Secondly, it has now been made abundantly clear – both in case law and by a 2006 amendment to the Contempt of Courts Act – that contempt of court is not about protecting the “reputation” of the judiciary, but about ensuring that the course of justice is not interfered with. There is no analysis to show how scenes from a satirical film about the legal profession would have interfered with the course of justice. Is it the (implied) case of the “Committee” and the Court that the “reputation” of the judiciary rests on such fragile foundations that a comic film can end up interfering with the course of justice?

Conclusion

Let us recap what happened to Jolly LLB 2. A film that had been cleared by the Certification Board was nonetheless held by a High-Court appointed “committee”, which was constituted by pure judicial fiat, to be in “contempt of Court”, and required to delete four scenes. This order rested upon no other foundation than the Court telling the film producers, “I am doing this because I can.” The Supreme Court refused to intervene. In other words, through judicial evasion, the Supreme Court enabled the Bombay High Court’s judicial censorship.

And now consider the consequences: this entire incident will give a fillip to persons with “hurt feelings” to file petitions and PILs against films that have been granted certificates by the Censor Board. As long as a petitioner is lucky enough to find judges such as those of the Bombay High Court who agree with him, the film will have to go through a fresh round of reviewing and censoring. And the Supreme Court will not interfere. True, in this case, the “question of law” was left open – but one wonders when it will come to be decided, and in what fashion.

I have written before that over the last few years, it is neither the legislature nor the executive that is the greatest threat to the freedom of speech, but the judiciary. Whether it is Article 21 or Article 142 or PILs, the judiciary is not only failing to act as a shield to protect free speech against State encroachment, but is acting like a sword to cut down free speech. To the framers of our Constitution, who saw an independent judiciary as the only bulwark between civil rights and State power, this would be a matter of great dismay.

And lastly, consider the optics of this whole situation. A film was made that satirises the legal profession. A lawyer filed a petition against it. Two judges decided that this film – which satirised the legal profession – was prima facie in contempt of court. They constituted a “committee” – a majority of whose members were also lawyers – to watch the film and decide whether their own profession was being permissible satirised (in Law School, one of the first principles we were taught is thou shalt not be a judge in thine cause – except, it seems, when you literally can). Two Supreme Court judges were asked to intervene. They refused. The “committee” – with its lawyers – found that the film “defamed” the judiciary, and ordered cuts. These cuts were implemented by two other judges. To a film that satirised the legal profession.

Whichever way you want to slice this, it does not look good.

(Disclaimer: this writer was involved in the Supreme Court hearing on February 3, on behalf of the film producers. The account of the Supreme Court proceedings on that day is based on first-hand experience).

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Filed under Free Speech, Judicial Evasion

Online Speech and Intermediary Liability: The Delhi High Court’s MySpace Judgment

On the 23rd of December, a division bench of the Delhi High Court handed down its judgment in MySpace vs Super Cassettes. In the process, the Court laid down some important legal principles regarding intermediary liability in the case of copyright claims, the scope of safe harbour provisions, and injunctions. The judgment, therefore, has significant ramifications for online speech, and ought to be studied closely. It is also worth reading because it is one of the first Indian judgments (to my knowledge) that focuses upon the special characteristics of the Internet from the point of view of expanding online speech, and not contracting it. As I shall argue, on the core question before it – that is, balancing online speech with the statutory mandate of protecting copyright – the Court successfully negotiated a minefield of legal and technical issues, and – apart from one finding – managed to tread a fine line between the competing interests.

Background

In 2008, Super Cassettes filed a suit against MySpace. It argued that a lot of the songs and other audio-visual content that MySpace hosted on its website violated its copyright. It further argued that MySpace profited from this through advertisements that were inserted into the videos. Furthermore, MySpace’s existing systems of protecting copyright – i.e., a terms of service agreement with its users directing them not to violate copyright, a notice-and-takedown system where MySpace would take down copyright infringing material on being notified by the holder, and a Rights Management Tool, whereby copyright holders could sign up, create digital fingerprints of its content, and then submit it to MySpace, who would then block mirror content – could not absolve it of liability under Indian law. Super Cassettes argued that MySpace had violated provisions of the Copyright Act. It sought a permanent injunction, and damages.

MySpace argued, on the other hand, that it was an intermediary, and had no role to play in making, modifying, or uploading content upon its website. The advertisements that were shown just before a video played were through an automated process, depending upon matches between keywords. Consequently, MySpace was not modifying any content in its own right, and was protected under the safe harbour provisions of the Information Technology Act. Furthermore, a general injunction to remove copyright-infringing material was impossible to comply with, because not only were there more than 100,000 works on the website which MySpace would have to sift through, but it would also have to monitor every future work that was uploaded on its website.

On hearings for interim orders, the single judge of the High Court found that MySpace was prima facie in breach of the Copyright Act by providing a “space” where infringing material was published, and with “knowledge” that such material was being published (the two requirements under Section 51(a)(ii) of the Copyright Act). The single judge further held that MySpace’s role went beyond that of an intermediary; and in any event, under the proviso to Section 81 of the Information Technology Act, the provisions of that Act (including the safe harbour provisions) were clearly subservient to copyright law. MySpace’s safeguards – such as the Rights Management Tools – were not relevant to a finding of liability for copyright infringement, and could only come into play as factors for mitigating damages. Consequently, the single judge granted a qua timet injunction (i.e., an injunction against future acts), prohibiting MySpace from allowing uploads of any material that breached Super Cassette’s copyright, and to delete from its website the songs and other content about which Super Cassettes provided it with the relevant details.

MySpace appealed.

Issues before the Division Bench

At the outset, it is important to note that the division bench of the High Court was concerned only with the issue of the injunction order – that is, the order of injunction – and not with the overall suit between the parties. Consequently, Justice S. Ravindra Bhat, writing the judgment of the Court, framed the following three legal issues for adjudication:

 “First whether MySpace could be said to have knowledge of infringement as to attract Section 51(a)(ii) and consequent liability; Second, does proviso to Section 81 override the “safe harbor” granted to intermediaries under Section 79 of the IT Act third, possibility of harmonious reading of Sections 79 and 81 of the IT Act and Section 51 of the Copyright Act.” (paragraph 31)

Knowledge of Infringement

Section 51(a)(ii) of the Copyright Act states that copyright shall be infringed when a person “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”

The Division Bench agreed with the single judge that MySpace’s website was a (virtual) “place”, from which MySpace earned profit (paragraph 34). The key question was whether, in the absence of specific notice, MySpace could be said to be “aware” or have “reasonable grounds to believe” that copyright infringement was taking place on its website. The single judge had held that the very presence of safeguard provisions and tools (such as notice-and-take-down) in MySpace’s user agreements signalled a “general awareness” that copyright was being infringed on its website, and this was enough for liability to be attracted under S. 51(a)(ii). The Division Bench disagreed. In paragraph 35, Justice Bhat held:

“Simply put, that test [of general awareness] overlooks that unlike “real” space, in a virtual world, where millions of videos are uploaded daily, it is impossible under available technology standards to identify the streaming content, which actually infringes. Knowledge has a definite connotation, i.e a consciousness or awareness and not mere possibility or suspicion of something likely. The nature of the Internet media is such that the interpretation of knowledge cannot be the same as that used for a physical premise.”

He then went on to develop this argument in the succeeding paragraphs, noting that in the specific context of the Internet, where a system could store “millions” of videos, the concept of “constructive”, or assumed knowledge, from the offline world, could not simply be transplanted here. Rather:

“The requirement is to give specific information to the content host or the website(MySpace) that infringement occurs with respect to the specific work. A general or vague description of the works would be insufficient as this then leaves room for MySpace to rely guesswork as to what content has to be removed. Therefore, the onus is upon the plaintiff to give detailed description of its specific works, which are infringed to enable the web host to identify them.” (paragraph 36)

Super Cassettes argued, however, that it had notified to MySpace a list of more than 100,000 songs in which it had copyright. The Division Bench held that this was insufficient, especially because when MySpace had done a preliminary scan of these 100,000 songs, it had found that many of them had been uploaded by distributors or performers who might well have been covered under copyright exceptions (such as, perhaps, fair use). Consequently, the Division Bench held:

“It is only when a specific work is mentioned can it be said that MySpace possesses knowledge of a work being infringed on its website. Providing long lists of all works, tasking MySpace with identifying and removing infringing content is not enough. It is only when MySpace has specific or actual knowledge or when it has reasonable belief, based on information supplied by SCIL and if despite such knowledge or reasonable belief it fails to act can it be held liable for infringement…  in other words, an indiscriminate and blind acceptance of SCIL‟s entire list to run a general filter and “take down” all content would result in grave damage and result in likely multifarious disputes: with up-loaders, many of whom are original creators in their own right and might have used a miniscule quantum of the copyrighted content in… their larger original creation; with distributors, who might hold genuine licenses and with others who create versions, remixes or original titles which may have little content; still there may be other content uploaders whose material only superficially resembles with the titles owned by SCIL, because of the lyrics or titles but is otherwise genuine creation with its independent copyright.” (paragraph 38)

In the present case, therefore, the Court held that MySpace had no prima facie knowledge of infringement (paragraph 39).

The Interplay Between the Copyright Act and Intermediary Liability under the IT Act

This brought the Court to issues 2 and 3 (see above). MySpace had sought sanctuary under Section 79 of the Information Technology Act. Section 79 provides a safe harbour to intermediaries from being held liable for unlawful content on their servers. This safe harbour is lost if the intermediary receives “actual knowledge” that it is hosting unlawful content. And recall that in Shreya Singhal vs Union of India, the Supreme Court had held that “actual knowledge” under Section 79 was limited to either a court order, or a government directive.

As we can see, there is an overlap between Section 51 of the Copyright Act and Section 79 of the IT Act. Section 51(a)(ii) makes an entity liable for secondary infringement if it is “aware” or has “reasonable grounds for believing” that infringement is happening on its “place”. Section 79, which otherwise protects intermediaries, nonetheless revokes this protection if the intermediary has “actual knowledge” that its platform is being used for law-breaking (which includes copyright violation). Now, the key question is this: if the general standard of protection afforded to intermediaries under the IT Act (actual knowledge) – as interpreted in Shreya Singhal – is greater than the general protection in cases of secondary infringement under the Copyright Act (non-awareness), then which of the two laws will apply to the specific case of an intermediary whose website is being used for potential copyright infringement? Or, to put the question another way: if the intermediary does not have “actual knowledge” (as per Shreya Singhal) under S. 79 – that is, if it has not been notified by a court order or by the government that copyright infringement is taking place – can it nonetheless be held liable under Section 51 if it has the “awareness” of copyright infringement (as held by the Division Bench in Issue 1) taking place?

It is here that I part ways with the Division Bench. Super Cassettes argued that the IT Act was not applicable at all to cases of copyright infringement, since the proviso to Section 81 of that Act stated that “nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act.” The Division Bench – in my view, correctly – rejected this argument. It pointed to the language of Section 79 itself, which itself had an overriding clause: “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3)…” – which, according to the Division Bench, meant “that the only restriction to be placed in the application of Section 79(1) is contained within the section: Section 79 (2) and Section 79 (3).” Consequently:

“In this Court‟s opinion, Section 79 grants a measured privilege to an intermediary. However, that would not mean that the rights guaranteed under the Copyright Act are in any manner curtailed. All Section 79 does is regulates the liability in respect of intermediaries while the Copyright Act grants and controls rights of a copyright owner. Under the circumstances, it is difficult to conceive how one would pose a barrier in the applicability of the other. The true intent of Section 79 is to ensure that in terms of globally accepted standards of intermediary liabilities and to further digital trade and economy, an intermediary is granted certain protections. Section 79 is neither an enforcement provision nor does it list out any penal consequences for non-compliance. It sets up a scheme where intermediaries have to follow certain minimum standards to avoid liability; it provides for an affirmative defence and not a blanket immunity from liability.” (paragraph 47)

In the succeeding paragraphs, the Court stressed on the fact that “Parliament by amending the IT Act intended to create a separate provision and regime for intermediaries…”, and that “given the supplementary nature of the provisions- one where infringement is defined and traditional copyrights are guaranteed and the other where digital economy and newer technologies have been kept in mind, the only logical and harmonious manner to interpret the law would be to read them together.” So far, so good. However, in paragraph 50, the Court then held:

“Section 79(3) of the IT Act specifies that when a person has actual knowledge or upon notification by the appropriate government or its authority fails to expeditiously remove or disable access to an unlawful content then the immunity granted under Section 79(1) is revoked. The knowledge contemplated under this section is actual knowledge. In Shreya Singhal (supra), Section 79(3) with Rule 3(4) of the Rules were read down to mean receipt of actual knowledge from a court order or on being notified by the appropriate government. However, this was in respect of restrictions under Article 19(2) of the Constitution of India. The Supreme Court was conscious of the fact that if millions of requests for take down are made, it would become difficult for intermediaries (such as Google) to identify legitimate requests. In the case of copyright laws it is sufficient that MySpace receives specific knowledge of the infringing works in the format provided for in its website from the content owner without the necessity of a court order.”

However, instead of reading Section 51 of the Copyright Act and Section 79 of the IT Act harmoniously, this effectively subordinates the latter to the former. In the first part of its judgment, the Court undertaken an independent analysis of Section 51, and arrived at a “knowledge” standard for intermediaries. This standard – of specific notice – was considerably less protective than Section 79 IT Act’s requirement of “actual knowledge” through a court order or the government. In paragraph 50, the Court simply adopted the specific notice standard “in the case of copyright laws.” In other words, intermediaries who were otherwise protected under Section 79 of the IT Act would lose their safe harbour if they were given specific notice of copyright infringement by the copyright owner, even in the absence of a court order or a government directive.

The Court justified this by pointing to the “red flag” requirements under the American DMCA, which is another form of notice-and-take-down. That, however, cannot be an answer to why the actual notice standard laid down in Shreya Singhal would be diluted to specific notice in case of copyright claims. And the broader problem is this: even under the Division Bench’s heightened requirement of “specific notice”, the primary onus of deciding upon the validity of a copyright claim, and deciding whether or not to take down content (thus restricting online speech) rests upon a private party – MySpace. The problems with this approach have been well-documented: facing the threat of losing their safe harbour and being sued for damages, private parties will err on the side of taking down content. MySpace, in all likelihood, will have neither the resources to parse Super Cassette’s notice to see whether the infringing content is saved by fair use, or by de minimis use, or any other exception to copyright infringement – and nor will it be willing to take the risk of affirmatively rejecting a notice, and then facing the possibility of extended litigation. It was precisely because of this that the Supreme Court in Shreya Singhal restricted “actual knowledge” to a court order or a government notification. In my view, the Division Bench unjustifiably dilutes that standard for copyright claims.

Furthermore, the matter is somewhat complicated by the operative part of the judgment. In paragraph 68(b), in its record of its findings, the Court notes:

“Section 51(a)(ii), in the case of internet intermediaries contemplates actual knowledge and not general awareness. Additionally, to impose liability on an intermediary, conditions under Section 79 of the IT Act have to be fulfilled.”

However, this seems to run counter to what came before: under this, Shreya Singhal’s actual knowledge standard under Section 79 would apply over and above Section 51’s actual knowledge standard that the Division Bench laid down while discussing Issue 1.

Here is one possible reconciliation: since MySpace was already following a notice-and-take-down rule, the Division Bench’s discussion on specific notice should be limited to finding that what MySpace was doing was consistent with law. The Division Bench did not say that a specific notice would be sufficient to erase safe harbour as a general proposition of law. Rather, in paragraph 68(b), it made clear that the general proposition of law was that intermediaries would continue to be protected even in cases of copyright infringement, unless Shreya Singhal’s standard of actual knowledge was satisfied.

This would be a far more speech-protective reading of the judgment. However, it is a difficult one to sustain, in light of the clear observations of the Court, which we discussed above. This is one issue, then, on which the judgment’s import is – in my view – slightly unclear.

Qua Timet Injunctions

Lastly – and very importantly – the Division Bench agreed with MySpace’s contention that the qua timet injunction was virtually impossible to enforce. Justice Bhat made the crucial observation that:

“A further balancing act is required which is that of freedom of speech and privatized censorship. If an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech; an unspecified or incomplete list may do that. In an order of relief such as that passed by the learned Single Judge, MySpace would be in contempt of court for not complying with an order, which is otherwise impossible or at best onerous and cumbersome of performance. In order to avoid contempt action, an intermediary would remove all such content, which even remotely resembles that of the content owner. Such kind of unwarranted private censorship would go beyond the ethos of established free speech regimes.”

(Of course, as I argued above, it is precisely this privatised censorship which is a problem with the specific notice standard that the Court did endorse).

The Court also noted that if MySpace was forced to remove content in accordance with the vague terms of the qua timet injunction, it might even end up being in breach of its contract with its users, in cases where lawful content ended up being taken down. Consequently, the Court finished by holding:

“Without a notice containing the details and location of the exact works in which infringement is complained of, MySpace cannot be expected to scan through such large number of videos to discern infringement. This is not only impractical but also dangerous for reasons discussed previously. A vague order of injunction against works which are yet to exist is not only contrary to law but also impossible to monitor. Therefore, SCIL cannot give vague and general lists of its works but will have to give notice with specific details as well as locations of the works, which the appellant shall remove within 36 hours of receiving such notice.” (paragraph 66)

This is very important, in particular, because it bucks the trend of the High Courts granting qua timet injunctions (accompanied by John Doe orders) almost as a matter of course.

Conclusion

MySpace vs Super Cassettes is a landmark judgment that contributes in no small measure to an evolving international jurisprudence on online free speech and intermediary liability. The High Court pays close attention to the characteristics of the internet, and is very solicitous to how its holdings will affect the flow of information on the internet. Unlike other judgments, where the fluid and flexible nature of the internet has been used to justify greater regulation, the Delhi High Court, in MySpace, is concerned to ensure that this fluidity and flexibility is not stifled by legal concepts developed for the offline world. While its exact finding on the interplay between the Copyright Act and the IT Act is a little unclear, the judgment breaks new ground in its analysis of actual knowledge (for intermediaries) under the Copyright Act, its refusal of a qua timet injunction, and its finding that the Copyright Act will not exclude the safe harbour provisions of the IT Act. It is a judgment that should be studied and discussed closely.

 

 

 

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Of Missed Opportunities and Unproven Assumptions: The Supreme Court’s Election Judgment

On Monday, a seven-judge bench of the Supreme Court split 4 – 3 on the interpretation of Section 123(3) of the Representation of the People Act. Section 123(3) defines a “corrupt electoral practice” as:

“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

The interpretive question before the Court was whether the underlined “his” qualified only the candidate (and his agent etc), or whether it qualified the person to whom the appeal was addressed; in other words, whether “his religion…” referred to the religion of the candidate or the religion of the elector. Four judges (“the Majority”) held that “his” was to be interpreted broadly, and referred to the religion of the candidate, his agent, or any other person who, with the candidate or his agent’s consent, was making the “appeal” for votes, as well as the religion of the elector. Justice Lokur wrote for himself and for Justice Nageswara Rao, while Justice Bobde and Chief Justice Thakur wrote concurring opinions.

Justice Chandrachud wrote the dissent, for himself and on behalf of Justices Lalit and Goel. He held that the word “his” was to be construed narrowly, as applying only to the speaker (i.e., the person who made the appeal for votes, whether the candidate or his agent, or any other person with their consent).

In my view, the Majority holding is open to doubt, both linguistically and philosophically. Before that, however, note that this judgment is important not only for what it holds, but for what it refuses to hold; in particular, on the relationship between elections and the freedom of expression.

Free Speech, Elections, and the Strange Case of Jamuna Prasad

One of the arguments raised by Shyam Divan, senior counsel for the Petitioners, was that a broad reading of Section 123(3) ought to be avoided, since it would run afoul of Article 19(1)(a) of the Constitution (freedom of speech and expression). Justice Lokur’s majority opinion addressed this contention at the end, and cursorily. Justice Lokur held:

“Although it was submitted that a broad interpretation given to sub-section (3) of Section 123 of the Act might make it unconstitutional, no serious submission was made in this regard. A similar submission regarding the constitutional validity of Section 123(5) of the Act was dealt with rather dismissively by the Constitution Bench in Jamuna Prasad Mukhariya v Lachhi Ram when the sweep of the corrupt practice on the ground of religion was rather broad.”

The Court then cited the relevant paragraph from Jamuna Prasad, and concluded: “We need say nothing more on the subject.”

Let us, however, look a little more closely at what Jamuna Prasad – a five-judge bench case from 1954 – actually said:

“These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.”

There are at least five reasons why the argument in Jamuna Prasad is not only erroneous, but manifestly erroneous. FirstJamuna Prasad misconstrues what is at stake. By characterising Section 123 has “prescribing conditions” for entering Parliament, it ignores the fact that Section 123 regulates campaign speech, which is an example par excellence of political speech, and political speech, in turn, is at the heart of the constitutional guarantee of freedom of speech and expression.

Secondly, Jamuna Prasad’s logic reduces freedom of speech to a formality, by allowing the State to restrict large swathes of speech under the guise of “prescribing conditions”; tomorrow, for instance, if the State was to ban all speaking in public places, Jamuna Prasad would justify it on the basis that it merely prescribes conditions for entering public places. The extreme end of this logic would justify any penal prohibition on speech by holding that it merely prescribes a condition for staying out of jail.

ThirdlyJamuna Prasad’s logic was rejected five years later in In Re Kerala Education Bill, which laid down the doctrine of unconstitutional conditions: even if an individual has there is no constitutional right to “x” – and even if “x” is only a privilege – the State cannot make his access to “x” conditional upon his giving up a fundamental right. Concretely, the State cannot tell me – without further constitutional justification – that I am allowed to stand for parliament only if I give up my fundamental right to freedom of speech and expression.

FourthlyJamnua Prasad’s logic was expressly rejected by two Constitution Benches in the 1960s – Kameshwar Prasad and O.K. Ghosh – in the context of the workplace. In both these cases, laws restricting the freedom of association at the workplace were challenged, and in both cases, they were struck down. The State argued that the laws were not infringing anyone’s fundamental rights, since they were only conditions for joining government employment. A person was free not to join government employment, and associate with whomever she pleased. The Court rightly made short shrift of this argument, holding that a person did not give up her fundamental rights after joining government employment. Similarly, a person does not give up their right to freedom of speech and expression on deciding to contest an election.

Fifthly, whatever the status of the right to contest elections at the time of Jamuna Prasad, it is now well-settled in a number of cases that the right to contest elections is more than a statutory right; it is a “constitutional right” (what, precisely, this means has not yet been clarified); and furthermore, the “freedom” to vote is an aspect of the freedom of speech and expression under Article 19(1)(a), a fundamental right. It has also been held that the freedom of speech and expression under Article 19(1)(a) includes the freedom to receive information. Consequently, at the very least, from the perspective of the voters, Section 123 implicates the freedom of speech and expression.

Consequently, there were strong reasons for the Court to reconsider Jamuna Prasad, and rethink the relationship between freedom of speech and elections. Its failure to do so – and to continue to endorse the line of cases that counterintuitively places free speech and elections in isolated, hermetically sealed spheres, is disappointing.

The Grammar of Section 123(3)

Let us return to Section 123(3). Paring it back to its essentials, it states: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language.” 

At the outset, there is one way in which the Majority is clearly incorrect. The word “his” cannot qualify both the speaker and the audience (the electors). When the section reads “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion…“, the placement of the word “his”, as a matter of grammar, requires it to qualify only one potential subject.

Once that is clear, it becomes even more obvious that the majority’s interpretation is unsustainable as a matter of language, and no amount of purposive interpretation can save it. This is because Section 123(3) contains only one subject: the speaker (whether it is the candidate, his agent, or any person with their consent). The Section does not say “the appeal by a candidate… to any person to vote or refrain from voting for any person on the ground of his religion…” If that was the language of the statute, then, linguistically, it would be equally plausible for “his” to qualify “to any person” (i.e., the elector), or to qualify “the candidate”. We would then have to look to the purpose of the statute to determine which of the two was the correct interpretation. However, when we have the sentence “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion“, there is only one plausible interpretation: “his religion” refers to the religion of “any person”, who is to be voted (or not voted) for.

In my respectful submission, therefore, the matter should have ended here. The language of Section 123(3) could not sustain the meaning that the Majority placed upon it.  What Justice Lokur did then, however, was to marshal historical evidence in support of his broad interpretation (interestingly, in his dissenting opinion, Justice Chandrachud used the same historical material to arrive at the opposite conclusion). According to him, the legislative policy was to preserve the “purity” of elections by prohibiting appeals to “divisive” and “fissiparous” tendencies; religion, caste, language, and community were examples par excellence of such tendencies. If this was the goal of the statute, then, according to Justice Lokur, it made no sense to limit the reach of the statute only to the religion (etc) of the candidates; rather, the intention clearly was to eradicate appeals of these kinds from the electoral process as a whole.

If one accepts Justice Lokur’s reading of the legislative history behind the provision, then one will probably accept the broader reading of Section 123. However, as pointed out above, Justice Lokur’s reliance on draft bills and statements on the floor of the house was countered by Justice Chandrachud, who pointed to categorical statements by the drafters, to the effect that the kinds of statements they were concerned about were the “I am a Muslim, vote for me” kind. If the legislative history is ambiguous, and does not admit of a clear answer, then there are two huge assumptions in Justice Lokur’s argument. The first is that “divisiveness” and elections are antithetical to each other. This, however, is a deeply counter-intuitive proposition. Elections are centrally about divisiveness: candidates seek to set themselves apart from their rivals by putting themselves forward as best-placed to protect the interests of their constituents. What, precisely, is illegitimate about a candidate promising to protect his constituents’ religious or linguistic interests? Or, to take another kind of example, class divisions can be every bit as divisive, and potentially violent, as religious divisions; in fact, Section 123(3A) prohibits promoting enmity “between classes”. Divisiveness, therefore, seems to be an incomplete justification of Section 123(3).

Secondly, Justice Lokur’s argument assumes that from the point of view of the electoral process, there is no difference between what an election candidate can legally do, and how a voter ought to exercise their vote. It is on the basis of this assumption that he bases his argument that it would make little sense to apply Section 123(3) only to candidates. In doing so, however, he does not engage with the important argument made by Justice Chandrachud in dissent: that there is a non-trivial distinction between a candidate and his electors, since the candidate, in a democracy, is meant to represent his constituency as a whole. The candidate cannot directly claim, therefore, that he will represent only a subset of his constituency.  There is, however, no similar constraint upon the voter. If this distinction holds (and I admit that it is tenuous, given that candidates are always appealing to specific sectors in their constituencies), then limiting the reach of Section 123(3) to candidates makes sense.

Lastly, Thakur CJI, in his concurring opinion, adds to Justice Lokur’s argument by making the claim that Indian secularism requires religion to be excluded entirely from the secular sphere. I respectfully disagree. The Court’s own jurisprudence suggests the contrary: at the heart of its “essential religious practices” test under Article 25 jurisprudence is judicial intervention into the tenets of religion, and judicial selection of which of those tenets constitute “essential practices”. There are other examples, but this is enough to demonstrate that the categorical statement excluding religion from the secular sphere needs further argument before it is to be accepted.

(I shall be engaging upon a more elaborate defence of Justice Chandrachud’s dissent elsewhere).

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The Illegality of the Supreme Court’s National Anthem Order

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

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

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

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

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

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

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

He then observed:

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

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

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

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

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

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

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Supreme Court to ‘consider’ restricting free speech on grounds of ‘constitutional compassion’

Bar & Bench reports that in light of UP Minister Azam Khan’s statement that a gangrape was a ‘political controversy’, the Supreme Court has framed the following four “questions” for consideration:

“(i)When a victim files an F.I.R. alleging rape, gang rape or murder or such other heinous offences against another person or group of persons, whether any individual holding a public office or a person in authority or in-charge of governance, should be allowed to comment on the crime stating that “it is an outcome of political controversy”, more so, when as an individual, he has nothing to do with the offences in question?

(b) Should the “State”, the protector of citizens and responsible for law and order situation, allow these comments as they have the effect potentiality to create a distrust in the mind of the victim as regards the fair investigation and, in a way, the entire system?

(c) Whether the statements do come within the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible?

(d) Whether such comments (which are not meant for self protection) defeat the concept of constitutional compassion and also conception of constitutional sensitivity?”

It has now become almost tedious to repeat that under Article 19(2) of the Constitution, the freedom of speech can only be restricted by a “law”; so where exactly the Supreme Court receives the power to censor speech of its own accord is unclear.

That said, the four “questions” are paradoxically broad and specific at the same time. Is the Supreme Court going to pass an order prohibiting the usage of the words “it is an outcome of political controversy” every time a “heinous offence” occurs? Or is it going to pass an order prohibiting comments that create a distrust in the mind of the victim regarding “the entire system“?

Secondly, what on earth is ‘constitutional compassion’, and where is it found under the eight sub-clauses of Article 19(2)? And yet, perhaps, the question is a little silly. There was no stricter obscenity threshold for ‘historically respectable personalities’ – but the Court invented it in Devidas Tuljapurkar. ‘Constitutional fraternity’ was never a ground for restricting speech under Article 19(2) – but the Court invented it in Subramanian Swamy to uphold criminal defamation. No doubt, in its wisdom, the Court can invent a ‘constitutional compassion’ standard as well.

What that does (and keeps doing) to the sanctity of the constitutional text and structure is another matter.

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Addendum: Free Speech, the Armed Forces, and Albie Sachs

As an addendum to the previous post on the free speech rights of government employees, consider the following brief concurrence, penned by Justice Albie Sachs of the Constitutional Court of South Africa, hearing a case about the rights of soldiers to unionise:

“… a blindly obedient soldier represents a greater threat to the constitutional order and the peace of the realm, than one who regards him or herself as a citizen in uniform, sensitive to his or her responsibilities and rights under the Constitution. The Constitution proclaims that national security is not simply directed towards the maintenance of power but must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. [Section 198(a)]. It goes on to require that [t]he security services must act, and must teach and require their members to act, in accordance with the Constitution and the law . . . [Section 199(5)]. It provides expressly that no member of any security service may obey a manifestly illegal order [Section 199(6)] and declares that the primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people . . . in accordance with the Constitution . . . [Section 200(2)]. These provisions clearly contemplate conscientious soldiers of the Constitution who can be expected to fulfil their constitutional duties more effectively if the values of the Constitution extend in appropriate manner to them and infuse their lives in the armed forces.

Secondly, I agree that, important though a communal esprit de corps may be for the armed forces, the mystique that any military force requires cannot take away the need for soldiers to be able to speak in their own distinctive voices on mundane but meaningful questions of service. In my view, however, the freedom of association that ‘everyone’ has [Section 18], and the right to fair labour practices that ‘everyone’ has [Section 23(1)], clearly entitle soldiers to set up a body such as SANDU to look after their employment interests. I therefore do not consider it necessary to go as far as O’Regan J has done in examining the complex question of whether soldiers qualify as ‘workers’ entitled to the panoply of workers’ and trade union rights set out in Section 23 (2), (4) and (5). Nor do I find it necessary to consider whether defining soldiers as workers entitled to form trade unions, and then denying them the right to strike, to organise in the full sense of the term, to engage in meaningful collective bargaining, or to join trade union federations, might only, in the words of Jackson J, result in ‘. . . a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.’

One can always hope.

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