Category Archives: judicial censorship

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 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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Filed under Free Speech, judicial censorship