The Costs of Censorship: The Cable Network Rules and the Banning of AsiaNet and MediaOne

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cable network regulation act, freedom of speech, programme code

The Information & Broadcasting Ministry’s order banning the Malayalam channels Asianet and MediaOne has yet again demonstrated the weak foundations of the legal regime dealing with television content regulation. The legal authority for the ban flows from the Programme Code, passed under the Cable Network (Regulation Act). In a series of posts, Apar Gupta has extensively discussed the constitutional problems with this legislative scheme. I will summarise them briefly:

• The Act and the Code allocate the costs of censorship to the speaker: They do so by granting the government the power to ban channels, leaving the burden (financial and otherwise) upon the channels (then) to fight it out in Court. This effectively makes censorship costless for the government, as all it has to do is pass censorship orders; contrast this with a situation in which the government would first have to prove a legal violation in court, and a judicial order was required for banning channels. This would place the initial burden upon the government (and not on the citizen), and would create a judicial safeguard before speech could be taken out of the marketplace of ideas, instead of after. Now in the wake of Puttaswamy and the advent of the proportionality standard, I would argue that it is at least arguable now that this choice of legal architecture (government bans that have to be then contested in Court by TV channels) is evidently not the “least restrictive method” of achieving the government’s goals of ensuring compliance with the law. When a less restrictive method – judicial sanction (except arguably in cases of emergencies) is available, the Act and the Code fail the test of proportionality.
• The chilling and the conforming effect: as a related point, the legal architecture of the Programme Code creates both a chilling effect and what free speech scholar Margot Kaminski calls a “conforming effect.” That is, given that censorship is costless (and challenging it is costly), a number of bans of this kind will go unchallenged in Court. What this leads to is a “conforming effect”, where grounds set out in one banning order serve as signals to other channels to comply with them, whatever the legality might be. For example, the present orders cite apparent bias against the Delhi Police and the Rashtriya Swayamsevak Sangh (RSS) as grounds for the ban. It should be abundantly clear that this is grossly illegal; as the illegality, however, is effectively costless to the State (at best, the TV channels will fight the ban and get it overturned a few months – or years – later), it can do it again, and again – in the future. Channels know that fact just as well, and are likely to modify their behaviour to not criticise the police or the RSS, if the likely consequence is going to be an immediate 48-hour ban. This too infringes Article 19(1)(a) of the Constitution.
• Vagueness: This is, by now, almost tedious to repeat. The provisions of the Programme Code are exceedingly vague, leaving its implementation almost entirely at the mercy of the government. Once again, this feeds into the first point about legal architecture: if, at the first instance, a Court was examining the question, then presumably – even to these vague provisions – it would apply constitutional tests (such as the incitement standard for public order). But this is not the case when it comes to the structure of the Act and the Code. The original sin in this case lies in the judgment of K.A. Abbas, where a similar legal structure – including the direct transplantation of Article 19(2) into the statute – was held to be constitutional. Perhaps, in the age of the proportionality standard, it is time to reconsider that as well.
• In this case, specifically, the impact of the vague provisions of the Programme Code is seen particularly vividly, as the banning orders take advantage of its loose language, and mirror it with even looser language (a point discussed in the previous post). Phrases such as “biased”, “siding with a particular community”, “promoting anti-national attitudes” are so boundlessly manipulable, that they can effectively mean whatever those with brute power want them to mean. Note that this is not a case of the government abusing the law; this is a case of how a badly-drafted law enables unconstitutional use by the State. This is why both the Act and the Code ought to be struck down – it is long overdue.

Death by a Thousand Cuts: Freedom of Speech, Injunctions, and the Ramdev Affair

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free speech, injunctions, judicial censorship

On 23d July, the Supreme Court passed an order on an appeal from the Delhi High Court’s decision to issue an ad-interim injunction upon the publication of the book “Godman to Tycoon – The Untold Story of Baba Ramdev.” On the submission of counsel, the Court requested the Delhi High Court to decide the case by the end of September. The Ramdev Saga – for it has not rumbled on for more than a year – is a stark illustration of how, on the subject of freedom of speech, different levels of the judiciary treat this fundamental right with an indifference that borders on contempt.

Let us briefly review the history of Godman to Tycoon’s entanglement with the Courts. To recall, this is a biography of Baba Ramdev, the yoga guru and business entrepreneur who, by any account, is a hugely influential figure upon the country’s political stage. After the book was published Ramdev’s lawyers sought moved for an ex parte ad-interim injunction before a Delhi trial court, and were granted the injunction on 4th August, 2017 (an ex-parte ad-interim injunction, by definition, is passed without hearing the other side). The injunction remained operational, and two months later, in October 2017, the author appealed to the Sessions Judge. It took five months (!) for arguments to conclude, and at the end of April, the Sessions Judge lifted the injunction, observing – among other things – that the author had argued that the biography was based on factual material, and that Ramdev himself was, indisputably, a public figure. Ramdev appealed to the High Court, and the single judge (Justice R.K. Gauba) restored the injunction on 10th May. That remains the situation today. It is now one year, and – thanks entirely to the Courts – the book has remained under an injunction for all but ten days, and without any finding on merits.

Judicial injunctions – especially those passed at the ad-interim stage – are devastating weapons against free speech. By preventing the publication and distribution of a book, they choke off and distort the “marketplace of ideas” at its very source. Contrary to a penalty imposed upon a speaker or a writer after a full-fledged trial, injunctions suffocate speech at the very outset. For these reasons, some scholars have (albeit controversially) compared them to “prior restraints” on speech (e.g., the governments banning books). Whether or not a judicial injunction is equivalent to a book ban, however, it is at least clear that its impact upon a fundamental right as foundational as free speech requires a court to exercise great caution before it issues injunctions.

Ironically, it is the Delhi High Court that has been most sensitive to this (rather basic) point. In Khushwant Singh v Maneka Gandhi – a judgment that Justice Gauba appears to have been singularly unaware of – a division bench of the High Court refused Maneka Gandhi’s application for an injunction upon a chapter of Khushwant Singh’s autobiography that dealt with the Gandhis. Maneka Gandhi had argued that the contents of the chapter were both defamatory, and impinged upon her privacy. Crucially, Justice Kaul observed:

… the respondent has already chosen to claim damages and her claim is yet to be adjudicated upon. She will have remedy if the statements are held to be vulgar and defamatory of her and if the appellants fail to establish the defense of truth.

We are unable to accept the contention advanced on behalf of the respondent by Mr. Raj Panjwani that if the statements relate to private lives of persons, nothing more is to be said and the material must be injuncted from being published unless it is with the consent of the person whom the subject matter relates to. Such pre-censorship cannot be countenanced in the Scheme of our constitutional framework.

One aspect is very material – a categorical assertion of the author to stand by his statement and claim to substantiate the same. In such a situation interlocutory injunction restraining publication should not be granted.

There is no doubt that there are two competing interests to be balanced as submitted by the learned counsel for the respondent, that of the author to write and publish and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.

We do not think it is a matter where the author should be restrained from publishing the same when he is willing to take the consequence of any civil action for damages and is standing by what he has written … there is no question of any irreparable loss or injury since respondent herself has also claimed damages which will be the remedy in case she is able to establish defamation and the appellant is unable to defend the same as per well established principles of law.

Justice Kaul’s crucial insight was that in civil suits for defamation or breach of privacy, where monetary damages are claimed, the “balancing” between the freedom of speech on the one hand, and an individual’s right to reputation and to a private life on the other, is to be struck through a final judgment on merits. This is especially true when the writer or speaker stands by her words, and is willing to defend them through the course of a trial. Granting an injunction before trial – and thereby putting the book out of circulation – would effectively censor the speaker, and prejudge her legal defences before she even had a chance to make them. On the other hand, the individual alleging defamation or breach of privacy would always have a remedy open to her if she was able to prove her case – that of monetary damages.

Justice Kaul’s observations were developed in great detail a few years later, in the famous Tata v Greenpeace judgment. This case involved a request for an injunction upon a computer game that, the plaintiff claimed, maligned its reputation. Embarking upon an exhaustive survey of common law, Justice Bhat summarised the position as follows: the foundational value of freedom of speech in a democracy required that a Court should be extremely slow to grant an injunction pending trial. In particular, a Court ought to refrain from doing so if the writer or speaker puts forward a defence, and is willing to stand trial. Only if the defence is prima facie frivolous or unsustainable, should the Court grant an injunction. Justice Bhat noted that this had been the position in common law and, after the passage of the Indian Constitution and Article 19(1)(a), applied with even greater force.

When you apply these principles to Justice Gauba’s “order” of 10th May 2018, its staggering ignorance of the law is evident. The Learned Judge observes that:

The contents of the book to which exception is taken in the plaint of the petitioner, some of which have been extracted, prima facie, do seem to carry insinuations as are likely to harm the reputation of the petitioner in public esteem. In her written statement, the author of the book (respondent herein) while raising preliminary submissions and objections has claimed that the statements in the book “can be justified”, they having been penned with “journalistic objectivity” in fair and impartial manner, and “in good faith for public good” not being defamatory. The written statement of the publisher (respondent in these petitions), inter alia, states that there is “no malice or personal grudge” against the petitioner as an individual, the contents of the book representing “only reported true facts as gleaned from publicly available documents and merely contains legitimate and reasonable surmises and conclusions drawn therefrom” and further that every statement appearing in the book is “either itself a demonstrably true statement of fact, or a reasonably and legitimately-held opinion or inference of the author of the book.” In sharp contrast, in the impugned publication the publisher has added a disclaimer stating that the views and opinions expressed therein are “the author’s own” and further that the facts contained therein “were reported to be true as on the date of publication by the author to the publishers of the book, and the publishers are not in any way liable for their accuracy or veracity.” The use of the expressions “surmises” and “inferences”, coupled with the disclaimer, shows the matter requires deeper scrutiny to test the veracity of the claim of the author as to the truth.

First of all, it is difficult to understand what the “sharp contrast” is between the author and the publisher’s statements. Secondly, it is difficult to understand what the disclaimer has to do with anything. But thirdly – and most importantly – the judgment concedes that the matter requires “deeper scrutiny”, but proceeds to injunct publication in the meantime anyway! If Justice Gauba had perhaps taken some time out to visit the Judges’ Library and consult the precedent of his own Court, he may have understood how this reasoning inverts the entire system of values that underlies the Constitution, placing the burden upon a writer to justify her exercise of free speech, instead of upon those (in this case, a very powerful public figure) who seek to silence her.

If the Supreme Court’s request is adhered to, and the case decided by the end of September, the book will have been injuncted for fourteen months before any kind of review on merits is completed. In this case, it perhaps doesn’t matter, because Ramdev is not going to depart from the public stage any time soon. In other cases, however, time-bound publication is of the essence, and an injunction of this kind that is then left to the vagaries of our snail-paced judicial system, can destroy the entire purpose of writing the book in the first place.

Unfortunately, however, despite the clearly-reasoned judgments in Khushwant Singh and Tata v Greenpeace, trigger-happy judicial injunctions are the norm rather than the exception. In a post written two months ago, while examining some other egregious orders from various High Courts, I had made the following observation:

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

The problem is less one of doctrine – the doctrine exists – and more one of attitude. Judges at all level of the judiciary tend to view the freedom of speech more as an annoyance or a bother, rather than a foundational democratic value. To them, Victorian ideas of the sacrosanctity of “reputation” continue to hold overriding importance (this was visible, for example, in the Supreme Court’s criminal defamation judgment). As long as that attitude continues to prevail, notwithstanding the finely-reasoned judgments of a Justice Kaul or a Justice Bhat, that excavate and lay out all the principles in detail, the “gag first, ask questions later” judicial culture will continue.

Another possible alternative is for the Supreme Court to step in and clearly delineate the standards to be followed when granting or withholding an injunction in a free speech case.

And who knows, in the days to come, it might even be the Ramdev case that provides it with that opportunity.

Freedom of Speech: A Round-Up of Recent Judicial Pronouncements

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demonstrations, free speech, prior restraint, privacy

(Editor’s Note: Over the last few months, I have been unable to write here as frequently as I would have liked to. Over the course of this month, I will try to post a series of round-up pieces summarising some broad developments since January ’18. The first of these posts is about the freedom of speech.)

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The Supreme Court’s right to privacy judgment was meant to be about expanding the individual rights against State (and private) power. However, as the last few years have shown, our Courts are experts at turning shields that are meant to guard rights into swords to cut them down. An excellent example of this is the Madras High Court’s judgment in Thiru P. Varadarajan v Kanimozhi, which imposed a gag order upon a Tamil magazine with respect to articles about the “private life” of Kanimozhi. The High Court was hearing an application to vacate an injunction against a magazine that had been granted four years ago. In refusing to vacate the injunction, the Court relied upon the right to privacy judgment – citing copiously from it; the core of its reasoning was this:

“The concluding remarks of Hon’ble Mr. Justice Sanjay Kishan Kaul [in the privacy judgment] are as follows:

‘Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.’

Therefore, the Hon’ble Supreme Court had while recognising the right of privacy is a fundamental right, in fact called for a new order, which would offer a preeminent position to the right to privacy.”

This is a standard of legal “reasoning” that would get you a failing grade in Legal Methods 101. The High Court cites the closing line of the concurring opinion of one judge out of nine – a line that is self-evidently pure rhetoric, and uses that to invent a mythical “new order” in which privacy has been given “pre-eminence” (over the freedom of speech). The High Court seems to be unaware of the operative part of the privacy judgment, which affirms all the cases that have elaborated upon the scope of the right to privacy after Gobind, including cases where the balance between privacy and free speech was discussed (such as R. R. Rajagopal). The question of whether the balance is to be struck by granting (everlasting) injunctions has been a fraught one, and there is at least one detailed and well-reasoned High Court judgment (Khushwant Singh) that holds that the correct remedy is not to gag speech, but to provide for damages in case privacy is breached.

There is, therefore, no warrant for the High Court’s free-floating conclusion that “the theory that there cannot be a prior restraint or a gag order upon the press or Media stands diluted… after Puttaswamy’s Case.” Puttaswamy has absolutely nothing to say about prior restraint or gag orders. Puttaswamy was never dealing with the issue of balancing competing rights (in this case privacy and the freedom of speech), and did not change the law in this regard in any manner. Mercifully, the High Court does not, in the end, grant a blanket injunction, but a qualified one (albeit with entirely vague contours, banning any articles about the “private life” of Kanimozhi), along with a blanket right of reply.

Unfortunately, the Madras High Court’s order is not even the worst of the gag orders in recent times. That prize is jointly shared by two Delhi High Court orders: the incoherent, four-page stream-of-consciousness order gagging Cobrapost from reporting its sting on Dainik Bhaskar, and the order restoring the gag upon the publication and sale of Ramdev’s biography; as well as the Gujarat High Court order gagging The Wire from publishing about Jay Shah. Notably, the latter two examples are of High Courts stepping in to restore gag orders after trial courts hearing the cases have vacated them.

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

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Unfortunately, the Supreme Court has tended to be as careless with words as the gagging High Courts. A recent example of this is Bimal Gurung v Union of India. The case was about transferring FIRs to an independent investigation agency. While the FIRs were, in part, based on violent demonstrations, there was no need for the Court to go into the constitutional status of demonstrations in the first place. However, it chose to do so, and then came up with this:

“Demonstrations are also a mode of expression of the rights guaranteed underArticle 19(1)(a). Demonstrations whether political, religious or social or other demonstrations which create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1).”

The Constitution is a carefully-drafted document. The framers agonised over the fundamental rights chapter, and in particular, there were long and stormy debates about the restrictions that were being placed upon fundamental rights. Every word that finally made it into the Constitution was debated extensively, and there were many words that were proposed and dropped. This is why Article 19(2) has eight very specific sub-clauses that list out the restrictions on speech. They include “public order”, “the sovereignty and integrity of India”, and “incitement to an offence” (among others). They do not include “nuisance”, “disturbance”, or “private mischief.” Apart from the fact that these are very vague terms that a judge can apply in a boundlessly manipulable fashion to shut down speech that he doesn’t like (recall that similarly vague provisions were struck down as unconstitutional in Shreya Singhal), there is an excellent constitutional reason why “nuisance” and “disturbance” are not part of 19(2). That is because if only acceptable speech was legally permitted, you would never need to have a fundamental right guaranteeing it. It’s only speech that is, in some ways, a nuisance or a disturbance, which a government (or powerful private parties) would like to curtail. This is especially true for demonstrations: the whole point of a demonstration is to put your point across by causing a degree of nuisance and disturbance (short of violence or incitement to offences). What that degree is, is a matter of judicial determination, by applying a reasonable time-place-manner test.

It may be argued that we should not make much of these stray observations, made in a case that was about an entirely different issue (a transfer of FIRs). However, that misses the point: words matter, and they matter especially when the Supreme Court is the author. The normalisation of “disturbance” and “nuisance” as invented restrictions on free speech can have a creeping effect on the scope of 19(2), especially given how stray Supreme Court paragraphs are regularly cited before lower Courts, and regularly applied by judges. In that context, there is an even greater obligation upon the Supreme Court to be careful with words.