Category Archives: Public Order

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

(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.)

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.

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 IndiaThe 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.

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Arup Bhuyan, Article 19(1)(a), and bail jurisprudence in terror-related cases

(This post first appeared at the Proof of Guilt blog.)

Introduction

The distinction between “advocacy” and “incitement” is one that is familiar and important for constitutional courts world over. Advocacy of dangerous and subversive ideas is constitutionally protected, unless it rises to the level of incitement to violence, or to lawless action. In India, the distinction has had a troubled history, but it was endorsed most recently last month by Justice Nariman in Shreya Singhal vs Union of India, while striking down S. 66A of the IT Act for its failure to distinguish between the two concepts. Four years ago in 2011 though, the Supreme Court had already distinguished advocacy and incitement in a little-publicised, but extremely important case: Arup Bhuyan vs State of Assam.

Appreciating Arup Bhuyan

The case involved a challenge to the appellant’s conviction under Section 3(5) of the now-repealed Terrorist and Disruptive Activities (Prevention) Act [“TADA”], which criminalised “membership” of a terrorist gang or organization. This provision is in pari materia Sections 10 and 20 of the Unlawful Activities Prevention Act [“UAPA”], which replaced the TADA as the umbrella legislation for prosecuting terror suspects. While setting aside the conviction, Justice Katju read down S. 3(5) to save it from unconstitutionality on the grounds of Articles 19 and 21 of the Constitution. He did so by distinguishing passive from active “membership”, and restricted the latter to actual commission of violence, or incitement to violence. This distinction, naturally, closely tracks the difference between advocacy and incitement.

Arup Bhuyan distinguished between active and passive membership in a way crucial to UAPA cases, but beyond its conceptual articulation of the issues, that decision itself did not break new ground. In State of Kerala vs Raneef, decided in 2011, the Supreme Court upheld the Kerala High Court’s grant of bail to a person accused of UAPA offences, for being a member of the Muslim group “Popular Front of India”. Evidence, as ever, included certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad’.” The Court noted that there was no prima facie evidence against the accused to warrant the restrictions on bail under S. 43(D)(5). Possession of literature was found insufficient to demonstrate active membership, and the doctrine of ‘guilt by association’ was unknown to the Constitution. A few months before, inVishvanath vs State of Gujarat, another UAPA case built on possession of literature/propaganda, the Gujarat High Court held that possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence.”

The importance of this jurisprudence cannot be overstated. In India, where trials for terror cases drag on for years, bail is perhaps the most crucial safeguard of personal life and liberty. But its importance is perhaps matched only by its fragility, evident upon evaluating the effect of the decision on bail jurisprudence in terror cases.

Arup Bhuyan: Impact

Section 43D(5) of the UAPA restricts the discretion of courts in granting bail: the accused shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person isprima facie true.” In May 2011, the Anti-Terrorism Squad arrested six members of the cultural group, the Kabir Kala Manch, for offences under the UAPA. It was alleged that the KKM had close links with the banned Communist Party of India (Maoist), which was sought to be proved through the recovery of allegedly “incriminating literature and propaganda”. Accordingly, the Sessions Court refused to grant bail.

Nonetheless, in two separate applications before the Bombay High Court, Justice Thipsay granted bail. In doing so, he relied directly on Arup Bhuyan. Possession of literature relating to a banned organisation was not, in itself, prima facie evidence of active membership as understood in Arup Bhuyan. Consequently, Justice Thipsay held:

     “Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organization, andwere perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members – much less such members as would attract the penal liability – of the said organization.”

Conclusion

In conclusion, it is also important to note that the State has asked for a review of Arup Bhuyan. In light of the discussion above, it is submitted that setting aside or watering down Arup Bhuyan will present a grave risk not just to free speech jurisprudence, but more directly and immediately to the right to personal liberty and fair trial under the Constitution.

(I have been unable to find public-domain links to some of the cases cited in this essay. I welcome any assistance on this issue.)

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Summary and Addendum to the Delhi High Court on free speech: When Time/Place/Manner Restrictions become Problematic

In the last post, we discussed the Delhi High Court’s problematic judgment on the 19th of February, holding that the Delhi Defacement Act imposed an obligation upon private property owners to obtain municipal permission before putting up political posters on their own walls, failing which those posters could be taken down. To summarise:

(1) The Court held that the restriction was justified under the public order and decency prongs of the Constitution. In this, it is submitted that it erred, on the following grounds:

(a) The cases that it relied upon – Novva Ads and In re Noise Pollution – were not decided on 19(2) grounds. Novva Ads, a case about hoardings, was decided within the framework of time/place/manner restrictions, which meant that 19(1)(a) was not attracted at all. In re Noise Pollution was decided under Article 21.

(b) The Court’s framing of the public order exception is incorrect in two respects:

(b)(i) In holding that the issue of proliferating political posters that could become “eyesores” was an issue of “public order”, the Court went against long-established Supreme Court jurisprudence, according to which “public order” is a term of art, and refers to the maintenance of public peace and tranquility that is one level beyond simply maintaining “law and order”, and preventing ordinary law-breaking. Public order is not a question of cityscaping or of architectural aesthetics. Such an interpretation would expand 19(2) so widely, that it would denude 19(1)(a) of any relevant content.

(b)(ii) In holding that Delhite’s “short fuse” meant that political posters would have a “tendency” to excite public disorder, the Court erred in two further respects:

(b)(ii)(I): It sanctified the heckler’s veto, which was expressly rejected by the Supreme Court in Rangarajan’s Case.

(b)(ii)(II): In relying upon Ramji Lal Modi for the “tendency” test, it ignored all the Supreme Court decisions after 1957 that insist upon a close proximity between speech and public disorder. No matter how short the fuses of Delhites might be, and how many parking disputes might escalate into violence, there is simply no warrant for holding that there is the required degree of proximity between putting up political posters on one’s own property, and public disorder.

(c) The Court’s framing of the decency exception is also incorrect. It relied upon Kunte’s Case, but there, the Supreme Court expressly interpreted “decency” to refer to constitutional values (such as secularism). None of those values are implicated in political speech on my own property.

(2) The Court also erred in holding that political speech was a form of commercial advertising, and therefore might not have constitutional protection. Again, it erred in two respects: first, the distinction between political speech and commercial advertisement is well-accepted in Indian free speech jurisprudence, and secondly, following Tata Presseven commercial advertisements are accorded 19(1)(a) protection.

(3) The Court’s suggestion that because the conduct of elections is governed by a statute, any political speech with respect to elections falls beyond Article 19(1)(a) is not only illogical and a non-sequitur, but eviscerates Article 19(1)(a) of its central meaning: the purpose of free speech is to ensure a thriving democracy by free exchange of political expression.

Let us now consider a crucial issue: that of time/place/manner restrictions upon free speech. This is important because, notwithstanding its deeply problematic reasoning, the Court concluded by directing the municipality to ensure that its policy would be “content-neutral”. Content-neutrality requires the State not to restrict speech on the basis of its communicative content, or its message. It does allow the State to restrict speech on the basis of its effects, insofar as those effects are independent of its content. To take an example: we have laws against arson not because we disagree with a pyromaniac’s philosophy, which he tries to communicate by burning buildings, but because the State has a legitimate interest in protecting property against destruction. Content-neutral restrictions are also called “time/place/manner” restrictions, because they tend to regulate when, where or how persons might exercise their right to free speech without censoring its message.

There are times, however, when this neat distinction may break down. A legislation framed as a time, place or manner restriction might nonetheless raise troubling constitutional questions. This is because although T/P/M restrictions are ostensibly aimed at regulating the process or method of expression, neither method nor process are empty categories without political valence. To understand how this might play out in a concrete situation, let us consider one of the petitioner’s submissions before the Delhi High Court. In paragraph 3, the Court noted:

“The petitioners plead that the petitioner no.3 being a new political party, without funding as available to the other older political parties, has to employ innovative and unique ways to propagate itself and its ideology to the masses and thus conceived voluntary display of its posters upon private properties i.e. houses of its supporters / volunteers; however the said posters put up by the petitioners no.1 & 2 on their houses were forcibly removed.”

There are many ways to disseminate a political message. Some, like television and newspapers, are capital-intensive. Others, like leafletting and putting up political posters, are not. Well-financed political parties are in a position to avail of the former media much more than newer, more poorly-funded parties. Correspondingly, newer/poorer political parties must – of necessity – resort to the latter media. We can therefore see how a formally neutral, T/P/M regulation nonetheless casts differential burdens upon different speakers and, correspondingly, privileges one form of political message over another (readers will note the similarity with disparate impact in discrimination law).

In City of Ladue vs Gileo, the American Supreme Court was asked to consider an identical issue. A city ordinance prohibited residential “signs”, subject to certain exceptions. The stated justification was to prevent visual blight, ugliness and clutter. The justification, therefore, was content-neutral. Nonetheless, the Court struck it down. It held:

“[the City of] Ladue has almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates,parties, or causes. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression.”

Specifically responding to the argument from content-neutrality, the Court observed:

“… even regulations that do not foreclose an entire medium of expression, but merely shift the time, place, or manner of its use, must “leave open ample alternative channels for communication”… residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute… even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand held sign may make the difference between participating and not participating in some public debate. Furthermore, a person who puts up a sign at her residence often intends to reachneighbors, an audience that could not be reached nearly as well by other means.”

At the heart of the Court’s opinion is the following idea: while government may regulate the time, place or manner of speech, it cannot foreclose an entire medium of communication. This is especially true when the medium in question is an important and vital artery for participation in public and political debate, especially for people who would not otherwise be able to do so. In this context, the petitioners’ argument – that, belonging to a new, poorly-funded party, this was their only realistic method of political communication – acquires strong constitutional force.

So while the Delhi High Court insisted that the municipality’s policy must be content-neutral, it failed to consider the fact that sometimes regulating a medium itself sacrifices the ideal of neutrality. Given the tenor of the rest of the judgment, this is not very surprising, but it the Court’s refusal to engage with an issue that has crucial 19(1)(a) implications is disappointing.

City of Ladue vs Gileo was cited by the petitioners. The Court chose to dismiss it in a line, on the ground that the American First Amendment is absolute while Article 19(1)(a) is not. As we pointed out in the previous post, that is quite simply incorrect. And as this post should make clear, Gileo represents a deep and thoughtful discussion of issues that are as germane to Article 19(1)(a) as they are to the American First Amendment. It bears repeating once more that this disturbing trend of refusing to even engage with American First Amendment jurisprudence on entirely unpersuasive grounds of textual difference is constitutionally damaging. We do not have to follow, or even agree with, American cases. But the least we can do is to take seriously the arguments and debates that are equally relevant to Article 19(1)(a), and address the issues that they raise.

Time/place/manner jurisprudence, with all its attendant complexities and nuances, is still at an embryonic stage in India. While the Delhi High Court decision deals it a severe set back, we can continue to hope for course-correction at a future stage.

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Political advertising on private property: The Delhi High Court’s strange and disturbing judgment

Yesterday, in Anil Bhatia vs NCT, a division bench of the Delhi High Court held that under the Delhi Prevention of Defacement of Property Act, the State may prohibit people from putting up political posters upon their private property, without the prior consent of municipal authorities. Insofar as the Court also clarified that the regulation of posters on private property must only be on content-neutral grounds, it is arguable that the case arrives at a correct outcome (for reasons which will be explained). Nonetheless, the judgment suffers from numerous conceptual confusions, which effectively continue and accelerate the creeping expansion of Article 19(2) (and correspondingly, the creeping evisceration of Article 19(1)(a), which has long been a staple feature of Indian free speech jurisprudence.

Section 3 of the Defacement Act penalises the defacement of property “in public view”. Defacement is defined as “marking with ink, chalk, paint or any other material”. Section 6 authorises the Lieutenant-Governor to order the erasure of any such defacement. It was argued by the petitioners – members and volunteers of the Aam Aadmi Party –  that in light of Article 19(1)(a) of the Constitution, the Defacement Act was not applicable to the act of putting up political posters on the walls of their own homes – and that in the event and to the extent that it was, it was unconstitutional.

A bench of the Chief Justice and Justice Endlaw rejected the argument. They relied upon the Supreme Court judgments in Novva Ads (regulation of public hoardings) and In re Noise Pollution (regulation of use of loudspeakers) for the proposition that “advertisements / hoardings erected on private properties also are required to be licensed and regulated as they generally about (sic) on and are visible on public roads and public places and that hoardings erected on a private building may obstruct public roads, they may be dangerous to the building and to the public, they may be hazardous and dangerous to the smooth flow of traffic by distracting traffic, and their content may be obscene or objectionable.” (para 19)

The Court then observed that if people were granted freedom to do whatever they wanted with their property, then their would be “no need for town planning and all towns/cities will become slums.” (paragraph 21) Unregulated posters, it held, would “create ugliness, visual blight and clutter, tarnish the residential and commercial architecture, impair property values and impinge upon the privacy and special ambience of the community.” (paragraph 21) It noted that “no parallel can be drawn by the petitioners with the freedom of speech. Unlike oral speech, signs/hoardings/posters take up space, obstruct view, distract motorists, displace alternative uses for land (??!!), are a source of litter and all of which legitimately call for regulation.”

At this point, it is important to pause and notice a crucial distinction between two kinds of speech-regulation. First, there is content-based regulation, that restricts speech on the basis of its communicative message. Obscenity laws and hate speech laws are classic examples of content-based speech restriction. Secondly, we have time-place-manner regulation, which is content-neutral, but regulates speech on the basis of its effects. For instance, a rule prohibiting loudspeakers in a park after 10 PM is content-neutral, because it is not based on what a person is saying, but on the fact that there is a legitimate State interest in maintaining tranquility in public spaces after a certain time. To take a more extreme example – laws against arson are content-neutral not because they prohibit a pyromaniac from “expressing” his philosophy, but because they are aimed at protecting public property.

The last example shows us that a content-neutral law is not, strictly speaking, a restriction (in the constitutional sense) upon the freedom of speech. It affects how one can speak (what medium one can use, in which spaces and at what times), in service of State purposes that are entirely independent of what the speaker is saying. The distinction is not absolute, because the more extensive time/place/manner restrictions become, the closer they get to actually restricting vast swathes of free speech; it is also possible to justify most content-based restrictions under some time/place/manner grounds. The enquiry, therefore, must be sensitive to fact and context.

The core point, however, is that once a restriction is classified as a content-neutral, time/place/manner regulation, then the issue of 19(2) does not arise. 19(2) tells us when the State may, by law, place reasonable restrictions upon the freedom of speech; T/M/P regulations, however, ex hypothesi are not restrictions upon the freedom of speech, but regulations determining the method of its exercise. This explains why in Novva Ads and In Re Noise Pollution, the two Supreme Court cases the High Court relied upon, 19(2) was not at issue. In Novva Ads, the regulations on public hoardings were justified on T/P/M grounds, and consequently there was no 19(1)(a) violation; in In Re Noise Pollution, the Court held that the right to live in a tranquil environment was an Article 21 right, and therefore, the freedom to use loudspeakers could be curtailed in the interests of protecting the citizenry’s Article 21 rights.

If the Court had limited itself to classifying the Defacement Act as a T/P/M, it would have remained over-broad and problematic, but legally defensible. However, the Delhi High Court then proceeded to justify the Defacement Act under Article 19(2). This raised an immediate problem, because 19(2) categories were never meant to deal with T/P/M restrictions. Consequently, the Court was required to perform numerous contortions to fit the Defacement Act within the contours of 19(2). It did so through an expansion of “public order” and “decency”.

In paragraph 28, it held:

We are of the opinion that once unregulated putting up of posters /banners / hoardings even if on one‟s own property, is a public nuisance, a law regulating the same would be a law „in the interest of ‟public order within the meaning of Article 19(2). Just like requirement of taking permission for dharnas/rallies/processions has been held to be not unreasonable, similarly the requirement of taking permission for putting up posters / banners / hoardings even on one’s own property but visible to others and affecting the view of and becoming an eyesore for others, cannot be said to be unreasonable.”

With due respect, this is utterly absurd. A building that is an “eyesore” for someone else has nothing to do with public order! Public order is a term of art, and in a series of decisions in the 1950s and 60s, the Supreme Court clarified its meaning. In Ram Manohar Lohia, for instance, the Court famously propounded its concentric circles theory: “security of the State” belonged within the genus of “public order”, which, in turn, belonged within the genus of “law and order”. This makes it clear that “public order” is a term that is about preventing public disturbances and maintaining public peace.

What did the Court do to get around this? It went one step further, in the next paragraph:

“We cannot also be unmindful of the realities of today’s life in the city as Delhi, where residents are on short fuse and altercations on issues, earlier treated as trivial, like parking, traffic accidents, often turn fatal. The possibility of unregulated political posters becoming a similar cause, cannot be ruled out.”

It is hard to imagine a more callous attitude towards core civil liberties, like the freedom of speech. In Rangarajan’s Case, the Supreme Court had made it clear that the heckler’s veto could not be a ground of restricting speech; here, the Court constitutionally sanctifies the heckler’s veto by holding that the “short fuses” of Delhi’s residents constitute a ground for restricting political posters.

Immediately after that, the Court held:

“The Supreme Court, as far back as in Ramji Lal Modi Vs. The State of U.P. AIR 1957 SC 620 held that if certain activity has a tendency to cause public disorder, a law penalizing such activity cannot but be held to be a law imposing reasonable restriction “in the interest of public order”.”

The Court’s invocation of the 1957 Supreme Court judgment in Ramji Lal Modi as the only authority for this proposition is baffling, because much water has flown under the bridge in the fifty-eight years after Ramji Lal Modi was decided. In Modi, the Court rejected the argument that there must be a proximate link between speech and public disorder for it to be legitimately restricted. Three years later, however, in Ram Manohar Lohia, the Supreme Court reversed its position, and held (correctly), that 19(2) authorised the State to make restrictive laws not simply “in the interests of public order” (which was a boundless and boundlessly manipulable standard), but satisfying the requirements of “reasonableness” as well. This requirement could be fulfilled only by demonstrating a proximate connection between speech and public disorder. This position has been consistently upheld since Lohia, in cases such as O.K. Ghosh and Kameshwar Prasad; in Rangarajan’s Case, the Court explicitly said that the requirement of proximity must be like that of a “spark in a powder keg”, and in Arup Bhuyan’s Case, the Court adopted the American standard of “incitement to imminent lawless action”. It is submitted, with respect, that no matter how short the fuses of Delhites might be, and however many violent parking disputes might take place, putting up a political poster upon the walls of one’s privately-owned property is neither incitement to imminent lawless action, nor a “spark in a powder keg” towards public disorder. In relying solely upon Ramji Lal Modi for the proposition that Delhites’ short fuses imply that political advertisements will have a “tendency” towards public disorder, and that therefore the State can restrict them, the Court simply ignores the reasonableness requirement under Article 19(2), and all the cases that have interpreted it.

The Court then added the additional 19(2) ground of “decency”, holding that:

“Not only so, the expression “decency” in Article 19(2) has in Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte (1996) 1 SCC 130 been held to indicate that the action must be in conformity with current standards of behaviour and propriety. If the act of putting up posters, on own property but in view of others, is a public nuisance, it will be an indecent act.” 

With respect, this misreads and misinterprets Kunte’s case entirely. In that case, the Supreme Court held that “current standards of behaviour and property” must be located within the Constitution. In that case, which was about the regulation of election speech, the Court held, in lines that immediately followed the ones quoted above:

“In a secular polity, the requirement of correct behaviour or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the House.”

Decency, therefore, refers to constitutional decency – that is, conforming to the standards and values espoused by the Constitution. It is unclear what the Court intends it to mean here, but it does not seem to match what the Supreme Court actually said in the case that it relies upon.

But there is worse to come. In trying to buttress its decision, the Court referred to numerous regulations upon advertising, before holding that political posters amount to advertising a product! It noted, in para 34:

“Advertising‟ is defined in Black‟s Law Dictionary 8th Edition as the act of drawing public attention to something to promote its sale and informative advertising is defined as advertising that gives information about the suitability and quality of a product. The Shorter Oxford English
Dictionary 6 the Edition defines the word „advertisement‟ as having its origin in French and as meaning information/notification, a written statement calling attention to something, a public announcement in newspapers, on posters on television etc. We are thus of the opinion that the political posters which the petitioners have affixed/want to affix on their buildings/houses would fall within the meaning of advertisement and would also be governed by the Municipal Laws.”

This strange and twisted interpretation eviscerates the distinction between political and commercial speech, that has been accepted by the Court (with some modifications) from as far back as Hamdard Dawakhana’s Case, in 1959. Supreme Court cases, without exception, have recognised the crucial importance of political speech to a thriving democracy, which rests upon informed political decision-making. Sometimes, the Court has held that commercial speech also deserves a similar protection to political speech, because it plays the crucial role of informing consumers in a market economy (Tata Press vs MTNL). So there is some authority for the proposition that the protection accorded to commercial speech can be scaled up; here, however, the Court decides to scale down the protection accorded to political speech because, in its opinion, it is simply identical to hawking a product on a market. Whatever the normative arguments for and against this proposition, it is entirely inconsistent with the idea of republican democracy, that lies at the heart of Article 19(1)(a), and has been so held consistently by the Supreme Court.

Ultimately, in paragraph 37, the Court asked the municipality to frame a policy regulating the putting up of posters on private property, and required the policy to be content-neutral. Depending upon how the policy is ultimately framed, the actual damage to free speech might not be great. The Court’s reasoning, on the other hand, recklessly expands the scope of Article 19(2) to an extent where Article 19(1)(a) retains little meaning.

Before concluding, two brief points: in paragraph 27, the Court rejects relying upon an American precedent, on the ground that the American First Amendment is absolute, while Article 19(1)(a) is subject to reasonable restrictions. It is astonishing how deeply this canard has taken hold in Indian free speech jurisprudence. The American First Amendment is not absolute. It authorises obscenity laws, consumer fraud legislation, medical malpractice laws, copyright, laws prohibiting true threats and blackmail, and fighting words. With respect, refusing to engage with carefully reasoned American judgments on the basis of a cosmetic difference in text is no more than intellectual lethargy.

Secondly, after noting a series of cases in which it was held that the right to vote/contest elections is a statutory right (and not a 19(1)(a) right)), the Court observed: “It thus appears doubtful that asking for votes and/or propagating political ideology during the time of elections would qualify as a Fundamental Right under Article 19(1)(a) of the Constitution.”

At this point, one might ask: if propagating political ideology is not a fundamental right under Article 19(1)(a), then what is?

The Delhi High Court judgment in Anil Bhatia is deeply damaging judgment to civil liberties and – it is submitted – ought to be overruled.

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Karnataka’s Amendments to the Goonda Act Violate Article 19(1)(a)

(A slightly modified version of this piece appeared on Outlook)

The Bangalore Mirror reports that “Karnataka has brought most offences under the Information Technology Act, 2000, and Indian Copyright Act, 1957, under the ambit of the Goonda Act.” The Goonda Act allows the Government to detain a person for upto one year “with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.” “Acting in any manner prejudicial to the maintenance of public order” is, in turn, defined (for a “Goonda”) as “when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely or are likely to affect adversely the maintenance of public order.” Under the new amendments, actions contrary to S. 67 of the IT Act – which proscribes publishing “any material which is lascivious or appeal to the prurient interest” – have been brought within the ambit of this legislation.

Prior to the amendment, the Goonda Act already included speech-regulating provisions such as Ss. 153A (spreading disharmony between classes) and 295A  (hurting religious sentiments) of the IPC. After the amendment, it includes more such provisions, such as S. 67 of the IT Act, and parts of the copyright law. To start with, it is difficult to see what relation S. 67 – or copyright violations – have with public order. Leaving that aside, in short: the Act allows the government to *preventively detain* persons who are only *making preparations for engaging* in a public-order related offence – and many of these offences have to do with the citizens’ right to freedom of speech and expression. Under free speech law, this is known as “prior restraint” – i.e., “government action that prohibits speech or other expression before it can take place.”

When this standard is applied to free speech, it is unconstitutional. There are two reasons for this. The first is that prior restraints are generally impermissible (unless exceptional circumstances obtain). This has been the uniform position in Anglo-American law since the 18th century. As early as 1765, the great English Jurist Blackstone 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.”

There are many reasons why prior restraint is considered especially damaging to the freedom of speech and expression. It places the censorial power in the hands of an administrative or executive authority (as opposed to a Court). It makes it much easier for the government to censor material (than it would be if it had to take upon itself the burden to approach a Court and demonstrate to the judiciary why said material needs to be censored). And unlike in cases of subsequent punishment for speech – where the speech or expression in question is already circulating in the public sphere – prior restraints choke off access to the public sphere itself. In other words, it gives the government exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.

For these reasons, the Indian Supreme Court has repeatedly held that prior restraints are unconstitutional. It did so very early on – in 1950 – in the cases of Romesh Thappar and Brij Bhushan. It did so more recently – in 1994 – in R. Rajagopal v. State of Tamil Nadu (which was, albeit, a defamation case), citing extensive American jurisprudence on prior restraints, before holding that “there is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.

Apart from the general unconstitutionality of prior restraint, the Goonda Act is inconsistent with the Supreme Court’s understanding of the public order exception to the freedom of speech and expression. Under Article 19(2) of the Constitution, the State may – by law – impose “reasonable restrictions… in the interests of public order…” upon the 19(1)(a) right to freedom of speech and expression. In the 1950s, the Court interpreted the term “in the interests of” in a broad manner, allowing the government plenty of discretion in making speech-restricting laws that were – ostensible – about maintaining public order. There has, however, been a shift in that position. In Ram Manohar Lohia, for instance, the Supreme Court insisted that the link between the offending speech and public disorder must be “proximate” – and not remote or far-fetched. Subsequent judgments have clarified the meaning of proximity: S. Rangarajan likened the necessary connection between speech and consequence to a “spark in a powder keg”. Most recently, in Arup Bhuyan (2011), the Supreme Court has adopted the highly speech-protective “Brandenburg Test” for public order, which limits State interference with free speech to cases where there is an “incitement to imminent lawless action.”

These cases demonstrate that the Supreme Court requires the State to demonstrate a very high threshold before it can justify restricting speech on public order grounds. The reasons for this are very clear: ultimately, maintaining public order is the task of the State (via its police force). By preventing a citizen from speaking because public disorder will apparently result, the State not only curtails the exercise of constitutional rights, but also abdicates its own responsibility of maintaining public order, instead placing that burden upon the speaker. This is why public order restrictions are limited to cases where speakers are inciting already inflamed mobs to immediate violence (“spark in a powder keg”), because sometimes the extreme urgency of that kind of a situation might require the State to take immediate action against the speaker, both for his own and for general security.

The Goonda Act, with its wide-ranging preventive detention provisions for a whole host of offences (295A, 153A, 67 IT Act and so on) takes no account of the Supreme Court’s carefully crafted proximity requirement between speech and public order. Consequently, it is over-broad: i.e., it prohibits speech that it is entitled to prohibit (that bearing a proximate connection with public order), and that which it is not entitled to prohibit (all other kinds of speech). This makes it clearly unconstitutional. It is to be hoped that the Act will be swiftly challenged before the Courts, and struck down – or at least, the offending portions severed from the rest.

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Free Speech Watch: 66A Misuse Continues

Reports today indicate that an FIR has been filed against a woman – Sheeba Aslam Fehmi – for remarks strongly critical of the prime-ministerial candidate, Mr Narendra Modi. The content of the remarks is available at the link posted above. We do not need to go into much detail here: our previous discussion about free speech on this blog – especially the public order restriction – indicates very clearly that the Supreme Court – in cases such as Ram Manohar Lohia, K.A. Abbas and S. Rangarajan, to name just three – has insisted upon a rigorous standard before a public order defense to restricting free speech can be sustained. Recall that in Lohia, a man expressly telling villagers to break the law by not paying taxes was found to be exercising his right of free speech; and in the film censorship cases, the Court insisted that the relevant public order test was akin to setting off a “spark in a powder keg” – which basically refers to situations such as inciting an excited mob to commit direct and immediate violence. Suffice it to say that S. 66A, IT Act must be interpreted within the bounds of 19(2), as must provisions of the Penal Code relating to disturbing communal harmony – and in no way do remarks critical – strongly critical, even virulently critical – of politicians, even if deemed “anti-national” – whatever that might mean! – can be stifled. This is a blatant violation of 19(1)(a), and will hopefully be dealt with accordingly. 

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Free Speech and Public Order – IV: After Lohia

The Court has dealt with the public order exception many times after the Lohia case (1960), discussed in the last post. In Dalbir Singh v. State of Punjab (1962), the Court affirmed the proximity-proportionality test in Lohia, while sustaining the conviction of certain persons for inciting disaffection among the police. The final decision in this case, however – as the Court pointed out – rested upon the specific context of the police forces being involved; and indeed, the ratio of Dalbir Singh was expressly limited to the context in question in the subsequent case of Kameshwar Prasad v. State of Bihar (1962). In that case, a ban on all demonstrations involving government servants was struck down as being violative of Article 19(1)(a). Rejecting governmental reliance upon Dalbir Singh, the Court held that the ban encompassed all demonstrations, “however innocent and however incapable of causing a breach of public tranquillity and [did] not confine itself to those forms of demonstrations which might lead to that result.” (Paragraph 20)

While the Court has here adopted a bare likelihood test, there is a distinction between this case and the Lohia and Rangarajan cases: in the latter, what was at issue was the communication of a message by a person to other persons that – it was alleged – would persuade or prompt them to breach the public order; whereas in Kameshwar Prasad, it is the demonstration itself that – by potentially turning violent – is sought to be curtailed. Or, in other words, Lohia and Rangarajan were about regulating the content of speech and expression – banning a certain message that, it was alleged, would lead to a public order disruption – whereas Kameshwar Prasad is about regulating the manner of speech and expression, and makes no mention of censoring content because of its propensity to disorder (see American First Amendment jurisprudence for a detailed analysis of the difference). Often, of course, the two come together: for instance, I set fire to a house in order to express my disapproval of the institution of private property. Naturally, I will be restrained or punished, but the crucial point is that that will be because I burnt a house, and not because I communicated a certain point of view. Kameshwar Prasad deals with a situation analogous to the former case, and so a bare likelihood test does not suffer from the same problems of respecting autonomy that it would in the cases we have discussed in the previous two posts.

We may now consider two cases – State of Bihar v. Shailabala Devi  (1952) and Santokh Singh v. Delhi Administration (1973). Shailabala Devi is, of course, eight years before Lohia, but I analyse it here because it is best understood when studied beside Santokh Singh. In Shailabala Devi, under S. 4(1)(a) of the Indian Press Act, which dealt with “words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence“, the Bihar government passed an order against a certain pamphlet called Sangram, that called for revolution and overthrow of the State, and used phrases such as “break the proud head of the oppressors“. The Court observed that: “Rhetoric of this kind might in conceivable circumstances inflame passions as, for example, if addressed to an excited mob, but if such exceptional circumstances exist it was for the State Government to establish the fact.” In the absence of any such proof, it was to be assumed that the pamphlet would be read in places where the atmosphere was “normal“. (paragraph 14) The Court’s reference to the background circumstances is interesting, because as we have discussed before, the situation of the excited mob is – arguably – a situation of diminished rationality, where the usual argument about disrespecting autonomy by holding somebody else responsible for the acts of thinking individuals does not apply. While the Court demonstrates itself to be aware of this distinction, it nonetheless – and I would submit, lamentably – also assumes there could, potentially, be situation where “reasonable readers” (paragraph 17) could be affected by pamphlets worded more cleverly. Yet surely, if a reasonable reader, who presumably operates through the use of reason, is convinced that there exists an urgent and immediate need for overthrowing the State, it is the State that should be taking a long, hard look at itself! In any event, the situation remains hypothetical, and it is the Lohia opinion that ought to continue to hold the field.

In light of this, consider now the judgment in Santokh Singh, where the Court upheld the constitutionality of S. 9(1)(a) of the Punjab Security of State Act, that criminalised “any speech… prejudicial to the maintenance of public order.” It is submitted that a speech is not and cannot be prejudicial to the maintenance of public order – it is the actions of people that are; by holding a speech to be so prejudicial, one presupposes that autonomous, thinking individuals are bound to think one way, and withholds from them their entitlement to ethical responsibility. Much, however, turns on the meaning of the word “prejudicial” – that, like the word “proximity” discussed in the last post, could reasonably be interpreted to contain within it an autonomy-respecting limitation. Here, if we read Santokh Singh in light of Shailabala Devi, especially the distinction between the situation of an excited mob and that of “normal circumstances”, we have a more defensible principle at work.

We may, in passing, mention for the sake of completeness, the case of Madhu Limaye v. Ved Murti (1971), where the Court – interestingly – narrowed the definition of public order, holding it to lie somewhere between undermining the security of the state and disrupting public tranquility. In other words, departing from previous decisions that held public order to be equivalent to public tranquility, the Court held that something more was needed than mere disruption of the serene atmosphere that existed among citizens (paragraphs 19 – 21).

We shall end our discussion of the important public order cases by recalling a particular expression used in S. Rangarajan v. P. Jagjivan Ram (analysed before): the connection between speech and public order disruption must be like that of a “spark in a powder keg”. The Court’s analogy is, I think, strikingly accurate. There are two defining features of the connection between the spark and an explosion: inevitability, and direct and immediate causation (without any intervening event). It will be clear that both features respect the autonomy limitation, since they are applicable only in situations where – for some reason – individuals that are otherwise responsible and capable of judging reasons for and against an action are (temporarily) incapacitated from doing so: they are present in the case of someone shouting fire in a crowded theatre, and it is at least arguable that they are present (albeit to a lesser degree) in the case of inciting an excited, armed crowd to immediate violence. It is equally clear that they are not present in merely giving a speech or writing an article advocating the overthrow of the State, or writing a book that some people take offence to, and decide to express their feelings by ransacking libraries. In political cases before it, moved no doubt by legitimate and valid concerns about security and stability, the Court has, more often than not, adopted tests considerably more lax than the spark in a powder keg. Over the course of the last four posts, I have tried to argue that this is a philosophical mistake.

There remains one category of case-law that should – technically – fall under the public order exception, but has always been treated separately, and has generated much controversy in its own right. This is the notorious law of sedition. The next post shall be devoted to a discussion of the cases that have dealt with this concept, and whether – as a matter of constitutional law and political philosophy – it is justified for it to remain upon the statute books.

 

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