Social Media & Intermediary Liability: Missing the Forest for the Trees?

Recent events have once again brought into focus the question of imposing legal liability on online intermediaries and, particularly social media companies. In the United States, Twitter’s decision to ‘flag’ President Trump’s tweet disparaging vote-by-mail procedures as inaccurate prompted the President to issue an executive order re-considering the qualified immunity granted to intermediaries (here). In India, Twitter voluntarily and independently ‘disabled’ two tweets by advocate Prashanth Bhushan upon the initiation of contempt proceedings against the lawyer (here). This, while India is currently in the process of amending its rules under the Information Technology Act (“IT Act”) regulating online intermediaries (the “Intermediary Guidelines”).

The need to shield online intermediaries from liability to protect freedom of expression on the internet is well established. India’s new regulation seeking to make intermediaries monitor and take-down content is a step back in this respect. But the proposed guidelines aside, in this post I argue that a regulatory focus on intermediary liability by the government ignores several larger structural issues with speech on the internet (especially on social media websites) and potentially hampers more robust and multi-faceted regulatory approaches. I begin by briefly setting out India’s intermediary regime (both existing and proposed) and the need to shield intermediaries from immunity. I then attempt to sketch out the role of large social media companies in structuring speech on the internet and how an undue focus on intermediary liability further empowers already powerful actors at the cost of internet consumers and free speech. Without going so far as ‘breaking up big tech’, I explore possibility regulatory measures that can counteract the power of social media companies over users’ speech.

Intermediary Immunity Grossly Simplified

Given the decentralised nature of the internet, online intermediaries have long been targets for legal liability for allegedly unlawful speech on the internet. Traditionally a “tort law principle of secondary liability for third party action” is applied against intermediaries. Simply put, a website may be sued for hosting unlawful content even though the website itself did not create or post the content (secondary liability), the unlawful content actually having been created and posted by an anonymous web-user (third party action or content).

Government’s however, quickly recognised that exposing intermediaries to this liability may make them extremely cautious and cause them to start deleting all third-party content that carries even a slight risk of legal liability. Not ideal for online business or free speech. Therefore, governments provided “immunity” or “safe harbour” to intermediaries except in narrowly defined situations. For example, Section 79 of the IT Act provides online intermediaries legal immunity for unlawful third party content if: (i) the content is merely temporarily stored or transmitted on the site; or (ii) if the intermediary takes down the content upon receiving “actual knowledge” of the unlawful content or upon being notified by the Government; or (iii) compliance with the Intermediary Guidelines more generally.

In an exceedingly rare moment of clarity, the Indian Supreme Court in Shreya Singhal held that online intermediaries could not be tasked with determining when content was legal or not, and “actual knowledge” meant a court order directing the take-down of unlawful content. In other words, intermediaries would only ever be subject to legal liability if a court of law directed them to take-down content and they still refused to do so. (Note: this makes Twitter’s “disabling” of Prashanth Bhushan’s tweets an entirely voluntary act as there existed no court order directing the take-down. What it says about Justice Arun Mishra asking Twitter why it had not taken down the tweet is best left to the reader’s imagination.)

Proposed Amendments

As the intermediary’s “safe harbour” or shield against liability for hosting third party content is dependent on compliance with the Intermediary Guidelines, the content of these guidelines is incredibly important. As the Software Freedom Law Centre has reported (here), India’s new Intermediary Guidelines make continued immunity contingent on several problematic conditions, namely: (i) mandatory upload filters; (ii) traceability; (iii) a local incorporation requirement; and (iv) a twenty-four hour take-down requirement. These requirements are undeniably problematic, cumulatively restricting, and chilling speech. For example, an upload filter would force intermediaries themselves to judge the legality of content before it is published (flying directly in the face of the reasoning in Shreya Singhal). Even worse, upload filters shift the burden on the speaker to justify why their speech is not unlawful, rather than requiring a person offended by the speech or the government to justify why the speech should be taken down. This effectively makes restricting speech the norm and free speech an exception to that norm.

The proposed amendments to the Intermediary Guidelines warrant alarm bells being raised and interested readers should go through SFLC’s report. However, the focus of this post is to explain why the government’s focus on intermediary liability itself is misguided.  

The Bigger Picture

The renewed political impetus to regulate intermediaries is a result of the new dual role of large internet companies, particularly social media companies. As Jack Balkin notes, large social media companies not only make available speech for our consumption but also curate the speech that we consume. For example, not only does Twitter allows a user to see the speech of millions of other users, but by selectively ranking, editing, and removing content Twitter also determines what speech a user sees and does not see. This second role of curation cannot be performed without the intermediary (e.g. Twitter) having its own substantive view on what speech is good speech and what speech is bad speech.

Social media companies often argue that they are content neutral, or that speech is tailored based on a user’s own interests. However, this is simply not bourne out in practice. For example, when President Trump stated that vote-by-mail ballots were unsafe, Twitter ‘flagged’ it as potentially misleading, but Facebook carried the President’s statement as is. Simply put, Twitter’s substantive view on speech in the context of elections was different from Facebook’s. Therefore, despite granting intermediaries immunity, the reality is that large intermediaries voluntarily perform an editorial (or curating) function that determine what speech should be on their platform on what speech should not. These are often referred to as a platform’s “community guidelines”.

This voluntary curating function coupled with the massive market share of existing social media companies raises a significant issue. With the internet presently structured around just two or three social media companies, the probability that an individual citizen’s substantive view on good and bad speech will diverge from the social media company’s view on speech is extremely high. The most obvious manifestation is when a website takes down what a user may see as legal content, or alternatively refuses to take down what a user may see as illegal content. To be clear, it is not desirable to have content taken down merely because it is objectionable to another internet user (this is why Shreya Singhal imposed the court order requirement). However, when the user’s dissatisfaction with the social media site’s view of good and bad speech is examined in light of the user’s inability to choose another social media site or participate in the framing of the “community guidelines”, the curating role of social media companies absent any legal regulation becomes problematic.

Another way to look at this issue is that large social media companies have effectively created bottlenecks for speech on the internet, of which they are the sole unregulated gatekeepers. Gatekeeper functions are performed by most publishers for example, a magazine may refuse to publish an author’s article because of the magazine’s political views. However, the essential role played by social media companies in facilitating speech on the internet and the tiny number of companies involved creates a huge asymmetry of power between internet users and social media companies where an internet user cannot migrate to another social media platform in the same way an author can find another magazine to publish in. If a user wishes to participate in speech on the internet, they must subject themselves to the social media company’s views on speech in the form of arbitrarily enforced community guidelines. For example, the German Federal Court recently ruled that Facebook users were faced with a “false choice” between handing over huge amounts of private data to Facebook or not using the company’s ubiquitous social media service (here). In other words, internet users cannot ‘choose not to use Facebook’ because of its centrality to speech on the internet. The same dependence is also true of downstream companies and people who rely on social media companies for certain services (e.g. app developers for Apple’s App Store or YouTube’s content creators). This imbalance of power and the often arbitrary actions of intermediaries themselves has created the impetus for government’s to step in and seek to impose new rules that would make the voluntary editorial function carried out by intermediaries more acceptable to the citizen’s (or government’s) substantive view on speech.

Lastly, a user’s legal recourse against intermediaries is extremely limited. For example, in 2019 Twitter disabled senior lawyer Sanjay Hegde’s Twitter account over: (i) the use of August Landmesser’s photo defying the Nazi salute; and (ii) retweeting a poem by a CPI (Marxist-Leninist) politician – incidentally the original tweet was not taken down by Twitter. Hegde took Twitter to court alleging a violation of his free speech rights and a breach of Twitter’s own community guidelines. Twitter argued that as a private entity it was not obligated to guarantee Article 19(1)(a) rights. While there may exist a case for a contractual breach of the community guidelines, the episode highlights how even where internet users have the means and know-how to challenge an intermediary’s voluntary curating function, the law is ill suited to ensure recourse.  

Meaningful Regulation

Recall that intermediaries have always been soft targets for regulating speech online because they represent entities that the law can identify, regulate, and penalise in the otherwise decentralised world of the internet. India’s proposed new Intermediary Guidelines seek to make intermediaries even easier to identify and regulate (a local incorporation requirement) and opens intermediaries up to legal liability if their view of speech does not comport to the government-imposed norm (upload filters). The problem with this approach from a free speech perspective is that using legal liability as a threat to force intermediaries to take greater responsibility for online expression will likely lead to the systematic over-removal of legitimate speech. For example, Twitter did not wait for a court order to remove Prashant Bhushan’s tweets, as it was legally entitled to do under the Shreya Singhal ruling. Irrespective of whether an intermediary’s community guidelines are lax or strict, the spectre of legal liability forces intermediaries to be extremely cautious and remove speech that may not be unlawful. Worse, the high cost of upload filters and local incorporation requirements automatically privilege large intermediaries such Facebook and Google over smaller companies. Therefore, a regulatory approach focussed on intermediary liability not only fails to address the power imbalance between online intermediaries and their users, it further empowers existing intermediaries and incentivises them to be more aggressive in their voluntary curating function.

Understanding the problem created user-dependence on social media companies to speak on the internet, but also recognising that weakening “safe harbour” for intermediary immunities may not be a cogent response, government regulation must be more creative. “Breaking up big data” has become an increasingly common demand amongst certain politicians. Without going into the merits of a government mandated break-up of companies such as Facebook, Google, and Amazon, less drastic steps may be possible. It is also important to recognise that the harms created by large online intermediaries are not identical. For example, Facebook and Twitter may act as bottlenecks for free speech on the internet. Amazon has been accused of using its dual-role as a producer and a sales-platform to discriminate against sales-partners. Apple has been accused of discriminating against app-developers prior to apps can be listed on the App Store (the only way developers can supply their apps to users). Charges have been levied against Google for rigging its page-rank system to ensure that competitor services do not appear in Google’s ubiquitous search results. These diverse harms will likely require individuated solutions beyond a blanket breakup of large internet companies (previous breakups of large telecommunications and steel companies have resulted in re-consolidation within a decade or two).

A regulatory response must first be able to identify where speech may be being stifled. Recognising that users are unable to migrate to alternative social media networks even when an intermediary takes down their speech without a court order, an European Digital Rights (“ERD”) position paper explicitly recommends “bottleneck power” (the ability to preserve and lock-in a user-base) as a competition law metric that online platforms should be judged by (here). This can help regulators understand when users are locked in to online speech eco-systems, resulting in online intermediaries having too much power.

To break down this power, both ERD and Balkin advocate “interoperability” as a vital step that can restore significant power to internet users. A simple form of interoperability would allow users to access social media platforms from a variety of alternate services. For example, a user can access Twitter from a third-party app (not the Twitter app). This third-party app can display tweets purely chronologically, or use a different algorithm than Twitter, allowing the user to escape Twitter’s speech curating function to a limited extent (Twitter’s ranking of tweets) and choose a third-party app that the user believes to be the most beneficial.

A more robust form of interoperability would insist on a set of common internet protocols that allow users to directly communicate between different internet platforms (e.g. a Facebook user could directly message a Twitter user). This may sound unthinkable at present, but such common standards exist for email. An internet user is free to choose between a variety of email services but is ensured that they can still mail users on other email services. As ERD notes, if I migrate from Yahoo to Gmail, I do not automatically lose all my friends, followers, or contacts, thus the threshold to migrate is low and user-dependence and lock in is mitigated. By allowing users to migrate between different social media companies easily, social media companies are incentivised to provide better services and users are free to choose a social media company best reflects their substantive view of speech and are not beholden to any one service’s “community guidelines”. For example, if I found my speech constantly falling foul of Facebook “community guidelines”, I would migrate to social media X but still be able to reach my erstwhile “friends”. This would also apply in reverse, if I felt that Facebook was not censoring content enough and I wanted an even more curated feed, I would migrate to social media Y with stricter “community guidelines”. In the long term, this would ensure more social media companies and continued interoperability (today would you leave your email service for a new service that does not allow you to send emails to users with Gmail or Yahoo or Hotmail accounts?).

It is important to note that internet companies have systematically resisted moves towards such forms of interoperability. For example, Twitter limits the number of users a third-party Twitter app can host. Neither Twitter, Facebook, or YouTube provide meaningful application programming interfaces (APIs) that would allow for a service that collates your Facebook, Twitter, and YouTube feeds. Apple openly uses a “walled garden” approach to push sales of additional Apple-only compatible hardware.

Lastly, governments should look to set up specialised tribunals or regulators that improve recourse for internet users against the actions of intermediaries. Rather than a user having to approach regular courts to allege a contractual breach of community guidelines by the intermediary, specialised tribunals offering quick and meaningful dispute resolution will also incentivise better intermediary behaviour. The online nature of these disputes is also an opportunity to potentially examine online-only dispute settlement mechanisms such as virtual tribunals or Lok Adalats.   

Conclusion

This post stemmed from two excellent articles written by Jack Balkin (here) and Lina Khan and David Pozen (here). Balkin’s initial approach was to suggest imposing fiduciary obligations on intermediaries to ensure intermediaries do not act arbitrarily or like “con-men” with respect to user data. As Khan and Pozen note, an approach that centres around the regulation of intermediaries ignores the larger realities of the internet eco-system within which intermediaries operate today. Large internet companies already owe fiduciary obligations to stockholders to maximise value, which is often done by a business model reliant on the spread of divisive, inflammatory content and eroding user privacy. For example, the New York Times reported on an individual spreading political disinformation purely to capitalise on Google ad-revenue (here). When we recognise that these social media companies also form the cornerstone of modern public discourse, the magnitude of the problem is put into perspective. As Khan and Pozen conclude, the business model matters, as do economic realities.

A regulatory approach and response that focuses entirely on whether intermediaries should be held liable for third party content is unlikely to address the harms stemming from the extreme user dependence on large social media sites. Recognising the key role social media companies play in curating speech on the internet and the outsized market share these companies possess – there is bound to be a mismatch between a user’s substantive view of speech and those available on the internet resulting in the stifling of potentially lawful speech. Recognising that users are increasingly locked in to a handful of social media eco-systems, regulation of speech on the internet should work towards dismantling the gatekeeping power of large social media companies and putting power back in the hands of individual speakers to choose platforms of their choice and reclaim public discourse.


The author is grateful to Shweta Reddy from the Centre for Internet and Society for her inputs on this post.

A Sullivan for the Times: The Madras High Court on the Freedom of Speech and Criminal Defamation

On May 5, a single-judge bench of the Madras High Court handed down a very significant judgment on the freedom of speech and criminal defamation [“Sandhya Ravishankar’s Case“]. The Respondent – V.V. Minerals – had instituted criminal defamation proceedings against Sandhya Ravishankar (the petitioner) for a report in The Economic Times concerning illegal sand mining in Tamil Nadu (for a reference to the piece, see here). After the judicial magistrate issued summons, the petitioner approached the High Court asking for the proceedings against her to be quashed.

Quashing in a criminal defamation case is a difficult prospect. This is because – to simplify – under Section 499 of the IPC, a prima facie offence of defamation is made out with the existence of a defamatory imputation, which has been made with the intention or knowledge that it will cause harm. This is, evidently, a very low threshold. Section 499 also contains a set of exceptions to the rule (such as statements that are true and in the public interest, statements made in good faith about public questions, and so on) – but here’s the rub: these exceptions only kick in at the stage of trial, by which time the legal process has (in all likelihood) dragged on for years. What we essentially have, therefore, is one of those situations where the cost of censorship is low (instituting prima facie credible criminal proceedings), but the cost of speech is high (a tedious, time-consuming, and expensive trial, with the possibility of imprisonment). Long-standing readers will recall that this structure of criminal defamation law – and the chilling effect that it causes – was part of the unsuccessful 2016 challenge to the constitutionality of Section 499.

In a short and lucid judgment, Justice G.R. Swaminathan of the Madras High Court nonetheless proceeded to quash the proceedings. He did so on two bases, both of which are critical for the future development of free speech law. First, on a careful study of recent precedent, he accurately identified the unarticulated premise of those judgments, and took it to its logical conclusion. As Justice Swaminathan noted, the 1994 judgment of the Supreme Court in R. Rajagopal v State of Madras had extended the rule of actual malice, laid down in the American Supreme Court case of New York Times v Sullivan, to Indian law. The Sullivan Rule (whose evolution in the American Civil Rights movement was traced by Swaminathan J.)  is based on the recognition that if free speech, and especially journalistic speech, is to survive, it must have “breathing space.” In other words, mere inaccuracies will not subject the writer to defamation, unless it is shown that the writer either knew that they were making false statements, or made them with “reckless disregard” for whether they were true or false.

In Rajagopal, as pointed out above, the Sullivan principle was applied to civil defamation cases. In subsequent judgments by Justices Shah and Bhat in the Madras and Delhi High Courts, the American trajectory of extending the principle from cases involving only public officials, to cases involving questions of public interest, was also followed (these, too, were extracted by Swaminathan J.). However, as we have discussed previously on this blog, this left the law in a paradoxical state: the law on civil defamation became more speech protective than criminal defamation, a reversal of the traditional rule that criminal proceedings need to come with more procedural safeguards, because of the graver penalties involved (this argument was also unsuccessfully made before the Supreme Court in 2016, as an alternative “reading down” of Section 499 – the Court did not engage with it).

It was Swaminathan J. who finally put the paradox to rest. He noted that Exceptions 2 and 3 to S. 499 – that is, statements on the public conduct of public servants, and on public questions – already encoded the Sullivan principle. Furthermore, as the Madras and Delhi High Courts had specifically concretised the principle in Indian law, that reading would necessarily have to form part of the interpretation of Exceptions 2 and 3 (paragraph 14). Thus:

There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.

Thus, as long as there was a public question involved – i.e., “an issue in which the public or the community at large has a stake or interest” (paragraph 15), the Sullivan rule would apply. In this way, Swaminathan J. elegantly reconciled the post-Rajagopal split between civil and criminal defamation, and brought the latter up-to-date.

There still remained the issue, however, of the exceptions kicking in only at the stage of trial, and not at the stage of quashing. This constituted the second significant part of the judgment. Justice Swaminathan noted that under the Constitution, the default was the right to free speech, with restrictions justified only as exceptions. This understanding would have to be incorporated into the interpretation of Section 499, as long as it remained on the statute books. In particular, the judiciary would have to take this fact into account when exercising its powers under Section 482 CrPC, as a dismissal would entail sending the petitioner back to the trial court to fight the entire case. Thus:

If a summary examination of the materials produced by the accused can bring their case within one of the Exceptions, I can give relief to the petitioners here itself instead of making them undergo the ordeal of trial. Such an activist role will have to be played by the higher judiciary because it is a matter of record that criminal defamation proceedings have become a tool of intimidation and before corporate bodies and powerful politicians whose pockets are tunnel deep and whose hands are long even media houses having good resources have capitulated. (paragraph 20)

Conducting that summary examination, Swaminathan J. noted that the article was (a) based on a public interest litigation filed before the Madras High Court, (b) it contained a response from the complainant, (c) there were a few errors, which were later clarified and apologised for by the magazine, (d) cognisance was taken by the Court of the allegations of illegal mining, and a status quo order was passed (paragraph 21). For these reasons, Swaminathan J. held that the Exception was clearly attracted, the “good faith” requirement had been met, and that consequently, a case for quashing was made out.

It is my submission that Swaminathan J.’s approach was entirely correct, and I would add that I do not think it was “activist” in any sense. As the extracted paragraph demonstrates, Swaminathan J. clearly reasoned that (a) Article 19(1)(a) makes it evident that restrictions upon free speech – such as those imposed by criminal defamation – are to be understood as “exceptions”; (b) that the structure of criminal defamation law, as it stood, was contrary to this principle, and indeed, because of this, it had become a tool to facilitate legal harassment and SLAPP suits. Now, it may not be easy for a trial judge to depart from the strict bounds of criminal procedure and, say, entertain an application for discharge by considering whether the Exceptions to S. 499 have been made out or not. This is why Swaminathan J. located the remedy in Section 482 proceedings before the High Court, but nonetheless, conducted only a “summary examination” of the complaint to determine whether the exception was self-evidently made out or not. He found that it did. Notably, the summary examination did not require him to rule on disputed questions of fact and evidence, but whether on the accepted facts – that is, on the complainant’s best case – the exception was attracted or not. In this case, given the language of Section 499, and the constitutional framework with which it must comply, it is submitted that Swaminathan J. got the balance exactly right.

In sum, therefore, Sandhy Ravishankar’s Case is a crucial landmark in the history of judicial protection of free speech in India. It takes forward the unrealised promise of Rajagopal, and further develops the law laid down by the Madras and Delhi High Courts. The judgment holds that (a) the Sullivan rule of actual malice applies to criminal defamation, and in particular, to Exceptions 2 and 3. Thus, mere factual errors in reports on issues of public importance cannot justify criminal prosecution; and (b) that in light of the constitutional guarantee of free speech the High Court, acting under Section 482 CrPC, is empowered to conduct a “summary examination” and assess whether an accused falls within the Sullivan rule in a particular case or not – and to quash the case if they do. This is a powerful doctrine for the future protection of free speech, and a bulwark against the continued use of SLAPP suits as a legal weapon to silence inconvenient journalism.

 

Notes From a Foreign Field: The Ugandan Constitutional Court on the Right to Protest [Guest Post]

[This is a Guest Post by Karan Gupta.]


In a society where policy brutality and clamp down on free speech is common, the Constitutional Court of Uganda recently affirmed a few commonsensical principles on free speech, the right to assemble and public order. On 26 March 2020, the Constitutional Court of Uganda declared Section 8 of the Public Order Management Act 2013 (POMA) unconstitutional (4-1 majority). Section 8, inter alia, conferred upon the Inspector General of Police (IGP), or any officer authorized by them, vast discretionary powers to: (i) Withhold permission to hold a public meeting or stop a public meeting where it is “held contrary to the Act”; (ii) Use force to disperse public meetings; and (iii) Impose criminal liability on organizers and participants of such public meeting. The Act defines a ‘public meeting’, empowers the IGP to regulate their conduct (S. 3), and requires every ‘organizer’ to give prior notice (at least three days prior and no more than fifteen days prior) of the proposed public meeting with details specified therein (S. 5). An unplanned, unscheduled and unintended public meeting is exempt (S. 7).

I explore, in seriatim, the constitutionally flawed approach, the progressive observations of the constitutional court, missed opportunities, and lessons for India.

 Preliminary Point: Constitution adjudication – in personam?

In a previous case, Muwanga Kivumbi v Attorney General, the Constitution Court had declared Section 32(2) of the Police Act 2006, which empowered the officer in charge of the police to pass an anticipatory order prohibiting the convening of an assembly/procession if there were “reasonable grounds for believing” that there would be a breach of peace, unconstitutional. The Court had held that the subjective and anticipatory power was prohibitory in nature (as compared to a regulatory power, which is permissible) and ultra vires Arts. 20(1) (Fundamental Rights are inherent and not granted by the state) and 29(1)(d) (Freedom of assembly and demonstration).

The challenge in HRNU lay in narrow confines. Art. 92 of the Constitution restricts the Parliament from passing a law which “alters” a decision of the Court “as between the parties to the decision or judgment”, thus barring the alteration of rights that have accrued to parties to a case vis-à-vis each other (in personam). The petitioners in HRNU highlighted that one petitioner in Muwanga was also a petitioner before the Court in HRNU, and that Section 8 of the POMA was para materia to Section 32(2) of the Police Act. Consequently, by enacting Section 8, the legislature had unconstitutionally attempted to alter the decision in Muwanga [p. 7]. Despite a broad challenge to the POMA on a myriad of constitutional provisions, the petitioners restricted their oral arguments to only Art. 92 and Section 8.

Justice Cheborion evaded the limited ambit of Art. 92 and the nuanced differences between the two provisions (Sections 32(2) and 8)) and held that Art. 92 also applies to decisions made in public interest, and not only in relation to parties to a previous litigation. This approach was adopted by two other judges [p. 42, 50, 69] and raises two concerns: First, this militates against the plain and ordinary meaning of Art. 92 and renders nugatory the latter part restricting its application to parties in a litigation. The decision in Muwanga (as well as the present case) concerned a constitutional matter on the ambit of constitutionally permissible police powers to control assemblies, demonstrations and peaceful protests. Such matters are, by their very nature, in rem proceedings – a declaration of invalidity does not operate only between parties, but to everyone. Art. 92 which seeks to protect rights that accrue to parties from a litigation (from contract law or property law for example), has no applicability in such cases. Furthermore, the legislature did not seek to alter the decision in Muwanga, but enact a new provision different from Section 32(2) of the Police Act.

Second, the Ugandan Parliament may alter the basis of decision in Muwanga by amending the provisions on which the decision turned [i.e. Arts. 20(1) and 29(1)(d)]. However, the Court held that the decision in Muwanga could only be altered, inter alia, by amending Art. 92 [p. 19]. This flows from its erroneous reading and application of Art. 92. The right approach is for the Court to, absent any constitutional amendment, employ in its assessment the broad constitutional principles laid down in Muwanga and other relevant constitutional provisions. However, the court restricted its assessment to whether Section 8 is an “incarnation” of Section 32(2) [p. 18]. Only two judges avoided this pitfall, though without adequate explanation [p. 54, 75], analyzed the entire Act and declared it unconstitutional [p. 61].

 Public interest, public order and free speech

Art. 29(1) guarantees to every person the freedom of speech and expression, assembly and demonstration, and association. While Art. 79(1) empowers the Parliament to enact laws for the maintenance of order, both provisions are silent on the permissible restrictions on fundamental rights. The answer is found in Art. 43 which stipulates that “no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest”. According to Ugandan precedent, there is no justification to restrict or abrogate a fundamental right where the its exercise comports with the restrictions in Art. 43. Art. 43(2) clarifies that the term ‘public interest’ shall not permit any limitation “beyond what is acceptable and demonstrably justifiable in a free and democratic society”.

The scheme of fundamental rights chapter is significant for two reasons: First, barring the general restrictions in Art. 43 and a few other provisions which specify restrictions therein, there are no specified grounds to restrict fundamental rights as compared to other Constitutions; Second, under Art. 43, the principles of a free and democratic society are accorded primacy and any restriction must comport with this requirement. While the Parliament may legislate on the maintenance of public order (which Muwanga held is in public interest), any restriction on the freedom under Art. 29 must be demonstrably justifiable in a free and democratic society.

Viewed in the above context, the Court (three or more judges) made three significant observations:

 First, on the ambit and hierarchy of free speech protection, the Court held that speech, public processions and protests, irrespective of their nature, are entitled to equal protection (i.e. social, religious, political, economic, and so on) [p. 20, 57]. This is distinct from the preferred position doctrine which accords higher protection for political speech in American constitutional jurisprudence. The context which informed this analysis is granting equal protection to political assemblies and speech which are a common target of the political establishment in Uganda;

Second, on public order, the Court held that where a protest or public gathering is peaceful, “it does not matter that it may disruptive or even inconveniencing”. [p. 21] This is significant as any society committed to the freedom of speech and assembly recognizes that some disruption is no ground to restrict or deny the right. Beyond toleration, the celebration and protection of speech and assembly is linked to justice, equal concern and mutual respect of every individual. Recall here the judgment of the Madras High Court which affirmed that “public streets are the natural places for expression of opinions” (analyzed here); and

Third, the Court held that Section 8, in so far as it authorizes the police to prevent a public meeting, empowers them to impose a blanket ban and require prior permission for every gathering [p. 23, 25]. The Court held that this violates Arts. 29 and 43 and the state failed to demonstrate that the power conferred by Section 8 is both regulatory and acceptable and demonstrably justifiable in a free and democratic society. This is significant for three reasons:

  • The burden of proof to justify the restriction on a constitutionally guaranteed right falls on the state. However, by vesting in the police the vast discretion to prohibit or prevent the freedom of speech and expression, this burden stands reversed. Every individual is then required to justify to the police why the exercise of their constitutional right will not or does not impair public order or contravene any provision of POMA. Justice Elizabet rightly noted that there is a presumption that every assembly and exercise of free speech is peaceful [ 61] and a mere apprehension of violence does not constitute a sufficient basis to prevent or prohibit an assembly, gathering or protest;
  • The Court highlighted that no conditions were laid down for the exercise of the power [ 98], vesting in the police vast discretion to determine which public meetings may be prevented or forced to disperse. As noted by the American Supreme Court in Grayned v Rockford, such unbridled discretion is accompanied by the “attendant dangers of arbitrary and discriminatory application.” Where the police are an instrumentality of the state, the possibility of partisan politics to curb dissent and anti-establishment sentiments cannot be discounted. This is recognized by two judges in HRNU who documented the arbitrary exercise of power by the police to protect government interest and impose popular morality [p. 22, 100]; and
  • Flowing from above, the unregulated blanket discretion to prohibit assemblies does not comport with the requirements of the ‘constitutional yardstick’ that every restriction on a fundamental right must be necessary and The police must justify, in each specific instance, why the prohibition of an assembly is the least restrictive measure and proportionate to the possible harm sought to be prevented (this post discusses context-specificity and proportionality in the context of the internet shut-down judgment in Kashmir). The judgment, despite lacking in the explicit use of this yardstick, comports with this requirement.

Maintaining public order

How then must the State maintain public order? Justice Cheborian (with whom three other judges agree) answered this. He held that where the police anticipate a breach of peace, there is a positive obligation on the state to provide protection and police deployments and not prohibit the assembly [p. 17, 60, 90]. The Court held that the duty to maintain public order “cannot be discharged by prohibiting sections of the public from exercising their constitutionally guaranteed rights to demonstrate peacefully or hold public meetings of any nature.” This is sound as it reaffirms: (i) the holding in Muwanga that the state must provide channels and structures to ensure that legitimate protest “find voice”; and (ii) the principle that the failure of the state to provide adequate security cannot be a ground to deny people the freedom of speech and assembly. Furthermore, the Court noted that the state is also empowered to act in various situations (unlawful assemblies, riots, malicious damage against public order) by the Penal Code of Uganda [p. 33,89] and may, in accordance with the law, arrest or take appropriate action against any perpetrator [p. 23, 32].

Missed opportunities

 Despite the significant observations above, the Courts missed out on two opportunities:

First, only Justice Kenneth attempted to specify which values underlie a free and democratic societyinter alia, the acceptance and accommodation of a variety of cultural, religious and political beliefs and free political debate, human dignity and freedom of speech, association and movement [p. 90]. The Court could have laid down a comprehensive base for the protection of free speech and association as an values inhering in a free and democratic society; and

Second, despite the challenge in the petitions to numerous provisions of the Act, the Court examined the validity of only Section 8 (admittedly, only this was pressed by the petitioners). Only two judges examined the deeply inherent flaws in the entire Act to conclude that it was ultra vires a myriad of constitutional provisions. In the end, these draconian provisions were left standing and the Court concluded that guidelines must be framed for the exercise of powers under the Act [p. 33]

India and Section 144

Recall here that Section 144 of the Indian Code of Criminal Procedure 1973 confers wide discretionary powers upon executive magistrates to prohibit assemblies. This is regularly invoked on the basis of an apprehension that there would be a breach of peace or public order. The Constitution Court in Muwanga struck down a similar provision [Section 32(2) of the Police Act] on the ground that it was prohibitory in nature and reversed the burden of proof – every individual was required under it to justify why the exercise of the right to free speech and assemble would not cause a breach of public order. The Court held that this suppresses the “powerful tool” of peaceful assemblies and protests when a free and democratic society must encourage the “greatest possible freedom of expression.” This reasoning was reiterated in HRNU to strike down the wide power to impose blanket anticipatory bans on assemblies under Section 8 of the POMA.

The power under Section 144 [similar to Section 32(2) and Section 8] allows the imposition of anticipatory bans and is prohibitory in nature This falls foul the constitutional standards espoused in Uganda. Indian courts have attempted instead to narrow the discretion conferred by the provision. The judgment of the Supreme Court in Anuradha Bhasin (internet shutdown in Kashmir) recently affirmed that a valid exercise of power under Section 144 is premised on: (i) the existence of objective material facts which form the basis of the opinion formed by the Magistrate; (ii) its general invocation being confined to a specific area and issue; (iii) the existence of a demonstrably urgent situation; (iv) such measure being the least restrictive course of action; and (v) compliance with proportionality standard.

Despite these restrictions, the burden of proof continues to rest on individuals as magistrates are empowered to impose anticipatory orders prohibiting any assembly. Even where these orders are challenged before courts, the preliminary burden falls on the individual (as a petitioner) to prove that the issuance of the order violated their fundamental right. This was most evident in December 2019 where when faced with the legitimate expression of dissent against the Citizenship Amendment Act, numerous orders under Section 144 were imposed across the country without any well-founded apprehension of violence, citing inconvenience.

Conclusion

Despite its failings, the judgment in HRNU held that there is “absolutely no legal authority” to stop peaceful expression on the basis of an alleged breach of peace [p. 22] and builds on Muwanga to add to the growing jurisprudence that restrictions on the right to free speech and assembly are exceptions which the state is required to justify in every case prior to its imposition, reaffirming a commitment to a culture of justification, not authority. With this, it also provides guidance to India in the exercise of the power under Section 144. While Section 144 remains operative, one can only hope that the government of the day responds proactively to the protection of the right to free speech and assembly in scrutinizing more closely the impositions of these orders in the first place.

Making the Path by Walking: The Supreme Court’s Film Censorship Judgment

In an interesting judgment handed down this Thursday, a two-judge bench of the Supreme Court held that the government of West Bengal was required to compensate a film-maker for trying to “shadow-ban” his film. The facts of Indibility Creative v Govt of West Bengal were straightforward: a film called Bhobishyoter Bhoot had been cleared by the Film Certification authorities, and had started to run in cinemas. However four days before its scheduled release, one of the directors received a call and a letter from the state’s intelligence unit, asking for a special screening, on the ground that the film might hurt public sentiments and threaten public order. The director refused. However, very soon after the release of the film, it was inexplicably withdrawn from most cinemas, and tickets were refunded. When the directors made enquiries, they were told that this was being done on the instructions of “higher authorities.”

After the Supreme Court intervened with some strongly-worded interim orders, a modicum of normalcy was restored. The Court nonetheless reserved orders, and delivered a judgment on merits shortly thereafter.

Chandrachud J.’s judgment involves a reiteration and endorsement of settled legal principles that are, regrettably, too often honoured only in the breach: that there cannot be a two-track certification process, where the State’ authorities are running parallel censorship proceedings alongside the Certification Board(s); that in cases where there is an apprehension of public disorder, it is incumbent upon the State to provide the necessary police protection, rather than upon the speaker/artist/writer to withdraw (and thereby facilitating the heckler’s veto); and that the restrictions upon free speech cannot traverse beyond the strict confines of Article 19(2). In addition, however, the judgment contains a few elements worthy of remark.

The first is that it takes seriously the ways in which State authorities can informally exert pressure and effectively choke off the meaningful exercise of fundamental rights. In this case, for example, the State government insisted that it had not taken recourse to any statutory provision that formally banned the film. If that was true, however, then, as the Court observed:

… there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners that this was an action which followed on the letter dated 11 February 2019 of the Joint Commissioner of Police is not unfounded. The letter addressed by INOX to the producer specifically mentions that they were directed by the authorities to discontinue the screening in the ‘interest of the guests’. We have no manner of doubt that this was a clear abuse of public power. (paragraph 17)

Effectively, therefore, the Court drew an adverse inference against the State, based upon a set of fairly unambiguous factual circumstances. Following upon the Madras High Court’s recent judgment involving the “informal” settlement that Perumal Murugan was forced into, this signals a clear judicial intent to take seriously State action that would otherwise pass under the radar due to its non-legal/extra-constitutional/behind-the-scenes character.

This is closely linked to a second important point – the Court’s clear articulation of the positive component of Article 19(1)(a). As Chandrachud J. noted:

But, apart from imposing ‘negative’ restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. (paragraph 18)

This is, of course, nothing more than applying a coherent constitutional framework to the basic insight – expressed first in S. Rangarajan and then beyond – that if the threats to free speech come from private parties, then it is the obligation of the State to ensure that conditions of law and order are maintained so that the expressive activity in question can go ahead. Rangarajan’s insight, of course, arose out of concrete circumstances where the State threw up its hands before the Court and argued it was not in a position to guarantee the maintenance of law and order if a particular film was screened – an argument that was given short shrift by the Court. Indibility Creative – the present judgment – has now taken that insight further, and generalised it into a principle.

The third element that rounds things off is the relief: the Court held that:

As a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case. We order and direct the respondents to pay to the petitioners compensation which we quantify at Rs 20 lakhs within a period of one month from the date of the present judgment. (paragraph 20)

This is particularly important, because in far too many cases, after finding a breach of fundamental rights, the Court has left matters as they are. The loss, however – especially in cases of this kind – is clear and quantifiable, and a refusal to restore status quo only ensures that, despite the finding of a violation by the court, the chilling effect of arbitrary State action continues. On the other hand, a clear judgment on compensation sets the tone for an effective enforcement of fundamental rights; and it is only within a climate in which enforcement is guaranteed, can those rights truly flourish.

Thus, a combination of these three features – judicial cognisance of informal, “shadow-banning”, an articulation of the positive obligations upon the State to ensure that free expression is guaranteed notwithstanding threats from private parties, and remedial compensation should the State fail to discharge its obligations – ensure that this judgment can become the basis of a strong, rights-protective jurisprudence. Whether that happens, of course, depends on how future courts – especially the lower courts – implement it.

A final point of interest. In a paragraph dealing with the importance of satire to any system of free expression, Chandrachud J. observed that:

Satire is a literary genre where “topical issues” are “held up to scorn by means of ridicule or irony.”It is one of the most effective art forms revealing the absurdities, hypocrisies and contradictions in so much of life. It has the unique ability to quickly and clearly make a point and facilitate understanding in ways that other forms of communication and expression often do not. However, we cannot ignore that like all forms of speech and expression, satirical expression maybe restricted in accordance with the restrictions envisaged under Article 19(2) of the Constitution. For example, when satire targets society’s marginalized, it can have the power to confirm and strengthen people’s prejudices against the group in question, which only marginalizes and disenfranchises them more. (paragraph 13)

The last lines are particularly important, because they point towards the Canadian/South African constitutional model of understanding hate speech: recall that in Canada and South Africa, “hate speech” is asymmetrical, and is understood as expression that stigmatises or dehumanises a vulnerable class of people, in a manner that feeds into a wider climate of marginalisation and discrimination (for example, holocaust denial as a form of anti-semitic speech, or – closer home – caste slurs such as “chamar”). The regulation of hate speech, thus, is inextricably bound up with the constitutional value of equality (expressed in that old injunction to satirists and critics, “punch up, not down“).

In India, that model is yet to catch hold; while the Court hinted at that in 2014, for the most part, the dominant understanding remains that of hurt sentiments and wounded feelings – an approach that, for obvious reasons, is constitutionally unsustainable. And so, while the observations in today’s judgment are fleeting, they do constitute an invitation to a future bench, dealing with an appropriate case, to make them a part of the law.

We can hope that some day, that invitation will be taken up.

 

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

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

(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.

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

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

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

Privacy as a Horizontal Right

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

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

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

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

Privacy and Free Speech

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

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

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

And:

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

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

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

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

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

The Court then noted:

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

And then:

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

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

 

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.

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

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

The Constitutional Provisions

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

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

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

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

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

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

The Court’s Analysis

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

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

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

And, with respect to Section 33:

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

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

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

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

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

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

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

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

Additionally:

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

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

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

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

Comparisons with India

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

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

 

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.