Intermediary Guidelines and the Digital Public Sphere: Tracing first originators

The previous post (here) set out how social media companies are key facilitators of public discourse, and structure the digital public sphere. The Intermediary Guidelines distinguish between ordinary intermediaries and ‘Significant Social Media Intermediaries’ (“SSMIs”) and Rule 4 sets out “due diligence” obligations that SSMIs must satisfy to avail of legal immunity for content shared on their platforms. In other words, a violation of Rule 4 of the Intermediary Guidelines does not itself impose liability on SSMIs, but it exposes them to a significant risk of liability given the large volumes of content being transacted on their platforms.

This post examines the requirement that SSMIs providing messaging services identify the “first originator” of specific content on their platforms pursuant to judicial or government orders. I begin by setting out the content of the requirement. Next, I briefly examine the role of secure communications and anonymity under the Indian Constitution. I then set out the technical proposals as to how a first originator may be identified and finally evaluate whether Rule 4(2) would survive constitutional scrutiny.

The ‘Traceability’ Requirement

Rule 4(2) obligates SSMIs that are “providing services in the nature of messaging” (think WhatsApp, Signal, Telegram, and iMessage) to “enable the identification of the first originator of the information on its computer resource”. SSMIs are required to comply with this obligation in two situations;

(1) where a judicial order is passed; or

(2) where an order is passed under Section 69 of the IT Act and the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009 (“IT Decryption Rules”).

The IT Act defines an “originator” as anybody who generates, transmits, or stores content. The effect of the rule is to enable the identification of the first user profile on a computer resource to generate, transmit or store a specific piece of information. While Rule 4(2) postulates a judicial order ordering identification, it does not mandate it. Orders under Section 69 are passed by senior civil servants, so there is no meaningful check on executive power. Further, the Union Government insists this is a measure to fight illegal content that has widespread reach; however, Rule 4(2) itself contains no threshold for ‘virality’ and could in principle apply to any content that was shared more than once. If there is more than one “originator”, there is de-facto a “first originator”

Rule 4(2) includes three safeguards and creates one legal presumption. First, an identification order may only be passed for the purposes of “prevention, detection, investigation, prosecution or punishment” of offences “related to” the sovereignty, integrity, or security of India, friendly relations with foreign states, public order, or the incitement of offences relating to any of these headings but also rape, sexually explicit material, or child sexual abuse. Second, an identification order cannot be passed where a less intrusive means to identify the first originator exists. Third, no SSMI is required to disclose the “contents of any electronic message or any other information related to the first originator, or any information related to its other users

Finally, Rule 4(2) also states that if the first originator of content on the messaging platform is located outside India, the first originator within India (i.e., the first person who generates, stores, or transmits the content in India) “shall be deemed” to be the first originator with respect to that content.

Privacy and Proportionality in India

In the last post we examined how social media companies constitute the digital public sphere. This is borne out empirically in the case of messaging platforms as well. In a recent study conducted by the Reuters Institute and the University of Oxford, 52% of Indian respondents reported getting their news via WhatsApp. 60% clicked on news links, 46% posted or shared news on the platform, and 39% took part in group or private discussions. Messaging platforms facilitate public discourse and allow citizens to shape public opinion, perhaps best demonstrated by the high levels of political content on these platforms. Anonymity and security thus form crucial barriers against political speech being chilled.

Messaging platforms also allow individuals to share constitutionally protected but socially stigmatised views, ensuring individual autonomy and dignity. It allows people to securely discover and express themselves, and effectively organise with other citizens to create centres of countervailing power. As the former UNHRC Special Rapporteur noted, being protected from the public gaze may allow citizens to discover and share ideas they may otherwise be persecuted for. “The ability to search the web, develop ideas and communicate securely may be the only way in which many can explore basic aspects of identity, such as one’s gender, religion, ethnicity, national origin or sexuality.” However, the security provided by privacy is especially fragile. Courts have recognised that where even the threat of surveillance exists without a remedy, there exists an interference with a citizen’s privacy.

Almost two decades ago, the Supreme Court in PUCL recognised that Indians have a constitutionally guaranteed right to communicate privately. In Puttaswamy,the Court articulated a vision of privacy grounded in individual autonomy that interacted and enabled the enjoyment of other rights guaranteed by the Constitution, most notably the right to freely and privately hold and express opinions, and associate with other citizens (¶412). In other words, privacy forms a necessary foundation to the enjoyment of the rights and privileges guaranteed by the Constitution. The Indian Constitution thus guarantees private and secure communications to both protect individual autonomy and facilitate democratic self-governance.   

Any infringement on a citizen’s right to communicate privately must therefore satisfy the test of proportionality: (1) the infringing measure must pursue a legitimate state aim; (2) the measure must substantially further the state aim; (3) the measure must be the least restrictive option amongst equally effective alternatives; and (4) the measure must not have a disproportionate impact on rights holders.

Rulemaking power

Before we examine the issue of privacy and encrypted messages, there exist a preliminary issue of the very power to frame such a rule. The prefatory text to the Intermediary Guidelines notes that the Guidelines are issued under the powers granted to the Union Government by Sections 87(2)(z) and 87(2)(zg) of the IT Act. The former grants the Union Government power to frame web-site blocking rules and the latter grants power to frame rules to regulate the immunity granted to intermediaries. In short, neither of the sub-clauses relate to monitoring or tracing content on computer networks. The government may argue that Rule 4(2) forms legitimate regulation of intermediary immunity, but this is belied by the fact that the IT Act itself grants the government to monitor and decrypt content in a separate and independent provision, namely Section 69. Section 69 has its own rule-making provision, Section 87(2)(y), and the government has already framed the IT Decryption Rules under this section.   

Operationalising ‘Traceability’

There exists a gap between Rule 4(2) mandating SSMIs to identify the first originator and the platforms being able to do so – and this is because all major messaging platforms such as WhatsApp, iMessage, and Signal are end-to-end encrypted. This means even if the messages on these platforms were monitored or intercepted, the messages would first need to be decrypted using a decryption key for their contents to be read. It is important to understand that the decryption key is stored on the user’s devices and not with platforms, so WhatsApp could not reveal the contents of messages even if it wanted to do so to comply with Rule 4(2). Further, the decryption key is unique between users, and changes over time. So even if a decryption key were acquired, it would reveal the contents of one chat for the limited period that the specific decryption key was used.

Understanding this, the impossibility of the task demanded of SSMIs comes into picture. How does a messaging platform trace a piece of content across thousands, potentially millions of chats (none of which it possesses decryption keys for) to locate the first originator? This tension is borne out in the IT Decryption Rules drafted in 2009. The Rules define “decryption assistance” as “allow access, to the extent possible, to encrypted information”. This is further buttressed by Rule 13(3) of the IT Decryption Rules, which states that “Any direction of decryption of information issued under rule 3 to intermediary shall be limited to the extent the information is encrypted by the intermediary or the intermediary has control over the decryption key.”      

Given that Rule 4(2) of the Intermediary Guidelines expressly states that an order to identify a first originator shall be “as per” the IT Decryption Rules, it may plausibly be argued that an identification order under Rule 4(2) would simply not apply to a platform which does not possess the decryption key. In fact, Facebook has expressly contended that a ‘best efforts’ obligation to assist the government does not contemplate a platform radically modifying its platform to allow the government to trace originators. However, while the Union Government states that it does not want to break end-to-end encryption, it has insisted that platforms are obligated to modify their functionality to enable tracing first originators.

There have been two prominent proposals on how traceability may be achieved without breaking end-to-end encryption. The first proposal was mooted by one Professor Kamakoti and is discussed in Aditi Agrawal’s piece (here). More recently however, anonymous officials from the Ministry of Electronics and IT have argued that a “hash constant” may be used to identify originators.

Hashes

The idea of a hash is to assign every distinct message a unique hash identifier. Briefly, if User P sends the message “I plan to undermine the Indian Government” to User Q, the message is assigned a hash identifier, for simplicity say the identifier is ‘52’. User Q now forwards the message to Users R, S, and T, who go on to send it to hundreds or thousands more until it reaches User M who believes the message to be illegal. Now, an investigative agency can ask the platform to run a search against all messages having the identifier 52, to find when it first appeared – with User P.

In her piece, Aditi notes that this may not work as platforms generate hashes based on: (1) the contents of the messages; and (2) the keys between users, which are constantly changing. Therefore, the message between User P and User R will have a different hash from the same message sent from User P to User T. This means that any one hash would be of limited value as it would disclose identical messages, between two users, sent when a specific decryption key was in use. All other identical messages would have different hashes.

Ironically, if this is not the case, the consequences are far grimmer. Because hashing ties an identifiable value to the contentsof a message (e.g., 52=I plan to undermine the Indian Government), the platform, and consequently the government, could know every user on the platform who has that message on their phone. This is contrary to Rule 4(2) itself, which states that SSMIs shall not be required to disclose the contentsof the message or any information related to other users. (Sidebar | it is entirely conceivable that over time the government shifts from searching for hashes that equal “I plan to undermine the Indian State” to hashes that equal “I don’t like the Indian Government.”)

Constitutional scrutiny

The proportionality test is a cumulative one, and for the sake of brevity I only highlight the most striking issues with Rule 4(2). First, the State bears the onus of demonstrating that the measure (tracing first originators) furthers its stated aims (preventing the incitement of offences against the integrity of India, sexually explicit material etc.). The law recognises that nearly any measure may potentially be useful or desirable for governments to achieve the cessation of crime and ideally, requires that the State demonstrate the measure in question is “necessary” to achieve its stated aims.

Why first originators?

It is unclear how tracing the first originator assists the State in achieving its aims. We cannot assume that the first originator createdthe content. This logic is defeated as Rule 4(2) cannot cover cross-posting; a twitter user could create and upload a video that is subsequently downloaded and shared on WhatsApp – the first originator is not the creator. Rule 4(2) itself rejects the creation rationale by acknowledging that content may be created outside India but sent to India – creating a ‘first receiver’ of sorts. Now if we were to argue that this ‘first receiver’ is facilitating the spread of the illegal content in India, how do we justify overlooking other originators for domestically sourced content? Imagine I send “illegal” content to User X, who forwards it to a group with several thousand users – who is facilitating the spread of illegal content and whom should the law be more focussed on identifying, and how should liability be apportioned between User X and me?   

Further, as Nandan Kamat noted, secondary liability for repeating and disseminating speech varies depending on the offence (public order, defamation, etc.) In some regimes, each re-publication (forward) constitutes a wholly new publication while in other cases liability for repeating content is minimal. The level of due diligence a speaker exercises before sharing content varies widely based on the content and the platform. Context is also crucial. Imagine illegal content is circulating on Platform A and Platform B. On Platform A, the content is being used to incite violence but on Platform B the content is being used to generate counter-speech against violence. As Rule 4(2) states that the contents of the messages cannot be disclosed, how do we differentiate between the originator on the two platforms? The first originator on Platform B may provide context by displaying the contents of her messages, but she should not have to, she should not even be implicated in a criminal proceeding for making constitutionally protected speech. All in all, Rule 4(2) is a blunt instrument most likely to limit the spread of both legal and illegal content by creating a massive chilling effect on users.

Are first originators the first?

Another major issue is that there is a distinction between proving that content first originated from a particular device or user profile and proving that the person who owns the device sent the content. The possibilities for manipulation are endless, ranging from virtual sim-cars linked to foreign numbers that are sold on all major app-stores for as little as ₹100 to picking up somebody’s phone or acquiring remote access privileges. This manipulability and arbitrariness are aggravated by the fact that Rule 4(2) is limited to a single SSMI’s platform (excluding cross platform posting) and the geographic restrictions.

Imagine a piece of “illegal” content is widely circulating on WhatApp (or even better, a smaller messaging service falling below the threshold of an SSMI). User X using a virtual (foreign) sim cross posts it to Telegram by sending it to his mother, and then uses her phone to forward it back to User X’s Indian Telegram. User X now forwards it to a Telegram group with 5,000 users. User X’s mother is the first originator. Therefore, how far the identity of the ‘first originators’ user profile or device can aid in criminal prosecution or curbing misinformation is highly questionable.

Alternative measures

The State must also demonstrate that tracing the first originator is the least intrusive method of achieving its aim among effective alternatives. While there seems to exist some uncertainty within the Union Government how the identification of first originators will be operationalised, the present proposals are particularly intrusive and risk the privacy of other users. An order under the IT Decryption Rules does not require judicial authorisation, and no remedy is provided to users. Because the government itself is a substantial actor on messaging platforms, the necessary independence of identification orders has not been secured. While Rule 4(2) prohibits an identification order from being passed where less intrusive measures exist, there exists no legal structure to guarantee or even scrutinise an incompetent or mala fide claim by an investigative agency that this is actually the case. Further, if hashing were to be employed, basic safeguards such as data retention and expiry are not in place – how long can a hash identifier associated with content be active?

This leaves the Government with a high burden to demonstrate that Rule 4(2) achieves something other measures simply cannot. This is undermined by the fact that mobile platforms already provide the Government a host of ‘basic subscriber data’ allowing the Government to trace users. For example, under the Criminal Procedure Code the Government already requests platforms to provide users’ phone numbers, names, device info, app version, start and end times, last connection, IP and email addressed and web-client data. The Government also has other legal powers such as wiretapping, geo-location, and physical surveillance of suspects. Further, the Government can also use human intelligence to infiltrate and track users on messaging platforms, as reporters have done to investigate the organised spread of misinformation. In summary, the Government has a host of alternative investigative tools while citizens rely almost exclusively on encryption to protect their communications.          

Conclusion

Encrypted communications are a thorny issue world over and law enforcement agencies are lobbying hard to access user messages. But given the importance of encrypted messaging to the autonomy and dignity of citizens, and its centrality to shaping public discourse in India, any restrictions must be strictly scrutinised from the lenses of the rule of law and due process to address the power imbalances that exist between citizens and the State. How Rule 4(2) will be operationalised will have a substantial bearing on its legality. However, as it stands today, the identification of first originators requires weakening the privacy of millions of Indian users to ineptly trace a few potentially bad actors; actors that we are unclear whether we should, or how we will, ultimately hold guilty.    

Intermediary Guidelines and the Digital Public Sphere: Automated Filtering

In a previous post (here), I had argued that focusing on intermediary liability to regulate social media companies would likely weaken free speech and further entrench the power of large technology companies. However, with the adoption of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”), the government has adopted a liability centred approach – so let us take stock.

As the name suggests, the Intermediary Guidelines traverse well beyond the regulation of online intermediaries and raise several issues as discussed by the IFF (here and here) and the SFLC (here). The Guidelines are currently subject to a comprehensive legal challenge before the High Court of Kerala. At their core, the Guidelines change the obligations imposed on online intermediaries in ways that may fundamentally alter the public sphere. This post focusses on the obligation of social media companies to use ‘automated filtering mechanisms’ to weed out ‘illegal’ content.      

The Context

Content on the internet typically concerns three parties: (1) ‘content originators’ who post or share content; (2) online intermediaries who provide a platform for users to share content on; and (3) ‘content recipients’ who view the content posted by content originators. Conceptually, it is important to distinguish between websites that post their own content (a news organisations website), and online intermediaries that merely provide a platform (WordPress, which allows bloggers and readers to interact but has nothing to do with the content of individual blogs). When (inevitably) the material posted by a content originator violates the law, it raises the question of whether the online intermediary should be held secondarily liable for its role in spreading the illegal content.

Section 79(1) of the IT Act states that an online intermediary shall not be liable for this facilitative role. This ensures that intermediaries do not have to scrutinise each user post for potential illegality/liability that may be foisted on them, ensuring the free flow of user content on platforms such as Facebook and Twitter. However, given the wide reach of the internet, governments also typically want intermediaries to act as gatekeepers against some of the worst forms of content. As a result, in India, the immunity offered to intermediaries by Section 79(1) requires intermediaries to satisfy certain obligations. Crucially, under Section 79(2)(c), online intermediary must “observe due diligence”. This is where the Intermediary Guidelines become relevant, as Rules 3 and 4 of the Guidelines prescribe the ‘due diligence’ obligations of online intermediaries. In other words, if intermediaries want to avail of the legal immunity for any illegal content on their platforms, they must satisfy the conditions of Rule 3 and 4 of the Intermediary Guidelines.   

Scheme of the Guidelines

Rules 3 and 4 of the Intermediary Guidelines impose a system of differentiated obligations for ordinary online intermediaries and ‘Significant Social Media Intermediaries’ (“SSMIs”). As expected, the latter have significantly more onerous responsibilities to fulfill to avail of legal immunity. While this post focuses solely on SSMIs, it is worth spending a moment on this distinction. The Guidelines define an SSMI as an intermediary which: (i) has more “registered users in India” than a limit set by the Union Government; and (ii) primarily or solely enables online interactions between users and allows them to access, upload, and share content. The Union Government has since stated that the threshold for an SSMI is 5,000,000 “registered users in India”.

As a practical issue, it is unclear exactly how “registered users in India” will be calculated. Geographic locations are easily spoofed on the internet and the requirement is bound to create a few borderline cases involving some arithmetic gymnastics to avoid being classified as a SSMI. To add to this, platforms such as Signal and Telegram do not release country specific userbase data.

Taking a step back, it is also worth examining the trend to impose additional monitoring and filtering responsibilities on large social media companies. The increased burden on SSMIs to moderate their platforms is a tacit admission that these platforms form the bedrock of public discourse or a ‘digital public sphere’. In addition to cat videos, these platforms facilitate communication between citizens and the political centre of self-governance. Thus, these platforms aid democratic legitimating by allowing citizens to participate and shape public opinion. Suspending a citizen’s social media account is the modern-day equivalent of gagging them at a town hall. Simply put, SSMIs perform a very public function in our democracy and thus their regulation must balance the government interests in preventing harm in the public sphere (e.g., defamatory, or presumptively illegal content), with the free expression rights of internet users (included here is the right to access/receive information).  

Proactive Filtering Requirement

Rule 4 sets out the “due diligence” obligations of SSMIs. Rule 4(4) states that an SSMI:

shall endeavour to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary under clause (d) of sub-rule (1) of rule 3, and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this sub-rule.

The obligation in Rule 4(4) thus creates a best efforts obligation on SSMIs to utilise automated tools to proactively identify two classes of content. First, content that explicitly or implicitly depicts rape or child sexual abuse, and second, content that is exactly identical to content that has been taken down pursuant to Rule 3(1)(d). Under Rule 3(1)(d), content may be taken down pursuant to a court order or a government order (as noted here, there are virtually no limits on what the government may block). Although the provision does not expressly require an intermediary to block access to a page identified as hosting such content, absent a clear government clarification that users will still be permitted to view the flagged content, we may presume that the intermediary’s notice flagging the content will replace the web-page’s actual content – effectively blocking the content. (Sidebar | As takedowns under court or government orders themselves are haphazard and regularly not disclosed to the public, it is unclear what “categories” the user-facing notice will use, drastically reducing its usefulness as a transparency aid.)

Overcompliance and Monitoring

Rule 4(4) provides intermediaries a choice, they must either monitor their platforms for select types of illegal content and replace it with red-flag, or alternatively, they can forgo the legal immunity offered by Section 79(1) and risk being held secondarily liable for facilitating the spread of illegal content. Despite the musings of certain commentators, the impact of giving intermediaries such a choice should be obvious. As Jack Balkin notes, this approach ‘raises problems of collateral censorship and digital prior restraint.’ In other words, conditioning legal immunity on the effectiveness of a platform’s monitoring and takedown of illegal content is bound to make platforms overly cautious. They are likely to takedown content that could potentially be illegal but may not necessarily be so if adjudicated upon. As Balkin notes, this phenomenon is inherent to systems of intermediary liability as intermediaries have no incentives to protect the speech of unknown third-party users over their own coffers.

The result is that intermediaries may restrict a user’s post purely to avail the legal immunity provided by Section 79(1) – because they do not want to take the risk that if the post is later found to be illegal and they had failed to take it down, they could be held liable for disseminating it. Crucially, an intermediary may takedown/block speech that a user could tenably claim is constitutionally protected speech, but the user’s claim does not sufficiently alter the risk calculus of the intermediary, which operates under the outsized threat of liability. This problem is aggravated by the oddity that users do not have free speech rights vis-à-vis online platforms (private companies) yet these platforms undeniably constitute part of the digital public sphere.

To avoid this very problem, the European Union expressly prohibits imposing a ‘general monitoring obligation’ on intermediaries to weed out illegal activity on their platforms (see Art. 15 E-Commerce Directive). In the context of requiring intermediaries to weed out copyright infringing material from their platforms, the European Court of Justice ruled as far back as 2012 that a general monitoring obligation was incompatible with the free speech rights of users as it may lead to legal content being caught in the dragnet of a web-filter. The court held that a general monitoring obligation exists where intermediaries had to install filters that: (i) were targeted at user content; (ii) applied indiscriminately to all users; (iii) were installed as a preventive measure; (iv) at the sole expense of the intermediary; and (v) for an unlimited period of time. Needless to say, Rule 4(4) ticks all the boxes of an unlawful general monitoring obligation.

Using Automated Filters

The use of automated systems is not new. Most large social media platforms already voluntarily use a host of automated tools to filter content. However, these are by no means perfect. Between Facebook’s takedown of iconic war photography, to Twitter’s suspension of an Indian lawyer’s account over the use of August Landmesser’s photo defying the Nazi salute – the mistakes of automated systems are well documented. Put simply, at their present state of development, automated systems are poor at evaluating cultural context, irony, or the critical analysis necessary to discern between illegal and legal content. Now consider the types of content Rule 4(4) requires such automated tools to block, ‘explicit or implicit depictions of rape and child sexual abuse’. Automated systems are unlikely to accurately determine the various layers of nuance associated with such content which may range from actual footage of child sex abuse to a critical commentary on sexual violence.

This issue is exponentially aggravated when the second target for automated filters is considered. Content may be taken down under Rule 3(1)(d) for a host of legal and legal but unconstitutional reasons. A court may pass an order to takedown defamatory content under Rule 3(1)(d). The Government may also pass an overbroad order blocking large swathes of content under Rule 3(1)(d). The effect is to create an ever-growing database of illegal content (infinitely more complex than even depictions of rape or child sex abuse) that automated systems must continually weed out. Furthermore, under Rule 3(1)(d) specific URLs are restricted. If an automated system is unable to discern exactly what content on that web-page was illegal, there exists a significant chance of collateral censorship as all content on that originally blocked page may be flagged as illegal and automatically blocked going forward. Finally, there are no safeguards to ensure that once content is no longer restricted under Rule 3(1)(b) (if a court modifies or the government withdraws an order), automated systems are immediately turned off.

Although Rule 4(4) uses the term “proactively”, it is unclear whether SSMI’s will be obligated to restrict content prior to publication even. A filtering system that restricts content prior to publication fundamentally privileges the interests in favour of restraining speech. In other words, it treats all speech identified by the filter as presumptively illegal, contrary to settled free speech doctrine. Lastly, even if the content is published, a user must be given the right to contest the application of the filter before it is taken down. While Rule 4(8) of the Intermediary Guidelines does postulate an ex-ante dispute resolution mechanism, it does not apply to content taken down pursuant to the automatic filtering under Rule 4(4). This is amplified when the relevance of the content is time sensitive, and no content-recipient has been identifiably injured. Famously, in Shreya Singhal, the Supreme Court struck down a requirement that intermediaries takedown content at the behest of a private complaint absent judicial adjudication. Where this leaves a requirement that intermediaries takedown content even prior to a private complaint will have to be seen.

Privacy

The use of automated filters also raises issues surrounding user privacy. Imposing a general monitoring obligation on intermediaries to constantly weed out “illegal” content requires them to conduct an ongoing analysis on all user content posted on their platforms. This exercise is likely to lead to a large dataset that links user profiles to any “illegal” content posted by them. Consider a user profile which repeatedly posted content that violated a ‘depictions of rape’ filter or ‘farmer protests’ filter – the intermediary would be in possession of this information which may: (i) be requisitioned by the government; or (ii) be hacked or leaked and made available to the public devoid of any context.

Parchment Barriers

The Union Government is not unaware of these harms, and Rule 4(4) includes three safeguards aimed at preventing these issues. First, the measures taken by intermediaries must be “proportionate” and must consider the ‘interests of free speech and privacy of users.’ Second, intermediaries shall implement “mechanisms of human oversight … including a periodic review of any automated tools deployed”. Lastly, the intermediary “shall evaluate the automated tools having regard to the accuracy and fairness of such tools, the propensity for bias and discrimination in such tools, and the impact on privacy”.

On paper, these are excellent considerations to have when deciding whether to use automated filtering. However, as regulatory text, it lacks the necessary specificity or enforceability to reign in the dangers of automated systems. None of the three safeguards provide any indication as to when an intermediary is in breach of them. How much oversight and review are necessary to maintain immunity? What is the level of efficacy the automated systems must achieve and what is a tolerable error rate? What forms of data collection for the purposes of such systems are impermissible? Additionally, the Guidelines and the IT Act fail to provide any form of regulatory oversight. There is no dedicated body to police these incredibly complicated systems being unleashed on Indian users, meaning that in the real world – compliance will be almost impossible to ensure on an ongoing basis.

Automated systems are not unregulatable. There exist several real world proposals on how to monitor such systems such as vetting the source code, black boxes, and perhaps most promisingly – ‘tinkering’. This involves systematically testing how such filters respond to sample content on an ongoing basis. However, such solutions require a regulatory framework and committed agencies. The safeguards set out in Rule 4(4) are more akin to parchment barriers – laudable on paper but easily circumventable by both intermediaries and the government in practice.

The so-called safeguards also raise the spectre of a more sinister threat that is now well-established in India’s legal system: that of ‘discriminatory legalism’. Simply put, the legal uncertainty and lack of a dedicated and independent agency to oversee SSMI filtering opens the door for the government to selectively prosecute SSMIs for either violating the filtering obligation or violating the safeguards. For example, if the SSMI does not takedown content unfavourable to the ruling party, a violation of the web-filtering may be alleged, and if the SSMI takes down content favourable to the ruling party, a violation of the safeguards may be alleged.  

Conclusion

This is the first post of a series examining the impact of the new Intermediary Guidelines on the digital public sphere in India. Requiring SSMIs to take an increased role in content moderation of public discourse is not an unreasonable demand. The deregulatory atmosphere in which online intermediaries emerged means that private companies now perform the core democratic function of facilitating public discourse and regulation must recognise this. The large volume of content on these platforms also means that the use of automated filters is inevitable.

However, this set of posts critically examines whether the form of regulation adopted by the Intermediary Guidelines is the best way of ensuring a vibrant digital public sphere. Making intermediaries’ legal immunity conditional on them ceaselessly monitoring content fundamentally alters their risk calculus towards content takedown. The lack of well-conceived regulatory framework to address the risks of automated filtering by social media companies leaves Indian citizens more at the mercy of large tech companies and government interference than ever. A diametrically opposite, but equally feasible approach suggested by Martin Husovec is to fine intermediaries for over-zealously taking down content. This incentivises intermediaries to invest in improving their content removal systems, as opposed to India’s approach which, at best, allows the social cost of lost speech to go unaddressed – and at worst, incentivises intermediaries to takedown more content than ever.

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.