“Fake News” and the Constitution

As millions of migrant workers made their way from India’s cities back to their villages after the government announced a nation-wide ‘lockdown’, the Solicitor General of India informed the Supreme Court that the exodus was caused by “some fake/misleading news and social media” and sought a direction to prevent “fake and inaccurate reporting” (here). In Maharashtra, an order was passed under Section 144 of the Code of Criminal Procedure prohibiting the dissemination of information on social media that was ‘incorrect or distorted facts’ (here). And Kashmir’s new ‘Media Policy – 2020’ states that “Any fake news or any news inciting hatred or disturbing communal harmony shall be proceeded against under IPC/Cyber Laws” (here).

Phrases such as “incitement” and even “disturbing communal harmony” have a long and well-documented use in Indian law (for better or for worse). However, the above narrated incidents demonstrate a recent trend by the Indian government to try and restrict speech on the ground that it constitutes “fake news” (I use speech in the broadest possible term to include the press, broadcasting and online media). India is not alone, countries such as Singapore and Indonesia have introduced full-blown legislation to restrict “fake news”. In this post, I begin by noting that the term “fake news” suffers from several definitional hurdles that point to deeper structural problems in our media eco-system. I argue that there are several very good reasons why we may want to restrict some forms of misinformation. However, any restriction imposed on speech must comply with the constitutional safeguards set out in Articles 19(1)(a) and 19(2). Examining “fake news” restrictions against the concepts of vagueness, overbreadth and a disproportionate chilling effect, I argue that restrictions on “fake new” that are narrowly tailored enough to be constitutionally compliant are unlikely to be effective in combatting the social harms we associate with “fake news”. I conclude by advocating a heterogeneous approach to combat the issue of “fake news”.

A few caveats. First, because India does not yet have a “fake news” legislation, my analysis is necessarily in the abstract (even the Kashmir policy ultimately relies on provisions of the Indian Penal Code for prosecution). This post seeks to evaluate the consequences of restricting “fake news” as a category of speech and I accept that any restrictions imposed by the government may be more nuanced than a blanket restriction on “fake news” (although the signs are not promising). Second, there is a separate but cognate conversation to be had about the role of internet intermediaries in facilitating and restricting “fake news” that is worthy of a separate post and I have not addressed the issue here for the sake of brevity.

Protected Speech and its Limits

Before beginning it pays to recap a few important aspects of free speech regulation in India. While Article 19(1)(a) guarantees citizens the freedom of speech, Article 19(2) allows for “reasonable restrictions” in the interests of inter alia: (i) the sovereignty/integrity of India; (ii) the security of the State; (iii) public order; (iv) decency or morality; (v) defamation; or (vi) incitement to an offence. As we can see, speech in India can be restricted because of its consequences, that it may lead to violence, but also because of the speech’s content – that the meaning conveyed is deemed legally objectionable. The State evidently has an interest in restricting speech that directly leads to violence. However, in the case of obscenity laws or defamation, speech is restricted because of value judgements by the State. Obscene speech does not lead to violence, but the State believes that it leads to an erosion of public morality.

Any restriction on speech must have a proximate connection with a specific head set out in Article 19(2). The government cannot restrict speech merely in the ‘public interest’, or because it is ‘false’, neither of which are heads under Article 19(2). Therefore, if the government wanted to restrict “fake news” it would need to prove that “fake news” either caused harm because of its content (defamation, decency or morality) or that it was inciteful leading to violent consequences (public order, incitement to an offence). Lastly, there is a long line of cases noting that the ‘proximate connection’ means a real and imminent risk of harm arising from the speech and not vague speculation about possible future harms.

Defining “Fake News”

“Fake news” is a term bandied about very loosely nowadays which has resulted in everybody thinking there is consensus about the phenomenon being referred to, but very little certainty as to what content is “fake news” and what content is not. The term has been applied to satire, propaganda, biased reporting, sponsored or promoted content, factually incorrect reporting, entirely fabricated stories, or simply inconvenient truths. The term does not clarify whether it applies to private communications (WhatsApp chats), social media (Facebook), online media (an online-only news organisation) or even traditional print media. In a post Donald Trump era, the term also necessarily carries a derogatory component that is often independent of an objective evaluation of the actual content (Habgood-Coote refers to this as an ‘epistemic slur’). The flip side of this issue is that there is very little certainty about who a “journalist” is today, with citizens receiving news from a wide variety of sources.

The term “fake news” therefore refers to a heterogeneous field of content, some of which have a diverse set of underlying problems. This becomes immediately apparent when we look at the words we used to use to describe this type of content before we began using the umbrella term “fake news”. Inaccurate, false, misleading, biased, sensationalist, propaganda and advertisement are just some of the words to describe what we now call “fake news”. Using an exact term to identify the issue with a piece of content allows us to create targeted and meaningful solutions. For example, the type of regulation needed to regulate factual inaccuracies in a newspaper article is very different from the type of regulation needed to ensure paid advertising can be distinguished from news stories. We need to stop using the umbrella term of “fake news” and begin accurately labelling the specific harms caused by the speech in question.

From a free speech perspective, it is important to note that the distinction between “fake” and “real” is a politically contested one. The more polarised a society, the less likely it is that different parts of a population experience the same political reality. This makes legally regulating the fake/real distinction problematic, as seen in Singapore where the government sent orders to Facebook to “correct” individual posts. The posts alleged that the Singaporean government had illegally influenced investment companies, suppressed whistle-blowers, and rigged elections (here). This is emblematic of how governments can use a restriction on “fake news” to restrict a broad range of criticism and plenty has been written about the Indian government’s efforts to reshape the narrative in Kashmir (here). At the end of the day, governments place a pre-eminent value on self-preservation coupled with a bias towards their own political ideologies, and the ability to determine what is “fake” and what is “real” goes a long way towards silencing opposing viewpoints and homogenising political thought.

That said, there exist more nuanced definitions of “fake news” and a blanket ban on “fake news” is unlikely. For example, the European Union (in non-binding documents) doesn’t use the term “fake news” at all, rather it defines “disinformation” as ‘verifiably false or misleading information which cumulatively is created, presented and disseminated for economic gain or to intentionally deceive the public and may cause public harm intended as threats to democratic, political and policymaking process as well as public goods’. By requiring an evaluation of the intent behind the creation of the information and a (rather soft) the requirement for actual harm the European definitions seems to be less of a burden on free speech. But this also means it is less effective at curbing the spread of misinformation. Users may spread disinformation legitimately believing it to be true, and how does one assess when a ‘policymaking’ process is harmed? It also does not regulate other harms we associate with “fake news” such as media bias. It is worth keeping these considerations in mind as we consider the harms arising from “fake news” or “disinformation”.

The Argument for Regulating “Fake News”

There are two primary reasons why a government may legitimately wish to regulate “fake news”. First, misinformation or fabricated stories may directly result in violence, either through information about specific individuals or more broadly stoking pre-existing fissures in society (e.g. race or religion). India has already witnessed a string of violent incidents that investigative authorities have noted were either caused by or aggravated due to the spread of disinformation. Second, disinformation can interfere with the electoral process by misinforming voters about candidates’ political opinions, track records, previous misdeeds, and positions on important social issues. An uninformed voter is unable to vote for a candidate that best represents their interests, directly undermining the legitimacy of the electoral process and the resultant government. To make matters worse, disinformation is likely to disproportionately effect voters who do not have access to multiple sources of information (the poor and marginalised).

As Ari Waldman notes, in the long run disinformation can fundamentally alter public discourse by creating false equivalencies, particularly where political leaders spread disinformation. If a factually incorrect statement by a political leader must be accorded equal weight as the truth in the name of journalistic neutrality, a society may waste valuable public time and energy debating false stories (e.g. see the amount of time the U.S. media spends merely correcting President Trump’s demonstrably false statements). Over time, sustained bias or propagandistic reporting can harden political bias, causing citizens to select media sources that merely confirm their existing notions of true or false, further increasing polarisation.

To be clear, traditional justifications for the freedom of speech such as Mill’s argument that more debate over ideas ultimately lead to the truth (culminating with Justice Holmes famous ‘marketplace of ideas’ analogy) are not strictly applicable to “fake news”. To argue that we should produce even more “true news” (counter-speech) rather than restrict “fake news” is problematic for two reasons. First, it doesn’t work and inaction can lead to the type of cyclical harms referred to above (a recent MIT study found that false stories diffused further and faster than true stories on Twitter in all categories of information  (here)– in other words, the truth does not rise to the top).

More fundamentally, Mill’s theory and subsequent adaptations are premised on having more ideas and counter-ideas, not facts and “counter-facts”. Facts and opinions are very distinct in their nature but also share an important relationship when it comes to free speech. While there may be an infinite number of ideas or opinions about a fact, a fact is singular and objective. For example, whether there are Chinese soldiers inside what India considers its territory is a question of fact. The soldiers are either there, or they are not. What India should about the Chinese soldiers and its own territorial claims is a question of opinion with many possible answers. However, it is also important to acknowledge that “factual truth informs political thought” – in other words people’s opinions have a factual basis. For people to have meaningful opinions about the world, and for those opinions to interact with each other in meaningful debate, there must be an agreed upon factual basis. It makes sense not to restrict ideas and opinions because they open new avenues of thinking, however an agreed upon baseline of facts is fundamental to an informed debate about ideas. Returning to our example, how can we debate whether the government’s foreign policy was a success if we do not know whether the Chinese soldiers were in Indian territory or not? Therefore, a freedom of speech justification created to ensure free debate may actually favour some restrictions on “fake news” by ensuring a common baseline of facts.

Legally Restricting “Fake News”

Recall that under the constitutional scheme, all speech is free other than that which the government restricts because it is has a proximate nexus with the specific harms identified by the heads of Article 19(2) (public order, defamation etc.). Although the Indian Supreme Court has never explicitly dealt with the question of whether factually false statements are protected under the Constitution (the U.S. Supreme Court in Alvarez explicitly held such statements to be protected under the U.S. Constitution) factual inaccuracy is not a ground to restrict free speech under Article 19(2). Therefore, it is reasonable to assume that if the government wanted to restrict speech it classified as “fake news”, it would have to argue that the speech was either defamatory, would lead to a breach of public order, or amounted to an incitement to an offence. What amounts to a valid restriction under these heads of 19(2) have been widely discussed elsewhere on this blog and I do not intend to rehash them. Rather I argue that restrictions on “fake news” are likely to fall foul of two principles: (i) vagueness, (ii) overbreadth leading to a disproportionate chilling effect on speech.

Vagueness: A law is unconstitutionally vague if ordinary citizens cannot determine whether they have broken it or not. Imagine a law which restricted citizens from “honking too much” at traffic signals. How does a citizen determine how much is “too much”? The law does not provide a fair warning to citizens as to whether their actions will break the law or not. Vague laws also grant officials a large amount of discretion as to when a law has been breached or not (would you trust a police-officer to tell you when you are honking too much?).

Restricting speech on the ground that it is “fake news” would likely lead to widespread confusion about what kind of speech the government was restricting. Recall the broad range of content that comes under the banner of “fake news” – from satire to inaccurate reporting to fabricated stories. More nuanced definitions (such as that proposed by the European Union) may remedy this issue but are still unwieldy. The line between advocacy and deception is often imperceptible, with compelling arguments often cherry-picking or manipulating facts. Further, terms such as ‘threats to the democratic, political and policymaking process’ are so wide that they substantially increase the risk of the government selectively prosecuting speakers with unfavourable opinions. Kashmir is a living example of where free speech has been left entirely to the whims of the executive, and it has led to the denial of internet services, the arbitrary blocking of websites, and the persecution of journalists.

Overbreadth: A restriction on speech is “overbroad” when it restricts both the speech that the government can legally restrict (e.g. hate speech) but also goes on to restrict speech other speech that is constitutionally protected (e.g. dissent). In Shreya Singhal, the Supreme Court was called to adjudicate upon the constitutionality of Section 66A of the Information Technology Act, which criminalised speech that was “grossly offensive”. The court noted that any citizen may advocate a view on governmental, literary, or scientific issues that may be unpalatable or even “grossly offensive” to other citizens. While some speech may be justifiably restricted, not all speech that was “grossly offensive” rose to the level where there was an imminent risk to public order or incitement. This meant that, by using the term “grossly offensive” Section 66A also ultimately criminalised constitutionally protected speech. The court observed:

Section 66-A purports to authorise the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action […] It must therefore, be held to be wholly unconstitutional and void.”

The term “grossly offensive” was so broad that it restricted some speech justifiably, but also other speech unjustifiably. In Shreya Singhal the court distinguished between discussion, advocacy, and incitement. It held that the first two formed the heart of constitutionally protected speech while inciteful speech may be legally restricted. Simply put, restrictions on speech that restrict inciteful speech and are broad enough to go on and restrict discussion and advocacy are unconstitutional.

If the government were to restrict “fake news” (a very broad category of speech), it would also likely restrict a vast amount of constitutionally protected discussion and advocacy. At its bluntest, satire, parody, and anti-government reporting could fall under the ambit of “fake news”. More critically, a restriction on “fake news” would create the risk of liability for journalists and media houses, that a single inaccurate factual assertion could lead to censorship or punitive action. For example, Kashmir’s new ‘Media Policy’ flat out dis-empanels journalists for publishing “fake news”. A news-report that exposed governmental overreach but contained a minor factual error or irregularity could be termed “fake news”, robbing readers of valuable information and robbing journalists of their livelihood.

Where restrictions on speech are vague, overbroad, and punitive, they create a chilling effect on speakers. Content creators, journalists, publishers, media houses and ordinary citizen are likely to ‘err on the side of caution’ and simply not speak rather than run the risk of their speech being adjudged as a crime. To avoid this chilling effect, the law of defamation incorporates what is known as the “actual malice” standard. It states that unless a speaker’s statement evidences ‘actual malice or a reckless disregard for the truth’, the statement cannot be considered defamatory. The logic is simple, with the vast amount of free-flowing debate in society a few inaccuracies are bound to crop up. Rather than aggressively prosecute these minor inaccuracies and frighten all other speakers, the law states that where these inaccuracies do not possess any ‘actual malice’ they are exempt from prosecution. In Rajagopal the Indian Supreme Court adopted the ‘actual malice’ standard in civil defamation cases and recently, the Madras High Court has adopted the standard in the context of criminal defamation (here). Defamation requires an alleged injury to reputation, something not all “fake news” is likely to cause. However, the rationale that minor inaccuracies should not lead to punitive action which has a chilling effect on speech should certainly apply, and any restrictions on “fake news” should incorporate the ‘actual malice’ standard.

The Government and the Truth

One last point may be made before concluding. In Alvarez, the U.S. Supreme Court struck down a statute which punished persons for falsely claiming to have been awarded military medals. In striking down the law, the court noted that that it was wary of the government claiming ‘broad censorial power to regulate falsehoods’, the mere existence of which would have a chilling effect on speech. To be clear, the government does regulate falsehoods in certain cases, most notably in the areas of defamation, consumer protection and fraud, and perjury. This is accepted because, the restrictions on speech are limited to the contexts where they are especially likely to cause harm and are actionable only where they cause actual harm to identifiable individuals. A restriction on “fake news” is much broader. A good news eco-system is more akin to a public good like a clean environment and “fake news” often attacks issues more than people – where it does attack people, the remedy of defamation is always open. Similarly, where the “fake news” is inciteful and capable of causing violence, India already possess a host of anachronistic laws that can be used to restrict and prosecute speech capable of causing violence. Without this proximate connection to real threats, regulating “fake news” creates the spectre of a government truth, something any democracy should be wary off.

Conclusion

The phenomenon often branded as “fake news” can lead to a diverse set of harms ranging from violence, damage to the electoral system and increased political polarisation. However, when examined in light of India’s freedom of speech jurisprudence, restricting “fake news” is constitutionally fraught. Above all, it is important to remember that the government cannot restrict speech merely because it is “false” or “inaccurate”. Briefly, any restriction on “fake news” would need to (i) show some real, imminent and identifiable harm; (ii) the harm would need to be a constitutionally recognised ground to restrict free speech under Article 19(2); (iii) consider questions of medium, time and impact of the “fake news”; (iv) incorporate the ‘actual malice’ standard; and (vi) be the least restrictive measure at the government’s disposal. This is not to say that it is impossible to draft legislation regulating “fake new” (several countries have already done it). There may be real value in pursuing narrow restrictions to reduce the effects of active disinformation campaigns during especially sensitive times (e.g. the run-up to elections). However, the phenomena of “fake news” rarely appears in such convenient forms and speech restrictions that are constitutionally compliant are unlikely to address the other diverse and systemic harms that “fake news” causes.

I began by noting that “fake news” is an amalgam term that houses several underlying issues we associate with our media-ecosystem. Understanding the underlying issues can lead to targeted solutions that bolster media literacy amongst the population and reduce the economic and political incentives associated with fabricated or propagandistic stories. Examples include ensuring a competitive media industry, disclosures requirements on social media sites about promoted content, investment in a truly independent state broadcaster, media literacy education in schools, and ultimately targeted legal interventions where constitutionally compliant speech restrictions may be meaningfully enforced. Merely sounding alarm bells at the rise of “fake news” opens the door to restrictions on speech and government censorship.

This post was largely in response to Kashmir’s Media Policy, which along with the Solicitor General’s statements represent a worrying trend by the government to adopt the clumsy but incredibly dangerous fake/real distinction to assert a dominant, government controlled narrative. In the future, I am sure there will arise more concrete examples that lend themselves to more detailed critique. The government’s position has long been that speech in Kashmir rejects the paradigm of the Indian State itself, representing a unique threat to the integrity of India. However, where the government seeks to preserve power through a stranglehold on truth itself, we have to ask ourselves whether the means employed to preserve the State have overridden what the State once stood for.

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

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

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

Defining the Political: The Supreme Court’s FCRA Judgment

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


The Foreign Contribution (Regulation) Act – as the name suggests – regulates the circumstances under which individuals or bodies can accept funding from foreign sources. Section 3(1)(f) of the Act prohibits any “organisation of a political nature” from accepting foreign funds. The power to specify an organisation as a “political organisation” flows from Sections 5(1) and 48; the Central Government, having regard to the “activities”, “ideology”, or “association … with the activities of any political party” can specify that an organisation is of a “political nature.” To further concretise this, the FCRA Rules of 2011 set out a number of guidelines. According to Rule 3 of the 2011 Rules, organisations with “avowed political objectives” in their MoA or bye-laws, Trade Unions promoting “political goals”, action groups with objectives of a “political nature”, organisations aiming to advance “political interests”, and organisations using “common methods of political action … in support of public causes”, can all be declared organisations of a “political nature” under Section 5 of the parent Act.

This composite scheme was challenged in Indian Social Action Forum v Union of IndiaIn a brief judgment, a two-judge bench of the Supreme Court upheld the constitutional validity of the Act and the Rules, but “read down” the last clause of Rule 3 – i.e., 3(1)(f) (“… common methods of political action … in support of public causes”) – to “active politics” or “party politics.” While the narrow reading of these excessively broad provisions is no doubt a good thing, nonetheless, in this post, I will flag three issues with the reasoning of the Court.

A. What is the “Political”

In paragraph 18 of the judgment, the Court notes that “preventing foreign contribution into the political arena is the object sought to be achieved by the Act. Prevention of foreign contributions routed through voluntary organisations which are not connected to party politics is the reason behind introduction of Section 3 (1) (f) and Section 5 of the Act.” Immediately after that, the Court goes on to note that “as the intention of the legislature is to prohibit foreign funds in active politics, an Association with avowed political objectives (i.e. to play a role in active politics or party politics) cannot be permitted access to foreign funds.”

Thus, the Court limits the scope of the use of the word “politics” across the Rules (and not just in Section 3(1)(f)) to “party politics” or “active politics.” Unfortunately, however, the Court fails entirely to define what “active politics” mean (especially as distinguished from “party politics”). What one can glean from the judgment – and especially the Court’s reference to “party politics” in its discussion of the legislative intent, and subsequently – in paragraph 21, the reference to “administration” – is that the purpose of the FCRA is to prevent foreign interference in electoral politics, so that the governance of the country is not affected by foreign interests. In this sense, “active politics” is probably best read alongside “party politics”, and – more broadly – as a prohibition upon organisations that seeks funds for electoral purposes (whether through party politics or otherwise).

If this is the meaning of “active politics”, however, then it should have been clarified. This is especially true because the word “political” is capable of boundlessly wide meaning. Indeed, as feminist thought has shown us over the years, the history of many struggles and movements is the history of attempts to shift the line between that which is “political” (and therefore subject to democratic norms, and ideas of liberty and equality), and that which is “private”. The core problem with the FCRA is the manner in which the word “political” is used throughout the statute and the Rules, without any indication of the work that it is meant to be doing. While “party politics” is at least an identifiable and specific narrowing down of the word, “active politics” has the potential to only multiply the confusion (unless, potentially, it is read in the manner suggested above).

B. Vagueness, Over-Breadth, and Abuse

This reluctance to be specific affects the Court’s judgment throughout, and leads to a serious misstep in paragraph 19, when it is addressing Rule 3(v) (“organisations … addressing political interests.” The Court holds:

We are in agreement that the words ‘political interests’ are vague and are susceptible to misuse. However, possible abuse of power is not a ground to declare a provision unconstitutional.

Unfortunately, this is a basic conceptual error that turns the doctrines of vagueness and over-breadth on their head. When a statute or a rule is attacked on the grounds of “over-breadth” or “vagueness”, the argument is not that it should be struck down because there is a “possible abuse of power.” The argument is that the language of the statute or rule is either broad enough or vague enough so as to encompass both constitutional and unconstitutional application within the terms of that language. The problem is not, therefore, the unconstitutional abuse of the law, but its unconstitutional use. As the Supreme Court of the United States noted in Grayned v Rockford, the judgment that first articulated the vagueness standard with clarity:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.”

 

It should therefore be clear that once there is a judicial finding of vagueness of over-breadth, it is that finding itself that provides the reasons for unconstitutionality. The point is, as Grayned points out, that a vague or over-broad statute provides plausible legislative cover for unconstitutional State action. Or, in the words of Chintaman Rao v State of MP, a judgment that this bench does not cite: “so long as the possibility of [a statute] being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”

C. Reading Down

A final, related point: the Court’s chosen strategy in this case (as indicated above) is to “read down” the word “politics” wherever it is found in the statute and the Rules to “party politics” or “active politics.” I have argued above that the reading down method was inapplicable in this case, as a matter of law. There is, however, a more pragmatic point that needs to be made. The strategy of “reading down” works in a situation where – after the reading down – there are mechanisms to swiftly correct the abuse of law if and when the government continues acting in the same old way, and does not follow the Court’s interpretation of the statute. As we have repeatedly seen, however – and most recently, in the case of sedition – Supreme Court judgments that “read down” legal provisions (and that, effectively, create a gap between what the text appears to mean and what the Supreme Court says it means) that are otherwise clearly unconstitutional – very quickly turn into dead letters. Without the existence of some mechanism to ensure that the “reading down” is actually effective, judgments such as these appear to be bringing the government to account, but their net impact is negligible in terms of enforcement. That is a pragmatic reality that appellate Courts should be taking into account when they fashion remedies in cases of this kind.

Guest Post: Social Media, Public Forums and the Freedom of Speech – II

[This is a guest post by Praharsh Johorey.]


About eighteen months ago, I had written an essay on this blog asserting a constitutional right to free speech on social media, with a focus on Twitter. In that essay, I had contended that the freedom of speech under Article 19(1)(a) could be asserted against social media companies, and premised this on two distinct grounds:

  • Twitter is imbued with the constitutional character of the State because by giving the public a platform for speech it performs what is a ‘public function’, and therefore, is constitutionally liable for overbroad censorship; but that in any event:
  • Article 19(1) and (2) of the Indian Constitution do not textually require that freedom of speech can be claimed by citizens exclusively against the State, who can also assert such freedoms against private parties (like Twitter) who unconstitutionally limit such speech.

Therefore, I concluded that:

Individuals on social media forums should therefore have the right to claim a freedom of speech online – allowing them to invoke constitutional protections in situations of overbroad censorship, undue denial of access to speech and the arbitrary private restrictions on conduct online, without adequate recourse to redress mechanisms.”

Much has transpired in the last eighteen months – Mr. Sanjay Hegde (a Senior Advocate in the Supreme Court of India) has filed a Writ Petition against Twitter before the Delhi High Court against the ‘illegal suspension’ of his Twitter account. More examples of Twitter’s growing censorial prowess have raised concerns about the impartiality of the Twitter platform in India, with people on both ends of the political spectrum claiming overbroad censorship on the platform – either in the form of the reduction of one’s Twitter followers (which limits one’s outreach online), or the disappearance of a user’s ‘likes’ and ‘retweets’ (which is an overt censorship of one’s ‘speech’ online).

Twitter’s conduct therefore continues to raise serious questions about what, if any, constitutional and/or legal recourse is available to someone aggrieved with their (in)ability to (I) access the Twitter platform (such as Mr. Hegde); and (II) communicate freely while on the platform (such as Mr. Kashyap). Because these questions are now pending determination before a Constitutional Court in India, it is as good a time as any to re-examine the constitutional questions involved, which can be framed as follows:

  • Is Twitter, a private company, amenable to constitutional scrutiny?
  • Is access to a public platform a facet of my freedom of speech?
  • Once on a platform – can constitutional rights to free speech override private rules and regulations that govern speech on this platform?

Answering (i) will require a re-examination of my previously stated position (as reproduced above), and strikes at the heart of the maintainability of Mr. Hegde’s petition before the Delhi High Court. Accordingly, it is appropriate to address the question of maintainability in this essay – leaving open questions on the merit of Mr. Hegde’s petition to later posts.

It is not Mr. Hegde’s case that Article 19 is capable of being directly asserted against private individuals like Twitter. This is because the Supreme Court in P.D. Shamdasani v. Central Bank of India Ltd. declared that the rights under Article 19 cannot be asserted against private parties because ‘the language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest.’ Therefore, to establish maintainability of a writ petition against a non-state party, Mr. Hegde has had to contend that Twitter is something analogous to the State. His legal basis for this (as stated in his petition here) is two-fold:

“… a Petition under Article 226 is maintainable against a private party which discharges a Public Function … by providing a means for dissemination of and access to information, social media agencies discharge a public function.”

Speaking generally, there is little doubt about proposition (b). It is unlikely to be Twitter’s case before the Delhi High Court that the services it provides do not correspond to a colloquial understanding of a ‘public function’, i.e. a function for the general public serving the public good – in this case being providing a means for the ‘dissemination of and access to information’. But this standard for imparting constitutional character, and consequently establishing maintainability, seems at first glance loose at best, and dangerously vague at worst. One could think of hundreds of Indian organisations (either supplementing or even entirely replacing the State in their respective fields) providing ostensibly ‘public’ functions: Airtel, in providing millions of Indians with the ability to telecommunicate and access the internet; Indigo Airlines, in providing access to affordable commercial flight; or even Ola Cabs, in filling significant gaps in the daily commute of millions across India. Would Mr. Hegde’s arguments equally apply to someone claiming a constitutional right to remain on Airtel’s network, despite breaching their terms of service?

In this view, it becomes necessary to examine proposition (a), i.e. the contours within which Indian constitutional courts have applied the ‘public function’ test, and assess Twitter’s amenability to this test.

Early last year, the Supreme Court in Ramakrishna Mission and Anr. v. Kago Kunya and Ors. was seized of an appeal from a judgement of the Gauhati High Court, which had declared that the ‘Ramakrishna Mission Hospital’ (a hospital in Itanagar) while not the ‘State’ within the meaning of Article 12, performed a ‘public duty’ and was consequently amenable to writ jurisdiction under Article 226.

The NGO which operated the hospital strongly resisted the broad interpretation sought to be given to the term ‘public function’, while the State of Arunachal Pradesh – which supported the judgment of the Gauhati High Court – submitted that it was only because of the unique status of the hospital as (i) a monopoly in Itanagar; (ii) a beneficiary of grants/subsidies from the State Government; (iii) a provider of the public function of healthcare, that rendered it subject to Article 226. Therefore, it was neither party’s case before the Supreme Court that any organisation providing a ‘public’ function could be subject to Article 226. The specific attributes of the hospital itself, as a beneficiary of State largesse, were therefore a crucial factor in this determination.

Here, the Court, in ascertaining the scope of the term ‘public function’ substantially relied upon G Bassi Reddy v. International Crops Research Institute, which held:

“28. A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty…ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian public to provide research and training facilities.” (emphasis supplied)

Relying upon this precedent, the Court found as follows:

“Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary.” (emphasis supplied)

Therefore, in establishing that an organisation is discharging a ‘public function’, the following factors establish the threshold that needs be proven:

  • whether the function/service provided is closely related to that which is provided by the State in its sovereign capacity;
  • whether the nature and extent of governmental control over the management or day to day functioning of the organisation is sufficient to render it a State authority;

It is therefore apposite to discuss only (i) in the context of Twitter, as proposition (ii) is ex facie inapplicable to private social media companies.

Mr. Hegde does not argue (i) directly – instead, he contends that “Twitter serves as a medium for citizens…to communicate their grievances and concerns with elected officials and government representatives. It serves as a source of news and information – as the “marketplace of ideas”…it therefore performs a public function and is amenable to the jurisdiction of this Court under Article 226.” This, I contend, does not meet the threshold under (i). Admittedly, Twitter is used by the Government, Government Officials and politicians of all stripes to make policy pronouncements, disburse information about government programs, campaign for elections and even engage directly with citizenry. However, this is distinct from the principle required to be proven in (i) – which is whether the primary service provided by Twitter, i.e. providing a platform for digital micro-blogging, is closely related to a sovereign function of the Indian Government.

In Balmer Laurie & Co. Ltd. v. Partha Sarathi Sen Roy, the Supreme Court differentiated between ‘governmental functions’ and ‘sovereign functions’ of the Government as follows:

“Every governmental function need not be sovereign. State activities are multifarious. Therefore, a scheme or a project, sponsoring trading activities may well be among the State’s essential functions, which contribute towards its welfare activities aimed at the benefit of its subjects, and such activities can also be undertaken by private persons, corporates and companies. Thus, considering the wide ramifications, sovereign functions should be restricted to those functions, which are primarily inalienable, and which can be performed by the State alone. Such functions may include legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon, etc. Therefore, mere dealing in a subject by the State, or the monopoly of the State in a particular field, would not render an enterprise sovereign in nature.” (emphasis supplied)

The threshold for an organisation’s services to be analogised to a ‘sovereign’ ‘inalienable’ function is high. Twitter is certainly a social good, a modern ‘public square’, where people communicate, disseminate ideas and share information.

However, it is difficult to reasonably contend that the provision of a social media platform by a private organisation is ‘closely related’ to examples of these sovereign ‘primarily inalienable’ functions (as elucidated by the Court), i.e. legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security or grant of pardon. Allowing people another medium or forum in which to communicate and/or disseminate information is not tantamount to performing a function that is, or has ever been considered to be, a function that is exclusively within the domain or competence of the Government. It has always been free for citizenry to collect and participate in private platforms that permit communication and/or the spread of information (digital or otherwise) – whether in the form of social clubs, radio shows, telecommunication, instant text message groups or now, on social media. The Government, while certainly an enabler (in that it does not prohibit such forums from proliferating in the private sphere) and even an active participant in such platforms, is not obligated to provide and/or maintain these platforms for its citizens in the discharge of its sovereign functions, as enumerated above. Consequently, the conclusion that social media companies are not discharging a ‘sovereign’ ‘inalienable’ public function is inescapable.

It might be asked: how then did the Board for Cricket Control in India (BCCI) – which regulates the sport of cricket in India – find itself subjected to the jurisdiction of Article 226 in the Supreme Court’s decision in BCCI v. Cricket Association of Bihar and Ors. by application of the same ‘public function’ test? Surely it is not the government’s prerogative (and certainly not its sovereign function) to administer sports for its citizens either?

The Supreme Court in BCCI does not grapple with this standard. Instead, the Court lays emphasis on the nature of control exercised by the BCCI over the administration of cricket in India, assuming – without alluding to the standard discharging a ‘sovereign’ ‘inalienable’ function – that the administration of cricket is ex facie a ‘public function’. The only reasoning the Court gives for allowing the administration of cricket to be given such importance (in and of itself) is that it is a sport in which participants are ‘applauded by the entire nation, including at times by the highest dignitaries’.

What BCCI does is to reduce the standard of a ‘public function’ from being one of discharge of a ‘sovereign’ ‘inalienable’ function to a function that is seemingly of significant importance to the public. Arguably, social media, as a category of organisations, and all private sports regulators, would fit within this looser standard.

However, the reasoning in BCCI that simultaneously heightens this diluted threshold is the Court’s emphasis on BCCI’s monopoly over this function, noting – at the outset – that “the respondent-Board has complete sway over the game of cricket in this country.” The Court elaborates:

“All these activities (i.e. of the BCCI) are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board’s monopoly in the field of cricket…The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act.”

The Court lays significant emphasis on the BCCI’s exclusive right to control and regulate the game – to the exclusion of all others – with the overt support of the Government of India. This, the Court makes clear, is the fundamental reason why the BCCI is amenable to writ jurisdiction:

“The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action…BCCI may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.(emphasis supplied)

Therefore, it is insufficient to rely on BCCI to contend that discharging a function that is of importance to the public would be tantamount to discharging a ‘public function’. After BCCI, it falls on those seeking to impart constitutional character to private individuals/organisations to prove that such organisations not only discharge a function of significant public importance, but also discharge this function exclusively, with the government’s tacit (non-interference with its functioning) or overt (conferment of state subsidies, grants, permissions etc.) support.

As alluded to earlier in this essay, it can be no-one’s case that Twitter, and other social media companies, do not provide a service that is of importance to the public. Social media companies have hundreds of millions of active users per day, and have given rise to important social movements and allow seamless conversation with like-minded individuals across borders. However, does Twitter discharge this function exclusively?

The answer, quite simply, is that it does not. The core service, that of providing a digital platform for communication online, is not the exclusive reserve of Twitter. While Twitter does have features that set it apart from other similar social media companies (particularly on the ease with which one can ‘follow’ topics/people of interest), its primary ‘function’ of providing and maintaining a digital platform is also undertaken by various other private organisations, not least Facebook – which after the acquisition of Whatsapp and Instagram operates atleast three known platforms of similar fundamental utility. Mr. Hegde’s concedes this:

Social media agencies enable individuals to participate in a free flow of information and ideas with others across the world. Twitter users can create communities to share information, ideas, personal messages etc. Unlike any other medium of communication (such as radio, television and printed publications), which are based on one-way transmission of information, platforms such as Twitter, facilitate participatory information sharing and collaboration. Users are not passive recipients, but active publishers of information.” (emphasis supplied)

 

By accepting that Twitter is only one of several social media companies that ‘enables individuals to participate in a free flow of information’, it is clear Twitter is not alone in discharging its primary functions of operating a social media platform. While social media companies as a class operate to the exclusion of the government in this space (in that the Government does not provide/operate a social media platform itself), none of the companies individually claim a monopoly of this field in India. In fact, most users of these platforms use and participate in several platforms simultaneously, with your author having been an active user of Facebook, Instagram and Twitter at a given point in time. Therefore, it is clear that one’s inability to access Twitter (having fallen foul of its rules and regulations, for e.g.) does not hinder one’s ability to access either the internet or social media platforms generally, with seamless migration between different platforms being a key facet of the modern internet age. On this ground also, Twitter’s lack of monopoly renders it well short of the standards laid out in BCCI.

Conclusion

At the end, I find myself in the somewhat unfortunate position of having used 3000 words to argue against myself. My contention in my earlier essay, i.e. that Twitter performs a ‘public function’ rendering it susceptible to writ jurisdiction, is incorrect, as Twitter neither performs an ‘inalienable’ ‘sovereign’ function, nor does it exclusively perform a function of public importance as a monopoly in its field.

Regardless, Mr. Hegde’s arguments on the maintainability of his petition are likely to cause waves in constitutional law circles irrespective of the outcome. It is well worth following.

The Kashmir Internet Ban: “Restoration”, White-Listing, and Proportionality

On January 10th – as we discussed on this blog – the Supreme Court handed down its judgment on the internet shut-down in Kashmir (it bears repeating that this is the longest continuing internet shut-down in any democratic country). The Supreme Court’s judgment had two parts: a statement of the law and an application of the law to the facts of the case. On the first issue, the Supreme Court held that accessing information through the internet was a fundamental right, and the principle of proportionality applied to adjudicating the constitutional validity of internet shut-downs (which, inter alia, requires the government to adopt the ‘least restrictive’ method when it comes to restricting rights). On the second issue, the Court directed the “Review Committee” (a government body), constituted under the Telecom Suspension Rules of 2017, to review the situation on a weekly basis.

In response to the judgment of the Court, the Jammu & Kashmir government has passed three orders purporting to partially relax the internet shut-down. In this post, I will argue that a reading of the government’s orders reveals that (a) they are in breach of the legal principles laid down in the Supreme Court’s judgment, and deserve to be challenged; and (b) these orders reveal that the State’s own case before the Supreme Court was based on flawed premises – something that has important consequences for challenges to internet shut-downs, going forward.

At the outset, it is important to note that this is a critique of the government’s orders on their own terms; the larger points – that a five-month long internet shut-down is inherently disproportionate, must be lifted at the earliest, and that the Supreme Court’s judgment unfortunately did not grant relief to the Kashmiris – remains.

The Orders

On 14th January – four days after the Supreme Court’s judgment – the J&K government passed an order stating that cross-border terrorist elements were using the internet to communicate and spread propaganda, which could cause large-scale violence. The government directed, inter alia, for provisions of broadband services to institutions providing essential services, 2G mobile connectivity in certain districts, and the installation of internet firewalls and a set of “white-listed websites” that could be accessed by internet users. Access to social media was specifically prohibited. Subsequently, on 18th January,  second order was passed – this time in exercise of review powers under the Telecom Suspension Rules. This order stated that there was had been no adverse impact after the partial restoration, but reiterated that the internet could be used for incitement, “rumour mongering”, and by anti-national elements. It directed restoration of Voice and SMS facilities on pre-paid SIMS, and extended 2G internet to a few more districts. In addition, it provided a specific list of 153 “white-listed” websites, from Blue Dart to Zomato to Amazon Prime – which could be accessed.

In accordance with the Supreme Court’s judgment, this had to be reviewed on a weekly basis. This, consequently, led to the third order, passed yesterday, which reiterated the twin points of “no adverse impact” and “apprehension of misuse.” This order basically expanded the set of white-listed websites to 301 (adding news websites such as Scroll and The Wire), continued the prohibition on social media, and clarified that “white-listing” was a continuous process.

White-Listing and Proportionality 

The three orders make it clear that the government – in conjunction with Internet Service Providers – has the technological capacity to allow selective access to the Internet (contrary to what the Government’s lawyers argued in court; see this analysis by the Internet Freedom Foundation). Independent of the overall constitutional arguments (indicated above), a very simple conclusion follows from this: that internet shut-downs are inherently disproportionate, because a less restrictive alternative exists at all times. If the government’s entire justification for internet shut-downs is that the internet is being used for “rumour mongering” and “incitement to violence”, it is clear that blocking access to all of the internet – a large swathe of which cannot possibly be used in that fashion – fails the ‘least restrictive alternative’ prong of the proportionality standard. In future, therefore, internet shut-downs should be immediately struck down by Courts without any ado: the government itself has given us evidence that they are disproportionate.

This is not, however, a defence of white-listing: in fact, the consequences of the government’s orders go further, as they demonstrate that there exist alternatives that are less restrictive even than white-listing. The government can – it is clear – block access to specific websites (the repeated references to social media show that this is so). This would be a method of ‘black-listing’ – where access to the internet is allowed except for specified websites.

The conceptual difference between white-listing and black-listing can be summed up in very simple terms. In white-listing, the default is no access to the internet, except what the government allows. In black-listing, the default is access to the internet, except what the government prohibits. The first is a case of ‘everything is prohibited, unless specifically allowed.’ The second is a case of ‘everything is allowed, unless specifically prohibited.’

This is where the Supreme Court’s other finding – that accessing information through the internet is a fundamental right – becomes crucial. Because if a constitutional democracy means anything, it means that the default situation is – and must be – the existence of a fundamental right, and it is the limitations that must be the exceptions. White-listing reverses that fundamental proposition – in the words of K.G. Kannabiran, it makes the restrictions “fundamental”, instead of the right. Black-listing, on the other hand, not only preserves the fundamental character of the right, but also – by providing a clear category of what is forbidden (instead of an amorphous “everything”), allows citizens to challenge that before a court (another fundamental aspect of the rule of law).

This also makes intuitive sense. For example, if an individual wants to read science fiction on Strange Horizons, why should there be a need to special permission from the government, in the absence of which, the website cannot be accessed? On the other hand, if the government has credible information that Strange Horizons is inciting people to violence, then it can block access to the website – and, if necessary, will be required to justify it in Court. White-listing, on the other hand, is impossible to effectively challenge, because it brings us right back into the domain of generic statements about the “internet” being used to incite violence and spread propaganda – the kinds of arguments that the government made in the Internet Shut-Down case.

White-listing, therefore, is no effective “restoration”, as it continues to leave the fundamental right to communicate over the internet entirely at the Government’s discretion: exactly the Emergency-style argument that the Government’s lawyers tried to push before the Supreme Court, and were roundly rebuffed.

Conclusion 

As indicated at the beginning of the post, this is not an argument that justifies white-listing (or even blacklisting). The continuing ban on social media on vague and specious grounds of “rumour mongering” remains disproportionate (as pointed out many times, there is actually no evidence showing internet shut-downs combat “rumour-mongering”, and indeed, evidence points the other way). The constitutional case against internet restrictions remains, and will continue to be made – before courts, and elsewhere.

What this post shows, however, is that the J&K’s actions after the Supreme Court’s judgment are effectively subverting the Court’s findings, and also demonstrate severe internal inconsistencies between what the government claims and what it actually does. The Supreme Court made it clear that access to information through the internet was a fundamental right, and restrictions would have to meet the test of proportionality. White-listing reverses that principle, and effectively makes restricting internet access a fundamental right of the government, with the burden upon the people to establish why they should be allowed to access selected parts of the internet. This reversal of the citizen-State relationship is unconstitutional, and will hopefully be recognised as such.


(Disclaimer: The author was one of the lawyers representing the Petitioners in the internet shut-down challenge.)

 

Notes from a Foreign Field: The Hong Kong High Court’s Judgment on the Right to Protest (with Face Masks)

Earlier this morning, the High Court of Hong Kong handed down an important judgment on the “balance” between personal liberty and national security. Readers will be aware that for the last few months, there have been mass public protests in Hong Kong. In response, the Hong Kong government passed the Prohibition on Face Covering Regulation [“PFCR”] which, as the name suggests, prohibited protesters in public spaces from wearing face masks to hide their identities. The PFCR was passed under the authority of the Emergency Regulations Ordinance (ERO), a colonial-era law that allowed sweeping powers to the Executive in an “Emergency” or during times of “public danger.”

The PFCR was passed on 4th October. It was promptly challenged (along with the ERO). The High Court heard arguments at the end of October, and handed down its judgment today. The Court struck down the ERO to the extent of its application during times of “public danger”, while leaving open the question of whether it was valid for “Emergencies.” The Court went on to hold that the PFCR was an unconstitutional and disproportionate violation of the freedom of expression of the citizens of Hong Kong.

In this post, I will discuss both holdings. The striking thing about this judgment is that despite conceding a high margin of discretion to the Executive, and despite accepting the Executive justification of maintaining law and order, the Court still found that the indiscriminate and non-targeted nature of the measure, which failed to distinguish between violent protesters and ordinary citizens, was disproportionate. As we shall see, this is by no means the judgment of an activist Court, which placed the claims of personal liberty beyond all question. On the contrary, this was a judgment by a cautious and deferential Court, which still found the ERO and the PFCR to violate Hong Kong’s Basic Law (the Constitution). And at the heart of its judgment, as I shall show, was a very simple logic: Constitutions allow the government to declare states of Emergency, and suspend certain civil rights. If, however, the government has elected not to declare an Emergency, it is not for the Court to presume their exists one. In terms of law and constitutionalism, there is no halfway house between Emergency and normalcy, where – in the absence of an Emergency proclamation – the Court nonetheless adopts a hands-off approach towards civil rights violations. Rather, if there is no Emergency, then the judicial approach towards civil rights violations must be one that applies constitutional principles with their full rigour.

The ERO

The ERO was a 1922 law, passed by the colonial British regime. Effectively, it authorised the Chief Executive in Council [“CEIC”, or “Executive”] to make “regulations” in times of Emergencies or public danger. These regulations were extremely wide in scope, including powers of censorship, seizure of property, amendment of laws, trial and punishment, and so on.

The High Court struck down the ERO on seven substantive grounds. Under Hong Kong’s basic law, it found that the Legislative Council [“LegCo”] was the primary legislative organ. The CEIC’s powers were limited to accepting or vetoing bills, and passing subordinate legislation. This is, of course, a familiar arrangement in parliamentary democracies. The Court then made the familiar point that “this constitutional scheme does not permit the LegCo to grant and the CEIC (or, for that matter, any other body) to receive and be vested with what is essentially the LegCo’s own constitutional power and function as the legislature of the Hong Kong SAR to enact, amend or repeal laws, except for an authorisation of subordinate legislation.” (paragraph 52)

This, of course, is the “excessive delegation” test known to students of constitutional and administrative law everywhere. Applying this test, the Court found that the “ERO confers general legislative powers on the CEIC.” (paragraph 55) This was because:

… the ERO is not a statute that legislates on a subject matter in principle leaving another body to devise the detailed legal norms that elaborate or put flesh on the broad matters laid down in the primary legislation. The long title of the ERO specifies that its object is to confer on the CEIC power to make regulations on occasions of emergency or public danger. But it gives no shape or direction of what the regulations that may be made are to be about. For example, the PFCR was enacted under the ERO not to work out and fill in the details for certain broad norms established by primary legislation, but as the very first piece of legislation in Hong Kong that has anything to do about face covering. This is fundamentally different from one’s ordinary conception of subordinate legislation. (paragraph 56)

Next, the Court found that the scope of the power delegated to the CEIC was extremely broad – to make “any regulations whatsoever” that it considered to be in the public interest. Thirdly, the powers could be invoked “on any occasion” when the CEIC was satisfied that there existed an emergency or public danger – neither of which were defined in the statute. In other words, such wide power was accorded to the Executive, that it was virtually unconfined – effectively (as the Court noted) it could never be argued that the Executive was going beyond the authority conferred by the  Legislature, as the authority itself had no boundaries. Not only that, but the ERO actually authorised the CEIC to amend existing legislation – i.e., it conferred – in so many terms – legislative power upon the executive (the Court’s fourth point). Furthermore, the powers of punishment conferred upon the Executive went beyond what was authorised in primary legislation (fifth); and there was no time limit upon the “validity and force of the regulations made under the ERO, nor any mechanism for constant review” (paragraph 68) (sixth).The power of “negative vetting” was held not to be a substantial check on the executive (seventh).

Drawing upon insights from comparative law, the High Court therefore concluded that:

“…the ERO, once invoked, seems to us to create in Hong Kong a separate source of laws that are primary legislation in all but name, but which are not made by the legislature in accordance with legal procedures (Art 73(1)) or reported to NPCSC (Art 17), and are not subjected to the scrutiny concomitant with the normal legislative process. Whenever the CEIC considers an occasion falling within the ERO has arisen, the CEIC becomes a legislature.” (paragraph 80)

This was evidently unconstitutional. And in response to the government’s argument that there were times that necessitated “swift and decisive action”, the High Court made the crucial observation that “the need for an urgent response is no justification for departing from or impugning the constitutional scheme.” (paragraph 95)

The PFCR

Let us now come to the prohibition of face coverings in public spaces. The PFCR prohibited the use of “facial covering that is likely to prevent identification” while a person was at an unlawful assembly, an unauthorised assembly, or even an authorised or lawful assembly (see paragraphs 25 – 29 for an explanation of these terms in Hong Kong law). It was common cause between the parties that the PFCR restricted the freedom of speech, assembly, and privacy. It was also common cause that the constitutional validity of the restrictions was to be determined according to the proportionality standard:

“…(1) does the measure pursue a legitimate aim; (2) if so, is it rationally connected with advancing that aim; (3) whether the measure is no more than reasonably necessary for that purpose; and (4) whether a reasonable balance has been struck between the societal benefits promoted and the inroads made into the protected rights, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.”

The government argued that the goal of the prohibition was “(i) deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, and (ii) facilitation of law enforcement, investigation and prosecution.” (paragraph 130) The question then arose: why was the measure blanket in nature, targeting both potential law-breakers as well as legitimate public protesters? To this, the government argued – on the first count (deterrence) – that “those protesters who are not prepared to break the law may comply with the PFCR and this would generally result in lessening the support for the more radical and violent protesters”; that “masked protesters mix themselves into larger groups and instigate violence and vandalism“; that “non‑radical protesters will be less likely to be influenced by or emulate their violent peers and will think twice before emulating them when they know their identity is not concealed“; that “the PFCR can act as an effective deterrent against at least some students from wearing masks when joining a protest (lawful or unlawful), which thereby substantially reduces the chance that they will be induced to break the law.” (paragraph 133) On the second count (law enforcement), the government argued that protesters were using “black bloc” tactics (i.e., appearing in indistinguishable groups and wearing similar clothing), which made specific and targeted identification difficult. A prohibition on face covering would facilitate the police in being able to identify which of the protesters were acting unlawfully.

The government’s arguments will sound eerily familiar to those following the litigation around the communications lockdown in Kashmir. In both cases, the State’s primary justifications for blanket restrictions is (i) targeting is impossible, and (ii) the bad guys will mingle with and influence the innocent guys, and so we have to restrict everyone’s freedom. The only difference is that the Hong Kong government’s arguments before the Court at least sounded more sophisticated and plausible than the Indian government’s ham-fisted “terrorists use mobile phones” justification.

How did the Court engage with this argument? The first thing to note is that it did not deny that there existed an ongoing law and order situation in Hong Kong. In paragraph 132, it observed that:

“… there is evidence before us of the enormity of the damage and danger created by some of the protesters. In the few months leading to 4 October 2019, Hong Kong has witnessed numerous instances where certain protesters charged police cordon lines with weapons, blocked public roads and tunnels with a variety of large and heavy objects, attacked drivers who voiced complaints at such blockades, vandalised public facilities and buildings, burned public property, hurled inflammable liquid bombs at the police and at and inside Mass Transit Railway stations, damaged shopping malls, shops, banks and restaurants (with reports of looting and theft in some of the damaged shops), damaged residential quarters of the disciplined forces, crippled the operations of transport infrastructure, and harassed and attacked ordinary citizens holding different political views. These acts of violence and vandalism had increased in intensity and frequency, with the incidents on 1 October 2019 being especially serious. The more violent protesters were often all suited up and masked by facial covering such as surgical masks, balaclavas and gas masks which concealed their identity.”

Along with these facts, the Court also conceded that the government had to be given a “wide margin of discretion”, and that the necessity prong within the proportionality standard required only that the government’s action was “reasonably necessary.” Now within this framework, how did the Court apply the proportionality standard? It began by noting that “some participants in demonstrations may wish to wear facial covering for legitimate reasons, such as to avoid retribution.” (paragraph 148) Consequently, the restriction on freedom was not minor or trivial, but a serious one. By contrast:

… the effect of s 3(1)(b), (c) or (d) is to impose a near‑blanket prohibition against the wearing of facial covering by the participants, without any mechanism for a case‑by‑case evaluation or assessment of the risk of any specific gathering developing or turning into a violent one such as would make it desirable or necessary to impose the prohibition in relation to that gathering only. (paragraph 155)

Furthermore:

It is not clearly stated whether, to be caught by the prohibition, the person must be a participant in the relevant gathering, or whether it suffices for that person to be merely present at the gathering, eg a person who goes to the scene for the purpose of taking photographs, or giving first-aid to persons in need of help, or even a mere passer‑by who has stopped to observe the gathering. (paragraph 156)

This was, thus, prima facie evidence of over-breadth and disproportionality. What of the government’s argument that it was the only way to prevent violence? The Court noted in response that “the evidence before us is far from clear that the PFCR has achieved to any substantial degree the intended aims of deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, or facilitation of law enforcement, investigation and prosecution.” (paragraph 164) In other words, under the proportionality standard, the burden was upon the government to justify its rights-infringing measures on the touchstone of necessity and proportionality, with evidence (and not in a sealed cover). And the Court was unimpressed by the government’s exhortations of public danger, noting that “even in these challenging times, and particularly in these challenging times, the court must continue to adhere to and decide cases strictly in accordance with established legal principles.” (paragraph 165) Thus:

… having regard to the reach of the impugned restrictions to perfectly lawful and peaceful public gatherings, the width of the restrictions affecting public gatherings for whatever causes, the lack of clarity as regards the application of the restrictions to persons present at the public gathering other than as participants, the breadth of the prohibition against the use of facial covering of any type and worn for whatever reasons, the absence of any mechanism for a case‑by‑case evaluation or assessment of the risk of violence or crimes such as would justify the application of the restrictions, the lack of robust evidence on the effectiveness of the measure, and lastly the importance that the law attaches to the freedom of expression, freedom of assembly, procession and demonstration, and the right to privacy, we do not consider the restrictions of rights imposed by s 3(1)(b), (c) and (d) to be proportionate to the legitimate aims sought to be achieved by the imposition of those restrictions. (paragraph 166)

Thus, except insofar as it applied to unlawful gatherings, the prohibition was struck down. The Court used similar analysis to strike down Section 5, which empowered “a police officer to stop any person in any public place who is using a facial covering and to require that person to remove it so that his or her identity may be verified, if the officer reasonably believes the facial covering is likely to prevent identification.” The Court held that its indiscriminate character (“no limitations as to circumstances or period”) violated the proportionality standard.

Conclusion

The Hong Kong High Court’s judgment is a shot in the arm for civil rights. It demonstrates that even in the time of the proverbial “clash of arms”, courts can ensure that the laws are not silent. A few salient features of the analysis stand out. First, the High Court took seriously the indiscriminate and blanket nature of the prohibition, which failed to distinguish between criminals, and those who were lawfully exercising their constitutional rights to demonstrate and protest. This was perhaps the most damning feature of the government’s measure. Secondly, the government’s efforts to justify this fell flat. In particular, given that the restriction was blanket and indiscriminate, the onus was on the government to show that there was no other way to achieve the goals of law and order – and to show this with evidence. Unsurprisingly, the government failed, because there was no evidence. And lastly, the Court thoroughly rebuffed the government’s efforts to immunise its actions by making claims about the law and order situation. The Court’s approach to this issue can be summed up in paragraph 108:

  • In times of a public emergency officially proclaimed and in accordance with the other requirements of s 5 of the HKBORO, measures may be adopted under the ERO which derogate from the Bill of Rights (even so, excepting the specified non‑derogable provisions and discrimination on the prohibited grounds). Subject to the conditions of s 5 (including that the derogations are limited to those strictly required by the exigencies of the situation), this may have the effect of temporarily suspending the relevant human rights norms.
  • In other situations, measures adopted under the ERO may not derogate from the Bill of Rights, which means that if any such measure has the effect of restricting fundamental rights, then like any other restriction in normal times, it has to satisfy the twin requirements that the restriction is prescribed by law and meets the proportionality test.

 

The important of this observation cannot be understated. What the Hong Kong government was trying to do in this case – and indeed, what the Indian government is trying to do in the Kashmir litigation – is to create a third, midway category of (what is effectively) a “permanent, undeclared Emergency.” For political reasons, the government is wary of formally declaring an Emergency and suspending civil rights. But by repeated invocations of “law and order” and “security”, it is attempting to persuade the Court to act as if the situation is one of Emergency, and thereby, adopt the “judicial hands-off” approach” that it would be compelled to do if there was an Emergency. Paragraph 108 of the Hong Kong High Court’s judgment refutes this disingenuous and dangerous argument: it makes it clear that if there is no Emergency, then the restriction on civil rights must be judicially examined as “in normal times”, and the usual doctrines of reasonableness and proportionality applied. And as we have seen, proportionality takes a particularly dim view of blanket and indiscriminate restrictions (which are in effect, if not in form, Emergency-style suspension of rights – if everyone is prohibited from exercising a certain right, then it is hardly deniable that that right has been suspended for the relevant territory altogether). Such measures, therefore, must almost always be struck down as disproportionate.

It remains to be seen whether the excellent judgment of the Hong Kong High Court will be followed elsewhere, where governments make similar arguments to deny civil rights to their citizens.

Guest Post: Constitutional Silences, Balancing of Rights, and the Concept of a “Neutralising Device”

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Anubhav Khamroi.]


The doctrine of balancing of rights have troubled constitutional courts across jurisdictions. The Indian Supreme Court, once again (although, in my opinion, unnecessarily), in Kaushal Kishor v. State of Uttar Pradesh [“Kaushal Kishor”], has taken upon itself the job of balancing two potentially competing fundamental rights, namely – Article 19(1)(a) and Article 21 or any unenumerated right within it. The Constitution Bench passed an order (see here) framing five questions for consideration. This Post concerns only the first question, which reads –

“Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?”

In some previous posts, Gautam Bhatia has dealt with the question of balancing of Article 19(1)(a) with other freedoms under Part III (See here and here). To summarise, his primary arguments are:

  • Article 19(2) does not contain a “public interest” limitation, such as found in Article 19(6), which suggests a deliberatechoice to reject a general balancing between the Freedom of Speech and the “social interests” not specifically enumerated under Article 19(2);
  • As the Constitution expressly enumerates limitations upon the Freedom of Speech within its text, the process of balancing has already been undertaken within the drafting of Articles 19(1)(a) and 19(2);
  • Article 19(2) does not contain any proviso or limitation that makes the Freedom of Speech subject to other provisions of Part III, such as found in Article 25(1);

In that light, some compelling questions arise: If there is no express mechanism for balancing of rights within the constitutional text, what is the significance of such “constitutional silence” in Article 19(2), or Part III in general? Does it make the Freedom of Speech a standalone right? Under what circumstances can one Part III right operate as a valid limitation on another? I shall deal with the aforementioned points in seriatim. Thereafter, I shall elaborate on the evolution of the concept of a “Neutralizing Device” by the Supreme Court.

Situations of Potential Conflict between Two Part III Rights

As discussed above, Article 19(2) sets out eight express limitations. But it does not contain any limitation that makes Freedom of Speech ‘textually’ subject or subordinate to other fundamental rights guaranteed under Part III. This is also the case for other Part III rights, with the exception of Article 25(1). However, we ought not lose sight of the possible clashes between two Part III rights. Following are some illustrations of such clashes:

  1. Freedom of Press [Article 19(1)(a)] vs. Right to Privacy [Article 21];
  2. Right to Freedom of Speech [Article 19(1)(a)] vs. Right to a Fair Trial [Article 21] – This conflict was being adjudicated upon in the initial proceedings of Kaushal Kishor, concerning a Minister calling the victim’s case a “political conspiracy only and nothing else”.
  3. Right to impart and receive Information on matters of public interest [Article 19(1)(a)] vs. Right to Reputation or Autonomy to control dissemination of personal information [Article 21]- The scope of this conflict was briefly commented on by SK Kaul J. in Paras 53 to 58 of his separate opinion in Puttaswamy.
  4. Freedom to manage religious affairs of religious denominations [Article 26] vs. Dignity and Liberty of women [Article 15 & 21] – This conflict came up for consideration in the Sabarimala

It is thus evident that constitutional values do come in severe conflict quite often. However, for resolution of such a ‘constitutional conflict’, there is no balancing mechanism set out within the text of Part III. This is a classic case of ‘constitutional silence’. To balance competing rights of equal supremacy is not a decision simpliciter for the judiciary and a proper mechanism must be formulated (See below – the use of a “neutralizing device”).

Now, let us specifically focus on Article 19(2). I do agree with Mr. Bhatia’s conclusions here, that it might not be appropriate for the Supreme Court to ‘invent’ additional grounds for restricting Freedom of Speech, such as “constitutional fraternity” or “constitutional compassion”, which are mere abstract concepts, incapable of sufficiently revealing their precise contents.

My disagreement is only to a limited extent – the limitations set out in Article 19(2) cannot be considered exhaustive, to the extent it might be necessary to balance Freedom of Speech against other Part III rights, such as Article 21 or unenumerated rights situated within it. However, to make the balancing process functional, the contents of such unenumerated rights must be somewhat objectively determinable. For example, the contents of right to privacy has been well defined in the Puttaswamy judgement.

In my opinion, while being in a state of mutual co-existence, the competing Part III rights operate as a valid limitation upon each other. The judiciary, which is the “balancing wheel between the rights” (See Chief Justice Subba Rao’s opinion in Golak Nath ), plays the role of a facilitator in this process.

Dealing with the absence of a Stipulation/Preface stating – “subject to other provisions of this Part”

The absence of a proviso or a clause such as “subject to other provisions of this Part” does not put any one particular Part III right at a higher pedestal in constitutional order of priorities. During the operation of a Part III right, as explained above, it might experience clashes with another right. In that event, ‘pragmatic reasoning’ clearly suggests that these rights cannot work in complete isolation. For example, there must exist a functional cooperation between Article 19(1)(a) and Article 21, so as to make the operation of both sustainable.

In a different context, Chandrachud J. pointed out the need to harmonise different provisions under Part III of the Constitution, in the Sabrimala judgement (Para 13 of his separate opinion). I attempt to use his reasoning as a suitable illustration and analogy to buttress my point. In that case, he was evaluating the consequences of a similar absence of ‘words of subjection’ in Article 26, as compared to the wording of Article 25(1). In this regard, he had observed that:

Even where one provision is not subject to another there would still be a ground to read both together so that they exist in harmony. Constitutional interpretation is all about bringing a sense of equilibrium, a balance, so that read individually and together the provisions of the Constitution exist in contemporaneous accord….[T]he freedoms which find an elaboration in Part III are exercised within a society which is networked. The freedoms themselves have linkages which cannot be ignored.”

The inherent inter-relationship and cohesion between fundamental freedoms in a modern democratic society also lends support to the above reasoning. Herein, it might also be noted that the legal maxim “expressio unius est exclusio alterius” (express mention of one/some, leads to the exclusion of others) does not strictly apply in the context of constitutional interpretation.

As we are well aware, any written constitution is never complete or comprehensive. The gaps in the Constitution are ought to be filled with societal values and common experiences, promoting a notion of fluidity. The Part III rights are not placed in “water-tight compartments”, operating in a staccato fashion (See Rustom Cavasjee Cooper v Union of India & Maneka Gandhi). They do not exist in an exclusive sphere of operation and therefore, a measured calibration of each of them is a ‘constitutional necessity’.

Conceptualizing the Idea of a “Neutralizing Device”

The questions that now haunts us are – in actuality, how and when do we balance freedoms of identical or equal importance? What measures ought to be deployed to recalibrate two Part III rights, wherein neither substantively loses its essence?

The answers to the above questions may be found in certain general principles laid down by a Constitution Bench (five-judges) in Sahara India Corporation v. SEBI (Paras 42-43). Accordingly, a three-step test must be followed before a balancing measure is deployed:

  • Operation of one Part III right poses a “real and substantial risk” to the effective operation of another;
  • A balancing measure is necessary i.e. no ‘reasonable’ or less intrusive alternative can assist in prevention of the said risk (necessity test); and
  • The salutary effects or benefits of such balancing measures outweigh the detriment caused to the operation of the right/freedom, which is sought to be limited (proportionality test).

Upon fulfilment of the above test, as per the Sahara decision, the courts must deploy a “neutralizing device”. Of course, there cannot be a straightjacketed or common formula for what “neutralizing device” ought to be used in every possible situation of conflict between Part III rights. It will vary depending on the peculiar facts of each case. But as a general principle, these devices must – (1) operate within the parameters of necessity and proportionality as set out above; (2) pass the test of reasonableness under Article 14, 19(2) and 21 (Maneka Gandhi); and (3) have the capacity to ‘neutralize’ the friction and discord between two Part III rights.

For example, in the Sahara decision, there was a conflict between the Freedom of Press guaranteed under Article 19(1)(a) and Right to a Fair Trial under Article 21. In that case, the Supreme Court devised the use of postponement orders, as a “neutralizing device”, against any publication or broadcast that may put the proper administration of justice or fairness of the trial at “real and substantial risk”. Also, in accordance with the tests of necessity and proportionality, the Supreme Court declared that such orders should have effect only for a limited duration.

Moreover, in a recent 2018 decision in Kanimozhi Karunanidhi, the Madras High Court considered another conflict between Free Speech under Article 19(1)(a) and Right of Privacy under Article 21 (Para 26). Although it did not cite Sahara, the High Court adopted a similar conflict-resolution strategy and passed an injunction order that only prohibited publication of ‘private information’ about the applicant’s life without her consent. But it was clarified that the injunction shall not extend to any information relating to the work of the applicant as a Member of Parliament or as a leader of the political party (Paras 43-44).

This must operate as a guideline for all Courts in future cases of similar conflict.

Conclusion- So isn’t Kaushal Kishor (Q1) An Unnecessary Academic Exercise?

As clarified above, the Supreme Court in Sahara has already declared “the law under Article 141 on balancing of Article 19(1)(a) rights vis-à-vis Article 21” (Paras 15, 42 & 45). Although, the decision was relating to contempt of court, I believe the Constitution Bench had sufficiently clarified the general principles that ought to apply in all cases of conflict between 19(1)(a) and Article 21 rights, notwithstanding the context. Therefore, the Supreme Court has already answered the first question framed in Kaushal Kishor in the positive, and the question is no more res integra.

According to a Constitution Bench decision in Central Board of Dawoodi Bohra (Para 12), though a bench of co-equal strength may express an opinion doubting the correctness of the view taken by an earlier bench of co-equal strength, but thereupon such a matter must be “placed for hearing before a bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”

Accordingly, judicial discipline and propriety suggest that the five-judges bench in Kaushal Kishor must either uphold and reiterate the decision in Sahara; or refer the matter to a larger bench of seven-judges for reconsideration. They should not themselves deviate from or declare the decision in Sahara per incuriam, as clarified in Dawoodi Bohra. 

A Very Strange Constitution Bench

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


More than three years ago – in August 2016 – I’d written about an odd Supreme Court hearing where “questions” were framed (inter alia) about whether the freedom of speech could be restricted on grounds of “constitutional compassion.” The case had come to Court when UP politician Azam Khan had labeled a gangrape as a “political controversy”, and then-Justice Dipak Misra had taken the opportunity to also ask whether political functionaries had a more restricted right to free speech than ordinary citizens.

Subsequently, Azam Khan apologised to the Supreme Court, and his apology was accepted. However, the case continued. In an order dated 5th October 2017, the matter was referred to a Constitution Bench (!) to decide. On that same day, Mr Fali Nariman and Mr Harish Salve, acting as amici in the case, framed further “questions” to be decided. Among Mr. Nariman’s questions was the following:

Whether, and if so under what circumstances (if any) would a private individual or group of private individuals (including private corporations) be required to conform to the rigor and discipline of Article 21 (in the Fundamental Rights chapter) of the Constitution – whether as “State” as broadly defined, or otherwise.

CJI Misra himself retired last year, with no further progress on this case. One would have thought, then, that this little piece of judicial buccaneering would meet a quiet and deserved end. But no: it turned out last week that the Constitution Bench of the Supreme Court – consisting of Mishra, Banerjee, Saran, Shah and Bhat JJ – would indeed sit and hear this case. And in a hearing on 24th August, events took an alarming turn, when the Attorney-General “reframed” his questions, and the Court’s order finalised them as follows: 

  1. Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
  2. Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
  3. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?
  4. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?
  5. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

There are a few points I want to note about this Order. While questions (4) and (5) have at least some relationship with the original case of Azam Khan, and are relatively focused, the first three questions are simply broad-ranging enquiries into general constitutional philosophy. It is entirely unclear why they have been framed in the first place, and why a Constitution Bench needs to answer them, in the absence of a specific lis that brought them to Court. Question (2), for example, is a question about horizontal rights – a vexed and fraught question that jurisdictions across the world have been grappling with. Question (3) is a question about positive obligations – another issue that Courts all over the world have spent years engaging with, and incrementally developing jurisprudence. These questions are too complex, too multi-layered, and too poly-centric to be answered in an abstract enquiry; they don’t become any simple just because a Senior Counsel has “framed” them. To take just one example: if you hold that Article 21 is indeed horizontally applicable, then how does that affect the entire swathe of Indian criminal law, whose task is precisely to protect the life and liberty of individuals from encroachment by other individuals, through legislation? Does it even affect criminal law? Should it? Legal scholars have written entire books grappling with the complex engagement between horizontal constitutional rights and existing private and public law regimes. And therefore, the correct way of addressing these issues – and the correct way for constitutional courts to behave –  is to address them in light of concrete cases that are called before it for determination, because it is only then that it can actually be seen how horizontal rights – or positive obligations – play out in the real world. Without that, this is nothing more than whistling in the dark.

But if questions (2) and (3) raise the prospect of a headless jurisprudence, question (1) is profoundly dangerous. To start with, where on earth did it come from? It wasn’t in the original four questions framed by Dipak Misra J.’s court. It is not connected to questions (4) and (5), which are the ones that are really about what speech a minister may or may not engage in, and which basically deal with the question of how and when you can attribute a minister’s speech to the State. But most importantly, this question has already been answered. It has already been answered by the Supreme Court. It has already been answered by the Supreme Court multiple times. In fact, it has been answered by a Constitution Bench of the Supreme Court. In Sakal Papers v Union of India, a five-judge bench held:

It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19 … Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public … For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.

Sakal Papers is one of those landmark judgments in Indian free speech jurisprudence. The fundamental propositions that it articulates have never been seriously doubted in sixty years, and were accepted by the Supreme Court as recently as Shreya Singhal (2015). Most importantly, as a five-judge bench, it is binding upon the present Constitution Bench. There has been no referral to reconsider its correctness. So then, why was this question framed? Why did the five learned judges on the Bench accept it? Perhaps we’re going to find out shortly that Sakal Papers has been per incuriam these six decades, and we just didn’t know it? Who knows.

In short, therefore, a case about a Minister making a statement about a gang-rape – crass and condemnable as it was – has somehow morphed into a Constitution Bench hearing where the Supreme Court is going to opine about horizontal rights, positive obligations, and the prospect of additional limitations on free speech, all in the abstract (as the original lis has long been lost in the mists of time). And that, in a nutshell, is the problem with what PIL has become today:  it is no longer about expanding the concrete fundamental rights of the most vulnerable, but something else entirely, something that has become hostage to the fancies of individual judges and senior lawyers.

Indeed, the history of this case reveals something important about that last relationship. The history of these orders show that while the initial four questions were framed by the Court, the questions that the Constitution Bench is now going to “answer” have been framed by the two amici mentioned above. While Mr. Fali Nariman was appointed initially by the Court, Mr. Salve’s appointment came about in an order dated 29.3.2017, which records that “Mr. Harish Salve, learned senior counsel, who was present in Court, expressed his intention to assist the Court.”

Now I wonder how many of us are accorded this unique privilege of simply standing up and “expressing our intention” to assist the Court, being promptly being made an amicus, and then framing questions that are going to affect fundamental rights across the country. And this is not the first time: in the famous 1997 phone tapping case, PUCL v Union of India, while PUCL’s lawyer, Mr. Sanjay Parikh was arguing, there was another courtroom intervention. The judgment records it thus:

At this stage, Mr. Kapil Sibal & Dr. Dhawan, who are present in Court, stated that according to them the matter is important and they being responsible members of the Bar, are duty bound to assist this Court in a matter like this. We appreciate the gesture. We permit them to intervene in this matter. They need a short adjournment to assist us.

 

Mr. Sibal then went on to justify telephone interception and proposed a “non-judicial” oversight mechanism – a proposal that was accepted by the Court, and continues to haunt our surveillance jurisprudence till today. Similarly, in the notorious Devidas Tuljapurkar case, the framing that “historically respectable personalities” should be given some kind of different protection against “obscene speech” was propounded by Mr. Nariman, who had been appointed as an amicus.

None of this is the mark of an egalitarian, democratic, or even healthy legal culture, where seniority has become a kind of special-access gateway (for more on the outsize role of the amicus in PIL cases, see Anuj Bhuwania’s Courting the People). And apart from its iniquitous character, it is particularly problematic in civil rights cases, where what is at stake are fundamental liberties: these fundamental liberties should not become playthings of whatever fancy takes a Senior Counsel at a particular time. The first three “questions” that this Constitution Bench of five learned judges is now proposing to “answer” shows us the perils of such a legal culture.

Kashmir: Fundamental Rights and Sealed Covers

In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.

In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.” 

While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover. 

At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless. 

Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency. 

It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.

Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.   

Judicial Emergencies: Law and Practice

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


One of the curious features around the ongoing litigation in the Supreme Court concerning the communications lockdown and executive detentions has been the absence of written documentation filed by the government, in court. For example, we still do not have access to the legal order imposing the communications lockdown, and in the habeas corpus cases, the Supreme Court’s “innovative” remedy of telling the petitioners to travel to J&K to meet the people who are allegedly detained, has effectively exempted the government from responding on questions of legality (so far).

In the absence of the government’s responses, it is impossible to know what legal and constitutional justifications it is offering for what are undoubtedly serious rights violations. In a previous post, I explained why this is a huge problem in a country – and a Court – that continues to (claim to be) governed by the rule of law. This situation, however, changed for the first time on October 1, when the State of Jammu and Kashmir (not the Indian Government) brought on record its reply (a “Limited Affidavit”) in Anuradha Bhasin v Union of India – the first of the petitions filed to challenge the communications lockdown.

From a survey of the Limited Affidavit (a copy of which is on file with the author of this post), the State’s rationale begins to appear. In paragraph 3, it states that the modus operandi of terrorists has been to infiltrate J&K from across the border, and then instigate local militants, with the help of separatist groups. In paragraph 5, the Limited Affidavit goes on to note that the government’s actions on Article 370 would jeopardise the position of these militants, as well as the separatist elements. And because of the influence that these groups enjoyed, there was an “imminent threat of deterioration of law and order.” In paragraph 11, the Limited Affidavit observes that in view of the “apprehension of misuse of Data Services”, requests were made to service providers pertaining to “different zones/areas” based on the threat perception, and which were ultimately confirmed in accordance with the Telecom Suspension Rules of 2017. In paragraph 12, it deals with the imposition of curfew orders under S. 144 CrPC on the basis of an apprehension of the deterioration of law and order, passed by various District Magistrates. In paragraph 14, the Limited Affidavit insists that the restrictions are temporary, and will be lifted based on an assessment of the situation in “each area.” Finally (for our purposes), in paragraph 16, the Limited Affidavit states that “the need-based restrictions were/are reasonable, had nexus with the purpose (pre-empt inflammation of passions and rumour-mongering).

Now for the purposes of this post, I want to bracket the issue of curfews and S. 144 (including issues around functioning of schools, hospitals, and markets), and focus exclusively on the issue of the communications lock-down. As I had discussed in the previous post, a communications lock-down – that infringes Article 19(1)(a) of the Constitution (at the very least) – can only be justified if the State’s measures meet the threshold of “proportionality”. One of the elements of “proportionality” requires the State to impose the least restrictive measure that is consistent with its legitimate purpose or goal. To take the very specific example of a communications lock-down: given the existence of “white lists” and “black lists” – which allow the State to block or disable mobile numbers in a targeted fashion – is it proportionate to shut off the communications of the entire state, instead of targeting individuals known to be – or even suspected to be – involved in or encouraging terrorist activities?

The Limited Affidavit, however, makes no argument at all on the question of proportionality. It argues that there exists a reasonable nexus between the measure (communications lock-down) and the goal (pre-empt inflammation of passions and rumour-mongering, presumably with a view to maintaining the 19(2) goal of “public order); now while even this connection is open to question (see, for example, recent research on the topic arguing against the belief that communications lock-downs prevent rumour mongering), what is clear is that no argument is offered in the Limited Affidavit for why more targeted measures cannot work (or were even contemplated). Surely it is not the State’s case that every individual in J&K is a potential inflamer of passions and a rumour-mongerer? That argument would be entirely at odds with our entire legal system’s focus on individual responsibility, and our aversion to collective punishment, or attributing collective criminality to entire groups of people.

But if that is not the argument, then what is? The only answer is to be found in the Limited Affidavit’s mention of “zones” or “areas” of potential disturbance, and also that the assessment is being made on the basis of the situation that these “zones” are in. That argument, however, falls into exactly the same problem discussed above: it is no longer about determining that there exists reasonable cause to (preventively) deprive an individual from exercising her Article 19(1)(a) rights, but that within an “area” (and “area” here means an entire state), everyone will be presumptively apprehended to be “misusing Data Services.”

Note, here, that this is not the same as Section 144 prohibitory orders in the physical world, where the State cordons off certain areas and prohibits assemblies there, ostensibly for the purpose of preventing riots. The justification for those prohibitory orders (and even they must meet the standard of proportionality, and cannot be perpetually extended) is that once the crowd is in place, you actually can’t separate the rioters from those caught up in the riot – and so you prevent the crowd from forming in the first place. That argument doesn’t translate into the digital world, especially when you already have a Section 144 order in place preventing assemblies on the ground.

That being the case, what justifies a departure from targeted shut-downs of identified mobile numbers to an assessment of what an “area” is like? I suggest that our Constitution allows for only one situation in which that approach is permitted: a declaration or “Proclamation” of Emergency, where (certain) rights may be suspended en masse, without the need for the proportionality assessment that may require individualised targeting. In other words, our Constitution recognises that there may exist rare and exceptional situations, where the situation is such that the a proportionate restriction of fundamental rights is (temporarily) impossible, and for the period of that impossibility, the State is exempted from adhering to the constitutional standard.

But here’s the crucial point: an Emergency must be declared formally. Not only must citizens be put on notice that their rights are suspended, but the existence of an exceptional situation – because of its very character – must strictly adhere to the legal formalities that are required to bring it into force. There’s been a lot of talk lately about an “undeclared Emergency”, but the point to note is that in legal terms, an “undeclared Emergency” is an absurdity. Without the legal form, it does not exist; and if it does not exist, it cannot be assumed in Court.

Or, to put the point more simply: there are two legal regimes. The normal legal regime, which requires the Court to rigorously apply its constitutional standards to violations of rights; and the Emergency regime, in which (some of) those rights stand suspended. But the two regimes cannot (legally) bleed into one another; where there is no Emergency, the State cannot “implicitly” invoke its logic in Court – and equally, the Court cannot, in its orders, act as if there was an Emergency.

The Limited Affidavit in Anuradha Bhasin’s Case, however argues as if there was an Emergency; but what is more worrying is that the Court’s orders (until now) appear to accept that. The most glaring example of this is the September 16th Order, which I discussed in my last post: the Court’s Delphic proclamation that the State ought to ensure that “national security” must be “balanced” with personal liberties is the logic of Emergency: not only does it impose no obligation upon the State, but in avoiding any mention of proportionality, it allows the State to determine exclusively how to achieve that balance – and thus, effectively, suspends those rights as legal rights.

This is what I would like to call a “judicial Emergency”: there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Of course, if we extend the analysis beyond communications shut-downs – and to habeas corpus – we find something even more troubling: because there the Court is acting not merely as if it was a judicial Emergency, but as if it was a judicial Emergency in 1976. Remember that the 44th Amendment – after Indira Gandhi’s fall – ensured that even during an Emergency, Article 21 – and therefore, the writ of habeas corpus – cannot be suspended. The Supreme Court’s conduct on habeas corpus, therefore, takes us into a world in which not only is there a judicial Emergency, but also, a world in which the 44th Amendment … no longer exists.

That is a somewhat concerning world to live in.