Tag Archives: freedom of speech

Judicial Evasion, Book Bans, and the Unreasoned Order

[Update: A previous version of this post mistakenly stated that the Supreme Court had dismissed the appeal in a single-line order. What the Court did was to state in court that it would not interfere with the High Court judgment, and indicate that there would be no detailed order. The updated post reflects this. Once the formal order is out, a separate post will be written.]

On this blog, we have discussed a phenomenon I have labeled “judicial evasion“: when the Supreme Court effectively decides cases without handing down a reasoned judgment on merits. In previous posts, we have examined two forms of judicial evasion: refusal to hear a case when status quo is to the benefit of one of the parties (in our cases, that party has been the government), and agreeing or declining to “stay” a lower court judgment. In both cases, ultimately, evasion is constituted by judicial inaction.

Judicial evasion, however, is a broader term, and an example of a case in which the Court acted – while also evading – is yesterday’s order upholding a ban on a book called Basava Vachana Deepthi, written by one Maate Mahadevi. Elsewhere, I have discussed in some detail the issue of book banning and the freedom of speech and expression, the Supreme Court’s deeply speech-hostile jurisprudence on this issue, and how – in my view – Courts should interpret the relevant legal provisions. This post, however, is about something else: it is about banning by evasion, and this should cause serious alarm.

The book was written in 1996. In 1998, it was banned by the Karnataka state government under Section 95 of the Code of Criminal Procedure, a provision that has its roots in colonial law, and authorises state governments to ban and forfeit books if it “appears” that they might violate certain provisions of the Indian Penal Code (such as sedition, hurting of religious sentiments etc.) Section 96 of the CrPC allows persons aggrieved by the State government order to approach the High Court for relief.

In 2003, the High Court of Karnataka upheld the ban. The High Court’s judgment is an extraordinary one, endorsing the complete subordination of the individual right to freedom of speech and expression to the vague and amorphous category of community sentiments. The apparent offence was that the writer – claiming religious inspiration in her own right – had changed the pen-name that had been used by the 12th-Century saint and social reformer, Basavanna, while authoring his “vachanas“, from Kudalasangama Deva to Linga Deva.

Now, one may ridicule the writer for having delusions of grandeur, and one may criticise her and hold her in contempt for attempting to use a famous historical figure to advance a personal cause. But it should be immediately clear that banning a book for this reason renders a right to free speech entirely worthless. This was not a case of religiously-motivated hate speech. This was not a case where someone was inciting violence or discrimination against a set of people on the basis of their religion. This was, on the contrary, a classic example of cultural dissent – an individual advancing her own interpretation of her faith, that was at odds with the prevailing and dominant view. If there is anything that the right to free speech and expression has to protect, it is this.

None of that weighed with the High Court. The High Court noted that:

“… the petitioner has absolutely no right to substitute that word by any other word which has the effect of changing the original script of the author. It it is changed, naturally it will affect the religious feelings and sentiments of certain community which holds said Vachanas of Lord Basaveshwara in its original scrip in high esteem and reverence.” (para 7)

It is unclear how the High Court arrived at a conclusion that the Petitioner had “no right” to substitute the pen name (at worst, she had a right which could be restricted). More notably, however, the High Court relied entirely on how a “certain community” would react to this text. There was no analysis on what, objectively, was problematic about the text itself. As I have argued elsewhere, this effectively gives the “community” (or what a Court considers to be a “community”) a complete and entirely subjectively-enforced veto upon the freedom of speech and expression. And if every community is granted its own personal veto, then having a guaranteed constitutional right to freedom of expression is quite pointless.

In fact, the Court went on to make a logical leap: Section 295A of the IPC – which was at issue – required not only insulting religious sentiments, but also that it be done with “malicious intent.” To prove malicious intent, the Court held – in logic that can only be described as viciously circular – that “… the petitioner says that it was done for a noble cause. But we do not find any such noble cause behind such wrongful act of the petitioner. In fact the petitioner herself says in her petition that “Kudalasanga” is nothing but “Linga.” if that is so, where is any justification for the petitioner to cause any such change in the Vachana of Basaveshwara. Therefore in our considered view the wrongful act done intentionally by the petitioner is without just cause or excuse. Therefore it is a malicious act.”

The “justification”, of course, was the petitioner exercising her constitutionally guaranteed right to freedom of speech and expression, but once again, that idea seems not to be on the Court’s radar very much. The Court then put a seal on this “reasoning” by observing that:

It may be pointed out that section – 295A has been intended to respect the religious feelings of certain class of persons and Courts have to be very circumspect in such matters and to pay due regard to the feelings and religious emotions and sentiments of different class of persons with different beliefs irrespective of the consideration whether or not they share those beliefs and irrespective of the consideration whether or not they are rational or otherwise in the opinion of the Court. The petitioner cannot impose her philosophy on others.”

But this is grotesque reasoning. In the view of the Court, the petitioner writing a book (that nobody is compelled to read) amounts to “imposing her philosophy on others”, but the State banning her book (so that nobody can read it) does not. In the view of the Court, it is not the right to free speech that must be respected whether or not the Court agrees with a particular act of expression, but it is community beliefs that must be respected by banning a book that the Court disagrees with.

When this case came up in appeal, therefore, one would have expected the Supreme Court to engage with this reasoning in some detail. This is especially the case for two reasons: first, book bans strike at the heart of free speech, one of the most important constitutional guarantees. A book ban is not like the rent control disputes or the transfer petitions that are heard by the Supreme Court on a daily basis. And secondly, the High Court judgment  – under the CrPC – was the first and only time that a Court had considered the issue. Consequently, when the case came up to the Supreme Court, it was not like a run-of-the-mill special leave petition, where multiple judicial fora had already adjudicated and decided the case. It was, effectively a first appeal, and there is a general rule that judicial fora ought to consider first appeals carefully and in detail.

The bench of Bobde and Rao JJ, however, heard the matter for four days, and then suddenly stated in open Court that they were not inclined to interfere with the High Court’s judgment, that they would not be writing any detailed order, and that there was no need for the parties to file written submissions or the authorities on the point.

Why did the Supreme Court do this? It is difficult to say; but nonetheless, the effect of what looks like being a minimalist order by the Court will be that there will be almost nothing one can engage with, disagree with, or critique. Although, in this case, the Court acted – that is, it passed an affirmative order dismissing the appeal and upholding the ban – in effect, what is happening is the same as what happens in the more classic cases of judicial evasion: the Supreme Court effectively decides a case with far-reaching constitutional consequences, which affects the fundamental rights of people, but gives virtually no reasons (or at best, inadequate reasons) for why it is doing what it is doing. And this is deeply problematic, because the authority of the Court is founded entirely on reason – reasoning from text, from statute, and from the Constitution, to arrive at a conclusion about whether and to what extent rights have been infringed in a particular case.

As I have written above, book bans are a very serious issue. If there is anything that raises important constitutional concerns in a democracy, it is the State’s power to censor speech. That the Supreme Court saw fit to uphold a ban without even reserving judgment and considering the issue in detail, is unfortunate; however, if this was to now become a regular feature, that would be truly tragic.

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Filed under Free Speech, Hate Speech

The (Hoary) Roots of Vagueness

When, in 2015, the Supreme Court handed down its judgment in Shreya Singhal vs Union of India, it was celebrated for many reasons. One of them was that the Court’s invocation of vagueness – along with the chilling effect – as a ground for striking down Section 66A of the IT Act represented an important conceptual breakthrough. While in Baldeo Prasad (1960) the Supreme Court had struck down a law criminalising “goondas” on the basis that it did not define who a “goonda” was, in K.A. Abbas (1970) the Court had admitted that in certain circumstances vagueness might make a statute void, and in Kartar Singh (1994) the Court had more or less imported the concept of void-for-vagueness from American jurisprudence, Shreya Singhal was believed to be the first time that the Court actually struck down a speech-restricting statute for being unconstitutionally vague.

Apparently not. It turns out that the origin of the vagueness doctrine in the context of speech-restricting statutes is far older than 2015; in fact, it goes back to 1951, to the beginnings of our constitutional jurisprudence, and a good two decades before the classic American judgment on the point, Grayned vs Rockford.

The case is State of Bombay vs F.N. Balsara, which is part of the constitutional canon, although for very different reasons. We know of Balsara because of its upholding of prohibition, its exposition of the doctrine of pith and substance in determining legislative competence, and its restatement of the classification test under Article 14. However, there was also an Article 19(1)(a) issue in Balsara, which the Court dealt with in a terse paragraph towards the end of its judgment. Not only did the Bombay prohibition law ban liquor, it also penalised people – and advertisements – which would “commend, solicit the use of, or offer any intoxicant or hemp” or “incite or encourage any member of the public or any class of individuals or the public generally to commit any act which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder,” [Sections 23 and 24 of the Act]

With respect to these provisions, the Court had this to say:

“Sections 23(a) and 24(1)(a) in so far as they refer to “commending” any intoxicant are said to conflict with the fundamental right guaranteed by article 19 (1) (a) namely, the right to freedom of speech and expression and there can be no doubt that the prohibition against “commending” any intoxicant is a curtailment of the right guaranteed. and it can be supported only if it is saved by clause (2) of article 19 which, as it stands at present, provides that “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.” It seems to me that none of the conditions mentioned in clause applies to the present case, and therefore the provisions in question must be held to be void. Section 23 (b) must also be held to be void. because the words “incite” and “encourage” are wide enough to include incitement or encouragement by words and speeches and also by acts. The words “which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder” are so wide and vague that it is difficult to define or limit their scope. I am therefore in agreement with the view of the High Court that this provision is invalid in its entirety. So far as article 24(1)(b) is concerned the judgment of the High Court in regard to it cannot be upheld. The learned counsel for the petitioner also conceded before us that he was not going to assail this provision.”*

While the major premise of the Court’s argument was that there was no sub-clause under Article 19(2) that could be used to justify prohibiting the “commending” or “encouraging” or “inciting” the sale and consumption of alcohol, it also made it clear that in any event, the gravamen of the offence – “frustrating or defeating the provisions of the act” – consisted of such vague terms, that the provision could not be sustained under Article 19(2). Interestingly, the Court also gave a nod to a concept often associated with vagueness in free speech jurisprudence – that of overbreadth – when it noted that the impugned words “are so wide and vague that it is difficult to define or limit their scope.” The issue of definition speaks to vagueness, while the issue of limit speaks to over-breadth (i.e., when a statute is worded so broadly that it ends up prohibiting speech that may constitutionally be restricted, as well as speech that may not).

Consequently, six decades before Shreya Singhal, a Constitution Bench of the Supreme Court had already struck down a speech-restricting statutory provision on grounds of over-breadth and vagueness. This conceptual advance, however, was largely forgotten in the intervening years (Abbas makes no reference to Balsara), and Balsara is never taught as a free speech case.

It does make you wonder, though, about how many hidden gems are lying scattered about in the Constitution Bench decisions from the 1950s. Chintaman Rao’s exposition of over-breadth was forgotten until Shreya Singhal resurrected it in 2015; In Re Kerala Education Bill’s doctrine of unconstitutional conditions was cited once in a concurring opinion in Ahmedabad St Xavier’s Education Society, but has been submerged ever since; Basheshar Nath’s invitation to develop a theory of fundamental rights as constituting an objective order of values, following German jurisprudence (via the doctrine of waiver), has never been seriously taken up; and of course, Balsara’s account of vagueness has been lost to the canon. All these judgments were delivered by benches of five judges or more, and consequently, remain good law.

How might the jurisprudence of 2017 be affected if the jurisprudence of the 1950s was to be taken seriously once more?

*Notice also that for the Court, the question of finding limitations upon free speech imported from outside 19(2) don’t even arise (much as they didn’t arise in its 1960 judgment in Sakal Papers). This is a good indication of why a two-judge bench’s recent framing of issues pertaining to whether Article 21 can “limit” 19(1)(a) is entirely misguided; the two-judge bench is bound by the Constitution Benches in Balsara as well as in Sakal: restrictions upon free speech are not to be imported form beyond Article 19(1)).

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Filed under Chilling effect, Free Speech

What is the Role of a Judge in a Polyvocal Court?

For a while now, commentators have remarked about the “polyvocal” character of the Indian Supreme Court. The Court comprises of 28 judges who sit, for the most part, in benches of two (or at most, three). For this reason, the Supreme Court – it is argued – is better thought of not as a single “Court”, but as many different courts of equal authority, who may often speak with different – or even opposed – voices on the same issue (consider, for instance, that time in the late 2000s, when Justices Sinha and Pasayat were handing down what were virtually duelling judgments on the death penalty). This, in turn, leads to patchwork jurisprudence, which is internally inconsistent, and invariably influenced by judicial personalities to a degree that is probably far greater than in other jurisdictions, where judges sit en banc, or at least, in a substantially larger number.

However, for all the problems of inconsistency (and even incoherence), the fact remains that any judgment handed down by a judge carries the authority of the Supreme Court of India. That judgment speaks for the Court, and by extension, for the other twenty-six judges not party to the judgment.

Keeping this in mind, I want to focus on an issue that is separate from the problems of institutional incoherence and contradictory jurisprudence, but which is becoming increasingly pressing. The polyvocal character of the Supreme Court would, under normal circumstances, be constrained by two centripetal forces: a respect for precedent – including judgments delivered by Constitution Benches from a time when two-judge benches were the exception rather than the norm – and the limited scope of the Court’s jurisdiction (i.e., the Court can only rule upon issues that are brought before it, and which concern questions of law). Institutional inconsistency, therefore, would remain a bounded inconsistency, both in terms of its content, and in terms of its subject matter.

In my view, at this point of time, both these centripetal forces (after having been consistently undermined for the last three decades, both in the Court and in the academy) are virtually non-existent. Constitution Bench precedents are regularly ignored, or distinguished on dubious bases, and the scope of PIL has now become so vast that the idea of a limit on the Court’s jurisdiction is almost laughable. This, effectively, concentrates great power in the hands of individual judges to shape or mould areas of law in a manner that is simply not contemplated in a functioning legal system.

To understand why this is a problem in the specific context of a polyvocal court, let us consider what Justice Dipak Misra (the second-most senior judge of the Court, and scheduled to become Chief Justice of India this August) has done to Article 19(1)(a) of the Constitution. In Devidas Tuljapurkar, he ignored fifty years of precedent and invented out of thin air a new standard of obscenity applicable only to “historically respectable personalities.” In Subramanian Swamy, he upheld the constitutionality of criminal defamation as it stood, ignored the conflict that the ruling set up with the coordinate bench judgment in R. Rajagopal vs State of TNconcerning the different standards in civil and criminal defamation law, and invented a mythical doctrine of “constitutional fraternity” to justify this. In his interim orders in the national anthem case, he has ignored the binding judgments of nine judges in Naresh Mirajkar and five judges in Rupa Ashok Hurra, as well as the basics of separation of powers, and has made the playing of the national anthem compulsory in cinemas before every film. In his interim orders in Sabu Mathew George, he has passed interim orders on the “auto-blocking” of keywords for sex determination, supposedly justified under the PCPNDT Act, but without any consideration of the 19(1)(a) issues at play (including those of intermediary liability). And in the Azam Khan case, which he is presently hearing, he has framed issues on whether political figures can be restrained from commenting on rape allegations, on the basis of another invented doctrine labeled “constitutional compassion” (and also goes against a line of judgments starting with Sakal Papers and ending with Shreya Singhal, which have made it clear that freedom of speech can be restricted only on the grounds listed in Article 19(2)). Out of the five cases mentioned above, four have come to the Court as PILs.

These five cases make it clear that Justice Dipak Misra does not consider the freedom of speech to be of much value. That is his personal prerogative; however, when in case after case, brought to the Court through flimsy PILs, he passes judgments that place vast swathes of speech off limits, through the invention of new doctrines completely untethered from constitutional text and at odds with clear precedent, it becomes a serious problem.

Now, in ordinary circumstances, to implement his views on free speech (or the lack thereof), Justice Misra would have had to convince a bench of five or seven judges to agree with him. However, as the senior judge in a two judge bench, he only has to convince one judge – and anyone who has spent any time in the Supreme Court knows that puisne judges rarely assert themselves against senior judges (there are exceptions, of course).

When, therefore, you combine the following features: decisions being rendered effectively by one individual (who is assigned these cases based on roster determinations by another individual, the Chief Justice), the declining importance of precedent, the evisceration of subject matter and jurisdictional limits, the fact that Article 145(3) (which requires that issues of substantial constitutional importance be heard by a bench of at least five judges) is more or less a dead letter (because the decision to refer is made by the judge hearing the case in the first place), and the predominance of PIL (which, as Anuj Bhuwania points out in his book, often amounts to the Court choosing a petitioner as much as it does a petitioner choosing the Court), you get the following result: the power to shape crucial areas of law, including fundamental rights, which impact peoples’ lives, rests in the hands of single individuals; and every institutional feature that might place a check upon those individuals’ predilections becoming the law of the land has been rendered virtually non-existent. The most basic and most important feature about a constitutional court – that its decisions ought to be rendered through a collegial process, involving give and take and compromise between judges of differing views – has completely gone.

This takes us to a crucial question, which arises simply because of what the Court has become: what about the responsibility of the other twenty-six judges who sit on the Supreme Court? For example, I suspect – and indeed, I would hope – that many of them have strongly different views on the role of free speech in a constitutional democracy, or at the very least, that they disapprove of the use of PILs to advance an anti-free speech jurisprudence that runs counter to precedent, text, and the separation of powers. In such a situation, it seems particularly problematic that a single individual (by virtue of the CJI-determined roster – and the concentration of power in the hands of the CJI will be the subject of a further post) gets to speak for the Court on issues of such great constitutional importance.

The Court as a whole, therefore, has the responsibility of evolving a mechanism that prevents this. Perhaps issues involving any article of the Constitution must compulsorily be sent to a five-judge bench, regardless of the referring judge’s opinion. Perhaps in issues involving constitutional articles, judges not on the two-judge bench should be able to write dissenting notes on the exposition of law involved – a radical suggestion, but this is a Court operating in an entirely unprecedented context. Whatever the solution, however, it is important to stress that the other twenty-six judges have to bear a substantial share of the responsibility: we cannot employ the fiction of “many different Supreme Courts” to absolve judges who, as part of the institution, acquiesce to judicial conduct and jurisprudence that they find contrary to the Constitution. Inaction must imply agreement.

I do not suggest that either of the two potential solutions outlined above will work; at the very least, though, this is a conversation that we must now begin to have.

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Filed under Judicial Accountability, Jurisdiction, The Judiciary

Of Missed Opportunities and Unproven Assumptions: The Supreme Court’s Election Judgment

On Monday, a seven-judge bench of the Supreme Court split 4 – 3 on the interpretation of Section 123(3) of the Representation of the People Act. Section 123(3) defines a “corrupt electoral practice” as:

“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

The interpretive question before the Court was whether the underlined “his” qualified only the candidate (and his agent etc), or whether it qualified the person to whom the appeal was addressed; in other words, whether “his religion…” referred to the religion of the candidate or the religion of the elector. Four judges (“the Majority”) held that “his” was to be interpreted broadly, and referred to the religion of the candidate, his agent, or any other person who, with the candidate or his agent’s consent, was making the “appeal” for votes, as well as the religion of the elector. Justice Lokur wrote for himself and for Justice Nageswara Rao, while Justice Bobde and Chief Justice Thakur wrote concurring opinions.

Justice Chandrachud wrote the dissent, for himself and on behalf of Justices Lalit and Goel. He held that the word “his” was to be construed narrowly, as applying only to the speaker (i.e., the person who made the appeal for votes, whether the candidate or his agent, or any other person with their consent).

In my view, the Majority holding is open to doubt, both linguistically and philosophically. Before that, however, note that this judgment is important not only for what it holds, but for what it refuses to hold; in particular, on the relationship between elections and the freedom of expression.

Free Speech, Elections, and the Strange Case of Jamuna Prasad

One of the arguments raised by Shyam Divan, senior counsel for the Petitioners, was that a broad reading of Section 123(3) ought to be avoided, since it would run afoul of Article 19(1)(a) of the Constitution (freedom of speech and expression). Justice Lokur’s majority opinion addressed this contention at the end, and cursorily. Justice Lokur held:

“Although it was submitted that a broad interpretation given to sub-section (3) of Section 123 of the Act might make it unconstitutional, no serious submission was made in this regard. A similar submission regarding the constitutional validity of Section 123(5) of the Act was dealt with rather dismissively by the Constitution Bench in Jamuna Prasad Mukhariya v Lachhi Ram when the sweep of the corrupt practice on the ground of religion was rather broad.”

The Court then cited the relevant paragraph from Jamuna Prasad, and concluded: “We need say nothing more on the subject.”

Let us, however, look a little more closely at what Jamuna Prasad – a five-judge bench case from 1954 – actually said:

“These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.”

There are at least five reasons why the argument in Jamuna Prasad is not only erroneous, but manifestly erroneous. FirstJamuna Prasad misconstrues what is at stake. By characterising Section 123 has “prescribing conditions” for entering Parliament, it ignores the fact that Section 123 regulates campaign speech, which is an example par excellence of political speech, and political speech, in turn, is at the heart of the constitutional guarantee of freedom of speech and expression.

Secondly, Jamuna Prasad’s logic reduces freedom of speech to a formality, by allowing the State to restrict large swathes of speech under the guise of “prescribing conditions”; tomorrow, for instance, if the State was to ban all speaking in public places, Jamuna Prasad would justify it on the basis that it merely prescribes conditions for entering public places. The extreme end of this logic would justify any penal prohibition on speech by holding that it merely prescribes a condition for staying out of jail.

ThirdlyJamuna Prasad’s logic was rejected five years later in In Re Kerala Education Bill, which laid down the doctrine of unconstitutional conditions: even if an individual has there is no constitutional right to “x” – and even if “x” is only a privilege – the State cannot make his access to “x” conditional upon his giving up a fundamental right. Concretely, the State cannot tell me – without further constitutional justification – that I am allowed to stand for parliament only if I give up my fundamental right to freedom of speech and expression.

FourthlyJamnua Prasad’s logic was expressly rejected by two Constitution Benches in the 1960s – Kameshwar Prasad and O.K. Ghosh – in the context of the workplace. In both these cases, laws restricting the freedom of association at the workplace were challenged, and in both cases, they were struck down. The State argued that the laws were not infringing anyone’s fundamental rights, since they were only conditions for joining government employment. A person was free not to join government employment, and associate with whomever she pleased. The Court rightly made short shrift of this argument, holding that a person did not give up her fundamental rights after joining government employment. Similarly, a person does not give up their right to freedom of speech and expression on deciding to contest an election.

Fifthly, whatever the status of the right to contest elections at the time of Jamuna Prasad, it is now well-settled in a number of cases that the right to contest elections is more than a statutory right; it is a “constitutional right” (what, precisely, this means has not yet been clarified); and furthermore, the “freedom” to vote is an aspect of the freedom of speech and expression under Article 19(1)(a), a fundamental right. It has also been held that the freedom of speech and expression under Article 19(1)(a) includes the freedom to receive information. Consequently, at the very least, from the perspective of the voters, Section 123 implicates the freedom of speech and expression.

Consequently, there were strong reasons for the Court to reconsider Jamuna Prasad, and rethink the relationship between freedom of speech and elections. Its failure to do so – and to continue to endorse the line of cases that counterintuitively places free speech and elections in isolated, hermetically sealed spheres, is disappointing.

The Grammar of Section 123(3)

Let us return to Section 123(3). Paring it back to its essentials, it states: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language.” 

At the outset, there is one way in which the Majority is clearly incorrect. The word “his” cannot qualify both the speaker and the audience (the electors). When the section reads “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion…“, the placement of the word “his”, as a matter of grammar, requires it to qualify only one potential subject.

Once that is clear, it becomes even more obvious that the majority’s interpretation is unsustainable as a matter of language, and no amount of purposive interpretation can save it. This is because Section 123(3) contains only one subject: the speaker (whether it is the candidate, his agent, or any person with their consent). The Section does not say “the appeal by a candidate… to any person to vote or refrain from voting for any person on the ground of his religion…” If that was the language of the statute, then, linguistically, it would be equally plausible for “his” to qualify “to any person” (i.e., the elector), or to qualify “the candidate”. We would then have to look to the purpose of the statute to determine which of the two was the correct interpretation. However, when we have the sentence “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion“, there is only one plausible interpretation: “his religion” refers to the religion of “any person”, who is to be voted (or not voted) for.

In my respectful submission, therefore, the matter should have ended here. The language of Section 123(3) could not sustain the meaning that the Majority placed upon it.  What Justice Lokur did then, however, was to marshal historical evidence in support of his broad interpretation (interestingly, in his dissenting opinion, Justice Chandrachud used the same historical material to arrive at the opposite conclusion). According to him, the legislative policy was to preserve the “purity” of elections by prohibiting appeals to “divisive” and “fissiparous” tendencies; religion, caste, language, and community were examples par excellence of such tendencies. If this was the goal of the statute, then, according to Justice Lokur, it made no sense to limit the reach of the statute only to the religion (etc) of the candidates; rather, the intention clearly was to eradicate appeals of these kinds from the electoral process as a whole.

If one accepts Justice Lokur’s reading of the legislative history behind the provision, then one will probably accept the broader reading of Section 123. However, as pointed out above, Justice Lokur’s reliance on draft bills and statements on the floor of the house was countered by Justice Chandrachud, who pointed to categorical statements by the drafters, to the effect that the kinds of statements they were concerned about were the “I am a Muslim, vote for me” kind. If the legislative history is ambiguous, and does not admit of a clear answer, then there are two huge assumptions in Justice Lokur’s argument. The first is that “divisiveness” and elections are antithetical to each other. This, however, is a deeply counter-intuitive proposition. Elections are centrally about divisiveness: candidates seek to set themselves apart from their rivals by putting themselves forward as best-placed to protect the interests of their constituents. What, precisely, is illegitimate about a candidate promising to protect his constituents’ religious or linguistic interests? Or, to take another kind of example, class divisions can be every bit as divisive, and potentially violent, as religious divisions; in fact, Section 123(3A) prohibits promoting enmity “between classes”. Divisiveness, therefore, seems to be an incomplete justification of Section 123(3).

Secondly, Justice Lokur’s argument assumes that from the point of view of the electoral process, there is no difference between what an election candidate can legally do, and how a voter ought to exercise their vote. It is on the basis of this assumption that he bases his argument that it would make little sense to apply Section 123(3) only to candidates. In doing so, however, he does not engage with the important argument made by Justice Chandrachud in dissent: that there is a non-trivial distinction between a candidate and his electors, since the candidate, in a democracy, is meant to represent his constituency as a whole. The candidate cannot directly claim, therefore, that he will represent only a subset of his constituency.  There is, however, no similar constraint upon the voter. If this distinction holds (and I admit that it is tenuous, given that candidates are always appealing to specific sectors in their constituencies), then limiting the reach of Section 123(3) to candidates makes sense.

Lastly, Thakur CJI, in his concurring opinion, adds to Justice Lokur’s argument by making the claim that Indian secularism requires religion to be excluded entirely from the secular sphere. I respectfully disagree. The Court’s own jurisprudence suggests the contrary: at the heart of its “essential religious practices” test under Article 25 jurisprudence is judicial intervention into the tenets of religion, and judicial selection of which of those tenets constitute “essential practices”. There are other examples, but this is enough to demonstrate that the categorical statement excluding religion from the secular sphere needs further argument before it is to be accepted.

(I shall be engaging upon a more elaborate defence of Justice Chandrachud’s dissent elsewhere).

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On Reasonable Restrictions and the First Amendment

In The Hindustan Times, Avantika Mehta has written a perceptive review of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. In particular, I found this observation interesting, and one that calls for a response:

“… when Bhatia discusses hate speech without bringing up parliamentary debates on the issue or a beloved politician’s contribution to enacting the law he finds so vile – yes, we are referring to Nehru’s introduction of the “reasonable restrictions” clause of our FOE — he does a disservice to history and to his readers. Historians have noted that the clause was brought in to muzzle the Hindu Mahasabha. The amendments were later used by the Supreme Court to uphold the law of sedition, which Bhatia extensively discusses in the book without looking into the realpolitik of the situation.”

There is considerable controversy over Nehru’s role in the constitutional history of the free speech provision. It is therefore important to clarify what Nehru was responsible for, and what he wasn’t. To start with, let us take the text of Article 19(2) as it stood at the time the Constitution was adopted:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

After the First Amendment (which was brought about in response to cases such as Romesh Thappar vs State of Madras and Brij Bhushan vs State of Delhi), the modified Article 19(2) now read:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

Two points need to be made.

First, restrictions upon the freedom of speech were not introduced by Nehru via the First Amendment. Article 19(2) was part of the original Constitution. The final wording of the sub-clause was the result of intense and bitter debate in the Constituent Assembly, but – interestingly enough – Nehru was not a very active participant in that debate. The intellectual defence of a restrictions clause was provided by Ambedkar in a lengthy speech, where he cited Gitlow vs New York (American Supreme Court) for the specific proposition that free speech must be constrained in certain circumstances. Sardar Patel also provided strong support for Article 19(2) (then draft Article 13(2)), on more than one occasion. A perusal of Nehru’s speeches indicate that he was clearly in favour of the restrictions clause, but the heavy lifting – at least in the Assembly – was primarily done by Ambedkar and Patel, and certain other members such as Brajeshwar Prasad. Opposition to the restrictions clause came from two quarters: the Left (Somnath Lahiri, in particular), and the (Hindu) Right, both of whom advanced nuanced and subtle arguments calling for the restrictions clause to be scrapped altogether, or to be watered down. Unfortunately, they lost.

Secondly – and this is crucially important – the First Amendment did two different things, which need to be kept separate. First, it expanded the scope of Article 19(2) by introducing the terms “public order” and “incitement to an offence”. This was clearly done with a view to get around the decisions of the Supreme Court in Romesh Thappar and Brij Bhushan, which had struck down a ban on a left-wing journal and pre-censorship of a right-wing (RSS) journal respectively (N.B.: it wasn’t just about suppressing the Hindu Mahasabha – it was equally about suppressing communism), on the basis that the original Article 19(2) did not authorise the State to impose restrictions upon free speech in the interests of public order, but required it to discharge the higher burden of showing a threat to the security of the state. This was a regressive step, and as the mover of the Amendment, Nehru deserves to be severely criticised for it.

However, this was not all that the First Amendment did. In addition to expanding the scope of Article 19(2), it also introduced the word “reasonable” into the sub-clause. This word did not come out of a vacuum, but had a long history behind it. In a forthcoming paper on free speech in the Constituent Assembly Debates, I attempt to explain the significance of the word “reasonable”, for the framers. Consider the following excerpt:

“Distrust of the State was also the underlying motivation of another set of objections to the wording of the restrictions clause. Sardar Hukum Singh perceptively noted that the phrase “in the interest of”, placed just ahead of the substantive restrictions, would serve to reduce the Supreme Court’s area of review to a very narrow sliver. The question of whether a legislation was “in the interest” of the security of the State, for instance, would restrict the Court to merely being able to interrogate its bona fides.[1] “The proviso in article 13(3)”, he argued, “has been so worded as to remove from the Supreme Court its competence to consider and determine whether in fact there were circumstances justifying such legislation.”[2] Pandit Thakur Dass Bhargava suggested a way out: add “reasonable” before “restrictions.” This, he suggested, would ensure that “the courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say.”[3] In that context, Hukum Singh, in fact, took on Ambedkar on his own terms. Ambedkar’s argument that he could produce a foreign precedent for every restriction placed in draft clause 13(2), he argued, was inapposite, because in other countries, it was the judiciary’s task to balance the competing interests of liberty and social order.[4]” [Footnotes omitted]

The word ‘reasonable’, therefore, was meant to legitimise judicial review over free speech restrictions. Note that Romesh Thappar and Brij Bhushan were decided on the basis that the laws in question related to “public order”, and not to “security of the State”. Without the introduction of the word “reasonable”, this jurisprudence would have very soon hit a dead end, since the only enquiry that the Court could undertake would be whether there existed some discernible relationship between the restriction and the contents of Article 19(2). The nature of that relationship would have remained beyond judicial review.

It was the word “reasonable”, in fact, that allowed the Supreme Court to introduce a proximity requirement between speech and public disorder in Ram Manohar Lohia’s Case, and kickstarted the limited free-speech protections that we find in the Supreme Court’s jurisprudence today. Without that word, the few progressive free speech decisions in our constitutional history would not have existed: there would have been no Lohia, no Arup Bhuyan, and no Shreya Singhal.

It’s possible, of course, that a more textually constrained Court would have found more creative ways to protect civil rights, and ended up developing a better and more coherent free speech jurisprudence. The history of the Court, however, suggests that this would have been a highly unlikely outcome.

In sum, therefore, it’s important to reiterate two basic points that seem to repeatedly get submerged in discussions about the Constituent Assembly and the First Parliament, in the context of free speech. First, an extensive restrictions clause existed in the original Constitution, and one that was accepted by all the major figures of the Assembly – Ambedkar, Patel, Nehru, Alladi Krishnaswamy, and so on. And secondly, the First Amendment was regressive in that it expanded the scope of 19(2), but progressive in that it also expanded the scope of judicial review (what the Court has done with its expanded powers is a different question entirely).

 

 

 

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The “Balancing” Test and Its Discontents

At the heart of the Supreme Court’s upholding of criminal defamation is the argument that the right to freedom of speech under Article 19(1)(a) must be “balanced” against the right to “reputation” under Article 21 (as I pointed out in my post about the judgment, the Court’s examination of the reasonableness of criminal defamation under Article 19(2) simply merges into its balancing test. No finding is returned with respect to the former – thus leaving balancing as the sole basis of the judgment).

The criminal defamation judgment is not the first time that the Court has resorted to “balancing” the textually guaranteed right under Article 19(1)(a) against unenumerated rights under Article 21 (R. Rajagopal and In Re Noise Pollution are two others). One problem is that the method of balancing has never been described – the “balancing” invariably leads to subordination of free speech to whatever right the Court decides to find under Article 21.

There is a deeper problem, however. The Court never justifies the balancing test in the first place. To understand why this is a problem, consider the famous American Supreme Court judgment in United States vs StevensPut simply, United States vs Stevens was about the constitutionality of a statute that prohibited the dissemination of videos depicting cruelty to animals. The State attempted to defend the statute by arguing that the “value” of such speech was far outweighed by the social interests advanced by its prohibition. Rejecting this argument by an 8 – 1 majority, the Court observed:

“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.””

There is little I can add to the soundness of this reasoning, except to note that this applies with even greater force to the Indian Constitution than it does to the American. Textually, the American First Amendment is a broad, freedom of expression clause that contains no restrictions. On the contrary, Article 19(2) lists out eight restrictions upon the freedom of speech that can be imposed by law. The argument that the “balancing” between free speech and various social interests has already been achieved within the constitutional text is therefore far more compelling in the Indian context. Given that the framers (and then the amenders) specifically enumerated eight restrictions upon the freedom of speech within the constitutional text strongly suggests that the process of balancing has already been undertaken in the drafting of Articles 19(1)(a) and 19(2). It is not for the Court to further “balance” the freedom of speech against interests that do not form part of Article 19(2) (and certainly not by invoking the DPSPs and Fundamental Duties!)

Three further textual points support this reasoning. The first is that Article 19(2) does not contain a “public interest” restriction (as opposed to, say, Article 19(6)). This suggests a deliberate choice on the part of the framers to reject a general balancing between the freedom of speech and those “social interests” not specifically enumerated under Article 19(2). The second point is that where the Constitutional text intends such a balancing, it specifically says so. Article 25(1)’s freedom of religion guarantee, for instance, is expressly made “subject to” the other provisions of Part III. Article 19(1)(a) is not. A purely textual analysis, therefore, precludes “balancing” Article 19(1)(a) against other provisions of the Constitution. And the third point is that in Constitutions where the balancing test is part of free speech jurisprudence, it is based on specific textual guarantees that allow the State to limit free speech in the interests of “the rights of others” (something similar to Article 25(1)). Article 19(2) contains no such limitation.

Over the last twenty years, it has become established judicial wisdom that Article 19(1)(a) is to be “balanced” against Article 21 (in its capacious, ever-proliferating avatar), and even “balanced” against Part IV, and the fundamental duties chapter. This has come to a point where, in the criminal defamation judgment, the Court hasn’t even returned a finding on Article 19(2), preferring instead to decide the case on the basis of balancing. However, the Court has never interrogated the foundation of that claim (Shreya Singhal, which implicitly holds that restrictions upon freedom of speech must meet the test of Article 19(2) is an exception, as it is an exception in many other ways). Because of the strong textual evidence against this balancing exercise, the Court must show overwhelming reason why this method is constitutionally mandated. So far, it has not done so.

(Ed. My thanks to Jawahar Raja, whose strong objections to the balancing test made me rethink my own intuitive acceptance of it)

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Two state laws (and one proposed law) with constitutional implications

Last month, Punjab passed the Indian Penal Code (Punjab Amendment) Act, which inserts a new Section 295AA into the IPC. 295AA, according to reports, prohibits “sacrilege” to the Guru Granth Sahib, and imposes life imprisonment as a punishment. I haven’t yet been able to obtain a text of the law, but if indeed the term used is “sacrilege”, it seems to me that there is a clear over-breadth problem with respect to Article 19(1)(a). It would also be interesting to see whether Section 295AA has a mens rea requirement, since that was precisely the ground on which the Supreme Court upheld Section 295A in Ramji Lal Modi’s Case – reasoning that an “intentional” insult to religious sentiments can cause public disorder, bringing the section within the scope of Article 19(2). It also seems to me that the sentence of life imprisonment is highly disproportionate, and can constitute cruel and unusual punishment, violating Article 21.

On April 11, the Maharashtra Legislative Council cleared a bill to “regulate” dance bars in the State of Maharashtra. The Hindu has an account of some of the stringent conditions imposed by the bill. Apart from the fact that the bill imposes prior restraint by subjecting all performances to the approval of the censor board, it also allegedly prohibits “vulgar” performances. Once again, this seems to be a textbook case of over-breadth under Article 19(1)(a) – quite apart from the fact that the Supreme Court itself, on more than one occasion, has specified that mere vulgarity (if it lacks a “prurient interest”) does not constitute obscenity.

Last week, Maharasthra enacted a law against social boycotts (a previous draft may be accessed here). The law prohibits social boycotts (which are defined in numerous ways, ranging from expulsion from the community, to obstructing regular business and social relations, to obstructing the performance of marriage) within communities. It is therefore applicable horizontally, and – naturally – impacts the freedom of association (which, as the Court has held, carries with it the freedom not to associate). Social boycotts – and legislative action against them – have a long history in India, as we have often discussed on this blog. Starting from school segregation in the late 19th century, to Ambedkar’s movements for water-tank and temple access in the 1920s, to the framing of the Constitution (Article 15(2)), to the Protection of Civil Rights Act, to the striking down of the Bombay excommunication law in 1962 – the history has been a bitter and contested one. Notably, the draft bill specifically prohibits excommunication, thus bringing it into potential conflict with the Dawoodi Bohra judgment. It will be interesting to see if this gets taken to the courts.

(PS. I haven’t been able to obtain the texts of any of these laws – help on this would be most welcome!)

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