The Unexamined Law: On the Supreme Court’s Stay Order in the Election Commissioners Case

In a previous post (“The Mysterious Disappearance of the Stay Hearing“), I had pointed to the Supreme Court’s refusal to hold stay hearings in cases involving time-sensitive constitutional challenges. Perhaps the only thing worse than a refusal to substantively decide a stay application is a judicial order that purports to decide it, but on scrutiny, turns out to be a caricature, or a parody, of legal reasoning. This is the Supreme Court’s order of 22nd March, that dismisses the applications for staying the Election Commissioners Act (that we have discussed extensively on this blog).

The striking thing about the Supreme Court’s ten-page order – authored by Khanna and Datta JJ – is its refusal to engage with the core of the constitutional challenge before it – indeed, its refusal to even advert to it. Recall that the challenge was, in effect, that by replacing the Chief Justice of India in the selection committee for the Election Commissioners (the “interim arrangement” set out in the Anoop Baranwal judgment) with a cabinet minister nominated by the Prime Minister, the impugned legislation impermissibly modified, or overturned, the Court’s judgment. In paragraph 9 of its order, the Court purports to deal with this argument by stating that the committee constituted in Anoop Baranwal (the CJI, the PM, and the LoP) was a “pro-tem measure.” This is correct on its own terms, but also, it is a highly selective reading of Anoop Baranwal. As noted in this blog’s analysis of Anoop Baranwal, the interim committee constituted by the Court did not pop out of thin air. The basis of Anoop Baranwal was that Article 324 of the Constitution encoded a constitutional expectation that the manner of appointment of the Election Commission would ensure institutional independence from the executive. This is repeated multiple times in Anoop Baranwal, most specifically in paragraphs 32-33, and then even more categorically in paragraph 215:

We have set down the legislative history of Article 324, which includes reference to what transpired, which, in turn, includes the views formed by the members of Sub-Committees, and Members of the Constituent Assembly. They unerringly point to one conclusion. The power of appointment of the Members of the Election Commission, which was charged with the highest duties and with nearly infinite powers, and what is more, to hold elections, not only to the Central Legislature but to all the State Legislatures, was not to be lodged exclusively with the Executive. It is, accordingly that the words ‘subject to any law to be made by Parliament’ were, undoubtedly, incorporated. 

The “pro-tem measure” that the Supreme Court’s order refers to – as is therefore obvious from a very basic reading of Anoop Baranwal – was pro-tem because Parliament had failed to enact a law consistent with its obligations under Article 324; these obligations were – to repeat – to ensure that, under the legislation, the Election Commission would be institutionally independent, and not subject to executive dominance. The “pro-tem measure”, thus, was not “pro-tem until parliament passes any law that it pleases”, but “pro-tem until parliament passes a law consistent with maintaining EC independence from the executive.”

The real question before the Court in the stay application, therefore, was whether the impugned law – on a prima facie reading – violated the institutional independence of the EC. This is a question which the Court entirely evades answering, for the very good reason that it has no answer: under the impugned law, the members of the EC are, in effect, appointed by the executive. Quite apart from the fact that this would be impossible to reconcile with institutional independence, it would also by hypocritical, given that the Court, in considering the question of its own independence, has held that executive dominance in appointments was inconsistent with institutional independence (the NJAC judgment). No wonder, then, that the stay order passes delicately over the real question that it had to answer, and instead answers a question that nobody has asked.

To mask the absence of reasoning, in paragraph 10, the Court then recites well-worn principles of judicial deference when considering stay of legislation, but – unsurprisingly – does not apply those principles to the case before it, and does not explain how they apply. Remarkably, however, the order then gets even worse. In paragraph 11, the Court states that “any interjection or stay by this Court will be highly inappropriate and improper as it would disturb the 18th General Election, which has been scheduled and is now fixed to take place from 19.04.2024 till 1.06.2024.” On a bare reading of this paragraph, one would think that the Petitioners had only shown up to Court the day before; however, as the order sheet demonstrates, the case was first called for hearing on 12th January, 2024, and posted to April 2024 for hearing. One would be hard-pressed to think of a more self-serving piece of judicial reasoning: the Court itself schedules a stay hearing more than two months after the case is filed, and then uses its own delay as a ground to deny stay, because it is now too close to the general elections. One is reminded of the Chief Justice Ranjan Gogoi’s infamous order declining stay of the electoral bonds scheme ahead of the 2019 General Elections, on exactly the same grounds – and after the Supreme Court had, itself, refused to consider the issue for two years. Readers of this blog will, of course, be well aware of what finally happened to the electoral bonds scheme, and consequently, how much damage the Court’s six-year delay in considering the issue caused.

Quite apart from the self-serving nature of this reasoning, the Court never explains why the administrative difficulties caused by a stay outweigh the potential “irreparable injury” caused by an election conducted by an Election Commission where two out of three Commissioners have been unconstitutionally appointed: indeed, one would imagine that when placed in the balance, electoral integrity would outweigh administrative inconvenience (for which, again, no empirical evidence is actually provided). However, there is no reasoning as to why the administrative concern outweighs the constitutional concern, other than a statement of simple judicial fiat.

To sprinkle salt on the (constitutional) wound, the Court then records numerous procedural issues with the selection, including lack of information provided to one of the Committee members (the LoP) (paragraph 14). Having said this, it then goes on to note that “in spite of the said shortcoming, we do not deem it appropriate … to pass any interim order or directions.” One wonders why, if the Court is not minded to pass any orders, it felt the need to make comments on the procedure: it behooves a Constitutional Court to decide the legal questions before it, and not to engage in moral sermons which are not attended by any legal consequences. Instead, the Court finishes with a classic exposition of its unique brand of “hope and trust jurisprudence”, noting that “the assumption is that they [the election commissioners] shall adhere to constitutional role and propriety in their functioning.” No justification is provided for this assumption, but there is – of course – the obligatory quote from Dr. Ambedkar that follows (paragraph 15).

Socrates was said to have observed at his trial that the unexamined life is not worth living. For the Supreme Court, however, it seems that the unexamined law is certainly worth upholding. Its order on the Election Commissioners stands as a stark example of that aphorism.

Guest Post: Sleeping Sentinel? – The Kenyan Court of Appeal’s Ruling on the Finance Act

[This is a guest post by Joshua Malidzo Nyawa.]

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Introduction

In previous posts on this blog, Gautam and I considered the ruling of the High Court of Kenya, where Justice Thande suspended the operation of the newly enacted Finance Act through conservatory orders pending the hearing and determination of the petition challenging the Act both on procedural and substantive grounds. In the previous post, I commended the High Court for acting as the People’s Court by blowing the whistle in the 10^th minute of a 90-minute football match, in order to preclude threats of constitutional violations from continuing through the game. Unfortunately, on 28 July 2023, the Court of Appeal in a retrogressive ruling lifted the conservatory orders pending the hearing and determination of an appeal challenging the High Court Ruling.  

In this post, I will argue that the Court of Appeal erred in its orders, and that its ruling betrays an underlying deference to the executive that is inconsistent with the principles and premises of the Constitution.

New wine into old wineskins: Considering the test for Rule 5(2)(b) applications

Reading the ruling reminded me of the parable in Luke 5:37 that one should not put new wine into old wineskins. Unfortunately, the Court of Appeal went against this biblical caution. Rule 5(2)(b) of the Court of Appeal Rules grants the Court of Appeal the power to stay the execution of a judgment or ruling or issue an injunction pending the hearing of an appeal. This power is granted in subsidiary legislation under the Appellate Jurisdiction Act enacted in 1977. Although the Court of Appeal Rules 2010 were revoked by the Court of Appeal Rules 2022, the content remained the same. Rule 5(2)(b) provides as follows:

(b)in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.

The Court of Appeal reiterated the usual test set out by the court as follows:

30. Turning to the nucleus of the application, it is common ground amongst all the parties that the applicants must satisfy the twin principles – the appeal should be arguable and not frivolous and that if the stay is not granted, the appeal will be rendered nugatory.

However, the wording of rule 5(2)(b), and the test developed by the Court of Appeal over the years has been in the context of purely private disputes (private remedies) in civil matters. Therefore, an applicant is only required to show that the intended appeal is arguable and the same would be rendered nugatory if the stay is not granted. However, when transplanted into the public law context, the test adopted by the Court of Appeal is a weak test that ignores the nature and purpose of public law remedies. Public law remedies go beyond the parties and are meant to vindicate the Constitution and safeguard the values in the Constitution. In an application to lift public law remedies, this aspect should feature in the Court’s analysis. To consider if an appeal is arguable and whether it will be rendered nugatory without more defeats the purpose of public law remedies and back-peddles the evolution of conservatory orders in particular.

Put differently, the traditional two-tier test adopted by the Court of Appeal is a test caught up in a time warp: its hands-off character is inconsistent with the Constitution, as it stultifies the transformative potential of Article 23 (which provides for public remedies).

Judicial precedent supports this reading. In the previous post, I pointed out that conservatory orders are public remedies with the supreme court noting that they have a  ‘more decided public-law connotation’ meant to secure the enforcement of the Constitution. Due to this public connotation, the supreme court created a test that is different from the test to grant normal injunctions. The Supreme Court in Gitirau Peter Munya vs. Dickson Mwenda Kithinji expressed itself thus

Conservatory orders’ bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as the “prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success’ in the applicant’s case for orders of stay. Conservatory orders consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes… However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely…That it is in the public interest that the order of stay be granted. This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.

Therefore, if the grant of conservatory orders is based on the preservation or enhancement of constitutional values, the Bill of Rights etc., how can an application meant to suspend the conservatory orders issued ignore such a criterion? A proper test in my view is the test proposed by the Supreme Court (for the most recent reiteration – albeit with problematic application – see Kenya Brewers Association). The Court of Appeal while considering the lifting of conservatory orders, should also centre its decision on the enhancement of constitutional values and the bill of rights.

This position is supported by various provisions of Kenyan law. First, the Constitution demands that statutes conform to the Constitution. An interpretation or application of a statute must reflect the values that run through the Constitution. Article 10 provides that the national values bind state organs and all persons whenever any of them applies or enacts any law. This provision alone imposes an obligation on the Court of Appeal to promote the values when it applies a statute. Consideration of a 5(2)(b) application involves the application of statutes to a dispute and they cannot be divorced from the reach of Article 10.

Second, article 20(4) obligates courts to promote the values that underlie an open and democratic society and also the spirit, purport and objects of the Bill of Rights.  Again this is a fundamental obligation imposed on the courts. Had the Court of Appeal considered the spirit, purport and objects of the Bill of Rights and in particular article 23, they would have realised that the normal test for a stay of execution is not in line with the constitutional language.

Third, Article 20(3) obligates courts to develop any law to the extent that it does not give effect to a right. The reliance on precedents on the test for a stay of execution by the court of appeal without considering whether the test gives effect to the Bill of Rights is unjustifiable. The court of appeal was required to ‘step over the trip-wires of previous cases and to bring the law into accord with the needs of today’. It is no longer justifiable for the Court of Appeal to rely on previous precedent, especially when such precedent has been overtaken by the Constitution.

Whose public interest?

The most problematic part of the decision however is its consideration of what it termed the public interest criterion. Firstly, the court of appeal considers the aspect of whether the appeal will be rendered nugatory as it considers the public interest (See para 41).  Second, the court proceeds to state that the finance act is a unique statute and it is instrumental in defining the government policy as it is used to raise revenue (see para 42). Third, the court proceeds to state that tax is a continuous process and the public can get a rebate for overpaid taxes and finally ‘had the trial Judge considered the substantial and irreversible public interest in this matter, the court would have been hesitant to suspend the whole Act’ (see para 43). The Court of Appeal, therefore, found that the public interest tilted in favour of setting aside the conservatory orders (before anything more, to set the record straight, the court of appeal was factually incorrect. As it will be shown below, it is not true that the high court did not consider the public interest).

It is by virtue of such language that the Court of Appeal’s order sounded more executive-minded than the executive, or engaging in the vocabulary of the executive (“an executive court.”) To consider the collection of taxes as carrying more public interest than adhering to the dictates of the constitution is, in essence, executive’s language: as  the High Court noted, public interest lies in ensuring that all laws enacted by parliament conform to the constitution. Thus, as Justice Thande had held in the High Court:

50. … even where as in the present case, the prejudice complained about is the loss of taxes, this has to be balanced with the legal requirement that all taxes must grounded on the law. The Petitioners have raised several grounds upon which they claim that the Finance Act in respect of which conservatory orders were issued, is unconstitutional. My view is that were the Court to set aside the conservatory orders, the Petition would be rendered a mere academic exercise. The further public interest requires that this Court must discharge its constitutional mandate of protecting the supremacy of the Constitution by ensuring that all laws conform to the Constitution.

As I pointed out in the previous blog and I would reiterate the point, the High Court has been straightforward with this argument. Although the High Court has noted in Okiya, the mandatory minimum tax ruling and the ruling suspending the Tax Laws (Amendment) Act, 2020, that the executive is allowed to collect taxes, it has also held that the mere loss of taxes cannot justify the setting aside of the conservatory orders on the simple basis that taxes must be grounded on the law. Secondly, there is no greater public interest other than the ’….the court playing its constitutional mandate of ensuring that all laws and actions of public bodies including imposing taxes conform with the law’.

Even if one were to agree with the Court of Appeal that there is an aspect of public interest in collecting taxes, there is something else that should not be lost: the point is that with such a ruling, the Court of Appeal allows the executive to create a scenario where the executive commits a potential illegality and when taken to court, it responds by stating that its actions should not be suspended because the consequences of suspension are irreversible. As noted in the previous post, the Court of Appeal’s ruling incentivizes constitutional hardball.

Finally, the Court of Appeal is of the view that the public is capable of getting a rebate on overpaid taxes. The Court of Appeal ignores two things: both substantive and practical. First, the Court of Appeal suggests that the public should be compelled to pay taxes based on a law which is capable of being found unconstitutional in future. This ignores the wording of articles 22 and 258 where courts can be approached to prevent threats to the constitution. Second, on practicality: how, precisely, will the citizens who have paid VAT be reimbursed? Is the court suggesting that if the Act is declared unconstitutional, the government will be forced to return the taxes paid to the individuals? This is impractical: for example, if the new taxes cause fuel price rise, on what basis will the refund be calculated?

Ignoring its past precedent

This was not the first time that the Court of Appeal was considering the lifting of conservatory orders. The court in Attorney General & another v Coalition for Reform and Democracy held that constitutional supremacy has a higher place than public interest. While rejecting to lift the conservatory orders, the court noted thus:

When weighty challenges against a statute have been raised and placed before the High Court, if, upon exercise of its discretion, the Court is of the view that implementation of various sections of the impugned statute ought to be suspended pending final determination as to their constitutionality, a very strong case has to be made out before this Court can lift the conservatory order. The State would have to demonstrate, for example, that suspension of the statute or any part thereof has occasioned a lacuna in its operations or governance structure which, if left unfilled, even for a short while, is likely to cause very grave consequences to the general populace.

Taking this precedent into account, the court was supposed to pose the question whether the suspension had created a lacuna in the operations of the government and whether, if left unfilled, there would be very grave consequences to the general populace. This was not demonstrated by the state. This is for the simple reason that the government was able to collect taxes and was able to remain afloat. Further, newspapers have just reported that the government has backdated the taxes upon the suspension of the conservatory orders. In simple terms, there was no lacuna at all.

Conclusion

The Court of Appeal’s strategic plan for 2020-2024 provides for the mission of the court to uphold the constitution of Kenya, the rule of law, advance indigenous and robust jurisprudence that can be benchmarked regionally and globally and provide access to appellate justice to all. Unfortunately, its jurisprudence won’t be benchmarked if it is this kind of jurisprudence: that is, a jurisprudence that answers the question of whether a court of law can be called upon to aid the furtherance of a constitutional breach in the positive, or a jurisprudence that ignores the intestinal fluid that nourishes the Constitution but embraces the executive’s story without question. This jurisprudence is one that is dwarfed by the progressive jurisprudence of the High Court.

It is therefore respectfully submitted that should consider returning to basics: that is, it must be a watchful guardian of the constitution and refrain from judicial deference when threats of constitutional violations are demonstrated at the threshold.

Guest Post: A Tale of a Commission and a Committee

[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 (e.g., the introduction of structural mechanisms to ensure accountability)]

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[This is a guest post by Krishnesh Bapat.]

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On December 16, 2021, the counsel for an NGO named Global Village Foundation Public Charitable Trust mentioned before the Chief Justice of India a petition challenging the constitution of the Commission of Inquiry (‘Commission’) by the State of West Bengal under the Commission of Inquiry Act, 1952 (‘Act’). The Commission was constituted to inter alia enquire into whether the Pegasus Spyware was used to surveil individuals in West Bengal, and the role of State/Non-State actors in such surveillance. Based on this mentioning, the petition was listed the very next day, and the Court by order dated December 17, 2021 (‘17.12.21 17.12.21 Order’) stayed the proceedings of the Commission (which is headed by a former judge of the Supreme Court.) Incidentally, December 17, 2021, was also the last working day of the Court before winter vacations.

The 17.12.21 Order is as intriguing as it is minimalist. It records that on August 25, 2021, the counsel for the petitioner had sought a stay on the proceedings of the Commission to which the counsel for West Bengal (not the Commission) had stated that ‘no orders would be necessary’. Yet the Commission continued with the proceedings, and that the counsel for West Bengal submitted that they could not make a statement on behalf of the Commission (even though they did so on August 25, 2021). The Court held that the Commission should be impleaded as a party but also held that the proceedings of the Commission should remain stayed in the meanwhile.

The 17.12.21 Order raises several questions as it is not immediately clear why the Court stayed the proceedings. Media reports suggests that the Court stayed the Commissions proceedings because it has formed a committee of its own to investigate the use of Pegasus, and it did not want ‘parallel inquiries’. But the Court chooses not to record this in the 17.12.21 Order. Instead, it has prohibited the Commission from continuing with its proceedings without recording reasons, without hearing the counsel for the Commission, and at the behest of an NGO which does not seem to have any relationship with the case, its subject matter, or even the State of West Bengal.

To appreciate these concerns, a background of the Commission is necessary. The Commission was appointed by the State of West Bengal on July 26th, 2021 in the wake of disclosures by an international consortium of journalists that 300 Indian mobile telephone numbers were surveilled using spyware called ‘Pegasus’. These phone numbers included those used by ministers, opposition leaders, journalists and the family of the complainant who accused a former Chief Justice of India of sexual harassment. The consortium also reported that the Pegasus Spyware could be installed on a phone without any action on part of the victim, and once installed it can collect and transmit data, track activities such as browsing history, and control functionalities such as the phone camera. Notably, Pegasus is manufactured by an Israeli cyber-arms firm called the NSO Group, and according to the NSO Group itself, sold only to ‘vetted government(s)’.

While the State of West Bengal appointed the Commission to examine whether Pegasus was used in West Bengal, the Central Government dismissed the disclosures. Left remediless, several individuals, including those whose phones were forensically analysed, approached the Supreme Court seeking relief against the violation of their fundamental rights. The Court conducted its first hearing on August 5, 2021, and on October 27, 2021, formed a Technical Committee (‘Committee’) to inter alia examine whether the Pegasus Spyware was used on phones or other devices of the citizens of India. While the Committee has been directed to submit its report ‘expeditiously’, the Commission had to submit its report to the State Government within six (6) months from July 26, 2021, i.e. by January 26, 2022. Moreover, while the Committee has only recently issued a public notice inviting any citizen who may have felt that their phone was infected by Pegasus malware, the Commission issued a public notice as well as notices to several individuals, and has already conducted many hearings. Yet the Court chose to stay the proceedings of the Commission.

The stay raises the following concerns, detailed below –

Firstly, similar to the Supreme Court’s order staying the farm laws (discusssed here on this blog), the 17.12.21 Order does not provide any reason for staying the proceedings of the Commission. The Court could have imposed a stay only if it found the notification constituting the Commission to be ex-facie unconstitutional or that the balance of convenience entirely lied in favour of the petitioners or that it was unjust/unfair for the proceedings of the Commission to continue.  We do not know what compelled the Court to issue the 17.12.21 Order, and therein lies the problem. As pointed out previously on this blog, the effect of a minimalist order is that there is nothing one can engage with, disagree with, or critique, and this is deeply irregular because the authority of the Court is founded entirely on reason.

Secondly, assuming that the Court stayed the proceedings because it did not want a ‘parallel inquiry’, it is not clear why that should be the case. There is no legal bar on two bodies inquiring into allegations related to an overlapping set of facts (State of Karnata vs Union of India). Even criminal proceedings and department proceedings can proceed simultaneously (Captain M Paul Anothony vs Bharat Gold Mines Limited & Ors). Unlike both of those proceedings, neither the proceedings before the Commission nor those before the Committee have any teeth at least with respect to the report these bodies may submit. The Commission of Inquiry Act, 1952 does not impose any obligation on the government to act on the recommendations of the Commission, and the Supreme Court itself has held that the role of Commission of Inquiry is to merely enable the government to decide what administrative or legislative measures must be taken to eradicate the evil found (T.T Antony vs. the State of Kerala). Moreover, the Supreme Court has also held that the findings of the Commission of Inquiry are not binding on the Supreme Court (In Sham Kant vs. the State of Maharashtra). Similarly, and surely the report of the Committee is also not binding upon the Supreme Court. As an aside, the Committee’s report may not even be open to public scrutiny if past precedent is anything to go by.

Lastly, the Supreme Court should not have granted interim relief to the NGO without addressing whether the NGO had the locus standi (Soumitra Kumar Sen vs Shyamlal Kumar Sen). On the face of it, the NGO does not seem to have any connection with the disclosures made by the Pegasus Project. The NGO also was not summoned as a deponent by the Commission, and to the best of the knowledge of the author, it did not stand to gain/lose by the continuation of the proceedings. Thus, propriety required that the Court at the least detailed why the submissions of the NGO were accepted, especially since the State of West Bengal had questioned their bona fides.

As a result of the order of the Court, the Court-Appointed Committee is the only body examining the allegations raised by the petitioners who have reportedly been surveilled by the Pegasus Spyware. The report will be placed before the Court which will then examine the petitions. It is anybody’s guess when this will happen. If the Court had not stayed the proceedings of the Commission, it would have had the benefit of the finding of an enquiry conducted by a former Supreme Court justice. The public at large would have also gotten more details regarding the devious surveillance. But now the Commission has to wait until the next date of hearing (04.02.2022 – computer generated!) before it can seek a vacation of the stay order. Meanwhile, the victims of the Pegasus Spyware keep waiting for relief in the hope that their phones are not being surveilled.

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Note: The author was part of the team of lawyers representing the petitioners who approached the Supreme Court seeking relief against the use of Pegasus Spyware on them.

Guest Post: The Allahabad HC – Abortion of Legislation by Judicial Fiat?

[This is a guest post by Tanishk Goyal.]

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On March 3, 2021, a Division Bench of the Allahabad High Court took suo motto cognizance of the Uttar Pradesh Education Service Tribunal Bill, 2021. This cognizance was against the backdrop of a week-long abstention from judicial work by the advocates at the call of the Allahabad High Court Bar Association and the Awadh Bar Association, Lucknow. Briefly put, The Uttar Pradesh Education Service Tribunal Bill, 2021 seeks to establish an Education Tribunal for expeditious disposal of service cases relating to teaching and non-teaching staff of of Basic, Secondary and Higher Educational Institutions in the State. In order to do so, the Bill proposes to establish the principle bench of the Tribunal at Lucknow with a circuit bench at Allahabad. The proposed location of the Tribunal has been the subject matter of controversy since 2019, when this Bill was first passed by the State Legislature.

Taking cognizance of the said matter In Re Constitution Of Education Tribunals, the Division Bench did two things. First, it availed the details of the pendency in Service Law matters in the State which were sought to be adjudicated by the Education Tribunal. Upon availing the above details through the Court’s Registry, the Bench came to the conclusion that the pendency in Service Law matters was “not too much” and the same could be effectively remedied through the constitution of special benches by the High Court itself. Second, it passed the following directions. The wordings and implications of the directions so passed are instructive and deserve to be quoted in full:

“(i) The Chief Justice, Allahabad High Court be requested to

constitute appropriate dedicated Benches at Allahabad as well as at Lucknow for expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions.

(ii) The Legislature may complete the process of enacting the Act of 2021, if so desires, but, shall establish Educational Tribunals as proposed only after the leave of this Court”.  (emphasis supplied).

While the concerns regarding the constitutionality of the bill itself have been raised on this blog earlier, through the present piece, I only seek to highlight certain constitutional concerns with the stay order passed by the Division Bench of the Allahabad High Court on March 3, 2021. However, before analyzing the constitutional concerns with the said order, it would be pertinent to understand the object and purpose of the Uttar Pradesh Service Tribunal Bill, 2021.

The Object and Purpose of the UP Service Tribunal Bill, 2021

The ultimate objective of the Bill of 2021 as evidenced through its Statement of Objects and Reasons is twofold. Firstly, “to provide a mechanism for the speedy resolution of disputes in service matters of teachers and non-teaching employees of basic, secondary and higher educational institutions”. Secondly and relatedly, “to maintain and improve the quality of efficient functioning of institutions of basic secondary and higher education”. This objective was against the backdrop of the rapid growth in litigations involving service matters of teaching and non teaching staff of these institutions. This objective was also against the backdrop of the judgment of an eleven-judge bench of the Supreme Court in the case of T.M.A Pai Foundation v. State of Karnataka, where it held that:

64. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education […]. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective.” (emphasis supplied).

Thus, the constitution of a Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. In order to achieve the said objective, the Bill of 2021, through Sections 3-11 vests the Tribunal with various powers. These Sections, inter-alia provide for the establishment and composition of the Tribunal, the procedures to be adopted before it, the bar on civil suits, the power of the Tribunal to punish for its contempt and most importantly, a revisional jurisdiction to be exercised by the High Court. However, as will be illustrated forthwith, the Division Bench order of March 3, 2021 strikes at this heart of the Bill and renders it nugatory for all practical purposes.

Before analyzing the order of the Division Bench any further, it would be pertinent to reiterate here that while the Bill of 2021 still suffers from the same statutory defects that the Bill of 2019 did, which may ultimately render it ultra vires the Constitution, it is still not upon the judiciary to pre-empt its implications and put a stay upon its enforcement. This has been discussed forthwith.

The Order of the Division Bench of the Allahabad High Court

Having apprised the reader of the object and purpose of the Bill of 2021, an important point of departure here would be highlight the concerns that arise with respect to the two directions issued by the Division Bench in its order of March 3, 2021. The first direction holds that dedicated benches shall be created at Allahabad as well as Lucknow for the expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions. This direction essentially creates an Original jurisdiction of the High Court when only a revisional jurisdiction had been envisaged by the Bill of 2021. The second direction issued by the Division Bench restrained the State from constituting the Education Tribunal under Section 3 of the Bill of 2021 without the leave of the Court. As discussed earlier, the constitution of an Educational Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. Therefore, while the order says that“The Legislature may complete the process of enacting the Act of 2021, if it so desires”, the Court has effectively aborted the very essence legislation even before it came into effect.

This issuance of the above directions is classic example of the exercise of judicial fiat by the Division Bench where it has effectively defeated the legislative exercise undertaken by the State Legislature. The Bench has done so by essentially pre-empting that a dedicated Education Tribunal would be of no use if the original jurisdiction of the High Court is able to dispose off the cases in its capacity as the Court of First instance. Having pre-empted so, the Bench has also stayed the constitution of the Education Tribunal until a leave is sought from the Court. In doing so, the Bench only relied on the pendency data made available to it by the Registry of the Court. This essentially means that the Court discounted the need for any debate or discussion on the pendency data which was done in the Legislature when the Bill of 2021 was passed.

This approach was condemned by the U.S Supreme Court in the American Federation of Labour v. American Sash and Door Co., 335 US 538 (1949). Speaking through Justice Frankfurter, the Court held that:

“But, even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed by the legislature than that the law should be aborted by judicial fiat. Such, an assertion of judicial power defeats responsibility from those on whom in a democratic society it ultimately rests” (emphasis supplied).

In a similar situation in India where the Court had extended the applicability of the Easements Act, 1882 to the State of Assam when the legislature had made it clear that the said Act had no application in Assam, the Court, in Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 held that:

“12. It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary” (emphasis supplied).

It is trite to mention here that while interpreting a statute, the Courts defer to the legislative wisdom by adopting a construction which makes it effective and workable. This deference is essentially in light of the principle of Separation of Powers and in light of the accepted fact that the legislature represents the will of the people, and the Court cannot substitute such wisdom with that of its own, unless the legislation is impossible to sustain. The Division Bench, in its order of March 3, 2021 has not given any reasons why such Bill may be impossible to sustain. Despite the absence of these reasons, the Bench not only struck at the heart of the Bill of 2021, It also usurped the field reserved for the legislature by creating an Original jurisdiction where only a revisional jurisdiction existed, based on empirical data which has neither been verified nor debated upon the by the State Legislature. 

While the concerns with respect to putting a stay on a legislation have been raised on this blog earlier, the Allahabad High Court’s substitution of the legislative will with its own notions of expediency, and its pre-emption of the ineffectiveness of an Education Tribunal (which ultimately led to the abortion of the Bill in its infancy), has struck at the root of separation of powers enshrined in Article 50 of the Constitution of India. Not only does this order go against the judgment of the eleven judge bench in T.M.A Pai(supra), it also violates the Basic Structure of the Constitution. This sentiment was emphatically echoed by a Constitution Bench of the Supreme Court in the case of GVK Industries Ltd. v. ITO [(2011) 4 SCC 36 where it held that:

“34. […] One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and machinery of Government to be able to pursue the constitutional vision into the indeterminate and unforeseeable future.

35. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. […] Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities” (emphasis supplied).

Conclusion

Notwithstanding the fate of vires of the Bill of 2021, it is imperative that the March 3rd order of the Allahabad High Court not become precedent for future cases. This is essentially because the order gives power to any Court which is conscious of an ongoing legislative process, to injunct the same quia timet, and transgress into a field which has only been reserved for the Legislature under the Constitution.

Having said that, it is now upon the State to contest this petition (the status of which is still shown as pending) and it can only be hoped that the above order is rectified so that the separation of powers as envisaged by the Constitution is brought to fruition in letter and in spirit in the times to come.

Guest Post: A Critique of the Supreme Court’s Farm Act Order – II

[This is a guest post by Aakanksha Saxena.]

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The Supreme Court recently passed an order in discrete batches of petitions arising out of (1) the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) the Essential Commodities (Amendment) Act, 2020; and (3) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, (‘farm laws’), and, the protest by farmers against these laws. Challenges have been filed to the constitutional validity of the laws. An initial petition filed was a PIL by a law student seeking removal of the protesting farmers from the Delhi borders. Another batch of these petitions deserves mention is that it reportedly “supports the validity” of the farm laws – something which is a fundamental presumption in the domain of judicial review.

The Order in question presents myriad concerns. While appreciating that the farmer’s protests have been peaceful, it is insinuated in the same vein that they may be a site of fomenting units which are banned for their secessionist tendencies – on the basis of a mere averment in an intervention application, which was nonetheless pressed by the Attorney General (although, in the final order, directions have been passed to file an affidavit). Further, while noting specifically the absence of counsel representing the farmers, the Bench has proceeded to pass orders indubitably affecting their rights. It appears that the Court has recognised the need for stakeholder participation and consultation as an essential step in policy making, by appointing the expert Committee which is to receive views from all the stakeholders involved; however, what failed to be appreciated is that such a process was integral and ought to have been implemented much prior in time than this hearing, and in any event prior to the enactment of the farm laws. Given the large-scale protests and evident grievances raised by the farmers, the decision-making process leading up to the farm laws could have benefited from stakeholder participation and could also perhaps have avoided agitation and litigation of this nature. The failure to conduct stakeholder participation has clearly led to a situation enabling intervention by the judiciary in the realm ordinarily required to be occupied by the legislature and / or policy makers. Much has been written and said about the impact of the Court’s Order on the farmers’ protests and the natural political posturing and consequences, but this post shall deal with one terse paragraph of the Order which touches on the aspect of judicial review, i.e., whether the Hon’ble Court could pass an interim stay of the impugned Farm Laws.

A reading of the Order discloses that the reasons which weighed with the Bench for staying the operation of the farm laws could be – that negotiations between the farmers’ groups and the Government had been fruitless, and an expert committee to act as a negotiator between the sides would “create a congenial atmosphere”, that some of the farmers bodies’ agreed to go before a Committee, and that senior citizens, women, and children would then be discouraged from protesting which was posing grave risk to these groups. There is not a single statement or suggestion in the Order that the farm laws may, prima facie, be unconstitutional.

Juxtaposed against the Court’s reasoning for the stay, this post seeks to examine the constitutional standards laid down in our jurisprudence for the stay of legislation, particularly economic policy legislation (the standard being somewhat less stringent than laws touching on fundamental and civil rights). It needs to be emphasised that this case was apparently made out by the Attorney General, and this post shall deal with some of those very same precedents that were cited at the Bar, being the inescapable law laid down by the apex court.

In its decision in Siliguri Municipality v. Amalendu Das, the Court was at pains to point out to the concerned High Court the need for self-discipline when it came to interim orders of stay, when the question arose in relation to tax recovery under narrowly applicable state legislation. The Court stressed on the need for a bench to consider the exigencies of the situations and strike the delicate balance. Subsequently, the Court while considering a challenge to Section 9 of the Reserve Bank of India Act, in Bhavesh D. Parish v. Union of India, then went on to consolidate the standard of judicial review by completely deferring to the legislature on economic policy and specifying that any interdiction by courts therein could lead to ramifications which could even retard progress by years. It was expounded that the Court ought only interfere where it was satisfied that a view in the legislation was such that it was “not possible to be taken at all”. This has been reiterated in the case of both legislation and executive policy, when the Court in Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. clearly held that the court must leave the authority to decide its full range of choice within the executive or legislative power, and in matters of economic policy, the court gives a “large leeway” to the executive and the legislature. In Swiss Ribbons v. Union of India, the Supreme Court while considering a constitutional challenge to provisions of the Insolvency and Bankruptcy Code, expounded this principle as a “Judicial Hands off qua economic legislation”, which flows from SCOTUS Justice Holmes’ celebrated dissent in Lochner. It became the established position that legislatures may do as they feel fit unless restrained by constitutional prohibition, which prohibitions courts cannot extend merely by reading into them conceptions of public policy.

In Health for Millions, the concerned High Court had stayed the operation of Rules in Article 226 writ petitions, by issuing a single-paragraph order stating that ad-interim relief was granted since the Union of India had failed to appear and/or file reply. The Supreme Court strongly reiterated that passing such stay orders was at odds with the need for a court to refrain from staying the operation of legislation, unless the court is convinced that the legislation is patently unconstitutional and factors such as balance of convenience, irreparable injury, and public interest, favour interim stay. It therefore became necessary to set aside the interim impugned order given that the High Court did not consider any of these requirements.

The judgement in Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr. referred to in the Order also needs distinguishing for several reasons – it was in a civil appeal, from an order of the Bombay High Court i.e. a constitutional court which had adjudicated upon the validity of the legislation in question, arguments were extensively heard both in support of and against the order under challenge, merit was found in the argument to refer the question of law to the constitution Bench, and it was in that context that the Court found it was not restrained in passing orders to cover the interregnum before the larger Bench presided. At the very least the Bench in Jaishri Laxmanrao Patil engaged with arguments made for and against the stay of the operation of the law, examined the law and the exigencies, and reached a prima facie view on its validity before staying its operation. However, the same cannot be said of the Farmers’ Laws Order, where ostensibly, the hearing was being held in order to ameliorate the heightening tensions and pressure on the government arising out of what were admittedly peaceful, non-violent protests. Of highest concern should be the manner in which the stay was granted in the face of overwhelming binding precedent requiring a constitutional court to expressly reach a prima facie view of unconstitutionality of legislative measures before staying their operation and/or passing any interim measures. In view of the case made out for urgent hearing, the Supreme Court instead of hearing the challenge, chose to appoint a negotiator, and a committee of experts as a negotiator at that. It does not fall to the Supreme Court to direct such committee appointments and stakeholder participation at the stage of a constitutional challenge. It cannot fall from the Supreme Court to stay the operation of a law, de hors a prima facie view of its unconstitutionality, and merely in order to facilitate a political negotiation. The potential effect on future courts is unimaginably dangerous.

Civil Rights at the Bar of the High Courts: The Madras High Court on Gag Orders and the Kerala High Court on Voting Rights

Two High Court judgments delivered this month have restated certain important constitutional principles.

The Madras High Court and Injunctions

The first is the judgment of the Madras High Court in Ms Menaka v Arappor Iyakkam, delivered on 3 June by R. Subramanian J. In this case, a politician and certain government contractors [“the Applicants”] had filed a defamation suit against the Respondents. The Respondents had published certain claims regarding corruption in the award of government contracts involving the applicants. The applicants also filed for a broad, pre-trial injunction/gag order, asking the Court to “grant an order of ad-interim injunction, restraining the respondents/defendants their men and agents from in any manner, holding any press meet, releasing or distributing any statement to the Print and Electronic Media or to any one against the applicant/plaintiff and its business imputing the character or insinuating the reputation or linking the name of the applicant/plaintiff with any person(s) or defaming the name of the applicant/plaintiff in any manner, pending disposal of the above suit.”

These widely-worded prayers for injunctions are an increasingly common feature of defamation suits, and are granted with frequent regularity. As I argued recently, the purpose of such prayers is to effectively shut down any speech about the applicant by the respondent, until the final disposal of the suit (which could take years). This is because the civil law of defamation comes with certain inbuilt defences (truth, fair comment, etc.). In other words, you can make a defamatory statement (i.e., any statement that lowers the reputation of the plaintiff) without committing defamation (if that statement is true, or a fair comment etc.) However, these broad-ranging prayers, in the way they are framed, effectively take away the option of defences altogether, thus settling the case in favour of the plaintiff before a trial.

In this case, however, the Subramanian J. refused to grant the injunction prayed for. What is remarkable about his judgment is how unremarkable it is: Subramanian J. reached his conclusion not by making grand statements about the freedom of speech, but simply by following the law. As he noted, the common law rule in Bonnard v Perryman was clear: if, in a defamation suit, the defendant pleaded justification (i.e., the defence of truth), then a Court could only grant an injunction if it was prima facie clear that the defendant had no chance of proving the defence at trial. (paragraph 20) Bonnard v Perryman had been followed by the Delhi High Court in Tata Sons v Greenpeace (paragraph 26), and continued to be good law in England (paragraphs 24 & 25) as well as in Canada (paragraph 29). Consequently, Subramanian J. held that:

An analysis of the above principles laid down in the precedents, cited supra, would lead to an irresistible conclusion that grant of pre-trial injunctions in the matters of defamation, can be resorted to only in rarest of rare cases, where the Court reaches a conclusion that there is no iota of truth in the allegations made. The Court does not possess the advantage of analysing the evidence that will be made available at the time of trial. Whether there is a semblance of truth in the allegations or not, will have to be decided on a prima facie basis. (paragraph 30)

On the facts before him, Subramanian J. found himself prima facie satisfied that the Respondents were not acting out of malice, and that the veracity of their statements would have to be tested at a trial (i.e., they could not be declared false out of hand) (paragraphs 36 – 40). That was enough for him to decline – on the basis of existing law – the prayers for injunction.

Subramanian J. also made it clear that the case presented no privacy claims, as the comments concerned a politician’s official functions (paragraph 24). He, therefore, nipped in the bud what has become (of late) a disturbing tendency to invoke the Supreme Court’s privacy judgment in Puttaswamy as a sword to curtail other rights, rather than as a shield against State intrusion (paragraphs 31 – 33) (a good example of this is the Ramdev injunction, which the Madras High Court expressly declined to follow).

The Madras High Court’s judgment joins a slow – but hopefully steady – judicial push back against trigger-happy judicial injunctions in defamation cases – a trend exemplified by the Bombay High Court recently, as well as the Karnataka High Court lifting the gag order in the Tejaswi Surya case.

The Kerala High Court and Voting Rights

The second judgment comes from the Kerala High Court. A. Subair v The Chief Election Commissioner involved the deletion of a voter from the voting rolls, on the basis of a “house to house check.” The State also argued that a draft electoral roll had been published, and objections had been invited from deleted individuals. Rejecting this argument, and reading S. 22 of the Representation of the People Act – which required an opportunity to be heard – the Chaly J. held that “… the action or enquiry contemplated under Sec.22 of Act, 1950 is not an empty formality, but on the other hand, founded on principles of natural justice, which if violated, action becomes arbitrary and illegal inviting action against the officer concerned. Bearing the said aspects in mind, it is clear, no such serious exercise is undertaken by the officer, before removing the name of the petitioner. It is also apposite to mention that, mere inaction on the part of the petitioner to restore the name removed from the voters list, is not a justification for removing the name, otherwise than in accordance with law.“ (paragraph 10)

The highlighted part is particularly crucial. This is because, in recent years, there have been reports of large-scale voter deletions, caused by the use of faulty software by the EC. In other words, deletions happen through an automated process. This has been challenged in the Hyderabad High Court where the case has been pending for many months now. One of the crucial issues at stake involves the concept of the “right to an explanation”: that is, if I am deprived of a right by an automated decision, taken by a machine, then I have the right to be given an explanation for how that decision has been taken.

One of the major arguments use to dodge that in the case of voter deletions is that the right to vote is merely a statutory right. As I have attempted to explain before, that argument is flawed: voting is a statutory right in the sense that the procedure and modalities of voting are determined by statute, but the act of voting itself is a fundamental freedom protected by Article 19(1)(a) of the Constitution. Therefore, the denial of voting altogether is a constitutional violation, and must be treated as such. Consequently, whether or not the Election Commission uses technology to “clean up voter rolls” (and the constitutional issues with that are another matter), the basic point remains that before a voter’s name is deleted, they must be heard: as the Kerala High Court correctly observed, the process where the name is first deleted, and then the burden is placed upon the voter to come forward and protest, is entirely illegal – no matter how well-publicised the deletions are, and how many “opportunities” are given.

The underlying basis should be obvious: the burden of being able to exercise a fundamental right is not on the citizen, but upon the State, when the latter seeks to deprive her of it. The Kerala High Court judgment is a crucial endorsement of that rather basic constitutional principle; and it is to be hoped that in the ongoing challenges to the EC’s actions before the Hyderabad High Court, that principle will be adhered to.

Freedom of Speech at the High Courts: Contrasting Decisions from P&H and Bombay

Two decisions, delivered over the last few days, exemplify how the terrain of free speech remains a contested field in Indian constitutional law.

Burdening Legal Speech: Vishal Dadlani and the P&H High Court

Vishal Dadlani v State of Haryana came to the Punjab & Haryana High Court as a quashing petition. FIRs had been registered against Vishal Dadlani and Tehseen Poonawala under Sections 153A (promoting enmity between classes), 295A (hurting religious sentiments), and 509 (insulting the modesty of a woman) of the IPC, and 66E of the IT Act (publishing images of private body parts). These FIRs arose out an event in 2016, when the Haryana Legislative Assembly invited Tarun Sagar, a Jain monk, to deliver an address; according to the tenets of his faith, he did so in the nude. On Twitter, Dadlani criticised this strongly, focusing his ire upon the mixing of politics and religion. After getting into acrimonious arguments with Tarun Sagar’s followers, Dadlani apologised.

Meanwhile, Tehseen Poonawala criticised the prevalence of sartorial double standards, asking “why is this naked man ‘holy’ even if he walks nude in the state assembly while a woman would be termed a slut?” To drive the point home, he also posted a photograph of a “half-naked woman”, placed alongside a photograph of Tarun Sagar. From a perusal of the tweets, it appears that at least partially, Dadlani and Poonawala’s outrage was triggered by Tarun Sagar making various remarks about the role and place of women in society, such as asking wives to “accept the discipline” imposed by husbands.

Counsel for both petitioners argued that none of the offences were made out, even prima facie (counsel for Dadlani made the additional point that he had apologised directly to Tarun Sagar, and Sagar had accepted his apology; consequently, nobody from the Jain community had taken any action – the complainant at whose behest the FIR was registered was an outsider).

After extracting the submissions of both parties (including relevant precedent), the High Court held that the quashing petitions ought to be allowed, for (broadly) the following reasons: first, none of the followers of the Jain religion had initiated proceedings, or had come forward as witnesses; secondly, it had been long-accepted in Indian jurisprudence that the right to free speech included the right to express socially and culturally unpopular or unorthodox views; thirdly, the mens rea required for offences under Sections 153A and 295A had not been demonstrated; and fourthly, after two and a half years, the State had not granted sanction to prosecute, clearly demonstrating its own lack of interest in pursuing the case.

The High Court, therefore, announced that it would quash the FIRs; but in the last two pages of the judgment, it suddenly veered off into unorthodox territory. The Court noted that “justice” would also have to be done to the Jain community; it then observed:

If the contribution made by the petitioners towards poor people is compared to the contribution made by Jain Muni Tarun Sagar, it is apparent that the petitioners have played a mischief to gain publicity without having much to their credit. In recent years, the country has witnessed large scale violent protest on incitement made by using social media platform, thereby, causing extensive damage to public property. However, the preachings of Jain Muni Tarun Sagar about non-violence, sacrifices and forgiveness, has avoided repetition of such like protest. Therefore, it would be appropriate to impose the costs of 10 lacs each on the petitioner – Vishal Dadlani and the petitioner – Tehseen Poonawala, so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter. (p. 38)

In other words, therefore, the High Court made the quashing of the FIRs conditional upon both petitioners paying Rs. 10 lakhs as costs.

Now, a few observations need to be made about this order. The first is that this order is incoherent. Effectively, it tells the petitioners, “you have committed no crime, but unless you pay Rs 10 lakhs, criminal proceedings against you will continue.” This cannot be. Once the High Court returned the legal finding that the offences under Sections 153A, 295A, 509 IPC and 66E were not made out even prima facie, then it followed from that finding that the FIRs would have to stand quashed. Accepting the alternative proposition would mean that if the petitioners refused to pay Rs. 10 lakhs, then the FIRs would continue and the case would go to the stage of charge and trial despite a judgment by the High Court stating that the offences had not been made out. This would be patently absurd – what, exactly, would a trial court be expected to do when faced with a situation like this?

Apart from being absurd, the High Court’s order is also illegal. Once it had found that the offences had not been made out, the logical consequence to that finding was that the petitioners had engaged in legal speech (however ill-thought, crass, or crude that speech might have turned out to be). Levying a financial penalty of Rs 10 lakhs upon that speech, then, is a classic case of judicial censorship: penalising speech in the absence of a law. As I have argued before at some length, this is, quite simply, impermissible under the Constitution. The only method through which speech can be penalised is through a State-made law (which is subject to judicial review) Under Article 19(2), as held in both Mirajkar and (more directly) in Rupa Ashok Hurra, judicial orders do not count as law.

But apart from being absurd and illegal, the High Court’s order also betrays some fundamental misunderstandings about Indian free speech jurisprudence, and the point of having a constitutional right to free speech in the first place. By noting that the purpose of its order is to deter people from mocking “at any head of a religious sect, just to gain publicity on social media like Twitter“, the Court lays down an extraordinarily broad and vague standard for the future. Recall that this comes after the Court had found that there was no mens rea to hurt religious sentiments or provoke enmity between classes; effectively, therefore, individuals who make comments that can be construed as “mocking the head of a religious sect”, and whose motives can be construed to be “just to gain publicity on social media”, can expect to be slapped with costs of Rs 10 lakhs. If this was the standard set out in a law, it would be immediately struck down as unconstitutional; indeed, in Shreya Singhal, similar phrases such as “grossly offensive” and “menacing” were struck down as being overly broad and vague. As the Supreme Court in Shreya Singhal understood, provisions such as these create a “chilling effect”: they blur the line between what is permitted and what is prohibited to such an extent, that people begin to self-censor, in order to steer far clear of that (now) invisible line.

There are two more serious mistakes in the High Court’s reasoning. The first is an implicit comparison it makes between what Tarun Sagar has done for the poor, and what the petitioners have (or have not) done. This is entirely irrelevant: the Indian Constitution does not assign value to free speech based upon the social qualities of the speaker. Setting up a hierarchy of speakers, where those who have done social work have more free speech rights than those who haven’t, is entirely inconsistent with the very concept of a right, apart from failing to understand that the Constitution protects free speech for reasons flowing from individual self-determination, democracy, and the search for truth, none of which have anything to do with the qualities of the speaker. And secondly, the High Court’s reference to “large scale violent protest” because of “incitement” on social media sanctifies the heckler’s veto: it places the burden of preventing riots on those who speak, rather than upon those who riot. That cannot be, as the Supreme Court held in Rangarajan.

It should therefore be clear that, both from the perspective of legality, and form the perspective of the deeper constitutional principles underlying the free speech guarantee, the High Court’s order is unsustainable, and ought to be promptly overturned on appeal. 

Defamation and Injunctions: The Bombay High Court

Meanwhile, in Lodha Developers Ltd v Krishnaraj Rao, the Bombay High Court considered a (typical) injunction application in a defamation case. The plaintiff was a real estate developer. Defendant No. 1 was a journalist, who had written critically about the plaintiff. Defendant Nos. 2 and 3 were purchasers who bought flats from the Plaintiff; they found the Plaintiff’s conduct and quality unsatisfactory, and criticised it online (according to the Plaintiff, it “went viral”). The plaintiff then filed a defamation suit. The defendants (as the Court noted in paragraph 11, pleaded the defence of justification (i.e., truth)). In this particular proceeding, however, the injunction was requested only against Defendant No. 1, and for five specific statements: an allegation that the plaintiff was “in connivance” with the MMRDA officials, that there was “golmaal”, that “norms” had been thrown to the winds, that “banks are part of the Lodha scam”, and that there was no occupation certificate.

Gautam Patel J. refused to grant relief for any of the five statements. His reasoning repays close study. For each of the statements, he began by carefully distinguishing whether they fell in the category of “facts”, or of “comments”. This distinction is crucial to defamation law, but is (unfortunately) far too often ignored in practice. The reason for this is that there are two separate defences in the common law of defamation: justification, and fair comment. Justification (or truth) applies to factual statements. Fair comment applies to opinion; now, contrary to what it sounds at first blush, the term “fair comment” does not mean that the comment must be “fair”, but merely that it must be founded on some factual basis that is of relevance to it. Once the factual basis is set out – and it is made clear that the comment pertains to those set of facts – then the defence applies, even though the comment itself might be hyperbolic or excessively dramatic. The reason for this is that once the reader has the facts in front of her, and has the comment, then she is best-positioned to judge whether the comment is warranted on the basis of the facts or not.

Applying this distinction, Patel J. noted that the first, second, and fourth statements were comments (and for the second comment, the Defendant promised not to repeat it without setting out his facts); and the third and fifth were factual statements. For the first and fourth statements, Patel J. held that the Defendant had set out the factual context from which he had drawn his inferences. Consequently, no injunction could be granted.

This brought the Court to the third and fifth statements, where the defence of justification (truth) was pleaded. The Court then considered the legal standard that was to apply when an injunction was sought on the basis of disputed facts. On a review of precedent (paragraph 26 onwards), the Court correctly concluded that at interim stage, an injunction could only be granted if the defences were bound to fail at trial. Consequently, as long as the Defendant produced some material in defence of her factual statements, the case would go to trial, but at the interim stage, she would not be injuncted.

This is an important observation, for many reasons. First, it adds further heft to the Delhi High Court’s detailed judgment in Tata Sons v Greenpeace, where, after a detailed survey of the common law of defamation, and in the context of Article 19(1)(a) of the Constitution, Justice Ravindra Bhat had arrived at an identical conclusion. Secondly, it comes at a particularly important time, when broad-based injunctions, granted at the ex-parte ad-interim stage, are becoming increasingly common (the Tejaswi Surya gag order, which was later set aside by the Karnataka High Court, being the latest example). By restating the law, Patel J. reminds us that at the interim stage, the law of defamation is actually tilted towards the speaker (as it should be, because the correct remedy for defamation, being a tortious offence, is compensation, not gagging). It is not for judges to take a look at the plaint, find themselves shocked at the seeming attacks upon a person’s reputation, and immediately proceed to issue gag orders; rather, it is for judges to remember that the rule is that speech is to be met with counter-speech pending trial, and a gag is the very rare exception. And thirdly, the judgment reveals the flaws in the reasoning of Shri Maheshwar Hydel Power Corporation v Chitroopa Palit, a 2004 judgment single-judge judgment of the Bombay High Court, which also concerned defamation and injunctions. In Palit, however, the Court articulated a significantly higher threshold at the interim stage, including (among other things) a requirement for the defendant to show public interest (note that “public interest” is a requirement under criminal defamation law, not civil). In the present case, Patel J. observed that even the tests under Palit had been satisfied; his own articulation of the standard, however, as we have seen, falls on the Tata Sons v Greenpeace side, and raises the hope that in due course, Palit will become an outlier judgment, as more and more cases endorse the (correct) Greenpeace view.

One final point: it was argued before the Court that the harm had been accentuated because the defamatory statements had gone viral on social media. This form of argument – that holds that legal standards protecting speech should be diluted based on the medium – is a familiar one; recall that it was made in Shreya Singhal as well, and the judgment itself is unclear on what stand it takes. Patel J., however, was unequivocal: the medium made no difference to the legal and constitutional standards at issue. Indeed, he made the (additional) important observation that the plurality of voices in the online world made the requirement of tolerating opposed views more urgent, rather than less.

Conclusion

The contrasting judgments – and approaches – taken by the Punjab & Haryana and the Bombay High Courts remind us that free speech adjudication remains highly judge-centric. A part of the reason for this seems to be that the separation between speech that we perceive to be irritating, value-less, mischievous – in a word, rubbish – and speech that is illegal, is still not embedded firmly enough in our jurisprudence. This is not necessarily a criticism: notwithstanding (the quotation attributed to) Voltaire, it is but human to allow one’s contempt for a speaker, or for what they are saying, to get in the way of a dispassionate constitutional analysis. That is what seems to have happened in the P&H case, with the pointed references to the petitioners’ (lack of) social work, and their desire for fifteen minutes of fame on twitter. But the future of Indian free speech jurisprudence depends upon judges being able to make that distinction; hopefully, they will have that opportunity soon enough.

Notes from a Foreign Field: The Namibian Supreme Court on Free Speech, National Security, and Injunctions

In an interesting judgment delivered earlier this month (Director-General v Haufiku), the Supreme Court of Namibia restated some common-sense principles about the relationship between freedom of speech, national security, and judicial injunctions. The facts in Haufiku were straightforward: The Patriot, a Namibian newspaper, had uncovered some information about potential corruption within the Namibia Central Intelligence Service [“NCIS”]. It appeared that the NCIS had purchased farms and houses using public funds, which was then given over to a private association of ex-NCIS employees. When The Patriot’s journalist wrote to the Director of the NCIS with queries about these purchases, he was informed that his questions fell within the scope of “sensitive matters and/or classified information” (para 11). Under the terms of the Namibian Protection of Information Act [“PIA”] (whose provisions are strikingly similar to our Official Secrets Act) and the Central Intelligence Services Act [“CISA”], not only was the NCIS not obliged to provide information, but also, possession and publication of such information was an offence. Accordingly, the NCIS subsequently approached the courts for an interdict that would prevent The Patriot from publishing what information it did have.

The State’s Arguments

It was argued before the courts that the information in The Patriot‘s hands violated the PIA, as it related to a “prohibited place” and/or a “security matter.” In particular, it was argued that “if the information were published, it would threaten or jeopardise the national security of the State” (para 18), “any disclosure of information which showed either the capability or a lack of resources on the part of the NCIS is unlawful as it undermines the effectiveness of the institution and with that posed a security vulnerability to the State of Namibia” (para 19) When asked to substantiate this argument, the NCIS argued that it was not obliged to do so, because the Courts did not have any jurisdiction to assess national security questions on their merits (paras 37 and 44 – 48). In short, the NCIS made a rather meta argument: the information that The Patriot wanted to publish impacted national security, but how it did so could not be revealed (inter alia, because that itself would be tantamount to impacting national security). As the Court characterised the submission:

• The NCIS is the sole determiner of whether or not there is a threat to national security from the disclosure of information by a member of the public and not even the courts may inquire into that;
• The NCIS is not obliged (in fact it is prohibited not) to place evidence before court in court proceedings to justify its conclusion that publication will be harmful to national security;
• All the NCIS needs to do in court proceedings aimed at supressing publication of ‘secret’ information- be it about its assets or anyone associated with it – is to assign it the label of national security and to assert that publication will compromise national security and the court is bound in law to grant an interdict prohibiting publication;
• The NCIS is under no obligation to reply to any enquiry by the media or to comment on any matter relating to or concerning the NCIS, even if it involves an allegation of a crime such as corruption. (paragraph 50)

(Readers who followed the Attorney-General for India’s arguments during the Rafale review petition will recall that this was more or less exactly the same argument advanced by the State in that case.)

The Court’s Analysis

The Court began by making the sharp observation that “the written submissions refer altogether to a staggering 50 cases a significant number of which are pre-independence cases decided under the pre-independence securocratic ethos which conjure up images of our painful colonial past.” (paragraph 43) (N.B.: “securocratic ethos” is a brilliantly evocative phrase to describe one of the fundamentals of colonial regimes all over the world!) Moving on from that, it then observed that, as a matter of legal burdens, because the NCIS was the body that was seeking the injunction (instead of a situation where, for example, the journalists were seeking disclosure), the onus was upon it to demonstrate what right was being interfered with. For this, “the mere assertion of a reasonable apprehension or fear of interference would not suffice. The facts supporting the apprehension must be set out in the application to make it possible for the court to make an assessment itself whether the fears are well grounded.” (paragraph 62)

Crucially, the Court then went on to note that this basic legal requirement – of establishing facts – did not go to sleep in a sand-box just because the State was invoking national security. As the Court made clear:

It needs to be made clear as a preliminary matter that we do not agree with the Government’s refrain, repeatedly pressed with great force in the written heads of argument, that once the Executive invoked secrecy and national security, the court is rendered powerless and must, without more, suppress publication by way of interdict.

The notion that matters of national security are beyond curial scrutiny is not consonant with the values of an open and democratic society based on the rule of law and legality. That is not to suggest that secrecy has no place in the affairs of a democratic State. If a proper case is made out for protection of secret governmental information, the courts will be duty bound to suppress publication. (paragraphs 84 – 85).

In the instance case, the Court found that neither with respect to the Association, and nor with respect to the properties that it had purchased, had the NCIS made any kind of case – or submitted any kind of evidence – to demonstrate national security concerns. For example:

…the information about the properties is not inherently secret (such as a military installation, equipment, password etc.), making it obvious to anyone who possessed it, even inadvertently, that it concerned or was a matter of national security. What is in issue are a house and a farm which are readily accessible to the public – without any indication that secret government operations were being carried on there as contemplated in s 23 of the NCISA. (para 102)

For these reasons, the Court denied the claim for injunction.

Conclusion

While at first blush, the Supreme Court’s judgment seems to be doing nothing more than recapitulating well-settled principles of law, there are a few reasons why, nonetheless, it is an important judgment in a comparative context. The first is that notwithstanding how well-settled these principles are, they come under repeated challenge from State authorities. As I mentioned earlier in this essay, readers will recall that the Attorney-General’s arguments in Rafale went along precisely these lines: the Court was asked to adopt a hands-off approach towards the fresh documents on national security grounds; when it was pointed out to the AG (by the Chief Justice) that under evidence law, all that mattered was a document’s relevance, and not how it had been obtained, the AG asked the Court to carve out a special exception to this rule for “national security” matters (a request that the Court fortunately declined). The AG also declined to justify his arguments, again on the basis that the moment “national security” was invoked, the Court had to back off. This is precisely the kind of “securocratic ethos” that the Namibian Supreme Court decried, and which is simply inconsistent with the principles of an open, liberal-democratic society.

The second important point is that the Namibian Supreme Court also made clear that invoking national security did not exempt the State from having to prove its case in the normal manner. While some necessary leeway could be made – such as having an in-camera proceeding while adjudicating the State’s claims (or sealed covers?) – the legal standard would remain the same. Invoking “national security”, therefore, would not cloak the State with some special kind of immunity; when it came to an injunction and the suppression of speech, the normal standards would apply. This, of course, has been the teaching of a number of Courts ever since the Pentagon Papers case (even if the Namibian Supreme Court’s judgment did not quite rise to that level, and had perhaps some unnecessary observations about hypothetical cases where it would grant injunctions). It is also important, because even if a Court does not except that it is divested of jurisdiction to adjudicate such cases, a highly deferential standard towards the State effectively achieves the same outcome. What is needed, therefore, is a shift from the “securocratic ethos” – where the invocation of national security is given a presumptive deference that is not extended to other claims – to the “constitutional ethos” where, ultimately, what is supreme is the Constitution, and constitutional values (including those of free speech).

It is in that sense that the Namibian Supreme Court’s judgment represents an important step forward in the global struggle against the permament entrenchment of the “securocratic ethos”, and towards an open society.

 

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

On 23d July, the Supreme Court passed an order on an appeal from the Delhi High Court’s decision to issue an ad-interim injunction upon the publication of the book “Godman to Tycoon – The Untold Story of Baba Ramdev.” On the submission of counsel, the Court requested the Delhi High Court to decide the case by the end of September. The Ramdev Saga – for it has not rumbled on for more than a year – is a stark illustration of how, on the subject of freedom of speech, different levels of the judiciary treat this fundamental right with an indifference that borders on contempt.

Let us briefly review the history of Godman to Tycoon’s entanglement with the Courts. To recall, this is a biography of Baba Ramdev, the yoga guru and business entrepreneur who, by any account, is a hugely influential figure upon the country’s political stage. After the book was published Ramdev’s lawyers sought moved for an ex parte ad-interim injunction before a Delhi trial court, and were granted the injunction on 4th August, 2017 (an ex-parte ad-interim injunction, by definition, is passed without hearing the other side). The injunction remained operational, and two months later, in October 2017, the author appealed to the Sessions Judge. It took five months (!) for arguments to conclude, and at the end of April, the Sessions Judge lifted the injunction, observing – among other things – that the author had argued that the biography was based on factual material, and that Ramdev himself was, indisputably, a public figure. Ramdev appealed to the High Court, and the single judge (Justice R.K. Gauba) restored the injunction on 10th May. That remains the situation today. It is now one year, and – thanks entirely to the Courts – the book has remained under an injunction for all but ten days, and without any finding on merits.

Judicial injunctions – especially those passed at the ad-interim stage – are devastating weapons against free speech. By preventing the publication and distribution of a book, they choke off and distort the “marketplace of ideas” at its very source. Contrary to a penalty imposed upon a speaker or a writer after a full-fledged trial, injunctions suffocate speech at the very outset. For these reasons, some scholars have (albeit controversially) compared them to “prior restraints” on speech (e.g., the governments banning books). Whether or not a judicial injunction is equivalent to a book ban, however, it is at least clear that its impact upon a fundamental right as foundational as free speech requires a court to exercise great caution before it issues injunctions.

Ironically, it is the Delhi High Court that has been most sensitive to this (rather basic) point. In Khushwant Singh v Maneka Gandhi – a judgment that Justice Gauba appears to have been singularly unaware of – a division bench of the High Court refused Maneka Gandhi’s application for an injunction upon a chapter of Khushwant Singh’s autobiography that dealt with the Gandhis. Maneka Gandhi had argued that the contents of the chapter were both defamatory, and impinged upon her privacy. Crucially, Justice Kaul observed:

… the respondent has already chosen to claim damages and her claim is yet to be adjudicated upon. She will have remedy if the statements are held to be vulgar and defamatory of her and if the appellants fail to establish the defense of truth.

We are unable to accept the contention advanced on behalf of the respondent by Mr. Raj Panjwani that if the statements relate to private lives of persons, nothing more is to be said and the material must be injuncted from being published unless it is with the consent of the person whom the subject matter relates to. Such pre-censorship cannot be countenanced in the Scheme of our constitutional framework.

One aspect is very material – a categorical assertion of the author to stand by his statement and claim to substantiate the same. In such a situation interlocutory injunction restraining publication should not be granted.

There is no doubt that there are two competing interests to be balanced as submitted by the learned counsel for the respondent, that of the author to write and publish and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.

We do not think it is a matter where the author should be restrained from publishing the same when he is willing to take the consequence of any civil action for damages and is standing by what he has written … there is no question of any irreparable loss or injury since respondent herself has also claimed damages which will be the remedy in case she is able to establish defamation and the appellant is unable to defend the same as per well established principles of law.

Justice Kaul’s crucial insight was that in civil suits for defamation or breach of privacy, where monetary damages are claimed, the “balancing” between the freedom of speech on the one hand, and an individual’s right to reputation and to a private life on the other, is to be struck through a final judgment on merits. This is especially true when the writer or speaker stands by her words, and is willing to defend them through the course of a trial. Granting an injunction before trial – and thereby putting the book out of circulation – would effectively censor the speaker, and prejudge her legal defences before she even had a chance to make them. On the other hand, the individual alleging defamation or breach of privacy would always have a remedy open to her if she was able to prove her case – that of monetary damages.

Justice Kaul’s observations were developed in great detail a few years later, in the famous Tata v Greenpeace judgment. This case involved a request for an injunction upon a computer game that, the plaintiff claimed, maligned its reputation. Embarking upon an exhaustive survey of common law, Justice Bhat summarised the position as follows: the foundational value of freedom of speech in a democracy required that a Court should be extremely slow to grant an injunction pending trial. In particular, a Court ought to refrain from doing so if the writer or speaker puts forward a defence, and is willing to stand trial. Only if the defence is prima facie frivolous or unsustainable, should the Court grant an injunction. Justice Bhat noted that this had been the position in common law and, after the passage of the Indian Constitution and Article 19(1)(a), applied with even greater force.

When you apply these principles to Justice Gauba’s “order” of 10th May 2018, its staggering ignorance of the law is evident. The Learned Judge observes that:

The contents of the book to which exception is taken in the plaint of the petitioner, some of which have been extracted, prima facie, do seem to carry insinuations as are likely to harm the reputation of the petitioner in public esteem. In her written statement, the author of the book (respondent herein) while raising preliminary submissions and objections has claimed that the statements in the book “can be justified”, they having been penned with “journalistic objectivity” in fair and impartial manner, and “in good faith for public good” not being defamatory. The written statement of the publisher (respondent in these petitions), inter alia, states that there is “no malice or personal grudge” against the petitioner as an individual, the contents of the book representing “only reported true facts as gleaned from publicly available documents and merely contains legitimate and reasonable surmises and conclusions drawn therefrom” and further that every statement appearing in the book is “either itself a demonstrably true statement of fact, or a reasonably and legitimately-held opinion or inference of the author of the book.” In sharp contrast, in the impugned publication the publisher has added a disclaimer stating that the views and opinions expressed therein are “the author’s own” and further that the facts contained therein “were reported to be true as on the date of publication by the author to the publishers of the book, and the publishers are not in any way liable for their accuracy or veracity.” The use of the expressions “surmises” and “inferences”, coupled with the disclaimer, shows the matter requires deeper scrutiny to test the veracity of the claim of the author as to the truth.

First of all, it is difficult to understand what the “sharp contrast” is between the author and the publisher’s statements. Secondly, it is difficult to understand what the disclaimer has to do with anything. But thirdly – and most importantly – the judgment concedes that the matter requires “deeper scrutiny”, but proceeds to injunct publication in the meantime anyway! If Justice Gauba had perhaps taken some time out to visit the Judges’ Library and consult the precedent of his own Court, he may have understood how this reasoning inverts the entire system of values that underlies the Constitution, placing the burden upon a writer to justify her exercise of free speech, instead of upon those (in this case, a very powerful public figure) who seek to silence her.

If the Supreme Court’s request is adhered to, and the case decided by the end of September, the book will have been injuncted for fourteen months before any kind of review on merits is completed. In this case, it perhaps doesn’t matter, because Ramdev is not going to depart from the public stage any time soon. In other cases, however, time-bound publication is of the essence, and an injunction of this kind that is then left to the vagaries of our snail-paced judicial system, can destroy the entire purpose of writing the book in the first place.

Unfortunately, however, despite the clearly-reasoned judgments in Khushwant Singh and Tata v Greenpeace, trigger-happy judicial injunctions are the norm rather than the exception. In a post written two months ago, while examining some other egregious orders from various High Courts, I had made the following observation:

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

The problem is less one of doctrine – the doctrine exists – and more one of attitude. Judges at all level of the judiciary tend to view the freedom of speech more as an annoyance or a bother, rather than a foundational democratic value. To them, Victorian ideas of the sacrosanctity of “reputation” continue to hold overriding importance (this was visible, for example, in the Supreme Court’s criminal defamation judgment). As long as that attitude continues to prevail, notwithstanding the finely-reasoned judgments of a Justice Kaul or a Justice Bhat, that excavate and lay out all the principles in detail, the “gag first, ask questions later” judicial culture will continue.

Another possible alternative is for the Supreme Court to step in and clearly delineate the standards to be followed when granting or withholding an injunction in a free speech case.

And who knows, in the days to come, it might even be the Ramdev case that provides it with that opportunity.

The Bombay High Court’s Ruling on NSE’s Defamation Case against Moneylife

In a significant judgment delivered yesterday, the Bombay High Court rejected the National Stock Exchange’s application for injunction, in a defamation action, against the journalist Sucheta Dalal (and others), for articles published on the financial news website, moneylife.in. Justice Gautam Patel also imposed heavy damages upon the NSE, in what seems to be an acknowledgment of the need to put a halt to proliferating SLAPP lawsuits (although imposing damages in an injunction application without disposing off the main suit seems a little incongruous). The imposition of damages will be particularly controversial, but it is not an issue I will deal with here.

The case is significant because it adds to a growing body of (High Court) jurisprudence on the relationship between defamation and the freedom of speech and expression. The constitutionalisation of defamation law, which began in the 1994 judgment of the Supreme Court in R. Rajagopal’s Case, has enjoyed an uneven history over the last twenty years.  The Bombay High Court’s decision bucks an emerging trend of subjecting defamation law standardsto rigorous constitutional scrutiny.

The disputed articles effectively accused the NSE of actively permitting illicit trading advantages to users of certain high-end technology. The two articles were written on the basis of a detailed anonymous letter that was sent to Sucheta Dalal. After receipt of the letters, Ms Dalal emailed the SEBI Chairman, as well as two persons “at the helm of” NSE’s affairs, but received no reply. A reminder email and a reminder SMS were also met with silence. After this failed correspondence, the two articles were published.

NSE claimed that the accusation was false, since the illicit advantage it talked about was technically impossible to arrange. NSE’s argument, consequently, was that the articles were defamatory, and not saved by the defences of truth, fair comment, or qualified privilege (the standard defences in civil defamation law).

In dealing with this submission, Justice Patel focused at length on Ms Dalal’s attempts at investigating the veracity of the claims made in the anonymous letter, and the NSE’s refusal to furnish her with the information they then put in their plaint, in order to argue that the Moneylife articles were false (i.e., the “illicit advantage” was not technically possible). Notice, however, that the common law of defamation is a strict liability offence: i.e., a false defamatory statement results in liability for the defendant, notwithstanding the care he or she took to establish its veracity. The relevance of Ms. Dalal’s investigations, therefore, depended upon modifying the common law standard of defamation, which is what Justice Patel proceeded to do. In paragraph 22, he noted:

“Mr. Basu has also done some quite formidable legal research. The point he makes is this: that there is a material difference when the complainant plaintiff is a public persona or figure or institution, as the NSE undoubtedly is, as opposed to a private citizen. He cites, of course, the classic decision in New York Times Co. v Sullivan, for its proposition that a public official cannot recover damages in a defamation action unless he proves with convincing clarity that the statement was made with knowledge of its falsity or with reckless disregard of whether or not it was false. This standard has been generally applied to public figures, but I will for the present, set this to one side since Sullivan seems to me to be closely hinged on the First and Fourteenth Amendments to the US Constitution. Mr. Basu’s reliance on Reynolds v Times Newspapers Ltd & Ors. may be more appropriate. That seems to me to be a case closer to our conception of the law in the field, though the law it states is somewhat different, as Radhakrishnan J noticed, from our own standard. I do not think this distinction is material, given the facts of this case. The House of Lords in Reynolds inter alia reviewed the law from other jurisdictions, including ours: it referenced the Supreme Court decision in Rajagopal v State of Tamil Nadu, 16 to much the same effect as Sullivan in relation to public officials. Now if there is no doubt, and I do not think there can be any doubt, that the NSE is very much a public body, then this standard must apply. In that situation, a demonstration that the defendant acted after a reasonable verification of the facts is sufficient to dislodge a claim for an injunction and a charge of malice.”

There is one crucial advance in this paragraph. In Rajagopal’s Case, the Supreme Court – following Sullivan – limited the higher threshold for defamation to public officials. As Justice Patel correctly notes, in the United States, “public officials” has subsequently been expanded to include public figures as well as issues of public importance. Although Justice Patel refuses to adopt the Sullivan standard here, in adopting the House of Lords decision in Reynolds, he definitively extends the threshold to public bodies and public figures. This is important, because a number of SLAPP defamation suits have been brought by large-scale private corporations that are (at least arguably) performing public functions. Justice Patel’s reasoning, therefore, opens the door to heightened scrutiny being applied to private corporate defamation claims as well. Something similar had been attempted six years ago by Justice Ravindra Bhat of the Delhi High Court in Petronet, where in a claim injunction against disclosure of confidential information, a company with 50% state shareholding, and performing the important public function of gas distribution, was held to a Pentagon Papers-level threshold. Petronet, however, did not directly deal with defamation law. The Bombay High Court’s judgment is squarely on point.

It must also be noted that Rajagopal is a highly confusing judgment, which Justice Patel attempts to clarify in at least two ways. First, Rajagopal cites both Sullivan and Reynolds, which lay down very different tests, but does not specify which of them it is adopting. Justice Patel clarifies that he is adopting the latter. Secondly, Rajagopal is entirely unclear about the issue of burdens. Under the Sullivan test, the burden of showing that the defendant acted with reckless disregard of the facts is upon the plaintiff. Under Reynolds, the burden of demonstrating reasonable verification of facts is upon the defendant. Justice Patel seems to adopt the latter, when he notes:

“… where there is a factual demonstration of sufficient steps being taken to ascertain the ‘other side of the story’ and this opportunity, when presented, has been ignored, no more can be expected if it is also shown that the article when published was not unreasonable in its content, tone and tenor.”

In other words, insofar as a publication relates to a public official, public body or public figure, it is enough of a defence for the defendant to show that even if the publication is false in some respect, she acted only after a reasonable verification of the facts.

Unfortunately, much of the lucidity in the judgment so far is jeopardised in a rather unfortunate paragraph 26. Here, Justice Patel notes:

“For public bodies and figures, I would suggest that the legal standard is set higher to demonstrated actual malice and a wanton and reckless embracing of falsehood though countered at the first available opportunity. I do not think it is reasonable to propose a legal standard of utter faultlessness in reportage or public comment in relation to such bodies or persons. If there is indeed a factual error, can it be said to have been made in good faith, and in a reasonable belief that it was true? The ‘actual malice’ standard seems to me to suggest that one or both of these must be shown: intentional falsehood, or a reckless failure to attempt the verification that a reasonable person would. In this case, I do not think that the Plaintiffs have met that standard, or demonstrated either intentional falsehood or a failure to attempt a verification. The burden of proof in claiming the qualified privilege that attaches to fair comment can safely be said to have been discharged.”

Unfortunately, just like Rajagopal did, this paragraph conflates two very distinct legal standards. “Actual malice” and “reckless embracing of falsehood” is the Sullivan test, which requires proof of either intentional lying, or reckless disregard of truth. “Good faith” and “reasonable belief” in truth is modeled upon the tests currently in vogue in Canada, the UK and South Africa. “Reasonableness” is one step below “recklessness”, and imposes an affirmative burden upon the publisher to take certain measures towards establishing the truth of her claims. There is a further issue with the use of “qualified privilege” without explaining what, precisely, it means. Qualified privilege has now been statutorily abolished in the United Kingdom, and carries a very different meaning in Australia (applicable to statements on matters of political importance).

It is also a little unfortunate that the judgment makes very little mention of the appropriate legal standards to be followed in deciding upon an injunction in a defamation case. The High Courts of Delhi and Bombay have taken opposite views on the issue. The correct position at common law was laid down long ago in Bonnard vs Perryman, and prohibits the grant of an injunction unless it can be shown that the defendant has almost no chance of success at trial. In an otherwise erudite judgment, the failure to deal with the common law precedent directly on point is disappointing.

As an aside, it may also be noted that this judgment has an ancillary effect upon the criminal defamation challenge that has been reserved by a two-judge Bench of the Supreme Court. In affirming that civil defamation law allows for false defamatory statements to escape liability as long as they have been made after reasonable verification, it is once again established that Indian defamation law is unique in that, as it stands, criminal defamation is more stringent than civil defamation. It is to be hoped that this fact will be considered by the Supreme Court in deciding whether to strike down or read down Sections 499 and 500 of the IPC.

To sum up: Justice Patel’s judgment is significant in that it extends the higher threshold of defamation from public officials to all public figures or public bodies. It also seems adopts the Reynolds defence of reasonable verification of facts in case of false defamatory statements, with its attendant evidentiary burdens. Depending on how you read Rajagopal, this may or may not be correct. In any event, it is important to note, once more, that Sullivan (actual malice) is not equivalent to the reasonableness standard, but is considerably more speech-protective. We still await clarity for which of those standards is to be adopted under Indian civil defamation law.