Guest Post: On Free Speech and Jurisdictional Issues in Online Defamation Cases

Tags

criminal defamation, defamation, freedom of speech, Jurisdiction, online speech

(This is a guest post by Raghav Kohli.)

—

An overwhelming cavalcade of technological innovations since the last century has redefined the relationship between law and technology; the Indian Judiciary, quite helplessly, has been playing catch-up ever since. Recently, in one of many such instances that demonstrate the awkwardness of Indian judges in engaging with technology, the Supreme Court in M/s Future Gaming and Hotel Services Pvt. Ltd v. Malayala Manorama & Ors passed an order confirming the regressive approach of Indian Courts towards jurisdictional issues arising out of the online dissemination of free speech.

The facts, briefly, were as follows: The Respondents, a Malayalam Vernacular Daily Newspaper, published a news article on 22-04-2015 that was also made available online on their website. A complaint was lodged by the Petitioner, before the Chief Judicial Magistrate, East and North, at Gangtok (hereafter CJM), inter alia, on grounds that the news so published had defamed the Petitioner Company. The CJM issued process of summons against the Respondents, who subsequently filed a Petition under Article 482 of the Code of Criminal Procedure (hereafter CrPC) before the High Court of Sikkim at Gangtok for quashing the complaint and setting aside the summon order. The High Court quashed the complaint for want of territorial jurisdiction of Courts in Sikkim as the Complainant had “failed to point to any person who has in fact read the online version or downloaded the same to make the offence under Section 499 of the IPC complete and thereby extend jurisdiction to the Courts in Sikkim” (paragraph 9).

Consequently, the Petitioners filed a Special Leave Petition before the Supreme Court, which set aside the decision of the Sikkim High Court. It was held that the complaint could not be quashed at this stage since the list of witnesses contained residents of Sikkim, who proposed to give evidence to the effect that the alleged offence had taken place in Sikkim. The division bench of AK Goel, J. and UU Lalit, J. thus impliedly confirmed that in cases of online defamation, courts could assume jurisdiction in any place where the impugned material is accessed.

The Law

Before addressing the question of why such an approach is problematic, it is of pertinence to analyse the rules governing the territorial jurisdiction of courts in civil and criminal cases. Among other provisions to determine jurisdiction in Chapter XIII of the CrPC, Section 179 provides that “When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.” Similarly, Section 19 of the Code of Civil Procedure (hereafter CPC) provides that “where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Court”.

Traditionally, courts have interpreted Section 19 of the CPC and Section 179 of the CrPC expansively in offline defamation cases to extend territorial jurisdiction to not only Courts at the place where the defamatory statement is first made and published (in the sense of the statement being communicated), but also where it is subsequently published, circulated and read. For example, in Dr. Subramaniam Swamy vs Prabhakar S. Pai, the assailed statement was made at Chandigarh at a press conference, but also later published by the Indian Express in Bombay. The Bombay High Court held that “the consequence of the statement made at Chandigarh has been completed at Bombay by circulation of the said newspapers, and, therefore, the offence of defamation is complete in the City of Bombay. In view of the provisions of S. 179 of the Criminal P.C. both the Courts, at Chandigarh and at Bombay, will have jurisdiction to entertain a complaint under S. 500 of the Indian Penal Code.” Similarly, the Karnataka High Court in P.Lankesh and Another v. H. Shivappa & Anr., held that “It cannot be said that the act of publication comes to an end as soon as one issue of the newspaper is released at one place … If the defamatory imputation is made available to public at several places then the offence is committed at each such place. Though the first offence may be committed at the place where it is printed and first published, it gets repeated wherever the newspaper is circulated at other places.”

The Law in the Online World

The issue arises when Courts apply the same standard for determining jurisdiction in cases of online dissemination of speech; and High Courts across India have done that unanimously. In fact, the Delhi High Court as recently as in the 2016 case of Frankfinn Aviation Services Pvt. Ltd v. Tara Kerkar & Ors held that by putting defamatory material on the internet, “territorial jurisdiction does not remain confined to the place of actual defamation … (and) jurisdiction would be at both places i.e. the place where the actual defamation takes place and the place where such defamatory material is transmitted through website”. Even the Sikkim High Court in the Malayala Manorama case would have found that Courts in Sikkim are competent to exercise territorial jurisdiction if only the Petitioner had produce a person who had read (or downloaded?) the online version in Sikkim.

However, courts have conveniently chosen not to engage with the detrimental consequences of adopting such an expansive approach on free speech. By allowing for the assumption of jurisdiction by any court situated at a place where the website may be accessed, courts have failed to appreciate the inherent distinctions between traditional media and new digital media, and effectively permitted individuals to “create” territorial jurisdiction in online defamation cases as per their convenience across the country (at least). Consequently, this provision has been systematically used to harass journalists, authors, and other individuals, who are forced to travel to remote locations at great personal expense. In fact, Human Rights Watch in 2016 reported several such instances of harassment, with the Tamil Nadu government, for example, having reportedly filed nearly 200 cases of criminal defamation between 2011 and 2016.

The hardship faced by an accused is further augmented as there is no cap on the number of cases that may be filed against him or her under Section 199, CrPC, which lays down the procedure for prosecution. It is also settled law that the exceptions to defamation are only considered after the trial commences in light of Section 204, CrPC, read with Section 105 of the Indian Evidence Act (reiterated in paragraph 198 of Subramanium Swamy v. Union of India). Thus, the accused has minimal safeguards at the time of issuance of process against unscrupulous allegations. Although Section 202, CrPC mandates that the Magistrate postpone the issue of process for deciding whether or not there are sufficient grounds for proceeding in cases where the accused is residing at a place beyond his/her jurisdiction, it often does not afford adequate protection to the accused against harassment, making the process a punishment in itself. This is also applicable to the rare occasions when the accused may be allowed to appear via video conferencing (as was done in the Malayala Manorama case), which engenders its own set of issues.

The Chilling Effect

The cumulative effect of these draconian procedures is a “chilling effect” on speech, which prompts people to engage in self-protective censorship in fear of penalisation. Although this concept has formed an essential part of First Amendment phraseology and jurisprudence in the United States since the 1950s, it was adopted into our free speech jurisprudence much later (starting with the Delhi High Court). The Indian Supreme Court has now recognised this concept in several cases, such as R. Rajagopal v. State of T.N, where the Court modified the common law of civil defamation and noted the chilling effect caused by a no-fault liability standard (paragraph 19). Similarly, in S. Khushboo v. Kanniammal, the Court observed that the law “should not be used in a manner that has chilling effects on the freedom of speech and expression” (paragraph 29). Most famously, in the widely celebrated judgment of Shreya Singhal v. Union of India, the Supreme Court invoked the principles of “vagueness” and “overbreadth” in addition to the chilling effect to strike down Section 66A of the IT Act in 2015 (paragraph 90).

Interestingly, in the case of Subramanium Swamy v. Union of India, in which the Supreme Court upheld the constitutionality of criminal defamation, a similar argument was made by some of the petitioners (Read paragraph 20 of Mr. Arvind Datar’s submission here) against the procedure governing the prosecution of defamation under the the CrPC. It was argued that such rules amounted to procedural unreasonableness and imposed a chilling effect on speech, and were thus unconstitutional. The Court’s response to this submission is a classic example of how judges often conveniently disregard engaging with the submission made, and dismiss it by merely reiterating the settled law.

After noting the abuse of procedural laws and summarising the law on territorial jurisdiction contained in Sections 176-179 and Section 186 of the CrPC, the Court observed: “Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional” (paragraph 195). The Court failed to even acknowledge that the chilling effect argument made was premised upon the inadequacy of the so-called “appropriate steps in accordance with the law.”

Similarly, on the argument of considering the exceptions under Section 499 at the time of summoning the accused, the Court summarised the settled position of law that those who plead an exception must prove it, and observed: “Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same” (paragraph 198). Apparently, using “therefore” multiple times in a sentence sufficed as a justification.

Lessons from Abroad 

In fact, it was in response to similar issues arising out of the online dissemination of speech such as forum shopping and stifling of free speech that foreign jurisdictions such as the United States evolved restrictive tests to determine “personal jurisdiction” (or, the court’s jurisdiction over the parties in a suit) in online defamation cases. The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction (even where a long arm statute exists) “over a foreign defendant when (1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing `minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend `traditional notions of fair play and substantial justice.’ Sufficient minimum contacts will give rise to either specific or general jurisdiction. General jurisdiction exists when a defendant’s contacts with the forum state are unrelated to the cause of action but are `continuous and systematic.’ Specific jurisdiction arises when the defendant’s contacts with the forum ‘arise from, or are directly related to, the cause of action.’” (Revell v. Lidov at paragraph 20) The mere accessibility of data hosted on a website in the forum state has consistently been held to be insufficient by both standards for the forum court to assume jurisdiction. The court, therefore, determines jurisdiction based on different criteria such as the active or passive nature of the website (as per the “Zippo Sliding Scale”, for example, established in the case of Zippo Manufacturing Co v. Zippo Dot Com Inc.), or, by applying the “effects test” (established in Calder v. Jones, to adjudge whether the effects caused by an defamatory article in the forum state were specifically directed and intended towards it as to confer jurisdiction upon it).

The 2002 decision of the United States Court of Appeals, Fifth Circuit, in Revell v. Lidov is a good illustration of the application of these concepts. The brief facts are as follows: Revell (a resident of Texas) sued Lidov (a resident of Massachusetts) and Columbia University (whose principal office were in New York City) in the Northern District of Texas for defamation arising out of Lidov’s authorship of an article that he posted on an internet bulletin board hosted by Columbia. The district court dismissed Revell’s claims for lack of personal jurisdiction over both Lidov and Columbia as it found the website to be “Zippo-passive”. When this decision was appealed before the Circuit Court, the issue to be determined was whether the operation of an internet site supported the minimum contacts necessary for the exercise of personal jurisdiction. It was held that owing to both the low level of interactivity of the website, and inapplicability of the “effects” test, specific personal jurisdiction could not be established in Texas. It was observed that “the post to the bulletin board here was presumably directed at the entire world, or perhaps just concerned U.S. citizens. But certainly it was not directed specifically at Texas… As these cases aptly demonstrate, one cannot purposefully avail oneself of ‘some forum someplace’; rather, as the Supreme Court has stated, due process requires that ‘the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’” Similarly, it was held that general personal jurisdiction could not be established as the “maintenance of a website is a continuous presence everywhere in the world” and does not amount to a “substantial” contact.

It is also interesting to note that while Indian courts have continued to apply traditional jurisdictional rules in online defamation cases, they have increasingly turned to the progressive US standards in trademark infringement disputes. For example, in the landmark case of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy & Anr, the Court held that it had jurisdiction over the defendant but it did not get attracted merely on the basis of interactivity of the website which is accessible in the forum state, but on the basis that viewers in the forum state were specifically targeted by the Defendant Website. In an extensive analysis of tests adopted by different jurisdictions to assume territorial jurisdiction, Justice S. Muralidhar went to the extent of noting that “While courts have more readily applied the ‘effects’ test in defamation cases [see Remick v. Manfredy, 238 F.3d 248 (2001); Noonan v. Winston Comp., 135 F.3d 85, 91 (1998)]; Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002) there have been problems in its application to trademark infringement cases” (paragraph 25). This progressive approach to determine jurisdiction has been reiterated in several High Court decisions such as the 2017 decision of the Delhi High Court in Federal Express Corporation v Fedex Securities Ltd. & Ors.

Justice Brennan in the US Supreme Court decision of NAACP v. Button famously remarked that freedom of speech needs “breathing space to survive”. Adopting a regressive approach towards jurisdictional issues arising out of online speech inhibits exactly that. It is hoped that the Indian Supreme Court on a suitable occasion in the future will deliberate on these arguments, and step up to protect this freedom from being choked.

The Meesha Judgment: Book Bans and the Supreme Court’s Dangerous Grandstanding

Tags

book bans, Jurisdiction, Public Interest Litigation, separation of powers

The present Chief Justice of India is no friend of free speech. He upheld the constitutionality of criminal defamation in a near-indecipherable judgment. He invented a new standard of obscenity for writings about “historically respectable personalities.” He forced cinema owners to play the national anthem before every film for more than a year through an “interim” (!) order, never explaining the constitutional authority for doing so, and relenting only when both his brother judges and the government urged that the order be recalled. He toyed with inventing a doctrine called “auto-block”, which would have required search engines to automatically block certain key-words, before finally deciding against it. He cooked up a phrase called “constitutional compassion” while issuing notice on the question of what politicians could or could not say with respect to an ongoing criminal investigation (the case was disposed of after the politician apologised). His judgments and orders have reflected not just a hostility towards the principle of freedom of expression, but – as I have written on this blog multiple times – a near-contemptuous disregard of precedent and the separation of powers in order to write this hostility into law.

There was some hope that, being caught up with Constitution Bench hearings since the start of his tenure as Chief Justice, Article 19(1)(a) would get through the last year or so before his retirement relatively unscathed. That hope has now been dashed with today’s judgment in the Meesha book ban case. In some ways, this judgment is worse than the ones that have preceded it, because of its insidious character: it is a sugar-coated poison-pill.

Meesha is a serialised novel written by the Malayalam author S. Hareesh. Its publication sparked a protest from a group that claimed that its dialogues were insulting towards temple-going women. Both the government and the civil society came to Hareesh’s support, and – as will become important later on in this essay – the government refused to ban the book. Meanwhile, however, a “public interest” petition was filed before the Supreme Court, asking for the book to be banned. Showing great alacrity, the Chief Justice allowed an “urgent mentioning” to take the case out of turn (July 31), his bench heard the arguments, asked for a translation of the “offending” passages, and reserved judgment (August 2), and the Chief Justice delivered the judgment today (September 5).

The Chief Justice begins his judgment by quoting from his own anti-free speech judgment in the “historically respectable personalities” case (paragraph 2), and spends the next thirty pages waxing eloquent about the importance of free expression. The judgment is peppered with phrases such as “pragmatic realism” (paragraph 5), “fertile faculties of the human mind”, “literary pusillanimity” and “abject obscenity” (?!) (paragraph 27), “the unwritten codes of maturity” (paragraph 28), “intellectual pusillanimity” (paragraph 33), “the passion of didactism” (paragraph 34), “pyramiding a superstructure without the infrastructure” (paragraph 35), “an intrusion to create sensation” (paragraph 36), “thematic subsidiary concepts” (paragraph 38), and “objective perceptibility” (paragraph 39). About ten paragraphs are spent discussing the contents of the book, and another three paragraphs on analysing whether there was actually something wrong with it. Louis Brandeis, Pablo Picasso, and Voltaire (incorrectly) are all name-checked. And the upshot is that the petition for banning is dismissed, with “no order as to costs.”

Now, what is so problematic about this, you may wonder. After all, the Court rejected the ban, and said all kinds of wonderful things about the freedom of speech. The problem is this: this case needed to have been dismissed at the outset, because under the Constitution, the Court has no power to ban books. But by issuing notice and deciding the case on merits, the Court has now given itself – and every High Court in the country – a new and dangerous power of censorship.

Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression. Article 19(2) authorises the “State” to impose reasonable restrictions upon this freedom, by “law”. There is some dispute over whether, for the purposes of Part III of the Constitution, the Court counts as “State”. However, there is no dispute over the fact that the word “law” refers only to Parliamentary law, or secondary legislation (such as statutory rules or regulations). It does not refer to judgments. This flows from the text of Article 13, the judgment of the six-judge bench of the Supreme Court in Kharak Singh v State of UP (not overruled on this point), and the judgment of the two-judge bench in Union of India v Naveen Jindal. What follows? It follows that, under our constitutional scheme, the Supreme Court cannot play censor. The Court does not have the power to restrict speech, censor films, ban books, and force people to say (or not to say) certain things. What the Court does have the power to do is to review State action that falls under the above categories, and test it for constitutionality.

This basic jurisdictional point was entirely missed by the Chief Justice in his ill-thought national anthem order, and many months on, no lessons have been learnt. Today’s judgment once again arrogates to the Court a power that the Constitution explicitly denies it. Not only is the judgment wrong in law, but by ignoring binding precedent on the point, it is also per incuriam.

This is not a formalist argument. Its importance can be gauged by looking at how the legal framework for banning books actually does work. Section 95 of the Code of Criminal Procedure states, in relevant part:

Where-

(a) any newspaper, or book, or

(b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860 ), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited…

The power to ban books, therefore, lies with the state government, and can be exercised only where, in the government’s view, certain specific sections of the IPC have been violated. Now, the remedy against the state government’s decision is provided for under Section 96:

Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub- section (1) of section 95.

Section 96(2) then goes on to state that an application under Section 96(1) must be mandatorily heard by a special bench of three judges.

The legal scheme, therefore, sets up three layers of statutory safeguards. The first is that it limits the offences for which books may be banned. Secondly, at the first instance, it leaves the decision in the hands of the government, and makes a provision for judicial review only if a book is banned. In other words, if the government elects not to ban a book, there is no judicial review against that decision (at least as per the legal scheme). And thirdly, if the government does ban a book, a special bench of the High Court is bound to review it in accordance with the law and the Constitution. At the heart of this scheme is the idea of the separation of powers: decisions restricting expression are to be taken by the government, and then reviewed by the Court for constitutionality.

Today’s judgment takes a sledgehammer to this carefully calibrated scheme in four distinct ways. First, it wipes out the separation of powers, and creates an entirely new book-banning authority – the court itself (this was exactly what the Bombay High Court did a few months ago with respect to the censorship of films, a decision that was appealed to the incoming CJI – who did nothing). Second, by making constant references to “defamation”, it also wipes out the careful limitation of the categories under which books can be banned. Section 95 of the CrPC makes no mention of defamation or Section 499 of the IPC (criminal defamation), thus making it clear that the government cannot ban a book on the ground that it is defamatory. But apparently, now, a Court can. Third, instead of limiting the right to review in case a book has been banned, it now allows just about anybody to move a “PIL” and ask for a book to be banned. This effectively opens up an entirely new legal window for authors to be relentlessly harassed (as if they were not facing enough problems in court already). And fourth – and most dangerous of all – it raises the distinct likelihood of the regular weaponisation of PILs for the purposes of book-banning, where the lottery of case assignments will entail that in many cases, such PILs may actually succeed.

The Chief Justice’s judgment, therefore, is wrong in law, wrong in the Constitution, and productive of great public mischief. He has simply arrogated to itself a power that it does not have, and shredded a carefully constructed legal framework of safeguards with respect to the banning of books.

It is worth pointing out (and it is not for the first time that I have made this argument on this blog) how we’ve gotten here. It is a three-letter answer, and it is called “PIL.” What began as a loosening only of locus standi requirements for a greater good has now become a free-for-all where concepts such as jurisdiction, maintainability, and the separation of powers have been so thoroughly discredited, that they now don’t even feature on the radar when it comes to arguments and judgments. The upshot of this is that these concepts, long demonised by proponents of PIL as remnants of “Anglo-Saxon (!) jurisprudence”, but which stood between fundamental rights and judicial autocracy, have been washed away. And the result is plain for all to see: PILs are now at the forefront of lopping off fundamental rights.

It is also worthwhile to note that the road the Chief Justice was going down was more than evident the day that this case was hurriedly listed out of turn, and the day when his bench began hearing it on merits. That was the time for people to question how it was that the Court was doing what it was doing. How was this PIL maintainable? How did the Court have jurisdiction in an Article 32 petition asking for a book to be banned? What “appropriate writ” could it possibly issue? Instead, there was absolute silence. And that is perhaps the most profoundly depressing aspect of the situation that we find ourselves in today: the sinking feeling that the ship has sailed so far that there is no point to even raising these questions anymore. It is no more than a cry in the wilderness.

Section 377 Referred to a Constitution Bench: Some Issues

Tags

article 21, curative petitions, homosexuality, Jurisdiction, koushal, naz, privacy, sexual orientation, Sexuality

In an order passed today, a three-judge bench of the Supreme Court, headed by the Chief Justice, referred the correctness of the judgment in Suresh Kumar Koushal vs Naz Foundation to a Constitution Bench. Because of the complex history of this case, some background is essential to understand the implications of today’s order. Recall that on December 11, 2013, a two-judge bench of the Supreme Court, in Koushal, had upheld the constitutional validity of Section 377 of the Indian Penal Code, which criminalises carnal intercourse against the order of nature. In doing so, the Supreme Court overturned the 2009 judgment of the Delhi High Court in Naz Foundation vs NCT of Delhi, which had read down Section 377 and decriminalised consensual same sex relations between adults. Although the Supreme Court did not specify what constituted “carnal intercourse against the order of nature”, its judgment was widely understood to recriminalise homosexuality in effect, if not in so many words.

Soon after the judgment in Koushal, a different two-judge bench of the Supreme Court delivered judgment in NALSA vs Union of India, where it upheld and affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution. As I argued at the time, Koushal and NALSA rested on mutually irreconcilable foundations – the exact arguments that had been rejected in Koushal had been accepted in NALSA, and so, the only way out was to review the correctness of Koushal.

In the meantime, review petitions contesting the correctness of Koushal had been dismissed. Petitioners then took the last route open to them: they filed curative petitions. A curative petition is an extraordinary remedy developed by the Supreme Court in its 2002 judgment in Rupa Ashok Hurra. It is basically a remedy of the last resort: even after a review is rejected, the Court may still reconsider its judgment in certain exceptional circumstances. Hurra set out the exceptional circumstances:

“… this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner… we are of the view that since the matter relates to re- examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.”

The rarity of the curative remedy is reflected by the fact that in the fifteen years since Hurra, only four curative petitions have been allowed. However, in 2014, Petitioners won a significant victory when the Court agreed to hear the Naz curative in “open court” – most curative petitions are dismissed by circulation in judges’ chambers.

The Naz curative was then listed for hearing on the 2nd of February, 2016, before the three senior-most judges at the time – Chief Justice Thakur, and Justices Dave and Khehar. After some oral argument, the Court passed the following order:

“All that we need say is that since the issues sought to be raised are of considerable importance and public interest and since some of the issues have constitutional dimensions including whether the Curative Petitions qualify for consideration of this Court in the light of the Judgment in Rupa Ashok Hurra’s case (Supra), it will be more appropriate if these petitions are placed before a Constitution Bench comprising five Hon’ble Judges of this Court.”

In other words, all questions – including the question of whether the curative petition could be admitted for hearing – were to be decided by a five-judge bench.

Later that year, however, a fresh petition was filed challenging the constitutional validity of Section 377.  Navtej Johar vs Union of India was filed by five LGBT individuals as a writ petition under Article 32 of the Constitution (and not a public interest litigation, like Naz Foundation was), alleging direct violation of fundamental rights. When this petition came before a two-judge bench of the Court on 29th June 2016, the Court passed the following order:

“The issue pertains to the validity of Section 377 of the Indian Penal Code. We are informed that the Constitution Bench of this Court is hearing the issue. Post this matter before Hon’ble the Chief Justice of India for appropriate orders.”

Both the curative petitions and this petition then went into cold storage. In late August 2017, however, the nine-judge bench of the Supreme Court handed down the famous “Privacy Judgment”. As we have discussed before, the a majority of judges in the privacy judgment directly held that sexual orientation was a facet of privacy, and very publicly doubted the correctness of Koushal. In his plurality, Justice Chandrachud observed:

“…  we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” (para 128)

While, therefore, judicial propriety and discipline prevented the nine-judge bench from overruling Koushal, there was little doubt that the bottom was entirely knocked out of that judgment – and it was only a question of when – not if – Koushal would be overruled.

It is in this context that we must understand today’s referral order. The order was made in the Navtej Johar petition, which had been filed after the initial curative hearing, and had not been tagged with the curative petitions. In the order, the Court observes the existence of the NALSA judgment, and also Puttaswamy. It then notes:

“… the said decision [Puttaswamy] did not deal with the constitutional validity of Section 377 IPC as the matter was pending before the larger Bench. The matter which was pending before the larger Bench is a Curative Petition which stands on a different footing.”

After noting that the issue of consensual same-sex relations “needs to be debated”, the Court concludes as follows:

“Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal’s case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

A few questions arise from this. The first and most important is: what is status now? In Puttaswamy, the Court specifically declined to overrule Koushal on the basis that it was already being considered by a Constitution Bench. Today’s order effectively authorises the Chief Justice to set up a parallel Constitution Bench that will also consider Koushal. In that case, what happens to the curative proceedings? Today’s order observes that the curative proceedings “stand on a different footing”; that is, of course, true. The curative petitions have to be argued according to the very strict Hurra standard (see above), and cannot also invoke NALSA or Puttaswamy. A judgment asking for reconsideration of Koushal, however, is not bound by the Hurra standard.

That, however, leads to a conceptual problem: given that a curative petition in Koushal is pending and has been specifically referred to a Constitution Bench, clearly, Koushal is already under reconsideration. Or, to put it another way, the judgment in Koushal has not yet attained finality – it is subject to the outcome of the curative proceedings. From that perspective, today’s order appears to either mandate the reconsideration of a judgment that is already being reconsidered (if you take the judgment itself as final), or to mandate the reconsideration of a judgment that is not yet final (if you take the conclusion of curative proceedings as the point of finality).

The situation is further clouded when you consider the fact that – as the Court held in Hurra – “the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench.”

In other words, the task of a curative bench, if the curative petition succeeds, is to send the matter back for a fresh hearing (and not to decide the case on merits itself). That is, if a curative petition succeeds, then the judgment under challenge is to be reconsidered.

But that is exactly what today’s order, in effect, achieves, when it says that “the decision in Suresh Kumar Koushal’s case requires reconsideration.” Or, in other words, today’s order effectively allows the curative petitions by a side-wind. Suddenly, the most difficult hurdle before the original petitioners – to meet the threshold requirements under Hurra – has been swept away.

The upshot, therefore, is this: the pending curative petitions have now been made effectively infructuous (by that I mean that while the curative petitions are still pending, and technically due to be heard, their subject matter – crossing the Hurra threshold – has effectively been decided separately now, so in substance, there is nothing that remains to be argued when they do come up for hearing). By virtue of today’s order, the issue of the constitutional validity of Section 377 is to be heard afresh, and the correctness of Koushal to be reviewed from scratch. There will of course be some procedural issues to untangle – the petitioners in the curative petitions will now have to either get those petitions tagged with Johar or file fresh intervention applications. The basic point, however, is that today’s order marks a very significant advance in the legal struggle against Section 377.

One last point: today’s order calls for a reconsideration of Koushal primarily by invoking the judgments in NALSA and Puttaswamy. Puttaswamy, of course, was entirely about the right to privacy, and the relevant portion of NALSA cited by the Court also refers to privacy (in the context of Article 21). This should not result in the future Supreme Court hearing reviewing Koushal only on the grounds of privacy; Koushal‘s analysis of Articles 14 and 15 was every bit as wrong-headed as its “understanding” of Article 21. If the Court is now going to hear the case afresh, then it will, hopefully, rule not only on Article 21, but on issues of equality and non-discrimination as well.

Constitutional Problems with the Exclusion of Jurisdiction in the Coal Block Cases

Tags

article 14, Article 142, article 21, article 226, Jurisdiction, special offences

(In this guest post, Abhinav Sekhri takes on from his previous analysis of the Girish Kumar Suneja Case, and demonstrates the various constitutional issues that arise out of the manner in which the Supreme Court has excluded the jurisdiction of the High Courts in certain criminal cases. This essay has been cross-posted from The Proof of Guilt blog).

—

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:

• Directed the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
• Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
• Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments).

On January 24, 2017, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional.

—

Testing Article 14

In Anwar Ali Sarkar v. State of West Bengal [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C.

The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed).

In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster.

Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place.

—

Just, Fair, and Reasonable?

The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.

In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.

As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case.

—

Violating the Basic Structure?

The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].

Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1995) 1 SCC 400] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.

Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal.”

Guest Post: Girish Kumar Suneja and the Exclusion of the High Court’s Jurisdiction in Anti-Corruption Cases

Tags

Article 142, article 226, Jurisdiction

(This is a guest post by Abhinav Sekhri).

—

Few headlines were made last week when a Single Judge of the Delhi High Court decided Girish Kumar Suneja v CBI (Crl. M.C. 3847/2016 decided on 27.10.2016), dismissing a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution on grounds of maintainability. The case was filed before the High Court, challenging an order framing charges in one of the many Coal-Block Allocation Scam related matters that are being tried before a Special Judge in New Delhi (this particular case also had the industrialist Naveen Jindal as a co-accused). I find this strange though, since it upholds arbitrary exclusion of access to justice initiated and approved by the Supreme Court in a widely publicised trial. This guest post is an attempt to confer some much needed attention on this decision and spur discussion on the underlying issues at play.

The Genesis – Shahid Balwa and the 2-G Trial

I’ve written earlier about a media tendency to represent the Supreme Court as the White Knight cleaning up the corrupt governance of India, and of this being reciprocated by the Court as well. The best instance of this was the allocation of spectrum scandal in all its breadth that hit the country in 2010-2011. Since corruption allegations had been levelled against the executive and legislature, there was public approval for the Supreme Court to handle everything. So it set aside the license-allocations, and, most importantly for this post, monitored a CBI investigation and then vetted the entire set-up (from the particular judge to the special prosecutor) for trial of the offences allegedly arising out of this ‘2-G Scam’. While doing this, it also directed that any challenge to orders passed by the Special Judge trying the 2-G Scam cases had to be made before the Supreme Court. All aggrieved persons were denied approaching the High Court for relief. This was labelled an exercise of the Court’s extraordinary powers to do ‘complete justice’ under Article 142 of the Constitution.

Restricting procedural of rights of accused persons had been done before by both Federal and State legislatures [the legality of which came up before the Supreme Court way back in State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75)]. But for the first time we saw the Supreme Court itself go ahead and take up the reins. And since the Supreme Court was seemingly handling everything at that point, this evoked little criticism. Naturally, though, it was challenged by the accused in the first 2-G Scam case which was decided in Shahid Balwa v Union of India & Ors. [(2014) 2 SCC 687]. The Supreme Court took up this opportunity to rubber-stamp its actions with approval without giving any inkling of legal justification. Instead, the Court turned to coffee-table conversation and gave ‘Larger Public Interest’ as the answer. Larger Public Interest demanded a speedy trial. This translated into denying the individuals their constitutional remedies to challenge judicial orders, because these challenges were mostly fraudulent abuses by these ‘better-heeled litigants’ of the ‘openings’ offered by the criminal justice system and delay the trial. In fact, the Court thought the accused persons owed it to this Larger Public Interest to forego their rights to appeal and challenge decisions to ensure the smooth progress of the trial.

The Coal Scam and Girish Kumar Suneja

The Coal-Block Allocation Scam was the latest opportunity for the Supreme Court to reprise its White Knight act and go through the repertoire of corruption-cleaning remedies. Barring access to the High Court for criminal defendants again figured as part of this and became the focal point in Girish Kumar Suneja. The Petitioner argued a challenge to the order framing charges was maintainable before the High Court and could not be barred by the Supreme Court’s orders. This seemed obvious, for of course the Supreme Court could never have intended to take away substantive rights (such as the right to challenge an order on charge under S. 482 of the CrPC), or limit the High Court’s writ jurisdiction under Articles 226 & 227. The focus of those orders was to prohibit challenges that sought a stay against trial court proceedings, and there was no problem here as no stay was sought.

The Delhi High Court dismissed the petition as non-maintainable. To its credit, it did not merely recite Shahid Balwa, and instead gave a reasoned order with three main planks of reasoning. The first was to distinguish the right of appeal and the right of revision/exercise of inherent powers by the High Court. There was no problem in denying the latter, the High Court held, because it was discretionary as opposed to a statutory right of appeal. The second plank was to conclude that no problem arose by denying writ remedies under Articles 226 & 227 as the Supreme Court remained accessible to those aggrieved. And finally, the High court observed that orders passed under Article 142 were binding on all courts and thus had to be complied with in the present case.

Comment – An Odious State of Affairs

 Girish Kumar Suneja remains a poor decision though. For starters, if the High Court felt bound by Article 142 then it renders the other planks of reasoning entirely superfluous. Those planks, in any event, are made of termite-stricken wood. In distinguishing the right of appeal with revision / inherent powers the High Court missed the point entirely. The issue here was not about the exercise of power but about whether access to court through this means could itself be barred completely for particular litigants. On this point the Petitioner cited Anur Kumar Jain [(2011) 178 DLT 501 (DB)] (which I have discussed on The Proof of Guilt earlier). In that case, a Division Bench of the High Court held that while Section 19 of the Prevention of Corruption Act, 1988 barred a revision against orders on charge, this could not prohibit invoking Section 482 Cr.P.C. and / or Articles 226 & 227 of the Constitution, as such a denial would be unconstitutional. The decision tries to side-step the issue of unconstitutionality in denying writ remedies [held contrary to the basic structure in L. Chandra Kumar (1997) 3 SCC 261] by wrongly equating the Supreme Court and High Court as fungible forums which is contrary to the text of the Constitution itself. I would go so far as to argue that reliance on Article 142 was also misplaced here. The orders passed on 25.07.2014 by the Supreme Court in the Coal Block Allocation Scam did not specifically invoke Article 142 unlike the similar orders that were passed at the time of the 2-G Scam.

The biggest problem remains the decision in Shahid Balwa. In Anwar Ali Sarkar (supra) the Court struck down a West Bengal Special Courts Act since it did not provide any principles for the Government to decide which cases could be tried by special procedures that took away some rights of accused persons. Larger Public Interest is as bad, if not worse, as that untrammelled executive discretion the Court warned against. The rhetoric about ‘better-heeled litigants’ reminds me of the criticisms levelled by Professor Hart in his exchange with Patrick (later Lord Devlin, where he questioned his conclusions on the relationship between law and morals for lacking any empirical basis. But since Article 142 of the Constitution does not prescribe how the Court must go about dispensing ‘complete justice’, we are expected to keep calm and march on knowing that our constitutional rights shall remain susceptible to be taken away based on what the Court feels is the Larger Public Interest One can argue that its applicability is limited by relying upon the Three Judge Bench decision in State of Punjab v Rafiq Masih [(2014) 8 SCC 883] which noted that orders under Article 142 do not constitute binding precedent [a paragraph that was cited in Girish Kumar Suneja]. This would prevent blind reliance on Shahid Balwa to pre-empt any debate on the validity of such orders in subsequent cases. One can only hope that the decision in Shahid Balwa has been cut down to size before the next time the White Knight makes a reprisal.