Tag Archives: public order

Karnataka’s Amendments to the Goonda Act Violate Article 19(1)(a)

(A slightly modified version of this piece appeared on Outlook)

The Bangalore Mirror reports that “Karnataka has brought most offences under the Information Technology Act, 2000, and Indian Copyright Act, 1957, under the ambit of the Goonda Act.” The Goonda Act allows the Government to detain a person for upto one year “with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.” “Acting in any manner prejudicial to the maintenance of public order” is, in turn, defined (for a “Goonda”) as “when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely or are likely to affect adversely the maintenance of public order.” Under the new amendments, actions contrary to S. 67 of the IT Act – which proscribes publishing “any material which is lascivious or appeal to the prurient interest” – have been brought within the ambit of this legislation.

Prior to the amendment, the Goonda Act already included speech-regulating provisions such as Ss. 153A (spreading disharmony between classes) and 295A  (hurting religious sentiments) of the IPC. After the amendment, it includes more such provisions, such as S. 67 of the IT Act, and parts of the copyright law. To start with, it is difficult to see what relation S. 67 – or copyright violations – have with public order. Leaving that aside, in short: the Act allows the government to *preventively detain* persons who are only *making preparations for engaging* in a public-order related offence – and many of these offences have to do with the citizens’ right to freedom of speech and expression. Under free speech law, this is known as “prior restraint” – i.e., “government action that prohibits speech or other expression before it can take place.”

When this standard is applied to free speech, it is unconstitutional. There are two reasons for this. The first is that prior restraints are generally impermissible (unless exceptional circumstances obtain). This has been the uniform position in Anglo-American law since the 18th century. As early as 1765, the great English Jurist Blackstone wrote that “the liberty of the press… consists in laying no previous restraints upon publication.” The American Supreme Court has held repeatedly that “any prior restraint on expression comes to this Court with a `heavy presumption’ against its constitutional validity.”

There are many reasons why prior restraint is considered especially damaging to the freedom of speech and expression. It places the censorial power in the hands of an administrative or executive authority (as opposed to a Court). It makes it much easier for the government to censor material (than it would be if it had to take upon itself the burden to approach a Court and demonstrate to the judiciary why said material needs to be censored). And unlike in cases of subsequent punishment for speech – where the speech or expression in question is already circulating in the public sphere – prior restraints choke off access to the public sphere itself. In other words, it gives the government exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.

For these reasons, the Indian Supreme Court has repeatedly held that prior restraints are unconstitutional. It did so very early on – in 1950 – in the cases of Romesh Thappar and Brij Bhushan. It did so more recently – in 1994 – in R. Rajagopal v. State of Tamil Nadu (which was, albeit, a defamation case), citing extensive American jurisprudence on prior restraints, before holding that “there is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.

Apart from the general unconstitutionality of prior restraint, the Goonda Act is inconsistent with the Supreme Court’s understanding of the public order exception to the freedom of speech and expression. Under Article 19(2) of the Constitution, the State may – by law – impose “reasonable restrictions… in the interests of public order…” upon the 19(1)(a) right to freedom of speech and expression. In the 1950s, the Court interpreted the term “in the interests of” in a broad manner, allowing the government plenty of discretion in making speech-restricting laws that were – ostensible – about maintaining public order. There has, however, been a shift in that position. In Ram Manohar Lohia, for instance, the Supreme Court insisted that the link between the offending speech and public disorder must be “proximate” – and not remote or far-fetched. Subsequent judgments have clarified the meaning of proximity: S. Rangarajan likened the necessary connection between speech and consequence to a “spark in a powder keg”. Most recently, in Arup Bhuyan (2011), the Supreme Court has adopted the highly speech-protective “Brandenburg Test” for public order, which limits State interference with free speech to cases where there is an “incitement to imminent lawless action.”

These cases demonstrate that the Supreme Court requires the State to demonstrate a very high threshold before it can justify restricting speech on public order grounds. The reasons for this are very clear: ultimately, maintaining public order is the task of the State (via its police force). By preventing a citizen from speaking because public disorder will apparently result, the State not only curtails the exercise of constitutional rights, but also abdicates its own responsibility of maintaining public order, instead placing that burden upon the speaker. This is why public order restrictions are limited to cases where speakers are inciting already inflamed mobs to immediate violence (“spark in a powder keg”), because sometimes the extreme urgency of that kind of a situation might require the State to take immediate action against the speaker, both for his own and for general security.

The Goonda Act, with its wide-ranging preventive detention provisions for a whole host of offences (295A, 153A, 67 IT Act and so on) takes no account of the Supreme Court’s carefully crafted proximity requirement between speech and public order. Consequently, it is over-broad: i.e., it prohibits speech that it is entitled to prohibit (that bearing a proximate connection with public order), and that which it is not entitled to prohibit (all other kinds of speech). This makes it clearly unconstitutional. It is to be hoped that the Act will be swiftly challenged before the Courts, and struck down – or at least, the offending portions severed from the rest.

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Free Speech Watch: 66A Misuse Continues

Reports today indicate that an FIR has been filed against a woman – Sheeba Aslam Fehmi – for remarks strongly critical of the prime-ministerial candidate, Mr Narendra Modi. The content of the remarks is available at the link posted above. We do not need to go into much detail here: our previous discussion about free speech on this blog – especially the public order restriction – indicates very clearly that the Supreme Court – in cases such as Ram Manohar Lohia, K.A. Abbas and S. Rangarajan, to name just three – has insisted upon a rigorous standard before a public order defense to restricting free speech can be sustained. Recall that in Lohia, a man expressly telling villagers to break the law by not paying taxes was found to be exercising his right of free speech; and in the film censorship cases, the Court insisted that the relevant public order test was akin to setting off a “spark in a powder keg” – which basically refers to situations such as inciting an excited mob to commit direct and immediate violence. Suffice it to say that S. 66A, IT Act must be interpreted within the bounds of 19(2), as must provisions of the Penal Code relating to disturbing communal harmony – and in no way do remarks critical – strongly critical, even virulently critical – of politicians, even if deemed “anti-national” – whatever that might mean! – can be stifled. This is a blatant violation of 19(1)(a), and will hopefully be dealt with accordingly. 

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What is Sedition? – I: The Kedar Nath Singh Case

The notorious Aseem Trivedi arrest, and the media furore that followed, is evidence that sedition is amongst the most politically fraught issues in India today. Aseem Trivedi’s arrest itself merits no legal discussion – it is a blatant misuse of law. Yet considering that in the immediate aftermath, there were widespread calls for striking S. 124A off the statute books, and reports that the government was considering amending the law, it is important to achieve clarity on three important issues: what, precisely, does the law of sedition criminalise? Is it constitutional? And if so, what justifies it?

S. 124A of the IPC is aimed at anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India.” The Explanation provides, in three parts, definitions of what does and does not constitute the word “disaffection”, and this shall be the focus of this post.

In the 1950s and early 1960s, the Court addressed the law of sedition – albeit incidentally – in Brij BhushanRomesh Thappar and Kameshwar Prasad (all discussed previously). Yet the locus classicus on the point is Kedar Nath Singh v. State of Bihar (1962); in this case, the constitutionality of S. 124A was impugned. Thus, the Court was required to squarely deal with the relationship between sedition and the freedom of speech and expression. The constitutional challenge arose out of a number of cases that were being heard together; all cases involved speeches that – in specific terms – called for an armed revolution to overthrow the government.

In order to understand and evaluate the decision of the Court, a brief foray into judicial history would be apposite. The prohibition of sedition was first enacted into law in 1870, and the issue was first tried in 1892, in Queen-Empress v. Jogendra Chunder Bose. Sir Petheram C.J. at the Calcutta High Court distinguished between “disaffection” (dislike or hatred) and “disapprobation” (disapproval), and expressly linked “disaffection” to “a disposition not to obey the lawful authority of the government” (the phrasing used in the Explanation to the law at the time) (paragraph 13). It did not matter, for the Chief Justice, whether any disturbance was, in fact brought about by the words in question; in fact, it didn’t matter even if no actual disaffection was created; all that mattered was that the words were calculated to, and used with the intent of, creating disaffection.

The meaning of “disaffection” was then clarified in the Tilak case (1898) by Strachey J. at the Bombay High Court who equated it to “disloyalty“, “ill-will” and “enmity“. He held that the strength of the feeling was immaterial; in particular, he held that one did not need to advocate mutiny, rebellion or disturbance in order to be hit by the Section; all that was needed was the advocacy of “feelings of enmity“. A number of appeals against the decision failed.

In particular, what was controversial was whether – as per the Calcutta High Court, disaffection meant a feeling contrary to affection, or whether, according to the Bombay High Court, it meant the mere absence of affection. In that same year (1898), the Allahabad High Court in Queen-Empress v. Amba Prasad accepted the  Strachey J”s interpretation; it rejected the judgment of the Bombay High Court in Satara, which had rejected both the above meanings, holding that it was neither “absence“, nor “negation“, but “a positive feeling of aversion, which is akin to ill will, a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance” – insofar as these observations were inconsistent with Tilak. (Paragraph 11) The Court also made the important observation that a man could be guilty of sedition despite advocating – as a matter of expediency – obedience or support to the government (paragraph 11).

The Explanation then passed through a series of amendments over the next fifty years. What is of critical importance is that the terms “disposition to render obedience to the lawful authority”  and “unlawful attempts to resist or subvert that authority” were deleted, and replaced with a definition of disaffection: “disloyalty and all feelings of enmity“. This, when read in light of the Allahabad High Court’s comments in Queen Empress v. Amba Prasad (see above), leads us to our first important legal proposition:

Proposition One: Advocating, inciting, persuading or otherwise encouraging people to disobey the law (or laws) does not, in itself, fall within the legal definition of sedition. 

Readers will notice that this is consistent with the judgment in the Ram Manohar Lohia case (discussed previously). It is also important because it ensures that political movements centred upon principled civil disobedience are not hit by sedition charges.

After stating the extant provision in full, the Court in Kedar Nath Singh had its first stab at a philosophical justification of sedition laws:

“Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.” (paragraph 18)

We mark here two important departures from the colonial-era decisions: first – no longer is the test for seditious speech subjective, depending upon my “intent” or my “calculation”; it is now an objective test: I must either jeopardise the safety of the State, or create such feelings, or the feelings that I “disseminate” must have that “tendency“. Secondly, no longer is it merely enough to create feelings of disloyalty; only those feelings of disloyalty that lead to the disruption of the State are proscribed. The Court has therefore attached a test of tangible evidence of actual harm to the definition of sedition. Readers will note that on a strict construction of the language of the statute and the explanation, this is a strained conclusion.

The Court was then required to address a controversy that had divided the bench in Brij Bhushan and Romesh Thappar. In Niharendru Datt Majumdar v. The King-Emperor (1942), Maurice Gwyer C.J. had expressly linked sedition and public order, by holding that “public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence.” (note, again, the use of the objective test). But in King-Emperor v. Sadashiv Narayan Bhalerao (1947), this viewpoint was rejected by the Privy Council, that relied upon Tilak to hold that incitement to violence was not a necessary precondition towards constituting the crime of sedition. (paragraphs 9 – 12)

Now, in this context, we may note that in the draft Constitution, Article 13(2) [that is, what later became Article 19(2)], originally included the word “sedition”, which was subsequently deleted and replaced by “undermining the security of the State” (see previous posts on public order). What are we to make of this? Romesh Thappar held that this showed that the framers did not accept the broad definition of sedition enunciated by the Privy Council in Sadashiv Narain Bhalerao, but instead, limited it to speech undermining the security of the State. What is crucial is that Fazl Ali J.’s dissents in Brij Bhushan and Romesh Thappar disagreed with the majority opinion on the ground that offences against public safety and public tranquility need not amount to undermining the security of the State; nonetheless, Fazl Ali J. also held that “sedition” “owes its gravity to its tendency to create disorders.” (see paragraph 14 in Brij Bhushan and p. 604 in Romesh Thappar Thus, both the majority and the dissent in Brij Bhushan and Romesh Thappar agreed with Maurice Gwyer’s test of public disorder, and rejected the Privy Council’s broader test of mere feeling of enmity or ill-will.

As we have discussed in previous posts, the First Amendment accepted Fazl Ali J.’s dissents, and replaced “undermining the security of the State” with “in the interests of public order“. With respect to sedition, however, the constitutional change makes no difference to the Gwyer-Privy Council dispute, remaining upon the side of Sir Maurice Gwyer.

Let us now come to the operative part of the Court’s judgment. In paragraphs 36 to 39, the Court embarked upon an exposition of the law, and we can isolate four statements of particular importance:

The feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.” (paragraph 36)

“...those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence [are punishable].” (paragraph 36)

“…the freedom [of speech and expression] has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” (paragraph 38)

“If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoke which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make then unconstitutional in view of Art. 19(1)(a) read with clause (2).” (paragraph 38)

In the first statement, the Court holds that feelings of enmity or disloyalty definitionally imply an incitement to public disorder – taking us back, therefore, to a more sophisticated version the Privy Council test of mere feeling, by inserting a legal fiction linking it with public disorder. In the second statement, the Court seems to suggest, by the use of the connector “which“, that only some kinds of incitement to feelings of enmity or disloyalty (those that excite to public disorder) are punishable, implying that there is a class of statements that incite enmity or disloyalty, but not public disorder. In the third statement, the Court abandons the ideas of enmity and disloyalty altogether, and focuses – as the ultimate test – upon public disorder. And in the last statement, the Court completes a full U-turn, reversing its position in its first statement, holding specifically that certain words may indeed create disaffection or enmity, but may not incite to disorder, and in that case, it does not amount to sedition.

The Court then went on to expressly affirm Sir Maurice Gwyer’s opinion, reject the Privy Council’s statement of the law, and read S. 124A in light of that. This leads us to our second important legal proposition:

Proposition Two: The test of sedition is identical and equivalent to the test of public order in Article 19(2) of the Constitution, and any law or order that has to do with sedition is not to be judged under some independent test under S. 124A, but in light of the Court’s public order jurisprudence (which is to be determined by referring to the Court’s 19(2) judgments more generally). In other words, the law of sedition does not change or modify or broaden Article 19(2)’s public order test, but is defined and limited by it. In other words, sedition is not constitutional because its elements satisfy 19(2), but insofar as they do so. 

If that is the position of law, then naturally, S. 124A is constitutional. But if that is, indeed the position of law, then S. 124A serves no discernible, separate purpose, and has no reason to exist any longer.

In this post, we have discussed the meaning of “disaffection“. Some important philosophical issues arise, however, when considering what is entailed by the phrase “Government established by law“. In the nest post, we shall consider these. 

 

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Free Speech and Public Order – IV: After Lohia

The Court has dealt with the public order exception many times after the Lohia case (1960), discussed in the last post. In Dalbir Singh v. State of Punjab (1962), the Court affirmed the proximity-proportionality test in Lohia, while sustaining the conviction of certain persons for inciting disaffection among the police. The final decision in this case, however – as the Court pointed out – rested upon the specific context of the police forces being involved; and indeed, the ratio of Dalbir Singh was expressly limited to the context in question in the subsequent case of Kameshwar Prasad v. State of Bihar (1962). In that case, a ban on all demonstrations involving government servants was struck down as being violative of Article 19(1)(a). Rejecting governmental reliance upon Dalbir Singh, the Court held that the ban encompassed all demonstrations, “however innocent and however incapable of causing a breach of public tranquillity and [did] not confine itself to those forms of demonstrations which might lead to that result.” (Paragraph 20)

While the Court has here adopted a bare likelihood test, there is a distinction between this case and the Lohia and Rangarajan cases: in the latter, what was at issue was the communication of a message by a person to other persons that – it was alleged – would persuade or prompt them to breach the public order; whereas in Kameshwar Prasad, it is the demonstration itself that – by potentially turning violent – is sought to be curtailed. Or, in other words, Lohia and Rangarajan were about regulating the content of speech and expression – banning a certain message that, it was alleged, would lead to a public order disruption – whereas Kameshwar Prasad is about regulating the manner of speech and expression, and makes no mention of censoring content because of its propensity to disorder (see American First Amendment jurisprudence for a detailed analysis of the difference). Often, of course, the two come together: for instance, I set fire to a house in order to express my disapproval of the institution of private property. Naturally, I will be restrained or punished, but the crucial point is that that will be because I burnt a house, and not because I communicated a certain point of view. Kameshwar Prasad deals with a situation analogous to the former case, and so a bare likelihood test does not suffer from the same problems of respecting autonomy that it would in the cases we have discussed in the previous two posts.

We may now consider two cases – State of Bihar v. Shailabala Devi  (1952) and Santokh Singh v. Delhi Administration (1973). Shailabala Devi is, of course, eight years before Lohia, but I analyse it here because it is best understood when studied beside Santokh Singh. In Shailabala Devi, under S. 4(1)(a) of the Indian Press Act, which dealt with “words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence“, the Bihar government passed an order against a certain pamphlet called Sangram, that called for revolution and overthrow of the State, and used phrases such as “break the proud head of the oppressors“. The Court observed that: “Rhetoric of this kind might in conceivable circumstances inflame passions as, for example, if addressed to an excited mob, but if such exceptional circumstances exist it was for the State Government to establish the fact.” In the absence of any such proof, it was to be assumed that the pamphlet would be read in places where the atmosphere was “normal“. (paragraph 14) The Court’s reference to the background circumstances is interesting, because as we have discussed before, the situation of the excited mob is – arguably – a situation of diminished rationality, where the usual argument about disrespecting autonomy by holding somebody else responsible for the acts of thinking individuals does not apply. While the Court demonstrates itself to be aware of this distinction, it nonetheless – and I would submit, lamentably – also assumes there could, potentially, be situation where “reasonable readers” (paragraph 17) could be affected by pamphlets worded more cleverly. Yet surely, if a reasonable reader, who presumably operates through the use of reason, is convinced that there exists an urgent and immediate need for overthrowing the State, it is the State that should be taking a long, hard look at itself! In any event, the situation remains hypothetical, and it is the Lohia opinion that ought to continue to hold the field.

In light of this, consider now the judgment in Santokh Singh, where the Court upheld the constitutionality of S. 9(1)(a) of the Punjab Security of State Act, that criminalised “any speech… prejudicial to the maintenance of public order.” It is submitted that a speech is not and cannot be prejudicial to the maintenance of public order – it is the actions of people that are; by holding a speech to be so prejudicial, one presupposes that autonomous, thinking individuals are bound to think one way, and withholds from them their entitlement to ethical responsibility. Much, however, turns on the meaning of the word “prejudicial” – that, like the word “proximity” discussed in the last post, could reasonably be interpreted to contain within it an autonomy-respecting limitation. Here, if we read Santokh Singh in light of Shailabala Devi, especially the distinction between the situation of an excited mob and that of “normal circumstances”, we have a more defensible principle at work.

We may, in passing, mention for the sake of completeness, the case of Madhu Limaye v. Ved Murti (1971), where the Court – interestingly – narrowed the definition of public order, holding it to lie somewhere between undermining the security of the state and disrupting public tranquility. In other words, departing from previous decisions that held public order to be equivalent to public tranquility, the Court held that something more was needed than mere disruption of the serene atmosphere that existed among citizens (paragraphs 19 – 21).

We shall end our discussion of the important public order cases by recalling a particular expression used in S. Rangarajan v. P. Jagjivan Ram (analysed before): the connection between speech and public order disruption must be like that of a “spark in a powder keg”. The Court’s analogy is, I think, strikingly accurate. There are two defining features of the connection between the spark and an explosion: inevitability, and direct and immediate causation (without any intervening event). It will be clear that both features respect the autonomy limitation, since they are applicable only in situations where – for some reason – individuals that are otherwise responsible and capable of judging reasons for and against an action are (temporarily) incapacitated from doing so: they are present in the case of someone shouting fire in a crowded theatre, and it is at least arguable that they are present (albeit to a lesser degree) in the case of inciting an excited, armed crowd to immediate violence. It is equally clear that they are not present in merely giving a speech or writing an article advocating the overthrow of the State, or writing a book that some people take offence to, and decide to express their feelings by ransacking libraries. In political cases before it, moved no doubt by legitimate and valid concerns about security and stability, the Court has, more often than not, adopted tests considerably more lax than the spark in a powder keg. Over the course of the last four posts, I have tried to argue that this is a philosophical mistake.

There remains one category of case-law that should – technically – fall under the public order exception, but has always been treated separately, and has generated much controversy in its own right. This is the notorious law of sedition. The next post shall be devoted to a discussion of the cases that have dealt with this concept, and whether – as a matter of constitutional law and political philosophy – it is justified for it to remain upon the statute books.

 

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Free Speech and Public Order – III: Causation, Respecting Autonomy and the Lohia Case

Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “in the interests of public order”. In the last two posts, we have discussed the scope of the public order exception, with respect to the meanings both of “public order” and “in the interests of”. It needs no deep philosophical discussion to conclude that mere statistical probability, no matter how strong, between the speech in question, and a public order disruption, cannot justify a 19(2) restriction. This – as the Court was at pains to point out in S. Rangarajan – essentially means sacrificing the rule of law at the altar of groups strong enough, loud enough and lawless enough to take to the streets with clubs and machetes at any perceived slight or offence, and is the very antithesis of a well-ordered society. If, therefore, likelihood of disturbance is not sufficient, what principle is at work here? We have proposed an autonomy-based justification that the Court implicitly seems to have adopted in Rangarajan. Rangarajan was a case of film censorship, however; and it has been noticed, worldwide, that Courts’ resolve to protect free speech weakens starkly when we move from the realm of art to that of politics (see Dennis v. United States and Refah Partisi v. Turkey for two striking examples). Let us therefore now examine the Court’s public order jurisprudence in the broader political arena.

Ramji Lal Modi v. State of UP and Virendra v. State of Punjab are two early cases on point. In Ramji Lal Modi, the appellants challenged the constitutionality of S. 295A of the IPC, that penalizes acts done with the “deliberate and malicious intent of outraging the religious feelings of a person or a class of persons.” The petitioners proposed a “likelihood test” for the public order exception, and argued that the section did not discriminate between acts likely to – and not likely to – disrupt public order, and therefore was not saved by 19(2). The Court, however, held that the use of the phrase “in the interests of”, as opposed to “for the maintenance of” implied a “very wide” ambit of protection (paragraph 8), extending to acts that had a “tendency” to cause public disorder, not just acts that actually did so (paragraph 9); the Court then distinguished between “unwitting insults” and those issued with a “deliberate and malicious intent”, and held that it was the latter that had a clear “calculated tendency” to cause public disorder. The Section was upheld.

Yet what, precisely, is a “calculated tendency” to disrupt public order? Either something has a tendency towards such disruption, or it doesn’t; the Court here conflates subjective and objective tests: either bare likelihood is sufficient for the public order exception; or – for some unexplained reason – intent – or lack thereof – makes a difference; or intentional insults are more likely to disrupt public order, which brings us back to the bare likelihood test. The position of law, after Ramji Lal Modi, is entirely unclear. Similar, however, was the decision in Virendra v. State of Punjab, where the Court upheld a ban on the publication of any material having anything to do with the “Save Hindi Agitation”, under a law that granted non-justiciable powers to the government to ban any publication prejudicial to communal harmony, or likely to affect public order.

We now come to the locus classicus on the point: Superintendent, Central Prison v. Ram Manohar Lohia. S. 3 of the U.P. Special Powers Act of 1932 criminalised instigating a class of persons against paying dues recoverable as arrears of land revenue. Ram Manohar Lohia, the General Secretary of the Socialist Party of India, did just that, was duly arrested, and duly challenged the constitutionality of the Section at issue.

Interestingly – and unusually – the Court began with providing a philosophical justification for the public order exception. Public order, it held, was essential in creating and maintaining an environment in which fundamental rights in general – and the freedom of speech in particular – could be effectively enjoyed (paragraph 9). This lends support to our argument against any statistical test, outlined in the first paragraph of this post; an environment in which public order disruptions are used as a tool to restrict free speech is clearly anything but conducive to the enjoyment of the right. It also provides us with a principled yardstick to judge governmental interference stated to be on the grounds of public order: the ultimate objective must be to secure and maintain fundamental rights by securing and maintaining an environment in which they are neither stifled nor suppressed.

Ramji Lal Modi v. State of UP and Virendra v. State of Punjab were invoked to support the familiar “wider ambit of restriction” argument. Here, however, the Court gave it short shrift. It insisted that that the restriction in question must have a reasonable relation with the object sought to be achieved, and must not go in excess of the object (proportionality); and it defined “reasonable” as being “proximate”, that is not remote, arbitrary and fanciful. (paragraph 13)

The Court’s invocation of the proportionality test is very interesting, because it introduces the possibility of an additional moral dimension to the public order exception that was not present in Ramji Lal Modi or Virendra. The extent of interference with free speech could be weighed against the extent and likelihood of public order disruption.  Alternatively, it could be weighed against not only extent and likelihood, but also against the manner of disruption – for instance, is this a case of diminished rationality, such as shouting “fire” in a crowded theatre, or alternatively, a case of presenting arguments urging certain action before a group of thinking, rational people, and leaving them to make up their own minds about whether or not to take the action? The former test – as we have argued – fails to respect the autonomy of persons, while the latter does.

And indeed, it is this latter test of proportionality that the Court seems to have adopted. It held that the proximity test was not satisfied because the Section was overbroad – it sought to punish any kind of visible representation instigating a person to break the law – including “innocuous speeches”. The Advocate-General’s objection that the successful instigation of one individual against paying taxes might start a movement that would destroy the social order was rejected out of hand. But what is more interesting is the terms in which was rejected. The Court did not use the word “unlikely”, but “far-fetched, hypothetical, problematical or too remote in the chain of relation with public order.” (Paragraph 13) The last phrase is particularly interesting, because the Court uses two concepts that have their home in tort law: remoteness and chain of relation (which can only refer to causation). Now, there is some judicial controversy over the relationship between remoteness and causation*, but this much is clear: chains of causation between breach and damage are broken by novus actus interviniens (intervening acts, one type of which are acts by individuals) precisely on the ground – as Hart and Honore tell us – that our law ascribes responsibility upon autonomous individuals for “free, deliberate and informed” actions, and not upon others who might have acted prior to them in a strictly but-for causation chain. It is therefore at least arguable that the Supreme Court’s proximity-and-proportionality test – as enunciated in Ram Manohar Lohia – has an inbuilt autonomy-respecting limitation (see the discussion on Scanlon’s theory here, for a detailed analysis): that is, the chain of causation (and, by extension, responsibility) between speech and public order disruption is broken when the actions of autonomous, rational individuals intervene.

At this stage, therefore, we have two divergent streams of thought: Ramji Lal and Virendra propose an uneasily ad-hoc test for public order disruption that seems to require neither actual disruption nor likelihood of disruption (what then, does it require), and does not seem to be grounded in any constitutional principle. Ram Manohar Lohia, on the other hand, proposes a test of proximity that appears to respect ideas of autonomy and responsibility that are – indisputably – integral building blocks in our constitutional architecture. In the next post, we shall chart the progress of the public order exception after Ram Manohar Lohia to understand which path the Court has followed.

* I thank V. Niranjan for clarifying this point to me.

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Free Speech and Public Order – II: Film Censorship and the Rangarajan Case

In the previous post, we discussed Scanlon’s liberal theory of free speech, which aims to reconcile restrictions in the interests of public order with individual autonomy and responsibility. One interesting area where the Court’s engagement with the issue can be examined is that of film censorship.

S. Rangarajan v. P. Jagjivan Ram (1989) is an important case that deserves close study. A Division Bench of the Madras High Court revoked the U-Certificate (“suitable for all ages”) granted to a Tamil film called Ore Oru Gramathile (“In One Village”), that dealt with the controversy surrounding affirmative action and the problems of caste. This was challenged before a three-judge bench of the Court. The State made two arguments: first, that the depiction of the government’s reservation policy was ‘biased’; and secondly, that the reaction in the State of Tamil Nadu was bound to be “volatile“.

The Court was concerned – as in the prior case of K.A. Abbas v. Union of India – and in light of the clearly contrary decision in Romesh Thappar (discussed here) – to justify the possibility of pre-censorship. In K.A. Abbas, it had been argued that films, in no substantial way, differed from other media of communication – and if, per Romesh Thappar, pre-censorship was unjustified in the case of newspapers, so it must be in the case of film. While the Court then declined to address the argument, basing its decision on general principles of free speech and pre-censorship, in this case, it ran the gauntlet, and held that film did, indeed, differ from other media. In an interesting paragraph, the Court held that films could not function in “the free marketplace” like newspapers. Why? Because:

“Movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective. The combination of act and speech, sight and sound in semi-darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators.” (Paragraph 10)

The Court went on to cite an academic study according to which “continual exposure to films of a similar character” would significantly affect the attitude of an individual or a group. On this basis, it deemed pre-censorship necessary. We can immediately see that this approach is at odds with Scanlon’s autonomy-based argument: in Scanlon’s terms, the Court is taking away the autonomous individual’s right to use reason in order to persuade and to be persuaded, merely on the grounds of the efficacy of the mechanism. This is buttressed by the Court’s conclusion that the purpose of the Censorship guidelines – indeed, the purpose of Art. 19(2), which the Court claimed the guidelines were based upon – is maintaining the “values and standards of society“. Now, the term “values and standards of society” is excessively vague, and cries out for clarification (Do you take opinion polls? Ask the man on the New Delhi Metro? Organise a referendum? Do “values” refer only to the deepest moral convictions that form one’s personality and defines one’s community, or do they include any kind of opinion, whatever its strength or nature?). But more importantly, as we have discussed before, values and standards are in constant flux and motion, and expression – as Raz points out – is the fundamental vehicle through which transient values are debated, argued over, dissented from, attacked and ultimately, changed. On what basis, then, does the Court grant the moral majority of a moment the power to crystallise, through legal sanctions, its own set of opinion against the processes of change? And how is this consistent with the individual’s right to shape her moral environment in a free society through the means of expression?

The underlying basis of the Court’s opinion is revealed a few paragraphs later: “moral values in particular,” it said, “should not be allowed to be sacrificed in the guise of social change or cultural assimilation.” Listing a series of “great sages and thinkers“, literary works like the Thirukkural, and “Indian” concepts like dharam, the Court observed that “these are the bedrock of our civilization and should not be allowed to be shaken by unethical standards.” (Paragraph 21) In essence, the Court enunciates, by necessary implication, a certain idea of a homogeneous Indian identity, stretching back into antiquity, defined by a set of values imbued with a sense of continuity and permanence. Historians, no doubt, will have much to say about that claim. We can remain neutral on the point, and still question the Court’s insistence on insulating that set of values – assuming it exists – against dissent or attack.

The Court’s analysis of the film itself contains some particularly disturbing elements. One particular scene was singled out for condemnation because it – ostensibly – sent out a “poisonous message” to the “depressed classes” not to educate their children. The Court examined the scene and found on fact that the message of the scene was the opposite (paragraph 26); a second controversy turned upon whether one of the characters in the film stated that Dr. Ambedkar did not work for equality, and the Court, dealing with the niceties of Tamil translation, held that in fact the heroine did not make that statement (paragraph 27); the implication being – and stated as much, on both occasions – that had either of the two accusations been correct, pre-censorship would have been justified.

The Court’s approach to these claims is particularly interesting, because it suggests that making factually false claims (education is not a good, Ambedkar did not work for equality) is a ground for censorship. This echoes the basic idea that the goal of free speech is to discover the truth. In its response to the third objection against, the film, however – that by its criticism of reservations and praise of colonial rule, it would generate a “volatile reaction” in Tamil Nadu, the Court expressly disclaims the truth-seeking justification for free speech.

“The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.” (Paragraph 38)

Immediately after that, the Court quoted Mikeljohn’s self-governance theory of free speech, emphasising again that “conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant.” It went on to quote a series of American First Amendment writers before reining itself in and returning to 19(2), emphasizing that:

“The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”. (Paragraph 42)

On this basis, the Court dismissed the public order objection (Paragraphs 47 and 48). Here it seems that the Court did, indeed, accept the liberal-autonomy justification: it stressed that the content of the message communicated was irrelevant, and that threats of violence could not compel a public order restriction. These twin claims can only be reconciled upon a philosophical rubric based on ideas of individual responsibility in judging and acting upon any message; the the powder-keg analogy is a classic case of situations or diminished responsibility (as discussed in the last post), where these considerations do not apply.

But that raises a serious problem: “public order” and “morality” occur next to each other in Article 19(2); yet, the Court seems to have adopted different tests of causation in each case. Content – and what disruptions of public order it may provoke – is deemed irrelevant; but content – in terms of the change it brings about in the “values and standards” of society is deemed to be of decisive relevance! It is not “in the interests” of public order to protect it by censoring content that will provoke its breach; but it is in the interests of morality to preserve it by censoring content that will provoke its modification or change. The Court ostensibly accepts political liberalism in the case of public order, but rejects it in the case of morality.

It is difficult to see what overall principle is at work here. We must therefore keep S. Rangarajan in the background for the moment, and look for consistency elsewhere.

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Free Speech and Public Order – I: Before the Amendment, and the Idea of Responsibility

Article 19(2) allows for reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.” Much turns upon the meaning given to “in the interests of” and to “public order“. While the latter is a term of art, and has been judicially defined, the former is not. It is here that some of the most interesting philosophical issues arise. What happens if certain unflattering descriptions in my new book on a revered Maratha military leader “cause” a mob to go on a rampage and destroy public property? What happens if I write an article in an academic journal such as the New Left Review, advocating all material support to the Naxalite movement, whose stated goal is the overthrow of the Indian state? Is this different from standing upon a pulpit and urging an enraged crowd armed with grappling hooks towards “one more push” to tear down a mosque built upon a disputed religious site? And is this, in turn, different from shouting “fire!” in a crowded theatre? All these are examples of some connection between speech and the disruption of public order. Nonetheless, our intuitions – I assume – differentiate these four situations in terms of justifiable interference with free speech, and arrange them in ascending order of support for interference (the second and third perhaps being penumbral cases). Yet what principled difference could account for and justify our intuitions? And has the Court enunciated such a principle?

The original wording of Article 19(2), however, used the phrase “undermines the security of, or tends to overthrow, the State.” In Romesh Thappar v. State of Madras (1950), the first important case on free speech, the constitutionality of S. 9(1-A) of the Madras Maintenance of Public Order Act was challenged before a Constitution Bench of the Supreme Court. The section allowed the state government, for the purpose of securing public safety and maintaining public order, to control and regulate the entry and circulation of any set of documents (primarily, newspapers) in the state.

The Court, therefore, had to clarify the meanings of “public order”, “public safety” and “undermines the security of…” It defined “public order” as that “state of tranquillity which prevails among the members of a political society”; on technical grounds, it found that “public safety” meant, in this context, the same thing (paragraph 5). Undermining the security of the State – the 19(2) clause – meant “nothing less than endangering the foundations of the State or threatening its overthrow.”  (paragraph 8) Therefore, there was a clear difference in degree between the two clauses. The Court also cited the fact that the word “sedition” had been deleted and replaced by the present formulation of 19(2); and the narrow definition of sedition affirmed by the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao implied that there were “very narrow and stringent limits” enunciated in 19(2) – because “freedom of speech… lay at the foundation of all democratic organisations… without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.” (paragraph 9) S. 9(1-A), therefore, which used the broader phrase “public order“, was unconstitutional.

Fazl Ali J. dissented, and the reasons for his dissent were elaborated in Brij Bhushan v. State of Delhi, where the issue was essentially the same. In that case, S. 7(1)(c) of the East Punjab Public Safety Act, which allowed pre-publication scrutiny of material “prejudicial to public safety or the maintenance of public order” – essentially, pre-censorship – was challenged. The majority followed the decision and reasoning in Romesh Thappar. Fazl Ali J. held, on the other hand, that “public order”, “public safety”, “sedition” and “undermining the security of… the State” essentially amounted to the same thing. Applying somewhat convoluted logic, he held that because sedition “undermines the security of the State usually through the medium of public disorder… therefore it is difficult to hold that public disorder or disturbance of public tranquility are not matters which undermine the security of the State.

Readers wil note that this is a non sequitur, and the word “therefore” is used incorrectly. The dispute between the Majority and Fazl Ali J. in Romesh Thappar and Brij Bhushan is, however, crucial towards understanding what came after: these decisions did not please the legislature, and in the First Amendment to the Constitution (1951), “undermines the security of, or tends to overthrow the State” was replaced by “in the interests of… public order.” In the Statements of Objects and Reasons, it was stated that “the citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.” The legislature, therefore, accepted that there was a difference in degree between undermining the security of the State and undermining public order, and chose this latter standard.

We thus have a term of art (public order), and a working definition provided by the Court in Romesh Thappar. There is, however, a substantial amount of work to be done: in particular (see the opening paragraph), we need a principle for the causal connection between particular forms of speech, and disruptions of public order. 

In previous posts we have discussed, incidentally, Scanlon’s theory of free speech, that is part of the liberal political tradition. The public order question brings that to a head; I shall therefore provide a brief exegesis of Scanlon’s account, and in subsequent posts, examine judicial decisions through that lens.

Scanlon holds that a foundational principle of our legal system and our legal thought is that of responsibility: in the present context, we can censor someone’s speech on the ground of consequential harm only if we can show that she is responsible – in some way – for the alleged harm. This leads to an important distinction: restrictions based upon the communication of a particular viewpoint are unjustified, whereas those that refer to features (or, manner) of the expression (such as time, place, loudness) might be putatively legitimate (essentially, the American First Amendment doctrine of content neutrality).

Why is this so? Take two examples: a misanthropic inventor is prohibited from handing out copies of a homemade nerve-gas recipe at the nearest street corner; and ‘seditious propaganda’ aimed at challenging the authority of the government is banned. The crucial distinction between the two situations, Scanlon says, is that the latter moves people to act by providing them reasons for the proposed action, while the former provides them with means to do what they would have done anyway.

To elaborate: in the case of seditious propaganda, the acting agent “comes to her own judgment” about the merits of his action. Our basic intuitions of individual autonomy necessitate us attributing responsibility for the action to her. This then leads to the basic principle: you cannot censor free speech “where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing.” This is because “the harm of coming to false beliefs is not one that the autonomous man could allow the State to protect him through restrictions on expression.” The very concept of autonomy requires you, as an individual, to apply your own canons of rationality in coming to beliefs, decisions and the weighing of reasons for action.

This differentiates the four situations mentioned in the first paragraph. Shouting fire in a crowded theatre is a clear case where actors – temporarily – possess diminished rationality, and are not in a position to weigh reasons for action (fleeing and stampeding, or not); direct incitement of a mob is an arguable case of the same; seditious propaganda in the abstract is probably not such an instance; and an academic treatise that treats its theme as one of academic enquiry certainly isn’t. Scanlon’s argument, therefore, provides us with a principle of differentiation grounded in the liberal idea of the individual autonomous self; whether that principle works, and whether the Court has subscribed to it in any form, we shall now proceed to examine.

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