Public order is the only valid ground

BY Saurav Datta| IN Judgements | 05/02/2013
What breaches"law and order" would not necessarily affect society or a particular community as a whole.
SAURAV DATTA revisits what courts have said about ‘reasonable restrictions.’
The case of Vishwaroopam is not the first instance of the State rushing to ban a work of creation on the ground that it would disrupt the law and order situation or create “law and order problems”. Keeping Salman Rushdie away from the Jaipur Lit Fest (2012) and Kolkata (2013), imposing a ban on Kamal R. Khan’s film “Deshdrohi” in 2008—on each of these occasions such apprehensions have been conveniently raised. In some cases the Courts have bought this argument, in some cases, they have not.
 
However, the manner in which governments have started falling prey to the “politics of profitable provocation” (to quote William Mazzarella) and using this ground willy-nilly to essentially pander to political expediency or vested agendas,  makes it imperative to examine the legal validity of such a ground. Because, the crux of the matter here is the freedom of speech and expression, and whether a particular restriction imposed by the State would fall within the parameters delineated by the Constitution. Any other extraneous factor or consideration for banning or censorship would imperil this cherished right which forms the cornerstone of democracy.
 
If one considers the case of Vishwaroopam, to sum up the Tamil Nadu government’s argument- the film has hurt the sentiments of Muslims and their freedom of religion, and all these will culminate in a grave law and order problem unless the film’s screening is stalled for good. This stand of the government has been forced by the shrill cries of outrage raised by some obscure, fringe group, looking for whose substantial support base would prove more Herculean a task than the proverbial hunting for a needle in a haystack.
 
The judicial sanction given to the Tamil Nadu government’s blatantly illegal and brazen pussyfooting brings the haunting spectre of the “chilling effect” on freedom of speech and expression manifesting itself into reality, much closer. 
 
Public order vs law and order
 
If one considers the grounds for “reasonable restrictions” on the freedom of speech and expression (as per Article 19(2) of the Constitution) and the contours of the freedom of religion and conscience (as per Article 25), “public order” features prominently. Let’s take a look at how the Courts have interpreted this term, and how the maintenance of ‘law and order’ sneaks into the lingua franca of bans.
 
In Ram Manohar Lohia versus State of Bihar (AIR 1966 SC 740 at 758-59), the Supreme Court had occasion to consider the scope and ambit of the term ‘public order”, and held that the community or the public at large have to be affected, and only then can it be said that a particular action jeopardises public order- it “embraces more of the community than ‘law and order’”.
 
Arun Ghosh versus State of West Bengal is one decision where the Supreme Court provides a detailed and succinct explanation of the term, along with numerous examples. The emphasis therein was again on a wide spectrum of society as a whole being affected, as opposed to a handful of individuals. It was held that “law and order” was narrower in scope than “public order”, and these two should not be used or interpreted interchangeably.
 
The two terms are in contradistinction to each other- and the difference between them is the question of degree and extent of the reach of the act on society. A particular action might breach the “law and order” situation- for instance, some disgruntled and agitated people going on a vandalizing spree. But would it necessarily affect society or a particular community as a whole? The answer is clearly in the negative.
 
As was held by the Court in State of Uttar Pradesh versus Sanjai Pratap Gupta (2004) 8 SCC 591 the act in question should have the potentiality to “disturb the even tempo of the life of the community”.
 
All these observations were quoted affirmatively by the Bombay High Court while throwing out the Maharashtra government’s ban on Kamar R. Khan’s film “Deshdrohi.” The government, citing the apprehension of a backlash from the Maharashtra Navanirman Sena (MNS), had pleaded for disallowing the screening, but the Court would have none of it.
 
Looking beyond films, though the Supreme Court had given the go-ahead to James W. Laine’s controversial book on Shivaji (which the Shiv Sena used as an excuse to show off its thuggish prowess), the government of Maharshtra continues to ‘enforce’ the ban despite the Supreme Court’s order to quash it. No reason, other than the ubiquitous “votebank politics” can be ascribed to this act of sophistry.
 
International law
 
Not only Indian law, but international laws also speak in the same tenor. That freedom of speech and expression can be restricted on grounds of violating “public order” and not “law and order”. Article 19 (3) of the International Covenant on Civil and Political Rights specifically mentions “public order” (“ordre public”, in French). And so does Article 10 (which enshrines the freedom of speech and expression) of the European Convention on Human Rights.
 
It would be worthwhile to quote the European Court of Human Rights in Engel & Ors versus Netherlands (1976) which held that while deciding upon restriction of freedom of speech and expression on grounds of a threat to the violation of “public order” :
“public order includes not only the maintenance of physical order but the organization of society in a manner that strengthens the functioning of democratic institutions and preserves and promotes the full realization of the rights of the individual.”
 
Therefore, on one hand we have a catena of judgements as well as laws which allow curtailing of free speech only on grounds of “public order”, while on the other we witness with alacrity and alarm the repeated shenanigans of governments citing a fictional and legally non-existent ground to clamp down on free speech. It is nobody’s case that the Muslim community has been hurt or offended by certain scenes in Kamal Hasan’s film. The peaceful screenings of the film in a number of States (which are considered to be far more volatile in so far as the propensity for communal strife is concerned) and the remarkable solidarity shown to him, bear ample testimony to this fact.
(Saurav Datta is a legal researcher and lecturer in media law. He is based in Mumbai).
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