Free speech in the courts, down the years

Its been a colourful history over seven decades of free speech rights being upheld and diluted in turn, as courts struggled with challenges.
PRASHANT R THIKKAVARAPU documents the history

 

This year, India celebrates its 70th year of Independence from the British. A platinum anniversary is a good time to assess the state of Indian independence, especially our freedom to speak our minds.

Nehru, in his famous ‘Tryst with Destiny’ speech, delivered from the ramparts of the Red Fort on August 15, 1947 had described Indian independence as a moment “when an age ends, and when the soul of a nation, long suppressed, finds utterance”. Three years later, “we the people” gave ourselves a new Constitution with the fundamental right to free speech enshrined in Article 19(1)(a) subject to restrictions. The same Constitution however also recognized all existing laws unless such laws were in violation of the fundamental rights. As a result, several oppressive free speech laws, in the Indian Penal Code (IPC) that criminalized sedition, defamation, hurting of religious sentiments, obscenity continued to be recognized as law. The Constituent’s Assembly’s attitude and commitment towards free speech clearly did not carry on to the first Parliament because no attempt was made to repeal these oppressive laws in the IPC.

The credibility of Article 19(1)(a) was tested soon enough when the Government of Madras and the Chief Commissioner of Delhi imposed a pre-censorship regime on the Organiser and Cross Roads respectively in March, 1950.  While Organiser was in the dock for publishing anti-Pakistan material with communal overtones, it was speculated that Cross Roads was banned because Nehru wanted to be seen as even handed towards the ideological left and right. As a result of the government orders both magazines were required to submit copies to the government for approval before they could be distributed to the public.

The Supreme Court struck down both orders in 1950 in the cases of Brij Bhushan v. Union of India and Romesh Thapar v. Union of India for violating the fundamental right to free speech. The same Nehru who spoke of a ‘long suppressed’ nation finding utterance, convinced Parliament to enact the First Amendment to the Constitution to introduce new reasonable restrictions to free speech including the vague ground of ‘public order’.

 

The penal provisions criminalizing free speech in the IPC survive

In 1957, the newly minted ‘public order’ exception would save from constitutional challenge, Section 295A of the Indian Penal Code (IPC), a provision which was introduced by the British in the backdrop of increasing communal violence in India. The provision was aimed at criminalizing ‘deliberate and malicious acts’ intended to outrage religious feelings. The constitutionality of the provision was upheld by the Supreme Court in the case of Ramji Lal Modi v. the State of UP. A few years later, in 1962, this new restriction would save from a constitution challenge the offence of sedition that was contained in the infamous Section 124A of the Indian Penal Code (IPC) – a provision that owed its birth to the British and one that was much reviled by Indian freedom fighters. The Supreme Court in Kedar Nath v. Union of India held the offence of sedition in the IPC to be constitutional and within the boundaries of the expanded restrictions in Article 19(2) despite some of the High Courts striking down the provision as unconstitutional for violating the fundamental right to free speech. Parliament which is the ultimate law-making body kept quiet and declined to assert it powers to repeal the provision.

"If political speech was having a difficult time in India, writers and movie-makers were not having it any easier with their art"

 

If political speech was having a difficult time in India, writers and movie-makers were not having it any easier with their art. In 1965, a few years after Kedar Nath, the Supreme Court upheld the constitutionality of Section 292 of the Indian Penal Code (IPC) which criminalizes “obscenity” in the case of Ranjit Udeshi v. State of Maharashtra. The provocateur in this case was “Lady Chatterley's Lover”, a controversial novel by D.H. Lawrence.

Six years after Ranjit Udeshi, came another Supreme Court decision in 1971 in K. A. Abbas v. Union of India the Supreme Court upheld the pre-censor regime under the Cinematograph Act, 1952 which gives powers to the Central Board of Film Certification (CBFC) to censor movies prior to their public exhibition. After all, decency and morality were both a part of the reasonable restriction on free speech in Article 19(2) of the Constitution. Similarly, the constitutionality of criminal defamation in Section 499 of the IPC was unsuccessfully challenged before the Supreme Court in 2016 in the case of Subramaniam Swamy v. Union of India.

 

Raising the threshold of proof under the Indian Penal Code

Although the Supreme Court has upheld the constitutionality several of the IPC provisions, it has managed to blunt the effect of several of these provisions by interpreting them in a manner that required the prosecution to cross a high threshold of evidence.  For example, in the case of S. Rangarajan vs. P. Jagjivan Ram (1989) when the court was dealing with S. 295A of the IPC, the court read in the standard of ‘spark in a powder keg’ which requires that the offensive speech has the ability to cause public disorder in the immediate future. In 2011 in Arup Bhuyan v. State of Assam the Supreme Court brought in the test of ‘clear and present’ danger while interpreting the Unlawful Activities Prevention Act, 1967. The Court ruled that “mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.” The logic can be extended to sedition and speech that supposedly hurts religious sentiments.

Similarly, with regard to obscenity, the Court brought in the “community standards” test in the Boris Becker case where a case of obscenity was filed against Becker and a newspaper for a nude photograph of him and his wife. The photograph of the inter-racial couple was intended to make a statement against racism and the court quashed the complaint.      

 

The Press and Free Speech

The Indian press has had to fight several battles to protect their right to report. Sometimes the very survival of newspapers has been threatened by government policies. In Bennett Coleman v. Union of India, decided in 1972 the Supreme Court struck down a newsprint policy that allowed the Central Government to ration newsprint for newspapers. The newsprint policy basically allowed the government to control which newspaper got how much newsprint and in effect gave the bureaucracy sweeping powers to control the profitability of newspapers. The policy was struck down for violating the fundamental right to free speech.

The greatest danger to the free press however has been the persistent threat of defamation lawsuits from both the government and private bodies. In the landmark Rajagopal v. State of T.N.  (1994) the Supreme Court made it clear that public personalities would be required to prove malice in defamation cases and that the media would not be required to prove the truth of their reporting provided they took reasonable steps to verify the contents of their reporting. This case was theoretically supposed to make it more difficult for the government and its functionaries to sue for defamation but not all Supreme Court judgments filter down to the lower courts. Very often public authorities sue for defamation and lower courts simply ignore the higher standard of proof laid down in Rajagopal.

"The greatest danger to the free press however has been the persistent threat of defamation lawsuits from both the government and private bodies"

 

In the context of defamation litigation by private persons and corporations, we have seen the emergence of Strategic Lawsuit Against Public Participation (SLAPP) lawsuits. The damages components of these lawsuits are so high that there is no real possibility of a payout even if there is the victory. The only aim of these lawsuits is to chill free speech.

In the last decade, there have been multiple lawsuits by Essar and IIPM against Caravan, by Crop Care Federation against Rajasthan Patrika, by FTIL against Prof. Shah, by Natco against Prof. Shamnad Basheer etc. Given the snail pace of the judicial system these lawsuits can take ages to get resolved. Some of the High Courts have pushed back against such litigation. For instance a lawsuit against the editors of Money Control was dismissed by the Bombay High Court in a stinging judgment which is currently under appeal. The court in that case, raised the threshold for defamation lawsuits filed by private corporations performing public functions by requiring them to establish actual malice.      

 

Free speech in the digital age

The birth and explosion of social media in India over the last few years has changed the manner in which Indian society communicates and expresses itself. Apart from giving life to voices that lacked access to traditional media, social media also marked the advent of trolls and unprecedented hate. Long before social media became popular, Indian policymakers had already enacted the infamous Section 66A of the Information Technology Act, 2000 which criminalized certain forms of speech on the internet. The provision which was dangerously vague and broad led to a spate of arrests that outraged the nation. It was only a matter of a time before the provision was struck down in 2015 by the Supreme Court in the now celebrated case of Shreya Singhal v. Union of India on the grounds that it was vague and not without the boundaries of the reasonable boundaries in Article 19(2) of the Constitution.

However it has not been all smooth sailing for free speech in ‘Digital India’. The Gujarat High Court upheld the right of the state to shut down the internet under Section 144 of the Cr.P.C. and the Supreme Court declined to entertain an appeal against the judgment. In effect the Courts have blessed prior restraint on free speech. 

 

The Free Press and Contempt of Courts

The press has had a tense relationship with the courts for the most part because of the propensity of the judiciary to invoke contempt powers to primarily muzzle reporting on misconduct of judges. The Mid-day contempt case before the Delhi High Court, the infamous contempt notice against 56 journalists by the Karnataka High Court, the contempt case against Madhu Trehan and Wah India! are some of the more well-known cases where judges have hauled up the press for reportage that hardly qualified as contempt of court.

The more troubling use of contempt powers by courts has been in regard to reporting of court proceedings. In the Sahara India Real Estate Corporation v. SEBIthe Supreme Court declared that the higher judiciary could use their contempt powers to “postpone” free speech to protect the right of the accused to have a fair trial. That case has come to the rescue of many powerful public personalities like Justice Swatanter Kumar, who procured gag orders against the press when accused of sexually harassing young women. These gag orders present the most serious threat to free reporting.

 

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