Author: Poornima Kapoor, II year of B.A., LL.B.(Hons.) from LOVELY PROFESSIONAL UNIVERSITY, JALANDHAR, PUNJAB
Abstract
The following paper countenances the mis-matched perception to contour and comprehend the scenario of the Judicial undertakings in the light of the pressive legislation and the laws on its contempt. While the former should be telescoped with a normative approach and the latter with a positivist one; the present melodrama of the apex court has undoubtedly conversed the compass. Nonetheless, this has engendered widespread smog between the ‘Right to Express Dissent’ and ‘Defamation-Sedition-Contempt Laws’, rendering the bench at the apex of the court myopic in toto. Article 19 – a sacrosanct notch of the golden triangle of the constitution is not only integral to nation’s individualism but it’s buoyant to Indian structure of polity and governance; stretching its way hard to stilt out the ‘Republican- Democratic’ form of government in India, thereby making the country world’s largest democracy. Notwithstanding the fact that both clauses (1) and (2) of the esteemed article can have a chilling effect on the freedom of speech in their own respective bold ways, the arch question arises in the case, where a statement is addressed concerning the issue which has very a straightforward nexus with the rights and welfare of the ‘we the people of the India’, then how the scales, terms, standards, rules, laws, statutes or precedents are determined on the basis of which the hon. Court adjudicates it as a contempt of its own, thereby terrifying and nipping the ability of the people to criticize a public institution.
Keywords: Democracy, Public Institution, Apex Court, Right to Speech, Fair Criticism Contempt.
- Opening pledge of the Present
Government’s Election Manifesto
Introduction
American policy makers ritualistically incant that India is the world’s largest democracy. Its maintenance by a population of 1.1 billion people, who speak hundreds of languages, practice six established religions, and live on per capita GDP of $1,122 marks one of humankind’s greatest achievements. India is simply an amazing place and polity. Similarly, India’s Legal System also has much to be applauded of. It’s governance and the administration of justice remain spotty.
Here, the main question circumscribing the situation arises, that what actually amounts to a Democracy?
Well, without beating much about the bush, a very straightforward answer would be ‘a room for opinions of all the people with a stage voicing those that accentuate welfare of all’. Very subtly, it pinpoints how dire is the need of ‘difference of opinions’ and ‘appropriate freedom to voice them’. This is what amounts to a Healthy Democracy. In a democratic nation if people are bestowed with the power to indirectly legislate laws through their elective representatives, then they must be given freedom to exercise their rights, without the public institutions being sophisticated or politically judgemental about their freedom to speech.
If one takes a tour at the trail of the events of the past, dozens of incidents have assured how India bluffs at the international level. Major examples of problems abound: the Naxalite insurgency in one-third of Indian districts, a surging intifada in the Kashmir Valley, communal violence such as in the Gujrat pogrom of 2002, caste discrimination and violence, Kanhaiya Kumar case, peaceful protest at the Shaheen Bagh protest against the CAA, 2019 and most significantly, ‘the perpetual abridgement of the fundamental rights and human rights of the people’.
With every passage of a day, a new episode is added to this aeonic trail of mass-infringement of freedom of speech and expression. This does not cause damage to the nation but jeopardises its originality and hangs the interests of the people at stake.
Statement of Problem
“We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic and Republic……………………….”
is undoubtedly, a problem, when it vests power in the hands of the people, in the broader sense the common citizens of India to uphold the virtue of democracy in the nation, and simultaneously debars them to criticise their own country’s public institutions with a bona fide intent by threatening them with sedition, contempt, UAPA, etc.
Notwithstanding of the fact that the ‘security, sovereignty, unity, integrity, public order and public peace’ exist to curtail this freedom in a normative and beginning manner, yet there creeps certain other fetters that not only curtail our freedom to speech and expression, but also trivialises its value. Of what value does democracy stands when even the apex court fails to recognise CRITICISM as DISSENT and NOT SEDITION? When the highest court of appeal would recognise that whether a statement has caused damage to the public peace and public order? When would it recognise that which speech or expression has actually amounted to the incitement of offence or anti-nationalist or rebellious sentiments?
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
- J. Oliver Wendall Holmes, American Judge
When a person’s words are equitable to shouting fire, then, without rendering second thoughts to it, that should be restricted. That restriction is what can be considered reasonable. This is still considered freedom. The primal problem arises when the fine line between the opinion and incitement or crime preparation is misperceived or gauged or is overlooked. It is, here, that kindles the flame to turn the democratic ozone over into fumes.
Indian Political Dance- Democracy
Much recently, the democratic spirit of India was not only strangulated but was brutally murdered when the Article 19 was held trifling and was valued at ‘Rupee One’. Yes, that was the case of Prashant Bhushan Case, where Supreme Court of India moved a Suo Moto Contempt Case petition against him for his tweets on the social media application handle- Twitter, criticising the Supreme Court over its judicial undertakings in this times of epidemics.
He tweeted that it wasn’t a formal emergency, declared by the President of India, where enforcement of fundamental tights could have been suspended. He also addressed his statement to the judges and the CJI of the court.
In his defence, Bhushan said that he made this statement with a bona fide intent. It was his outcry after being subjected to a constant infringement of the fundamental rights by the court, by denying people what is due to them. But Supreme Court held that self-derogatory and adjudicated it contemptuous. But if we gauge his statement it only reflects Fair Criticism.
This can further be experimented and distilled to check its fairness.
The foremost element that matters in such statements is the public reception, i.e., whether such remarks incite any kind of distrust among people.
Secondly, the court did not come up with any action considering Bhushan’s affidavit and seeing that opinion was bona fide or not. The apex court assumes that any person holding a view that the Supreme Court as played a major role in undermining the democratic structure of the country, is lying for sure.
If one takes into the note the mayhem brewing into the court from the past four years – from the dejection of the judges of the court in 2018, handling of the case of the Kalikho Pul Suicide note ( CJI Khehar), to the assignment of sensitive cases (CJI Dipak Misra), the nomination of CJI Gogoi to the Rajya Sabha after retirement, and the handling of the Kashmir cases and migrant crisis (CJI Bobde). The court arrantly failed to give them any shot for striking with counter arguments.
Nit-picking is the word that comes into the picture when such lacunas are deciphered in the working of the Judiciary. This was, indeed, in the form of ‘anguish’ or an ‘alarming clamour’ by Bhushan in his tweet.
In the case of Shreya Singhal vs. Union of India, J. Nariman said, “The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. Even if the advocacy of a viewpoint is vehement, caustic, sharp or harsh, it should be allowed. The moment a person begins inciting the commission of an offence, then emerges the real cause to hold his reins. So, this test of advocacy and incitement is the most significant determinant.
In another case, Dr. D.C. Saxena vs Hon’ble The Chief Justice of India the Court noted that criticism of the institution is permitted “even if it slightly oversteps its limits”. Echoing this sentiment, in Baradakanta Mishra vs The Registrar of Orissa High Court it was held that not every attempt to vilify a judge is contempt: “the Court will have also to consider the degree of harm caused as affecting administration of justice and, if it is slight and beneath notice, Courts will not punish for contempt”. As observed in the S. Mulgaokar vs Unknown case, it is only where there is a “scheme or design” to intentionally harm the image of the Court that this jurisdiction is to be exercised. Even while doing so, “the benefit of the doubt [is to be] given generously against the judge”.
In the recent advertisement pulled out by India’s one of the mammoth-like corporation Tata’s jewellery outlet Tanishq, which pictured the summit of lily-whiteness and promoted not only their product but also communal harmony. But to their abrupt astonishment, the bigoted people of India set their sails towards it, attacking it with all sorts of lopsided, non-secular notions garnished with hate speech. Well, this was the time the country had to recall the Preamble of our dear Constitution, and read the golden word Secular. The highly prejudiced ideologies of the bigoted section of the India, not only showcased their abhorrence for communal harmony but they also curbed the freedom of one of the India’s giant corporations and coercive it to pull down its ad. There couldn’t be any better live illustration of suppression of one’s ideology just on the incessant threats and hate speeches of some prejudiced and myopic portion of the country.
In this year itself, back in March 2020, an order of the court on the issue of restoration of 4G internet services in Jammu and Kashmir, was passed, which was a graphic example of the snail’s pace of the apex court. Responding to the plea, the court decided “to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.” From this suit, one can easily construe that free access of internet services (a significant techie-gift for individual’s expression and communication) is not available to every part of free Democratic India. J&K’s internet ban was put in the year 2019 after abrogation of Article 370, and since then, thanks to the vigilance of Supreme court, a petition was required to annul the ban. Speaking in nutshell, this case was not grave enough for a suo-moto action.
The Hideous Past Cases
India certainly leaves no stone unturned in siring ironies. Freedom of speech costed a several months imprisonment to Kafeel khan sentenced to him by the District Magistrate of Aligarh which was later changed to acquittal by the appellant court, with a crystallised observation that a speech infringing Art. 19 should substantially cause mayhem to the very tranquillity of the nation. A mere apprehension cannot amount its violation. In the Devangana Kalita case the police first arrested her for- delivering hate speech in Delhi, instigating violence in North-East Delhi entailing High Court’s acquittal ‘only on the surface’. They continued to keep her in custody for allegedly being a part of a ‘Premeditated Conspiracy’ in the violence in N.E. Delhi. Not long time back, an eminent scholar Audrey turshche lecture in India was cancelled as she was to present her views on her newly written book emphasizing Aurangzeb as NOT as anti-Hindu as his current frame in the history of the nation.
Conclusion
From the rise of the right-wing leaders in the centre, the legislation, executive and particularly judiciary have been affected to such an extent that questionable remarks are in circulation about the actual structure of Indian polity. At an astounding quantum, ironies are now being materialized in this nation. The principle of ‘Rule of Law’ is apparently, an addition to the list of the abstract monuments of India- served to flaunt at the global scale and rusting and depreciating when beheld from the country. This is the biggest disadvantage of having a right-wing government at the centre. Every step, word, action, or activity of an environment-sensitive and bold citizen is perceived to be seditious, contemptuous, defamatory or most of the times anti-national.
“Heckler’s veto”, “iudex in propria causa” and “Nit-picking” are few terms which comes into picture, when we study the above cases, where not only few right-wing notioned people of the nation but also the honourable institution of Judiciary is blinded with its own comprehension of the case and interpretation of the laws. A term myopic cannot be used here, after all India is a “Democracy”; thus, Stubbornness would fit aptly, since the mere assumption of contempt of bench by judiciary, the easy arrests without following the procedure established by law, and the consequential infringement of the fundamental rights, with Judiciary sitting placidly amidst them. Like how “the Indian judiciary is considered by the citizens of the country in the highest esteem”, how “the Supreme Court is a protector of the fundamental rights”, how the judiciary is the “central pillar” of Indian democracy. A country which acquiesces a legal regime where the courts comprehend and clearly understands the necessity and weight of the Freedom of Speech, its population will pinpoint several other aspects having direct nexus with safeguarding their rights.
Judges often say “if such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations” – which seems a bit of a stretch, but even if a controversial opinion, the judges are entitled to their opinion. It is tragic that the judgment makes many of these platitudes seem rather meaningless. And that after 74 years of Independence, we can’t hold our own controversial opinions like these judges anymore[1].
[1] The Wire Staff, Prashant Bhushan 2020 Contempt: SC Reserves Judgment, asks 'What Is Wrong in Seeking Apology?from THE WIRE Aug. 25, 2020 https://thewire.in/law/prashant-bhushan-contempt-tweets-supreme-court-apology-justice-arun-mishra.