On Monday and Tuesday, the Supreme Court heard three cases implicating free speech. One was for a petition for anticipatory bail filed by a cartoonist, Hemant Malviya, whose years-old cartoon strips were dredged up because he recently re-shared them on Twitter. The cartoons were taken to be offensive to the Prime Minister and the Rashtriya Swayamsevak Sangh (to be sure, not offences per se) and a Hindu deity (we are not clued in on how). In response, an FIR was filed against Malviya in Madhya Pradesh. The MP High Court refused to grant him anticipatory bail; in an order which follows a well-established pattern of treating rights as artefacts flowing from divine beneficence – which can therefore be taken away when “misused” – the Court reasoned that Malviya had “overstepped the threshold of freedom of speech and expression” (paragraph 12). The Supreme Court, in appeal, granted anticipatory bail. However, a perusal of the oral remarks of the Bench – comprising Justices Sudhanshu Dhulia and Aravind Kumar – reveals the MP HC’s logic exerting a pull over the Court. Malviya’s comics, for the Court, were “inflammatory”; the Bench went on to note that the MP government was free to hound him if he continued making such “derogatory” posts.
In the second instance, the Court was continuing hearings in Wazahat Khan’s petition for clubbing several FIRs filed against him. Khan had published allegedly obscene posts against certain devotees; in response, FIRs were registered against him in four states. This time, the Bench comprised Justices BV Nagarathna and KV Viswanathan. The Bench, again, granted his prayer, but tore into Khan. In what should have been a routine hearing where the Court simply had to determine whether the interim relief already granted to him needed to be continued, the Court sounded the alarm bells on the seeming abuse of free speech. The Court held that citizens must respect “fraternity” and accordingly self-censor. (The Bench was reluctant to use the c-word – there’s a lot in a name, after all.)
What is more troubling in Khan’s hearing was the Bench’s flirting with the idea of framing guidelines for online speech. This proposal was first floated by a bench comprising Justices Surya Kant and N Kotiswar Singh in Ranveer Allahbadia’s case in March, and was stridently criticized on the blog. As Gautam noted, this “essentially eviscerates the carefully-crafted constitutional scheme that is designed to protect individual rights from the State.” Nagarathna J now attempts to provide a jurisprudential framework to encase these proposed guidelines – till now legally amorphous – giving us a peek into what the guidelines themselves might look like. It is worth reading her remarks: “If [citizens] want to enjoy the fundamental right of speech and expression, it should be with reasonable restrictions also. Apart from that, there must be self-restraint and regulation also, to enjoy the valuable freedom, not like this abuse. Article 19 is against the state … verticality. What about horizontality?” (emphasis added).
There are stark parallels to – and departures from – her opinion in Kaushal Kishor, where she developed the idea of “restraints” – an extratextual concept that allowed the restriction of free speech beyond article 19(2) grounds. So far so consistent. Puzzlingly, however, Nagarathna J alludes to the majority opinion’s convoluted horizontality reasoning – with which she expressly disagreed in that judgment – in defence of her position on speech regulation. One might argue that Nagarathna J was playing devil’s advocate – if not for this reasoning also being the basis for inviting state regulation. The refusal to also issue an actual order – with detailed reasoning – and instead rely on oral directions also forces one to take those directions at face value.
The third instance, finally, was when the Court heard a disability rights petition in Allahbadia’s case, in the context of certain ableist remarks. It’s not clear how this petition was admitted – the impugned comics are individuals who occupy no public office, and possess no institutional power, and the petition was filed by a disability rights organization with no connection to the case. A fundamental right could only be enforced against those individuals within the warped logic of Kaushal Kishor. But the Court has historically thrown caution to the winds when it comes to the basics. Here, a division bench comprising Justices Surya Kant and Joymalya Bagchi orally remarked that the government ought to assist in framing guidelines. These guidelines would “compris[e] both parts – freedom, where limit of that freedom ends, and where duties start [sic].”
If fraternity was the watchword for Nagarathna and Viswanathan JJ, dignity is the overriding principle for Kant and Bagchi JJ. For the latter, dignity stems from article 21, and “Article 19 can’t overpower Article 21…. Article 21 must prevail if any competition takes place.” This is, with respect, wrong on several levels. First, there is no apparent hierarchy among Part III rights, with the exception of article 25, which is textually subordinated to all other fundamental rights. Secondly, and as a result, Courts have had to evolve a reasoned jurisprudence to resolve the inevitable collision between rights in certain cases. In the UK and India (most recently with the Electoral Bonds Case), this has taken the form of the double proportionality test. Thirdly, and relatedly, the question of which right takes precedence over the other must occur in the realm of concrete inquiry – not abstract speculation. Urging the state to frame guidelines on the basis of the subordination of one right to another – when this subordination has no grounding in the text of the Constitution or the jurisprudence – is a recipe for disaster.
Moreover, rights are not circumscribed by duties. Justice Kant has framed rights in similar words in a previous hearing in the same case. The structure of the Indian Constitution, of course, does not reflect this understanding – fundamental duties, if Kant J was referring to them, are not grounds to restrict speech or, indeed, any other freedom.
The similarities between these hearings – with entirely different sets of judges – are startling. An attitude that treats rights as things extended out of the generosity of the state’s heart has captured a significant cross-section of the Court’s members. The structure of article 19 repels any inquiry into the “value” of speech; however, the Court cannot help but analyse the value of speech – and urge citizens, in Puritan fashion, to engage in “self-restraint.” It is also deeply unfortunate that two benches – with five judges between them – have all but rolled out the red carpet for the government to frame regulations restricting digital speech. Coupled with the Court’s mistaken understanding of article 19, we can say, almost with certainty, that this enterprise will only diminish the already shrinking space for free expression.