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LATEST NEWS UPDATES | The ‘greatness’ of a ‘landmark’ judgment -Peter Ronald deSouza

The ‘greatness’ of a ‘landmark’ judgment -Peter Ronald deSouza

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published Published on Mar 30, 2015   modified Modified on Mar 30, 2015
-The Hindu

The supporting props offered for the striking down of Section 66A diminish the arrogance of government and reinstate the ‘genuine' rule of law.

Reading the judgment, one is tempted to ask this question: Is it a landmark judgment or just a great one? To appreciate the difference between "great" and "landmark", it is necessary to begin with some very fine distinctions. A great judgment is one that restores the constitutional values of a polity from the waywardness into which it may have fallen, while a landmark judgment is one which opens up new directions in our constitutional thinking and, in the process, adds new dimensions to what are regarded as established constitutional principles. If "great" restores the centrality of constitutional values, "landmark" revitalises them. For many commentators, the judgment - striking down as unconstitutional Section 66A of the IT Act of 2000 - by the Supreme Court Bench of Justices J. Chelameswar and R.F. Nariman in the Shreya Singhal case, is seen as a landmark judgment. It is regarded as heralding the birth of new free speech jurisprudence and restoring the public space for dissent in India.

A distinction

With respect to the judgment's comments on free speech, I plan here to go against the current. It is a great judgment, not a landmark one. These are my reasons. I see the analytical distinction made in the judgment of three forms of free speech and expression, i.e., discussion, advocacy and incitement, as preliminary to a fine distinction being worked out but one which was not done. The distinction is inadequately executed since it does not provide for the societal dynamics of each form. Hence, the distinction, while a good starting point, does not protect free speech enough since it allows for situations where the "discussion" entered into by one can be used by another to "incite" simply by quoting the discussion and saying "this is what he has said". Repeating a discussion, in another context, is enough to bring the wrath of the mob on the unsuspecting person's head. Writer Perumal Murugan had to face such ire in January 2015 in Tamil Nadu because of a novel he wrote as did T.J. Joseph, a lecturer in Kerala, who had his hand cut off in 2010 for a question he had set in an examination.

Second, the judgment does not make the important distinction between "speech" and "expression" and, therefore, while it elaborates on the need to protect speech and the written word, it has little to say on expression especially in its many forms of photographs, paintings, films, cartoons, etc. So, while a Facebook post gets protection, a painting does not. The third infirmity is the judgment's acceptance of the distinction between the print and digital media, or rather between the old mainstream and the new social media. It appears to accept this distinction on quantitative grounds, i.e., how many people can be reached and how fast, rather than on qualitative grounds, i.e., what is being said. This is an untenable distinction especially in the digital age when we have e-papers, e-books, e-lectures, etc. These few areas of weakness should not, however, detract from the judgment's significant contribution to free speech especially in these dark times of censorship. It is without doubt a great judgment and will soon become the touchstone for new free speech jurisprudence in India. The hecklers will be in retreat.

As landmark judgment

I do consider it a landmark judgment, however, but for its other sections and not those specifically relating to free speech. The implications of these sections are that they give powerful legal weapons to those fighting the tyranny of the state. So, what were offered by the honourable Justices as supporting props for the main issue, i.e., the striking down of Section 66A, have, I believe, become key clauses in my reading of the landmark judgment. They diminish the arrogance of government, resurrect the principle of limited government, and reinstate the ‘genuine' rule of law. After a long time, the government - and this is cause for celebration - has again become subject to the rule of law.

There are three manoeuvres performed by the Honourable Justices that have produced this splendid outcome. The first is their dismissal of the assurances given by government on the ground that the law cannot be based on the assurances of any regime in power. The law cannot be based on even the bona fide intentions of a government and has to exist independent of these intentions. The second is the role the judgment performs in educating the public about the government's mind by placing the key aspects of the government's submission in the public domain. And the third relates to their observation that "vagueness" in the formulation of laws produces a tyranny of power. This has "chilling" (their word) consequences for civil liberties.

When the Additional Solicitor General sought to assure the court that even if certain portions of the law - 66A - were vague, the government, being committed to free speech, would not use the section to curb free speech. The Justices wrote in response: "Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present government even if carried out faithfully would not bind any successor government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered" (paragraph 92). Assurance from the government is not enough. The law must stand on its own. Similarly, when the Additional Solicitor General asked that parts of Section 66A be saved under the Doctrine of Severability, the Honourable Judges held "that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional" (paragraph 96). By dismissing both requests of the government, the Court achieved two major outcomes. It established the fact that the law must be delinked from the agency and intentions of the government. It must be read independently of the intentions of those who administer it. And, second, the court distanced itself from the common perception that it normally acts in a government-friendly manner. The court is friendly only to the Constitution.

As public educator

On its role as a public educator, the Court chose to place at great length the written submission of the Additional Solicitor General with the following words: "It was argued by the learned Additional Solicitor General that a relaxed standard of reasonableness of restriction (emphasis mine) should apply regard being had to the fact that the medium of speech being the Internet differs from other mediums on several grounds. To appreciate the width and scope of his submissions we are setting out his written submission verbatim" (paragraph 27). This is a brilliant strategy to educate an engaged public on the nature of the government's arguments. Hence, we learn that [point (ii)] "the recipient of free speech and expression used in a print media can only be literate persons while internet can be accessed by literate and illiterate both since one click is needed to download an objectionable post or video" or [point (v)] "by the medium of internet, rumours having a serious potential of creating a serious social disorder can be spread to trillions of people without any check which is not possible in case of other mediums".

Such pop sociology continues through the 11 points made by the government. If we overlook the "trillions" of people whom the government is concerned about, the word comes again twice in point 11, then we can focus on the empirical claims made with respect to literacy, rumour, and privacy. These are in fact only the opinions of the Additional Solicitor General since no evidence using social science is given for them. Yet, they are offered as the empirical basis for censorship and prosecution under Section 66A. Opinions cannot be the basis of laws. The Honourable Justices, by presenting the submission verbatim, wanted us to see the poor quality of the government's arguments. Such a cavalier attitude must be punctured at least a trillion times.

Vagueness of words

But it is in the discussion on the vagueness of words used in Section 66A(b) i.e., inconvenience, danger, insult, injury, etc., that the Court is at its legal best. It takes each word, examines its dictionary meaning, offers judgments from Indian and American legal history to establish its precise meaning, and then shows why these words in Section 66A have been casually introduced into the law. In a brilliant section on vagueness and overbreadth, the learned Justices state that "In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total" (paragraph 83). It is this vagueness of operative words that must be disallowed because of its "chilling effect on free speech". Vague words are vehicles for state tyranny. For freedom, precision is required. This section on the vagueness of words in our laws, especially in government orders, can now be cited by civil libertarians to strike down badly framed laws in lower courts.

All three manoeuvres, I expect, will infuse a new strength in the litigant's fight for citizenship rights. It will make those who draft laws cautious and increase parliamentary scrutiny of articles and clauses. It will make law officers realise that their submissions will be subject to public scrutiny. And, finally, it will, I hope, also change the habit of the court, which is normally soft on government. As the custodian of the Constitution, the court has to fight tyranny. The judgment has struck a powerful blow for limiting government. This is what makes it a landmark judgment.

(Peter Ronald deSouza is Professor at the Centre for the Study of Developing Societies. The views expressed are personal.)


The Hindu, 30 March, 2015, http://www.thehindu.com/opinion/lead/the-greatness-of-a-landmark-judgment/article7045767.ece?homepage=true


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