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Recently, the Supreme Court, in a petition filed by one Shaheen Abdullah resident of Kerala, directed police machinery in Maharashtra to ensure that permission to the Sakal Hindu Samaj rally in Mumbai is granted only by ensuring that there will be no hate speech. The Court further directed videography of the entire event and also directed that such video will be made available to the Court on the next date. It directed that if the situation arises, it shall be the duty of the police to exercise powers under S. 151 of the Code of Criminal Procedure. During the course of the hearing, the bench of Justices KM Joseph and JB Pardiwalla remarked that it did not want a repeat of the Dharam Sansads and that hate speech would not be tolerated.
In this piece, I argue that the approach of the Supreme Court is problematic on several counts. One cannot but miss the fact that the Petition was instituted by one Shaheen Abdullah who is a resident of Kerala and seeks restraining orders in respect of an event to be held in Mumbai on 05.02.2022. A perusal of the prayers in the Petition would itself reflect that the same require grant of omnibus anticipatory relief, which the Court in exercise of its jurisdiction under Article 32 cannot grant against the organizers of the rally/function. It remains to be seen whether the Petitioner had first approached the authorities in Maharashtra with his grievances. The Sakal Hindu Samaj has organized rallies such as the one organized in Mumbai on January, 29, in several parts of Maharashtra and the objective of the said rallies is seemingly to demand legislation on the subject matter of love jihad and religious conversions. It is evident that the rallies in question have seen attendance in large numbers.
It was rightly pointed out by the Solicitor General during the course of arguments that a Petition such as this, which seeks restraining orders for an event to be organized in Maharashtra ought not to be entertained at the behest of an individual residing in Kerala. The Court, however, was not deterred.
The interim order in question suffers from a very significant fallacy. It fails to define hate speech, while at the same time passing an omnibus direction to the state machinery to take action in case of hate speech.
Three larger constitutional questions need to be decided first before Courts pass interim orders of such a nature. First, what is the manner in which the writ jurisdiction needs to be exercised in cases involving government inaction? When the challenge is to government action on the count of it being violative of fundamental rights, controversy as to the contours of the Court’s jurisdiction does not surface. However, when the challenge is to government inaction, the question of exercise of writ jurisdiction is not settled. There is a thin distinguishing line between legitimate exercise of judicial review on the anvil of Fundamental rights and an intrusion by the Court in the discretionary functions of the executive. Nevertheless, one must acknowledge the fact that it is not possible to state with certainty where the distinguishing line is precisely located, thus giving rise to a situation where orders such as the one in question are passed and can possibly be justified. However, in my opinion, the order in question is clearly in the nature of an intrusion in the discretionary powers vested in the executive under the provisions of the Code of Criminal Procedure. Section 151 of the Code of Criminal Procedure has been quoted by the Supreme Court in its order. A reading of the same makes it clear that it vests a discretionary power in a police officer to make arrests to prevent the commission of cognizable offenses. The word “may” has been used therein. Relief of anticipatory arrest cannot be sought, much less in a Petition under Article 32. However, the Court has directed that it shall be the duty of the police to invoke S. 151 if the occasion arises. Interestingly, it would yet be the discretion of the police to reach a determination as to whether an occasion has arisen. Thus, the direction of the Court in this regard seems to be meaningless insofar as its enforceability is concerned. However, a possible consequence of the said direction could be that of a chilling effect on freedom of speech and an unreasonable restraint on a dialogue on seemingly controversial issues.
A second question is, what is hate speech and how would the Court’s draw a line between freedom of speech and expression and hate speech? Recently, the Constitution bench of the Supreme Court, in Kaushal Kishore’s case, has examined the contours of freedom of speech and expression in great detail. While holding that the grounds on which restrictions can be imposed on the freedom of speech specified in Article 19(2) are exhaustive, the Court has also held that both the State as also the Court cannot travel beyond the limits prescribed in Article 19(2). The Court observed, “The restraint upon the Executive not to have a back-door intrusion applies equally to Courts. While Courts may be entitled to interpret the law in such a manner that the rights existing in blue print have expansive connotations, the Court cannot impose additional restrictions by using tools of interpretation.” It further also held that it was not for the Court to impose restrictions. It observed, “In any event, the law imposing any restriction in terms of clause (2) of Article 19 can only be made by the State and not by the Court. The role envisaged in the Constitutional scheme for the Court, is to be a gate-keeper (and a conscience keeper) to check strictly the entry of restrictions, into the temple of fundamental rights. The role of the Court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges. Clause (2) of Article 19 saves (i) the operation of any existing law; and (ii) the making of any law by the State. Therefore, it is not for us to add one or more restrictions than what is already found.” While it is possible to argue that in a given case where there is a conflict between individual dignity under Article 21 and freedom of speech under Article 19, the Court may lean in favor of the former, the Court would yet have to mindful of the fact that the under the statutory framework, discretionary powers are vested in the executive. Similarly, the executive is best suited to judge whether or not any speech would be such as would create public order/law and order issues. One must also be mindful of the fact that what is being discussed is pre-censorship of the freedom of speech. The Constitution bench, in the case referred to above, has also clearly held while summing up its answers to the questions referred to it, that under the guise of invoking other fundamental rights or under the guise of two fundamental right staking a competing claim, additional restrictions not found in Article 19(2) cannot be imposed. It is clear that open expression of highly controversial issues cannot be curtailed only on the ground that the demonstration may annoy persons opposed to the ideas or claims.
In the order in question, the Court has not defined hate speech or stated in clear terms as to why any speech already made in the rallies in question or likely to be made at a future point in time would qualify as hate speech. Without any such analysis, the Court has passed the order in question in a Petition which appears to be an exercise of sensationalism. The order in question not only indulges in judicial pre censorship, but would also have a chilling effect on free speech. Insofar as controversial speech is concerned, a reference to the case of Amish Devgan would be relevant. Devgan had referred to a beloved saint, Moinuddin Chisti, as “Terrorist Chisti” and “Robber Chisti”. The anchor had said that “Terrorist Chisti came. Robber Chisti came thereafter the religion changed.” While the Court refused to quash the FIR, it held that not only the content of the speech, but also its context, intent and harm will have to be looked at. The Court refused to go into these questions as the same would seemingly be the job of the investigating machinery. It is however, noteworthy that the Court recognised “good faith” and “legitimate purpose” as being protections in hate speech cases.. Applying the Amish Devgan standard would imply that there ought not to be any prior restraint and that it would be the job of the instrumentalities of the state to reach a determination as to the content, context, intent and harm caused by a speech. A contrast in the approach of the Court in Amish Devgan’s case and in the present case is clearly visible since at the stage of ad-interim relief, the Court has declared that the police is duty bound to invoke S. 151 if situation arises. It appears that the Court, on perusal of the videography would then embark upon an analysis of the same and pass further orders in this regard. This brings me to the third important question which the Court has not even delved into, that of pre censorship. It is settled law that pre-censorship is permissible only in exceptional circumstances. The example that comes to mind immediately as that of pre censorship under the Cinematograph Act. The Court has repeatedly frowned upon pre-censorship in cases other than those covered by the provisions of the Cinematograph Act. The jurisprudence on the subject could trace its origins right since the time the judgements in Romesh Thapar’s case and Brij Bhushan’s case were delivered. It is possible to argue that the order in question has not imposed any gag. However, it is the effect that the said order could have which is significant. If the effect is one which violates fundamental rights, such a course of action ought not to be permissible, particularly, when the same prima facie appears to be an intrusion in the filed of the executive.
An analysis of the speech jurisprudence as developed by the Court recently would reveal that the Court has now recognized that chilling effect on free speech is a ground to strike down penal provisions. (See, e.g. cases of Shreya Singhal, Navtej Singh Johar, KS Puttaswamy, etc.) At the same time, the Court has also recognized vagueness and ambiguity as grounds to strike down restrictions on free speech. (See. Eg. Shreya Singhal’s case) Similarly, in Mohammed Zubair’s case, the Supreme Court held that gag orders would have a chilling effect on freedom of speech and that there cannot be blanket anticipatory orders preventing speech. At a time when the Court’s jurisprudence on free speech has travelled in a direction where the contours of the right under Article 19(1)(a) have been expanded, the order in question seems to have struck a discordant note. In the present case, though there is no gag order passed, the approach of the Court in,
Would clearly have a chilling effect on the freedom of speech and expression and would discourage dialogue on seemingly controversial issues. The Court’s approach in the present case does not appear to be in line with the jurisprudence on freedom of speech and expression that has been developed by the Court in the past few years. It remains to be seen as to how the Court eventually deals with the issues raised by the Petitioner and the omnibus reliefs claimed therein. It is likely that the order passed by the Supreme Court would open the floodgates for petitioners to regularly approach the Supreme Court under Article 32 seeking gag orders on the basis of apprehensions of delivery of hate speech. This alone ought to have been reason enough for the Supreme Court to dismiss the Petition in question at the threshold.
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