Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ issued a Mandamus restraining the state of West Bengal from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot that was made to support meaningful Bengali cinema.

Factual Background

  • Bhobishyoter Bhoot, a social and political satire about ghosts who wish to make themselves relevant in the future by rescuing the marginalized and the obsolete, has a UA certification for public exhibition, issued by the Central Board of Film Certification1 on 19 November 2018. Prior to its national launch, the film was slated for release in Kolkata and some districts of West Bengal on 15 February 2019.
  • Petitioner received a letter from the State Intelligence Unit calling upon him to arrange a prior screening of the film for senior officials of the intelligence unit of Kolkata police by 12 February 2019.
  • The letter stated that inputs were received “that the contents of the film may hurt public sentiments which may lead to political law and order issues”.
  • The petitioner categorically informed the Joint Commissioner of Police (Intelligence), Special Branch, Kolkata that his office does not have the jurisdiction to seek ‘advance’ private screening prior to the release for a “few senior officials” on a “priority basis” as sought. No further communication was received from the Kolkata police.
  • Petitioner proceeded with the release of the film on 15 February 2019. Within a day of its release in Kolkata and a few districts of West Bengal an overwhelming majority of the exhibitors abruptly took the film off their screens on 16 February 2019 without a communication from the producers.
  • The petitioners had argued that the State of West Bengal is misusing police power and acting as a ‘super-censor’ sitting atop the CBFC and is violating the Petitioners’ fundamental rights guaranteed under Articles 14,19(1)(a), 19(1)(g) and 21 of the Indian Constitution through the Kolkata Police which is under the Department of Home.

Overreach of powers by West Bengal Police

Noticing that the statutory authority to certify a film for public exhibition is vested in the CBFC under the provisions of the Cinematograph Act 1952, the bench said,

“The police are not in a free society the self-appointed guardians of public morality. The uniformed authority of their force is subject to the rule of law. They cannot arrogate to themselves the authority to be willing allies in the suppression of dissent and obstruction of speech and expression.”

The Court also noticed that the Joint Commissioner was not unmindful of the fact that the film had been slated for release within a few days of his communication in theatres across the city of Kolkata and the State. If there was any doubt whatever over the entitlement of the producers to have the film exhibited, it was laid to rest when the producers immediately informed him of the film being CBFC certified. Hence, the Court said,

“Such attempts are insidious and pose a grave danger to personal liberty and to free speech and expression. They are insidious because they are not backed by the authority of law. They pose grave dangers to free speech because the citizen is left in the lurch without being informed of the causes or the basis of the action. This has the immediate effect of silencing speech and the expression of opinion.”

Holding that the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission, the Court concluded,

“In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of ‘similar misadventures’. This cannot be countenanced in a free society. Freedom is not a supplicant to power.”

Direction

State of West Bengal has been directed to pay to the petitioners Rs. 20 lakhs compensation and Rs. 1 lakh towards cost of proceedings within a period of one month.

[Indibility Creative Pvt Ltd. v. Govt. of West Bengal, 2019 SCC OnLine SC 520, decided on 11.04.2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., laid down some recommendations in addition to the ones in Destruction of Public and Private Properties, In re, (2009) 5 SCC 212, concerning the issue of  “mob violence, protests and demonstrations” erupted in the recent past, especially against cultural programmes and establishments and the ensuing damages to public and private properties due to violence.

The petitioners concern as submitted and placed in the present matter was in regard to violence being the crux and primary issue. The petitioner submitted that law and order problems were arising out of the release of several films, especially the violence surrounding the release of the film “Padmaavat” as the fundamentalist outfits and fringe groups issued threats and engaged in acts of violence against people and property to disrupt and prevent public exhibitions of such films on the pretext that they “offend their cultural/religious sentiments.” Films which were protested against were certified for public exhibition in accordance with law under the Cinematograph Act. Attacks on films by such groups were imposed by unlawful restraints and further impinge on the freedom of speech and expression under Article 19(1)(a) of the Constitution of India.  The consequence to all the stated circumstances above was the respondent State government’s action of banning the exhibition of such films citing law and order problems, without clamping down on the root cause. Petitioners articulated some suggestions to curb the occurrence of such events.

Therefore, Court on noting the submissions of the petitioner’s concluded its decision by stating that the primary relief is to issue directions to the State/Union of India to strictly implement the decision rendered by the Supreme Court in Destruction of Public and Private Properties, In re, (2009) 5 SCC 212 concerning the large-scale destruction of properties in the name of agitations, bandhs, hartals, etc. Further, it was noted that Attorney General for India, K.K. Venugopal, had also given certain suggestions to increase accountability and timelines for law-enforcement bodies in relations to acts of mob-violence.

The Supreme Court stated that such acts of violence as stated above highlight a deeper malaise, one of intolerance towards others’ views which then results in attempts to suppress alternate view-points, artistic integrity and the freedom of speech and expression guaranteed by the Constitution of India.

Nobody has the right to become a self-appointed guardian of law and forcibly administer his or her own interpretation of the law on others, especially not with violent means.”

In regard to the measures to be introduced, the suggestions made by the AG could be implemented as interim measures. Further, the Court said that the crimes committed by groups of self-appointed keepers of public morality may be on account of different reasons or causes, but the underlying purpose of such group of persons is to exercise unlawful power of authority. Therefore, a comprehensive structure has to be evolved to deal with the issues of accountability and efficiency in curbing incidents of peaceful protests turning into mob-violence.

Hence, the Court without hesitation observed that the dispensation can be similar in the present matter as the one decided in Tehseen Poonawalla v. Union of India, 2018 SCC OnLine SC 1666. Further, the recommendations in addition to Destruction of Public and Private Properties, In re, (2009) 5 SCC 212 were under the following heads:

  • Structural and preventive measures
  • Remedies to minimize, if not extirpate, the impending mob violence
  • Liability of person causing violence
  • Responsibility of police officials
  • Compensation

The writ petition was dismissed by giving the directive of implementation of the recommendations by the Central and State governments preferably within a period of 8 weeks. [Kodungallur Film Society v. Union of India,2018 SCC OnLine SC 1719, decided on 01-10-2018]

Case BriefsSupreme Court

“Everything you can imagine is real”

                                -Pablo Picasso

“A writer or an author, while choosing a mode of expression, be it a novel or a novella, an epic or an anthology of poems, a play or a playlet, a short story or a long one, an essay or a statement of description or, for that matter, some other form, has the right to exercise his liberty to the fullest unless it falls foul to any prescribed law that is constitutionally valid.”

-Dipak Misra, C.J

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. dealt with the issue of creativity and its impact while considering a writ petition filed under Article 32 of the Constitution of India seeking to ban a novel on the foundation that a part of it is indecent and offends the sentiments of temple going women. The petition was dismissed by the Court observing that nurturing the contention behind it would be to pyramiding a superstructure without the infrastructure.

The petition sought to ban the novel Meesha, parts of which were published in the popular Malayalam weekly Mathrubhumi. It was averred that the said literary work was insulting and derogatory to temple going women and it hurts the sentiments of a particular community. It was submitted that the writings published in Mathrubhumi had a tendency to propel the general public to view women community as mere sexual objects, which in turn denies the women their fundamental rights and also jeopardize their safety and well-being. Further, the publication had proclivity to disturb public order, decency and morality and it defames the women community, all of which entitles the State to put reasonable restrictions under Article 19(2).

Here it is pertinent to refer and quote the relevant dialogue from the novel that impelled the petitioner to move the Court:

“Why do these girls take bath and put on their best when they go to the temple?” ,

a friend…once asked.

“To pray”, I said

“No”, he said.”…why do they need to put their best clothes in the most beautiful way to pray? They are unconsciously proclaiming that they are ready to enter into sex. …Otherwise… why do they not come to the temple four or five days a month? They are letting people know that they are not ready for it. …”

The Supreme Court, for deciding the present petition, perused the entire central theme of Meesha. The primary issue for consideration was whether the novel was an aberration of such magnitude which invited imposition of reasonable restrictions under Article 19(2)? In view of the Court, the answer to the consideration was categorically in negative. The Court, speaking through CJ Dipak Misra, made various observations, few of which are delineated hereinafter:

  • Literature symbolizes freedom to express oneself in multitudinous ways.
  • The free flow of stream creativity knows no bounds and imagination brooks no limits.
  • It is perilous to obstruct free speech, expression, creativity and imagination, for it leads to a state of intellectual repression of literary freedom thereby blocking free thought and fertile faculties of human mind.
  • Ideas have wings. If the wings are clipped, no work of art can be created.
  • Constitutional ideals can be preserved by defending the freedom of think as you will and speak as you think-Justice Louis Brandeis.
  • A reader should have the sensibility to understand the situation and appreciate the character. The feeling of perverse judging should be abandoned.
  • A creative writing is expectant of empathetic reading. It is not averse to criticism but certainly does not tolerate unwarranted protest.

In the course of adjudication, the Court referred to various earlier decisions including, inter alia, Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1, Raj Kapoor v. State, (1980) 1 SCC 43 and Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289. The Court reminded itself of the expression used by George Orwell, creative writing is contrary to intellectual cowardice and intellectual pusillanimity. The Court was of the view that the character Meesha as is projected in the novel, shows myriad experiences with different situations. Viewed from, either way, it could not be denied that the character is the manifestation of creativity. Language used in the dialogue cannot remotely be thought of as obscene. The dialogue to which objection was raised is not an intrusion to create a sensation. If the books are banned on such allegations, there will be no creativity. Such interference by the Constitutional Courts will cause the death of art. In light of all that is mentioned above, the Court dismissed the petition holding it to be sans merit.

It becomes essential to refer to the closing remarks of the Bench in its judgment:

…what the great writer and thinker Voltaire had said- I may disapprove of what you say, but I will defend to the death your right to say it; becomes the laser beam for guidance when one talks about freedom of expression. [N. Radhakrishnan v. Union of India, (2018) 9 SCC 725, decided on 05-09-2018]

Hot Off The PressNews

Supreme Court: The 3-judge Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ came to the rescue of actress Priya Prakash Varrier, who shot into limelight after her ‘wink’ video went viral, by staying criminal proceedings against her in some states on the grounds that a song from her Malayalam film “Oru Adaar Love” allegedly hurt religious sentiments of the Muslim community. The Bench also granted similar relief to the director of the movie .

Besides staying the existing criminal proceedings, the bench also restrained all state governments from registering any further FIRs against the actress and the director with regard to the promotional video.

The 18-year-old Priya Prakash Varrier had sought protection from an FIR lodged on complaints alleging that the lyrics of the song ‘Manikya Malaraya Poovi’ from the movie was “offensive” and had “violated the religious sentiment of a particular community.

The plea said the claims that it hurt religious sentiments of the Muslim community are

“without any basis and what is hard to fathom is that a song which has been in existence for the past 40 years, which was written, sung and cherished by the Muslim community in Kerala is now being treated as an insult to the Prophet and his wife…. It is submitted that a song, which …. has been cherished by more than one crore Muslim population of Kerala, cannot suddenly offend the religious sentiments of the Muslim community”

Source: PTI

OP. ED.

Introduction

In India, the right to freedom of speech and expression is endowed under Article 19(1)(a) of the Constitution. Free speech allows the conveyance of an individual’s ideas and opinions. Its expression is instrumental in permitting individuals their aspiration of achieving a sensation of self-fulfilment. A liberal democracy is characterised by governance by the self (in India through a choice-based representation) and affording the individual to market its modulating opinion across all hues. In such a society, a conflict between the State and the individual’s opinion is bound to exist. Punishing or curtailing an individual for depreciating the authority of the judicial system or State contradicts the abstract theory of the promotion of a right to free speech and expression.

Jurisprudence on free speech and constitutional morality

According to Bhatia[1], two trajectories pertaining to Indian free speech exist. Firstly, the “moral paternalistic” approach and secondly, the “liberal autonomous approach”. The former does not endow individual’s abundant freedom since it views individuals as corruptible and intrinsically ferocious with a tendency to engage in violence. The latter approach is relatively more tolerant and permissive viewing individuals as entities competent to decide for oneself, this approach respects an individual’s intellectual capabilities has relatively fewer restrictions imposed on them. Bhatia further constructs on Kant’s ideology elucidating on the equality of individuals. Relying on the premise that all individuals are equivalent, every individual’s ability to communicate and express oneself should be of equal. Subsequently, no fringe nor political nor majoritarian group should be in a position to asphyxiate the expression of another. He further relies on the Athenian philosophy that drew an inverse nexus between free speech and slavery.[2]

Dworkin[3], similarly provided two justifications as the underlying basis for the arguments advocating free speech. Firstly, permitting individuals to converse and express themselves freely allows the promotion of good policies and serves as a check on relatively poor ones, for this approach an inherent comprehension of the concept of free speech is required. Secondly, a broader justification is the equal endowment of autonomy to individuals and the corresponding appreciation and respect for their right to speak freely.

Bhatia[4] further stipulates the “constitutionalising” of all dimensions of free speech. He promotes the extension of protection of free speech and in the scenario where such protection is unfeasible and impracticable, it should be restrained solely by the Constitution based on certain values and principles of the Constitution as opposed to the prevalent social convictions of the qualifications of morality and decency which have a tendency to be ambiguous and non-uniform.

Constitutionality of Section 124-A[5] IPC

The Supreme Court had constitutionalised and limited the scope of sedition in Kedar Nath Singh v. State of Bihar[6] by restricting it to instances where individuals through their speech and expression disrupt the law or provoke and incite violence. However, in practice and past trend showcases that despite the existence of this stipulation, sedition charges are levied on individuals for mere criticism of the Government in the public arena, mere expressions of detest and abhorrence for State policies, religion and showcasing contempt against what is morally acceptable in our society.

Thus, prevailing present day practices are not in accordance with the judicial intention at the time of articulation of the Kedar Nath judgment[7]. Based on this premise and the following grounds, certain reasons provide why sedition laws should be repealed from the Indian nation State.

Firstly, the overbreadth test should be applied to a provision to gauge its constitutionality. If a provision is excessively ambiguous, very subjective pertaining its applicability and its breadth very expansive, this could lead to obscurity in its practice and its overbreadth could serve to its detriment. Applying this test to Section 124 of the Penal Code, the exact interpretation of the word “disaffection” is uncertain and indeterminable. Despite, the elaboration of the terminology in the explanation to the section to be inclusive of disloyalty and feelings of enmity, the skyline of this provision is nebulous. Article 19(1)(a) endows individuals the fundamental right to freedom and expression which is reasonably restricted by Article 19(2) in the interest of public order when pertaining to sedition. However, in India, recent trend showcases the application of sedition under the IPC being charged on individuals on grounds barring the instances limited to interest of public order. Given the haziness in the practical applicability of this provision, it should be rendered unconstitutional.

Secondly, this test is further extended to the vagueness test, whereby an individual should be aware of articulation of the provision, what it seeks to condone and the consequences attached. Given the obscurity attached with the provision, an individual may be dubious to the horizons of the provision which would lead to a negative externality such as the chilling effect.

Thirdly, Section 124-A IPC cements a certain chilling effect on the generic public. This section identifies sedition as a criminal offence and attaches with the provision excessive damages and penalties for instances of sedition. In India, however, sedition charges in practice are not limited to solely instances “in the interest of public order” but also extend to occurrences of defamation, deviations from the accepted standards of morality and decency, etc. In the backdrop of substantial punishments, the provision serves as a disincentive on the freedom of speech endowed to citizens under Article 19(1)(a) of the Constitution.

Fourthly, despite limiting the scope in the 1962 provision, the Court did not establish a reasonable nexus[8] between a speech and its role as an instrument to the causation of public disorder. Although, in recent years the courts have initiated the identification of occurrences whereby this nexus exists, there is no absolute provision in existence. In the absence of such a provision with the restriction imposed in Article 19 of the Constitution, the chilling effect may supersede in society, which is in a direct contradiction of the articulation of the freedom endowed under Article 19(1)(a).

In Shreya Singhal v. Union of India[9], the Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. This is progressive step in the direction of laws pertaining to sedition as it further limits the scope of sedition. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.

Thus, whilst applying the fundamentals of this case to Section 124-A IPC, a substantive analysis would showcase the provision to be excessively broad in the interpretation of “disaffection”, thereby fulfilling the overbreadth and vagueness test. The procedural analysis of the punishment would prove it be a draconian provision. Given the obscurity concerning the actual materialisation of disorder and violence, life imprisonment as a punishment for the mere potentiality of inciting violence through speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the restriction on free speech and its recognition as an offence under Section 124-A IPC does not seem reasonable.

Schenck v. United States[10], elucidated the required proximity between the utterance of speech and incitement of violence. It lays the possibility of danger or the intent to bring it about must be imminent or immediate. This case established the “bad tendency test”.[11] Brandenburg v. Ohio[12], laid the “clear and present” danger test, whereby the State was prohibited by the US Constitution from repressing speech and its advocacy barring the possibility of it causing an immediate harm to law by an illicit act or if it aimed at causing such an action. In the US under the 1st amendment, further speech is promoted as opposed to necessitating silence to remedy bad or injurious speech. Thus, in the US even though some sedition laws have been retained, the courts are dispensing extensive protection to the right of free speech.

In India, such a linear demarcation does not exist and in the scenario where the implementation of such tests are attempted, reasonable restrictions serve as a hindrance. Even though such tests was applied in Arup Bhuyan v. State of Assam[13], the Supreme Court has rejected such tests in other cases resulting in no fixed applicability.

India’s sedition law is derivative from the colonial era. In 2009, the Britain abolished its sedition laws to endorse the freedom of speech and expression. This abolition was on the premise that such laws were in contradiction to Britain’s human rights commitments and were also responsible in inducing a chilling effect on the right to freedom of speech and expression.

In 2007, New Zealand abolished its sedition law based on the Crimes (Repeal of Seditious Offences) Amendment Act, 2007[14]. It has addressed comparable offences under other conventional criminal provision.[15]

Conclusion

Thus, articulation of Section 124 of the Penal Code appears to subdue and extinguish any forms of dissent present in society. Such a tendency contradicts the inherent ingredients which characterise a democracy. The existence of such provision in a State aiming to progress appears obsolete. The punishment associated with it render the provision draconian. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Article 19(1)(a) of the Constitution. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society. Further, given sedition covers a broad ambit of actions, each act should be governed by its individual provisions, rather than one generic offence with such a stringent punishment.

 

 *  2nd year student of LLB, Jindal Global Law School, Sonipat.

[1]  Bhatia, Gautam, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st Edn., Oxford University Press, USA.

[2] Mehta, Avantika, 2016, Offend, Shock, or Disturb: The limitations to free speech in India. Hindustan Times,<http://www.hindustantimes.com/art-and-culture/a-new-book-looks-at-limitations-to-free-speech-in-india/story-mF9tcylLiAxpiS255zL16H.html>.

[3]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[4]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[5]  124-A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government estab­lished by law in [India], [***] shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.

        Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

        Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

        Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

[6] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[7]  1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[8]  Parthasarathy, Suhrith, 2016, Sedition and the Government, The Hindu, <http://www.thehindu.com/opinion/lead/Sedition-and-the-government/article14082471.ece>.

[9]  (2015) 5 SCC 1.

[10]  1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).

[11]  Liang, Lawrence, 2016, Interview: Sedition and the Right to Freedom of Expression. The Wire, <https://thewire.in/42412/interview-sedition-and-the-right-to-freedom-of-expression>.

[12]  1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 : 395 US 444 (1969).

[13]  (2015) 12 SCC 702.

[14]  Crimes (Repeal of Seditious Offences) Amendment Act, 2007, <http://www.legislation.govt.nz/act/public/2007/0096/latest/whole.html>.

[15]  Dutta, Damayanti, 2016, The Sedition joke: Going from bad to worse, Indiatoday.intoday.in. <http://indiatoday.intoday.in/story/sedition-law-india-government-offence/1/759345.html>.

Case BriefsHigh Courts

Madras High Court: The petitioner, an organization involved in social activities for the benefit of general public intending to organize a public meeting to address the issue of corruption in Tamil Nadu, had submitted a request to the Inspector of Police, Mylapore, seeking permission to organize a public meeting in Mylapore on 08.10.2017. On 30.09.2017, the Inspector of Polioce, Mylapore issued a show-cause notice as to why permission could not be granted for conducting the said meeting. When the petitioners challenged the notice owing to their right to freedom of speech and expression and to assemble peacefully, the same was negated. As a result, the petitioners sought for a writ of declaration, declaring that the failure of the respondents to grant permission to conduct the public meeting as illegal and arbitrary.

The Assistant Commissioner of Police, Mylapore rejected the petitioner’s request for permission to conduct such a meeting on the ground that the respondent police had reliable information that the petitioner was trying to instigate people for creating law and order problem under the guise of organizing a meeting. The said rejection order also remarked that by taking advantage of the situation, anti-social elements may also infiltrate into the public and indulge in anti-social activities, creating ruckus.

Justice M.S. Ramesh, stating explicitly that the respondent being the authority to ensure that no untoward incident happen during the course of meeting, is also empowered to regulate the conduct of the meeting, observed: “I do not endorse the reasoning of the respondents for rejecting the petitioner’s request for the simple reason that the police department has been created only for the purpose of tackling the above problems. Since it is the fundamental right of the petitioner to conduct such a meeting, if at all, the respondent is of the view that they intend to instigate people and thereby create law and order problem, it was always open to them to permit the petitioner to conduct the meeting by imposing conditions.”

Granting liberty to the petitioner to approach the Deputy Commissioner of Police, Mylapore, Chennai, seeking for permission to conduct the public meeting, the Court issued directions to the Deputy Commissioner of Police to accord necessary permission to the petitioner for conducting the meeting on the date requested by the petitioner by imposing reasonable restrictions. [Arappor Iyakkam v. State of Tamil Nadu,  2017 SCC OnLine Mad 5785, decided on 5.10.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the Indian Broadcasting Foundation had appealed against the order of the Bombay High Court which upheld the constitutionality of the amendment to the  Maharashtra Stamp Act which levied stamp duty on the execution of the document pertaining to advertisement, the bench of Dipak Misra and A.M. Khanwilkar stayed of the operation of the judgment of the High Court and said that the matter requires to be debated, especially keeping in view the sacrosanctity of the freedom of speech and expression and the involvement of electronic and print media.

The Foundation had argued that the State Legislature cannot impose tax on anything shown on electronic and print media, that is to say, on the television, radio and newspaper. It was also contended that the expression “through an electronic and print media” has to be given appropriate and adequate emphasis so that the freedom of speech and expression is sustained in a democratic body polity and no attempt should be made to scuttle their progress and smother their effective sustenance. Also, that if a huge revenue is taken away from the members of the Broadcasting Foundation, who are embedded to the cause of freedom of speech and expression that percolates the ethos pertaining to individual and collective expression, inevitably hamper the freedom of speech and expression.

The State, on the other hand, contended that the subject of levy of stamp duty comes within Lists II and III of the Constitution and the State Legislature has the authority to legislate and, therefore, the judgment rendered by the High Court is absolutely flawless. A State Legislature can legislate touching the aspects of stamp duty for the purpose of revenue generation and it cannot be called a colorable exercise of power. It was also contended that duty is to be paid by the advertising agency or persons and, thereby, neither the electronic media nor the print media is affected.

Directing the members of the Foundation to give a summary of the revenue earned through the advertisement, the Court listed the matter to be heard on 13.09.2017. [Indian Broadcasting Foundation v. State of Maharashtra, 2017 SCC OnLine SC 280, order dated 27.03.2017]

Case BriefsForeign Courts

Kenya High Court at Nairobi: The High Court has struck down the provisions of Criminal Defamation in its Penal Code. The Court observed that such a provision as a threat to Freedom of Speech and Expression saying that this right in a spirited democracy is a highly treasured value and it is a prized asset to the individuality and overall progress of a thinking society for it allows arguments and dissent.

The Judge noticed that the consequences of criminal defamation could be quite harmful and undesirable like possibilities of arrest, detention and two years imprisonment as provided by the Penal Code were quite unjustifiable in a democratic society. The judge said that the present law was a disproportionate instrument to combat the mischief of defamation and emphasised upon adopting an alternate and proportionate civil remedy.

There are certain reasonable restrictions to freedom of speech and expression under Article 24 of the Constitution of Kenya. While discussing the restrictions that can be put on freedom of speech, the Court relied on Ahmedabad Pvt. Primary Teachers’ Assn. v. Administrative Officer, (1988) 4 SCC 42 wherein it was observed that the maxim noscitur a sociis is a legitimate rule of construction to construe the words in an Act of  Parliament with reference and in the same context held that the limitations in Article 24 ought to be read together and the limitations should not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited.

Counsel for the respondent submitted that the section in question is constitutional in a democratic society to prevent individuals with ill motives from interfering with the rights of other persons and prayed for the petition to be dismissed. Counsel for the first respondent adopted the submissions of the second respondent.

The Court also relied on the African Court on Human and Peoples Rights decision in Konate v. Burkina Faso, 2015 SCC OnLine Ken 2823 where it was held that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It observed that criminal defamation was overly broad in its scope and its application has turned it into a powerful mechanism to stifle investigative journalism and silence criticism.

The Court studied the scope of restrictions in Article 24 on the right conferred by Article 33 (Freedom of Speech and Expression) and came to the conclusion that the restrictions in the former are to safeguard the interests of the State and not an individual and therefore, Article 24 couldn’t be termed as the source of validating the impugned section.

The Court further explained the difference between civil and criminal law and quoted reasons as to why defamation was a civil wrong or a tort and not a criminal act. It elucidated that Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interest while Criminal law exists to ensure retribution and protection of public by detaining offenders and deterring others from offending. For something like damaging speech, the civil law would be effective as well as proportionate enough in bringing the person harmed to justice, the High Court at Kenya observed. [Jacqueline Okuta v. Attorney General, 2017 SCC OnLine Ken 1, decided on 6-2-2017]

 

Case BriefsSupreme Court

Supreme Court: Writing down the 268 pages long judgment where the constitutional validity of Sections 499 and 500 IPC and Sections 199(1) to 199(4) CrPC was upheld, the bench of Dipak Misra and P.C. Pant, JJ stated that it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression.

The Court, after making an in depth analysis of Section 499 IPC, held that the provision along with Explanations and Exceptions cannot be called unreasonable, for they are neither vague nor excessive nor arbitrary. The Court further said that criminal defamation which is in existence in the form of Sections 499 and 500 IPC, is not a restriction on right to freedom of speech and expression that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other as protection of reputation is a fundamental right as well as a human right.

Regarding the Section 199 CrPC it was contended by the petitioner that except the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory, mention of the other public servants in the provision puts them in a different class to enable them to file a case through the public prosecutor in the Court of Session which makes the provision discriminatory. The Court rejected the said contention and held the public servants constitute a different class as public function stands on a different footing than the private activities of a public servant. The provision gives them protection for their official acts and there cannot be defamatory attacks on them because of discharge of their due functions.  However, the Court clarified that criticism is different than defamation. [Subramanian Swamy v. Union of India, 2016 SCC OnLine SC 550, decided on 13.05.2016]

High Courts

Delhi High Court: Dealing with the issue of violation of fundamental right of freedom of speech and expression by banning a film made by the petitioner ‘The Texture of the Loss’, Rajiv Shakdher, Jheld that while imposing censorship it must be taken into account that it is permissible to maintain values and standards of society. The objectionable part should be seen from the point of view of a reasonable, strong minded, firm and courageous man. Denying the accusation put by Gaurav Sarin, the advocate for the respondent, that the film resulted in the crime of sedition and put down the charge by explaining the provisions of Section 124 A of Penal Code, 1860, the Court stated that the Film Certificate Appellate Tribunal (FCAT) has completely misguided itself by not appreciating the context in which the statement under controversy, was made in the film. 

The Court also acknowledged the facts put forth by Colin Gonsalves, the advocate for the petitioner, regarding the flawed decision making process of the Central Board of Film Certification (CBFC) which were in contravention to the scheme of the Cinematograph Act, 1952and the Rules framed under it. The Court was of the opinion that no opportunity was given to the petitioner under Section 4(2) of the Cinematograph Act which facilitates the applicant to represent his views regarding the issue. In addition to this, sub-rule (9) of Rule 22, which states that each member of the examination committee must record his/her opinion for censoring the film, was not followed.

The order which was passed by the FCAT was a disclaimer had to be included in the beginning of the film and two scenes of the film had to be deleted in order for the permission to be granted for the exhibition of the film. The main issue which was raised was not only regarding the decision which was given by CBFC and FCAT but the decision making process which was followed by them.

In the lights of the given facts it was held that the decision given by the FCAT was flawed and a ‘U’ certificate was issued to the subject film, without insertion of the disclaimer or the deletion/excisions as ordered by FCAT. Pankaj Butalia v. Central Board of Film Certification, 2015 SCC OnLine Del 9694decided on 25.05.2015