The Supreme Court, in a petition filed by actor-turned-politician Vijayakanth, had some not-very-nice things to say to the Tamil Nadu Chief Minister J Jayalalithaa in the context of her government’s propensity to file multiple criminal defamation cases against critics of her regime.

While an official response to these comments is not likely to be forthcoming, one can imagine Jayalalithaa reading this report with a quiet but dismissive chuckle. So also would any person enjoying a position of political or monetary power in India.

After all, having been given a carte blanche in a signed judgment – which constitutes binding law under Article 141 of the Constitution – it is highly unlikely that anyone who uses criminal defamation law to crush dissent and criticism is likely to take this headline-grabbing lecture seriously.

The rest of us, though, can be forgiven for grinding our teeth in frustration at the Supreme Court’s cognitive dissonance and hypocrisy on this matter.

Cognitive dissonance

Much has already been written about what was so egregiously wrong about the Supreme Court’s judgment upholding the constitutional validity of the criminal defamation law, namely Sections 499 and 500 of the Indian Penal Code, 1860.

Its florid verbosity, vast gaps in reasoning, and an approach tangential to the case being set up by the petitioners, have all come for valid and entirely justified criticism. What is most galling though was the judgment’s utter failure to properly engage with the core of the argument against criminal defamation – that by not providing adequate safeguards against abuse, it was not a “reasonable restriction” to the right to freedom of speech and expression.

It bears repeating that the Constitution doesn’t just protect the freedom of speech and expression in the abstract. When it uses the words “reasonable restriction” it requires judges to apply their minds to the likely and actual effect of a law on the freedom of speech and expression. It is also important to remember that the Constitution originally did not use the word “reasonable” when it came to restrictions on the freedom of speech and expression. Contrary to the oft-peddled, incoherent lie that “Nehru introduced restrictions on freedom of speech and expression”, the fact that the First Amendment of the Constitution introduced the phrase “reasonable restriction” actually allowed a greater scope for judicial review of laws which placed restrictions on freedom of speech and expression.

Unfortunately, the Supreme Court failed to do its constitutional duty in properly examining whether the criminal defamation law, as it stands and as it has been (mis)used, is a reasonable restriction on the right to freedom of speech and expression or not. Had it done so, even if it had come to the conclusion that the law per se did not violate freedom of speech and expression, it would have at least thought it fit to address the obvious scope for abuse by setting forth guidelines and directions as it has done in other cases.

Having done neither, to offer lessons in rajdharma from the bench by way of off-hand observations during the course of hearing that brings to light such obvious abuse of the criminal defamation law, is to rub salt on open wounds. What makes it even worse though is the message the court preached – be more tolerant of criticism – is hardly one that it has practiced.

Criticism of the court and contempt of court

For a body that plays such an important constitutional role in a democratic system of governance, the Supreme Court’s response to criticism has been one of either complete aloofness to criticism or to respond with contempt of court proceedings. As this writer has said before, the effect of the Supreme Court’s approach to using contempt has been to engender self-censorship among people when talking or writing about the courts for fear of being dragged through contempt proceedings. Far from being institutions that uphold the freedom of speech and expression, the Supreme Court and High Courts in India have acted in a manner almost identical to politicians and businesses when it comes to stifling criticism. The latest observations, coming from an institution with hardly the most enlightened approach to criticism, have to be taken with plentiful helpings of salt.

In hindsight, the Supreme Court judgment in the Shreya Singhal case, when it struck down Section 66A of the Information Technology Act, 2000, looks more and more as an outlier rather than a harbinger of jurisprudential change. The approach, the analysis, and the conception of freedom of speech that made the judgment a true landmark for civil liberties in India is being increasingly shrunk by subsequent judgments that have given short shrift to it. Indeed, the Supreme Court has even invented new grounds (not found in the Constitution) to further restrict freedom of speech.

The hour is still not too late. The contradictory approaches in the Shreya Singhal case and the criminal defamation case need to be addressed and a coherent line of thinking needs to emerge from the court. If the Court is serious about preventing misuse of criminal defamation laws, it must accept that its approach in the earlier case requires a re-think, preferably by a larger bench of the Supreme Court. It cannot afford to leave citizens’ right of dissent entirely at the mercy of the government.