When the only weapon you have is a hammer, every problem looks like a nail.
In recent times, the judiciary’s approach to the freedom of speech and expression seems to be proving this adage true. In response to people saying things that may not be to a judge’s liking, the response has invariably been to reach for the hammer, to ban, prohibit, or compel.
Jolly LLB has a few scenes mocking lawyers? Make a committee and order cuts.
Fundamental duties don’t have enough of an impact among people? Force them to stand up for the national anthem in cinemas.
Condom packets have racy pictures? Direct the Additional Solicitor-General to come up with a way of “regulating” them.
People are losing touch with cultural values? Force all schools in Tamil Nadu to teach the Thirukkural.
There are bandhs in Meghalaya? Ban the press from carrying statements about them. And so on.
The judicial hammer was in exhibition again yesterday, in the seven-judge bench order convicting Justice CS Karnan of contempt, and sentencing him to six months in prison.
Instead of discussing the broader contempt case here, this article focusses on the last line of yesterday’s order. After convicting Justice Karnan to six months imprisonment, the Court states:
“Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.”
The scope of this order is breathtaking. The Court takes one individual – Justice Karnan – and gags the media from carrying any statement made by him. In my view, apart from overreaching and violating Article 19(1)(a) of the Constitution, the Court has passed an order that it had no power to pass.
The order imposes what, in free speech law, is called “prior restraint”: “… [State] action that prohibits speech or other expression before it can take place.”
It has long been a position in common law that prior restraints upon speech are impermissible unless exceptional circumstances exist.
As early as 1765 in England (a time not exactly known for liberties of speech and of the press), Blackstone famously wrote that “the liberty of the press… consists in laying no previous restraints upon publication.”
The American Supreme Court has held repeatedly that “any prior restraint on expression comes to this Court with a `heavy presumption’ against its constitutional validity.”
In Brij Bhushan vs State of Delhi, the Indian Supreme Court held, as well, that prior restraint upon speech is presumptively unconstitutional.
Prior restraint is considered especially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere. In other words, it gives the State “exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.”
The media guidelines case
In Sahara vs SEBI, popularly known as the “Media Guidelines Case”, the Supreme Court carved out a specific exception to the rule against prior restraint. Here, the Court was concerned about the issue of media trials causing prejudice in matters that were already in court, under judicial consideration. In that context, the Court held that it had inherent powers under the Constitution to:
“prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.”
Drawing this power under Article 129 of the Constitution, which authorised the Supreme Court to punish for contempt of itself, the Court held that the power to punish included the power to prevent as well. On this basis, the Court held that it could pass “postponement orders” (i.e., temporary stopping the media from reporting on a particular event) in order to ensure the proper administration of justice, a fair trial, and the protection of the rights of the accused under Article 21. The Court warned that:
“Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period.”
Consequently, in SEBI, the Supreme Court authorised prior restraint only in the narrow context of an ongoing trial, where media reporting presented a “real and substantial risk of prejudice to the fairness of the trial”. The Court stressed that the postponement order must be narrow and limited, both in its scope and its duration.
The Karnan Gag Order
The SEBI case has come under serious criticism, but for our purposes here, let us only test the Karnan order against it. It is quite obvious that none of SEBI’s pre-conditions for imposing prior restraint are even remotely satisfied. There is no ongoing trial – by the same order in which it imposed the media gag, the Court convicted him of contempt. Consequently, the prospect of prejudicing an ongoing trial and thereby interfering with the administration of justice – the basis of the judgment in SEBI – does not exist. The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order. Consequently, the Karnan gag order does not fall within the scope of the SEBI judgment.
What, then, is the justification for this sweeping exercise of judicial power to silence speech? The answer is clear: Justice Karnan has, over the course of the last few months, made a number of statements, which formed the basis of his conviction for contempt by the Supreme Court. The Court presumes that he will make more such statements, and many of them will amount to contempt of court. To prevent these statements from being given the oxygen of publicity, the Court decides to gag the media from reporting on them, in advance.
This is the case for the Court, taken at its highest. And at its highest, it is no case at all. There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here). There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance.
There is no countervailing interest: no ongoing trial, no sexual harassment claim where reputations may be destroyed, no grave imperilment of national security. There is absolutely nothing here apart from a man who has made some statements that the Court has found to be contemptuous, and on that basis the Court has decided to gag the media from publishing anything he says. Even if it could possibly be argued that the Court had the power to do this under Article 129 (since, as has been held, the power to punish for contempt includes the power to prevent it), the Karnan order clearly violates Article 19(1)(a), and fails all the proximity and reasonableness tests laid down under Article 19(2).
It is, however, by no means settled that the Court does have the power to pass an order under Article 129. SEBI – which held that the power to “punish” contempt includes the power to “prevent” contempt – was already stretching language to its limits. But even if there is some way to justify SEBI on the grounds of its narrowly focused nature, to say that the Karnan gag order falls within the Supreme Court’s power to “prevent contempt” is to act like Humpty Dumpty, and make words mean what you want them to mean, because you are the master.
Now, if the gag order cannot be traced back to Article 129, then it would seem that there is no constitutional source for it at all. Under Article 19(2) of the Constitution, speech can be restricted only by the “State”, acting through “law”. It is, by now, well-settled, that under Article 19(2), the judiciary is not “State”, and judicial orders are not “law”. The judiciary’s task is to protect citizens’ right to free speech from executive and legislative tyranny, not to get into the business of censoring speech itself!
In either event, therefore, the gag order of the Supreme Court would appear to be contrary to constitutional principles, and an unreasonable restriction of both Justice Karnan and the media’s rights under Article 19(1)(a) of the Constitution.
Gautam Bhatia is a Delhi-based lawyer and author of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. He also blogs at Indian Constitutional Law and Philosophy.