Delhi High Court bats for free speech
Its judgement on Greenpeace amounts to a judicial whipping of the government's position. But its ruling on the AAP poster issue is odd,
says PRASHANT REDDY THIKKAVARAPU. Pix: livelaw.in
It is an interesting time for the advocates of free speech in India. Apart from the widely covered Supreme Court hearings on Section 66A of the Information Technology Act, there are two more interesting cases: the first is the Delhi High Court’s judgment on March 12 in the writ petition filed by Greenpeace activist, Priya Pillai and the second is the Delhi High Court’s recent judgment on the constitutionality of Delhi Prevention of Defacement of Property Act, 2007.
Priya Pillai’s travel ban – Can the government stop citizens from criticizing its economic policy in foreign countries?
Justice Rajiv Shakdher of the Delhi High Court answered the above question with a resounding ‘NO’, in a crisp 39 page judgment delivered on Thursday. (The judgment can be accessed here.) The facts of this widely reported case are simple: Priya Pillai, an activist with Greenpeace India was on her way to the United Kingdom to talk with a group of British Parliamentarians against a certain mining project being taken up by Essar and Hindalco in Mahan. Greenpeace and Pillai were opposed to the project because of its adverse impact on the environment and the tribal/forest communities who depended on the forest produce for their livelihood. Since Essar was a British owned company, Greenpeace was rallying for support amongst British MPs.
The day Pillai was supposed to leave, at the airport, an officer of the Bureau of Immigration informed her that she could not board the flight because her name was in a database of people who were not allowed to leave the country. Her passport was stamped with “offload” and her bags were removed from the flight. She then proceeded to challenge this action of the government before the Delhi High Court.
In court, the Additional Solicitor General informed the Court that Pillai was being prohibited from leaving the country on the grounds that her speech to the British MPs was ‘anti-national’ and against ‘national interest’ since it would damage the country’s image, hamper its economic interest and impact the country’s economic policy. The ASG gave examples of how the testimony of Indian citizens was used by foreign governments to issue reports and sanction India.
There are several legal issues covered in the final judgment of the High Court, but let’s stick to the two key issues: the first issue is whether the right to travel is a fundamental right and whether a violation of that right impacts the right to free speech? The second issue is whether the government can prohibit, in “national interest” the travel of a person, to a foreign land on the grounds that the person is an “anti-national” element?
Before answering the two issues above, it may help to explain the basics of restrictions on free speech: Restrictions on free speech can be of two kinds - either the time, place and manner of the speech is restricted or the content of the speech itself is restricted. An example of the first kind of restriction is the barring of the use of mikes after a certain time or designating only a certain zone for protests. These restrictions are an important part of the free speech debate because the place and manner of speech make a significant difference in the impact of the speech. A speech in a closed room is very different from a speech at Jantar Mantar. An example of the second kind of restriction would be the restriction on hate speech or obscene speech – no matter where or how, such speech is prohibited.
The Pillai case was the result of both kinds of restrictions because the government was specifically targeting her speech in the UK on the grounds that its content was anti-national but at the same time did not interfere with her speech to the British MPs over Skype. On the issue of the “right to travel” being linked to the “right to free speech and expression”, Justice Shakhder at para 11.4 of his judgment, makes a reference to the landmark judgment of the Supreme Court in the case of Maneka Gandhi v. Union of India (1978). In this case the Supreme Court had held “It is no doubt true that going abroad may be necessary in a given case for exercise of freedom of speech and expression, but that does not make it an integral part of the right of free speech and expression.” Therefore although the Supreme Court was categorical on the point that right to travel was not always linked to free speech, it did concede that they could be linked in certain cases. This excerpt of the SC’s judgment is referenced by Justice Shakdher to support his conclusion that “in some cases, the curtailment of right to travel abroad could impact, a citizen’s right of free speech and expression.” This part of Justice Shakdher’s analysis could have been fleshed out in more detail because the government appeared to be more interested in controlling the venue of her speech – they didn’t stop her or punish her for talking to the British MPs over Skype.
The more interesting analysis of the judgment is with regard to whether Pillai’s speech could be regulated on the grounds that it was against national interest? The government had to fall back on the phrases “national interest” and “anti-national element” because Clause 8(j) of the 2010 O.M. (office memorandum) on the basis of which Pillai was “offloaded”, reads as follows: “In exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, anti-national elements etc. in larger national interest……”. The government tried arguing that Pillai’s speech to the British MP was “anti-national” and would impinge on the security of the state because it would affect India’s economy.
Justice Shakdher simply didn’t buy the argument and proceeded with what can only be described as a judicial whipping of the government’s position. He pointed out that the reasonable restrictions in Article 19(2) do not use the words ‘anti-national’. At the most, anti-national activities could be brought under the ambit of Article 19(2) by linking it to “security of the state”, a recognized ground for imposing reasonable restrictions under Article 19(2).
However as pointed out by Justice Shakdher, the Supreme Court has held that “security of the state” can be invoked only when a certain activity or speech endangers the very existence of the State or threatens the life of citizens. Accordingly he concluded that the only people who would fall within this restriction are counter intelligence suspects and/or terrorists. Pillai’s speech disagreeing with the government’s economic policies could not be construed as anti-national.
Even presuming that the government could restrain people from travelling abroad in “national interest”, the Court concluded that only persons who project a present imminent danger to the national interest could be restrained. In the Court’s opinion Pillai’s prospective speech just didn’t meet this criteria.
Last but not the least, the Court held that it was unacceptable to have the government decide what is anti-national since the same would result in conferring arbitrary power on the executive which could, according to its “subjective view, portray any activity as anti-national”. In the court’s words “Such a situation, in a truly democratic country which is governed by rule of law, is best avoided”.
On these grounds, the Court ordered a deletion of Pillai’s name from the no-fly database and ordered the government to ‘expunge’ the ‘offload’ stamp on her passport.
The constitutionality of Delhi Prevention of Defacement of Property Act, 2007
Coming to the second case regarding the constitutionality of the Delhi Prevention of Defacement of Property Act, 2007 – the challenge was originally filed in 2013 by two members of the Aam Admi Party (AAP), Anil Bhatia and Satyadev Solanki. They argued that as a young political party without the funding to match established parties, AAP had to rely on new and innovative ways to communicate their ideology to the public. One such way was to have their supporters paste posters of the party on their walls. The Election Commission had however communicated in a letter to AAP that the pasting of such posters on the walls of the houses, even those of party members was prohibited under the Defacement Act. Bhatia and Solanki decided to challenge the constitutionality of the provision on the grounds that it violated their fundamental right to free speech under Article 19(1)(a) of the Constitution.
The exact text of the law reads as follows:
“Whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner or occupier of such property, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both.”
The petitioner’s argument, at first glance, does appear to be very strong – why could its members not use their private property howsoever they saw fit? However, if you look at the existing law, especially the regulation of outdoor advertising, you will realize that the State does already regulate commercial advertising, even if it is located on private property, provided of course the advertisement is visible to the public.
Although the Delhi High Court did not strike down the provision as unconstitutional, it did conclude that the Defacement Act could not be construed as imposing a blanket ban on any advertising of political posters. The judgment can be read here. In relevant portion the Court states:
“The petitioners in that respect are right to the extent that there can be no absolute ban on political advertisements, especially when there is no such ban on commercial advertisements.”
“We accordingly hold that the Defacement Act does not absolutely prohibit putting up of political posters/banners on private properties and that for putting up of political posters/banners, requisite permission under the municipal and other applicable laws has to be obtained. However without such permission, such posters cannot be put up on one's own private property also.”
The problem with this judgment lies not in its conclusion but in the reasoning used by the court to arrive at its conclusion. The simple argument put forth by the petitioners was that the restriction on putting up political posters on private property could not be justified by any of the following restrictions in Article 19(2):“the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. In a constitutional challenge, the onus is on the State to justify a restriction within the confines of Article 19(2). Given the importance of fundamental rights in a democratic society, the State is supposed to have a relatively high burden to discharge. The Delhi High Court unfortunately lowers this burden by justifying the restrictions on grounds that posters may be an eyesore or that the posters may cause fights in a city where residents are constantly on the short fuse.
Following are some excerpts from the judgment:
“We cannot also be unmindful of the realities of today’s life in the city as Delhi, where residents are on short fuse and altercations on issues, earlier treated as trivial, like parking, traffic accidents, often turn fatal. The possibility of unregulated political posters becoming a similar cause, cannot be ruled out.”
“There can be no manner of doubt that putting up of such political posters on one's own property, for selling to neighbours/passersby one's own political party/ideology, does indeed make the façade of a building an eyesore. Plastering of façade walls even if of private properties and at the behest of the owners with posters is indeed an ugly sight and infringes the right to life of others who expect to see clean façade walls of private properties abutting the public streets. Today, the view from doors/windows of most houses is of the outer walls of other houses. If such walls were to be permitted to be plastered with posters, a man, even if he desires, will not be able to even in his own house shut himself up with his own ideas.”
“…and we find the restrictions placed by the impugned law to be “in the interest of” public order and decency and to be reasonable.”
If an “ugly sight” or “eyesores”can disturb “public order and decency”, several of us (this writer included) may soon have to walk around with paper bags over our faces. Jokes aside, it is worrisome when a court of law uses such subjective phrases while determining the boundaries of free speech. If anything, restrictions on free speech should be interpreted in a narrow manner with objective criteria. For example, a public call to violence or a public call to target a specific community would certainly disturb public order. Similarly, the reference to short fuses is amusing because restrictions on free speech cannot be justified on the basis of the temperament of the lowest common denominator in society.
There is a well-developed body of law in India on the issue of restrictions on free speech on the grounds that it may disturb ‘public order’. Unfortunately, this judgment fails to engage with the issue in a manner which is consistent with precedent. For example, the Supreme Court has held that there has to be a proximate and rational relation between the restriction on the speech and the possibility of disturbing public order? On what basis has the judge drawn the link between ‘short-fuses’ and the possible disturbance of public order – the connection seems to be rather tenuous and remote. An average man or woman isn’t going to fight over the placement of posters on private property.
Judgments like the one under discussion demonstrate how our courts are often part of the problem rather than the solution.
For an excellent academic critique of the judgment, do read this blog by Gautam Bhatia, Rhodes scholar and practicing lawyer.
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