Last week, the Indian Express reported that in proceedings before the Supreme Court, the Additional Solicitor General was asked by the bench about how the State planned to regulate “explicit” pictures on condom packets. The case seems to have arisen out of a 2008 order of the Madras High Court (which, unfortunately, does not seem to have been reported, and is not available on the High Court’s website). The Madras High Court had effectively imposed prior restraint upon condom manufacturers by requiring them to have their packets cleared by the Advertising Standards Council of India – which happens to be a private body. The Order had been stayed on appeal, and the Court is now in the process of hearing the appeal on merits. The Madras High Court – this time, through its Madurai bench – was in the news for the second time in the same week, when Justice R. Mahadevan acted upon a PIL and ordered that the study of the Tamil epic “Thirukkural” be made compulsory in schools (this judgment is available on the website, as WP (MD) No. 11999 of 2015).

The thought of the Learned ASG spending the better part of the next six weeks poring over condom packets might justifiably evoke some mirth; and we might ruefully sigh with all those school-going students in Tamil Nadu who now have to sit and swot more than a thousand couplets under compulsion. However, these cases also exemplify an evolving trend in Indian free speech jurisprudence which, if it crystallises, could lead us into a new and dangerous era of speech contraction, and one that is wholly uncontemplated by the Constitution.

Attentive readers are no doubt aware that the Indian judiciary has always had an ambivalent relationship with free speech. Rarely have the courts struck down speech-restricting laws on the touchstone of Article 19(1)(a), choosing instead to uphold them, often on an expansive interpretation of the categories of Article 19(2). The Courts have upheld prior restraint under the Cinematograph Act, government notifications that amount to compelled speech, and law of sedition, etc. However, they have done so while exercising their functions as constitutional courts – i.e., adjudicating upon the constitutional validity of laws or executive acts that are challenged before them. This is a role that is envisaged by the constitutional text. Article 19(2) clearly states that:

“(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of 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.”

Evidently, therefore, a pre-requisite for imposing restrictions upon speech is the existence of a law, which conforms to the categories laid out under Article 19(2). Whether or not a particular law does so is a matter for the courts.

As long as the courts stick to their role, their impact upon the freedom of speech is accordingly limited to deciding upon the validity of existing laws. For that, a law needs to exist in the first place, and secondly, even if upheld, options are not foreclosed: there is always the possibility of repeal through the parliamentary process (in fact, the Press Emergency Powers Act, and the TADA, both of which were upheld by the Supreme Court, were ultimately repealed or allowed to lapse).

The condom case and the Thirukurral case, however, are beats of a very different sort, because they involve the Court imposing restrictions upon free speech in the absence of any existing law, and acting upon a public interest litigation. Nor are they isolated cases. In recent years, a trend has begun to emerge, which may broadly be divided into two kinds of judicial action:

A. The Use of Article 21 as a Sword

The expansion of Article 21’s guarantee of the right to life and personal liberty, in the early years of the PIL era, is now legendary. When it began, the purpose of this reading of Article 21 was to move beyond the perceived limitations imposed by a textual interpretation of the clause, and bring in socio-economic rights into Part III. Critiques of this judicial movement have focused upon how this expansion reached absurd levels, effectively denuding Article 21 of meaning or force. This is undeniable; nonetheless, as long as Article 21 was only used as a shield for individuals against state action, the worst that could happen would be that it would become a rather ineffective shield.

It is quite inevitable, however, that as Article 21 would grow larger and larger, it would inevitably begin to come into conflict with other rights under Part III. The first serious conflict of this sort occurred with R. Rajagopal’s Case in 1994, when privacy and free speech clashed. The clash was sharpened in a series of cases in the late 90s and early 2000s, with the Court framing the issue as one involving a balance between an individual’s Article 19(1)(a) right of speech and expression, and another individual’s Article 21 right to privacy. There is nothing specifically peculiar about this particular clash: the Supreme Court’s interstitial reading of privacy as an aspect of Article 21 is among the more defensible aspects of its 21 jurisprudence, and the clash between free speech and privacy has occupied constitutional courts all over the world.

In 2005, however, in a rather bizarre judgment called In Re Noise Pollution, the Supreme Court, while passing directions on a public interest litigation pertaining to the use of firecrackers, loudspeakers etc. had this to say:

“Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Article.”

To start with, there was absolutely no need for Article 21 to be brought into the picture. Free speech jurisprudence has a well-known category called “time, place and manner” restrictions, under which regulation that do not affect the content of speech, but merely how and in what manner the right to speech is to be exercised, are not deemed to infringe the freedom of expression. The underlying logic is obvious, and does not need explanation. Instead of relying upon this argument, however, the Court decided to use a hugely expanded Article 21 as a sword, and cited the right to a “peaceful, comfortable and pollution-free life” under Article 21 to defeat the freedom of speech under Article 19(1)(a). The problem, of course, is that the phrase “peaceful, comfortable and pollution-free life” is blissfully vague.

This vagueness in the usage of the expanded Article 21 also allowed the Meghalaya High Court, in May last year, to unilaterally gag the local media from reporting on bandhs. The Court observed:

“Hence, we direct that the statements of HNLC or any organization which may disturb the even tempo of day-to-day public life and cause violation of Fundamental rights of citizens in particular under Article 19 and 21 of the Constitution.” 

The perils of using Article 21 to restrict other rights under Part III are exemplified in the ongoing “porn ban litigation” before the Supreme Court (Kamlesh Vaswani vs Union of India), where an expansive reading of Article 21 is cited as one of the reasons for the Court to act upon pornographic websites, in the absence of any law. Notice, however, that unlike privacy, which remains a relatively narrowly defined right, the Kamlesh Vaswani petition draws upon a whole host of constitutional provisions, including the non-enforceable Directive Principles, to justify restrictions upon free speech (the two issues are not isolated – the expansion of Article 21 has been accompanied by increasing recourse to the DPSPs and the “fundamental duties” chapter).

And it is the Madras High Court’s Thirukkural judgment, however, that this form of reasoning reaches its absurd limits. In a series of logical leaps that would ensure a flunking grade in a first-year Legal Methods exam, Justice Mahadevan derives a right to live in an “ordered society”  from the Constitution, takes note of increasing social and cultural degradation, cites extensively from the Thirukkural, and ends by noting that “moral values are more important that other values. Once, the moral values are lost, it is only a matter of time before the person falls, despite possessing all other qualities, which may earn in name, fame, power and money. If Thirukkual is taught with all its avenues and dimensions elborately, the students would be equipped with all the facets of life, the probable problems and the solutions. The couplets about friendship, hard work, good character, patience, tolerance and confidence will guide them through, even the most difficult of times. Thirukkural will give them the inner strength to withstand any storm. Therefore, this Court commends that appropriate action must be taken by the government through the committee which decides the syllabus, considering the noble objective and the demanding situation and finalise the syllabus for the next academic year by including 108 Chapters/ Adhigarams of Thirukkural (Arathupal and Porutpal) in the curriculum of students between VI Standard to XII Standard, keeping in mind that the purpose of education must be to build a nation with moral values.” The Constitution, in other words, has become a charter for compelled speech.

B. Judicial Restrictions under Article 19(2)

The condoms case is an instance of a different kind of judicial censorship: here, the judiciary imposes speech restrictions under Article 19(2) (in this case, the obscenity clause). While obscenity is undoubtedly a ground to restrict speech under Article 19(2), the text of that clause makes it abundantly clear that what is contemplated is a law made by the State, and not (what is colloquially called) “judge made law”. If the State chooses not to restrict “obscene” picture on condom packets, then it is not for the Court to substitute itself in the State’s place, and impose the restrictions through judicial fiat.

What is particularly disturbing is that each of these cases – the condoms case, the Thirukkural imposition, In Re Noise Pollution, and Kamlesh Vaswani – are PILs. In most jurisdictions, individuals approach the Court for relief against State-imposed restrictions on free speech. The PIL, however, seems to be turning us into a jurisdiction where individuals can impose the Court to impose restrictions on speech! Quite apart from the fact that this was never the intention of the PIL, and never the intention of the Constitution, the prospect of the judiciary becoming a forum where people can take PILs aimed at contracting the individual rights under Part III, is a truly frightening one.