Two decisions, delivered over the last few days, exemplify how the terrain of free speech remains a contested field in Indian constitutional law.
Burdening Legal Speech: Vishal Dadlani and the P&H High Court
Vishal Dadlani v State of Haryana came to the Punjab & Haryana High Court as a quashing petition. FIRs had been registered against Vishal Dadlani and Tehseen Poonawala under Sections 153A (promoting enmity between classes), 295A (hurting religious sentiments), and 509 (insulting the modesty of a woman) of the IPC, and 66E of the IT Act (publishing images of private body parts). These FIRs arose out an event in 2016, when the Haryana Legislative Assembly invited Tarun Sagar, a Jain monk, to deliver an address; according to the tenets of his faith, he did so in the nude. On Twitter, Dadlani criticised this strongly, focusing his ire upon the mixing of politics and religion. After getting into acrimonious arguments with Tarun Sagar's followers, Dadlani apologised.
Meanwhile, Tehseen Poonawala criticised the prevalence of sartorial double standards, asking "why is this naked man 'holy' even if he walks nude in the state assembly while a woman would be termed a slut?" To drive the point home, he also posted a photograph of a "half-naked woman", placed alongside a photograph of Tarun Sagar. From a perusal of the tweets, it appears that at least partially, Dadlani and Poonawala's outrage was triggered by Tarun Sagar making various remarks about the role and place of women in society, such as asking wives to "accept the discipline" imposed by husbands.
Counsel for both petitioners argued that none of the offences were made out, even prima facie (counsel for Dadlani made the additional point that he had apologised directly to Tarun Sagar, and Sagar had accepted his apology; consequently, nobody from the Jain community had taken any action – the complainant at whose behest the FIR was registered was an outsider).
After extracting the submissions of both parties (including relevant precedent), the High Court held that the quashing petitions ought to be allowed, for (broadly) the following reasons: first, none of the followers of the Jain religion had initiated proceedings, or had come forward as witnesses; secondly, it had been long-accepted in Indian jurisprudence that the right to free speech included the right to express socially and culturally unpopular or unorthodox views; thirdly, the mens rea required for offences under Sections 153A and 295A had not been demonstrated; and fourthly, after two and a half years, the State had not granted sanction to prosecute, clearly demonstrating its own lack of interest in pursuing the case.
The High Court, therefore, announced that it would quash the FIRs; but in the last two pages of the judgment, it suddenly veered off into unorthodox territory. The Court noted that "justice" would also have to be done to the Jain community; it then observed:
If the contribution made by the petitioners towards poor people is compared to the contribution made by Jain Muni Tarun Sagar, it is apparent that the petitioners have played a mischief to gain publicity without having much to their credit. In recent years, the country has witnessed large scale violent protest on incitement made by using social media platform, thereby, causing extensive damage to public property. However, the preachings of Jain Muni Tarun Sagar about non-violence, sacrifices and forgiveness, has avoided repetition of such like protest. Therefore, it would be appropriate to impose the costs of 10 lacs each on the petitioner – Vishal Dadlani and the petitioner – Tehseen Poonawala, so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter. (p. 38)
In other words, therefore, the High Court made the quashing of the FIRs conditional upon both petitioners paying Rs. 10 lakhs as costs.
Now, a few observations need to be made about this order. The first is that this order is incoherent. Effectively, it tells the petitioners, "you have committed no crime, but unless you pay Rs 10 lakhs, criminal proceedings against you will continue." This cannot be. Once the High Court returned the legal finding that the offences under Sections 153A, 295A, 509 IPC and 66E were not made out even prima facie, then it followed from that finding that the FIRs would have to stand quashed. Accepting the alternative proposition would mean that if the petitioners refused to pay Rs. 10 lakhs, then the FIRs would continue and the case would go to the stage of charge and trial despite a judgment by the High Court stating that the offences had not been made out. This would be patently absurd – what, exactly, would a trial court be expected to do when faced with a situation like this?
Apart from being absurd, the High Court's order is also illegal. Once it had found that the offences had not been made out, the logical consequence to that finding was that the petitioners had engaged in legal speech (however ill-thought, crass, or crude that speech might have turned out to be). Levying a financial penalty of Rs 10 lakhs upon that speech, then, is a classic case of judicial censorship: penalising speech in the absence of a law. As I have argued before at some length, this is, quite simply, impermissible under the Constitution. The only method through which speech can be penalised is through a State-made law (which is subject to judicial review) Under Article 19(2), as held in both Mirajkarand (more directly) in Rupa Ashok Hurra, judicial orders do not count as law.
But apart from being absurd and illegal, the High Court's order also betrays some fundamental misunderstandings about Indian free speech jurisprudence, and the point of having a constitutional right to free speech in the first place. By noting that the purpose of its order is to deter people from mocking "at any head of a religious sect, just to gain publicity on social media like Twitter", the Court lays down an extraordinarily broad and vague standard for the future. Recall that this comes after the Court had found that there was no mens rea to hurt religious sentiments or provoke enmity between classes; effectively, therefore, individuals who make comments that can be construed as "mocking the head of a religious sect", and whose motives can be construed to be "just to gain publicity on social media", can expect to be slapped with costs of Rs 10 lakhs. If this was the standard set out in a law, it would be immediately struck down as unconstitutional; indeed, in Shreya Singhal, similar phrases such as "grossly offensive" and "menacing" were struck down as being overly broad and vague. As the Supreme Court in Shreya Singhal understood, provisions such as these create a "chilling effect": they blur the line between what is permitted and what is prohibited to such an extent, that people begin to self-censor, in order to steer far clear of that (now) invisible line.
There are two more serious mistakes in the High Court's reasoning. The first is an implicit comparison it makes between what Tarun Sagar has done for the poor, and what the petitioners have (or have not) done. This is entirely irrelevant: the Indian Constitution does not assign value to free speech based upon the social qualities of the speaker. Setting up a hierarchy of speakers, where those who have done social work have more free speech rights than those who haven't, is entirely inconsistent with the very concept of a right, apart from failing to understand that the Constitution protects free speech for reasons flowing from individual self-determination, democracy, and the search for truth, none of which have anything to do with the qualities of the speaker. And secondly, the High Court's reference to "large scale violent protest" because of "incitement" on social media sanctifies the heckler's veto: it places the burden of preventing riots on those who speak, rather than upon those who riot. That cannot be, as the Supreme Court held in Rangarajan.
It should therefore be clear that, both from the perspective of legality, and form the perspective of the deeper constitutional principles underlying the free speech guarantee, the High Court's order is unsustainable, and ought to be promptly overturned on appeal.
Defamation and Injunctions: The Bombay High Court
Meanwhile, in Lodha Developers Ltd v Krishnaraj Rao, the Bombay High Court considered a (typical) injunction application in a defamation case. The plaintiff was a real estate developer. Defendant No. 1 was a journalist, who had written critically about the plaintiff. Defendant Nos. 2 and 3 were purchasers who bought flats from the Plaintiff; they found the Plaintiff's conduct and quality unsatisfactory, and criticised it online (according to the Plaintiff, it "went viral"). The plaintiff then filed a defamation suit. The defendants (as the Court noted in paragraph 11, pleaded the defence of justification (i.e., truth)). In this particular proceeding, however, the injunction was requested only against Defendant No. 1, and for five specific statements: an allegation that the plaintiff was "in connivance" with the MMRDA officials, that there was "golmaal", that "norms" had been thrown to the winds, that "banks are part of the Lodha scam", and that there was no occupation certificate.
Gautam Patel J. refused to grant relief for any of the five statements. His reasoning repays close study. For each of the statements, he began by carefully distinguishing whether they fell in the category of "facts", or of "comments". This distinction is crucial to defamation law, but is (unfortunately) far too often ignored in practice. The reason for this is that there are two separate defences in the common law of defamation: justification, and fair comment. Justification (or truth) applies to factual statements. Fair comment applies to opinion; now, contrary to what it sounds at first blush, the term "fair comment" does not mean that the comment must be "fair", but merely that it must be founded on somefactual basis that is of relevance to it. Once the factual basis is set out – and it is made clear that the comment pertains to those set of facts – then the defence applies, even though the comment itself might be hyperbolic or excessively dramatic. The reason for this is that once the reader has the facts in front of her, and has the comment, then she is best-positioned to judge whether the comment is warranted on the basis of the facts or not.
Applying this distinction, Patel J. noted that the first, second, and fourth statements were comments (and for the second comment, the Defendant promised not to repeat it without setting out his facts); and the third and fifth were factual statements. For the first and fourth statements, Patel J. held that the Defendant had set out the factual context from which he had drawn his inferences. Consequently, no injunction could be granted.
This brought the Court to the third and fifth statements, where the defence of justification (truth) was pleaded. The Court then considered the legal standard that was to apply when an injunction was sought on the basis of disputed facts. On a review of precedent (paragraph 26 onwards), the Court correctly concluded that at interim stage, an injunction could only be granted if the defences were bound to fail at trial. Consequently, as long as the Defendant produced some material in defence of her factual statements, the case would go to trial, but at the interim stage, she would not be injuncted.
This is an important observation, for many reasons. First, it adds further heft to the Delhi High Court's detailed judgment in Tata Sons v Greenpeace, where, after a detailed survey of the common law of defamation, and in the context of Article 19(1)(a) of the Constitution, Justice Ravindra Bhat had arrived at an identical conclusion. Secondly, it comes at a particularly important time, when broad-based injunctions, granted at the ex-parte ad-interim stage, are becoming increasingly common (the Tejaswi Surya gag order, which was later set aside by the Karnataka High Court, being the latest example). By restating the law, Patel J. reminds us that at the interim stage, the law of defamation is actually tilted towards the speaker (as it should be, because the correct remedy for defamation, being a tortious offence, is compensation, not gagging). It is not for judges to take a look at the plaint, find themselves shocked at the seeming attacks upon a person's reputation, and immediately proceed to issue gag orders; rather, it is for judges to remember that the rule is that speech is to be met with counter-speech pending trial, and a gag is the very rare exception. And thirdly, the judgment reveals the flaws in the reasoning of Shri Maheshwar Hydel Power Corporation v Chitroopa Palit, a 2004 judgment single-judge judgment of the Bombay High Court, which also concerned defamation and injunctions. In Palit, however, the Court articulated a significantly higher threshold at the interim stage, including (among other things) a requirement for the defendant to show public interest (note that "public interest" is a requirement under criminal defamation law, not civil). In the present case, Patel J. observed that even the tests under Palit had been satisfied; his own articulation of the standard, however, as we have seen, falls on the Tata Sons v Greenpeace side, and raises the hope that in due course, Palit will become an outlier judgment, as more and more cases endorse the (correct) Greenpeaceview.
One final point: it was argued before the Court that the harm had been accentuated because the defamatory statements had gone viral on social media. This form of argument – that holds that legal standards protecting speech should be diluted based on the medium – is a familiar one; recall that it was made in Shreya Singhal as well, and the judgment itself is unclear on what stand it takes. Patel J., however, was unequivocal: the medium made nodifference to the legal and constitutional standards at issue. Indeed, he made the (additional) important observation that the plurality of voices in the online world made the requirement of tolerating opposed views more urgent, rather than less.
The contrasting judgments – and approaches – taken by the Punjab & Haryana and the Bombay High Courts remind us that free speech adjudication remains highly judge-centric. A part of the reason for this seems to be that the separation between speech that we perceive to be irritating, value-less, mischievous – in a word, rubbish – and speech that is illegal, is still not embedded firmly enough in our jurisprudence. This is not necessarily a criticism: notwithstanding (the quotation attributed to) Voltaire, it is but human to allow one's contempt for a speaker, or for what they are saying, to get in the way of a dispassionate constitutional analysis. That is what seems to have happened in the P&H case, with the pointed references to the petitioners' (lack of) social work, and their desire for fifteen minutes of fame on twitter. But the future of Indian free speech jurisprudence depends upon judges being able to make that distinction; hopefully, they will have that opportunity soon enough.
Gautam Bhatia is a Delhi based lawyer
This article was first published here