LAW RESOURCE INDIA

From Chief Minister to Chief Censor

Posted in CENSORSHIP LAW by NNLRJ INDIA on April 11, 2012
From Chief Minister to Chief Censor

From Chief Minister to Chief Censor

A G NOORANI IN THE HINDU

Mamata Banerjee‘s edict on selection of newspapers is a violation of the citizens’ right to know and is an insult to libraries.

Around 1967, Warren Unna of The Washington Post asked Shiv Sena boss Bal Thackeray whether he read any books. He received a stunning reply: “I don’t want to mix my thinking with that of others”. The same arrogance, bred by insecurity, explains the order of March 14 made by the West Bengal government headed by Mamata Banerjee: “In public interest the government will not buy newspapers published or purported to be published by any political party, either national or regional, as a measure to develop free thinking among the readers”. The affinities between the two leaders are striking — populism and intolerance of dissent.

However, Mr. Thackeray’s preference concerned him alone. Mamata’s affects 2,463 government-aided libraries, 12 government libraries, 7 government sponsored ones and the State Central Library. All English language dailies were barred. Initially, a mere eight survived — Sangbad Pratidin, Sakalbela, Dainik Statesman, Ekdin, and Khabar 365 Din in Bengali; Sanmarg (Hindi) and Akhbar-e-Mashriq and Azad Hind (Urdu).

Two of the Bengali dailies are headed by two Trinamool Congress MPs of the Rajya Sabha. The Hindi and an Urdu daily are headed by Rajya Sabha MPs of the same party. Sangbad Pratidin, for example, is owned by Srinjoy Bose, a party MP. Its associate editor Kunal Ghosh was elected recently to the Rajya Sabha on the Trinamool ticket to give the owner company. After an uproar, five more papers were added on March 28; namely, Himalaya Darpan (Nepali), Sarsagar (Santhali periodical), The Times of India, and two others.

‘First instance’

There is another aspect, besides. The right to select papers belongs to the management of each library depending on the demand among the readers in that particular area. A central edict is an insult to them. Ms Banerjee’s order also flagrantly violates the citizens’ right to know. It is not for any Minister to prescribe a select bibliography to the Indian citizen. An official acknowledged on March 28: “This is the first instance of such a circular. The management boards of libraries have so far been the final authority on deciding which newspapers and periodicals to offer, on the basis of readers’ demands”. Now the readers are asked to read what Kolkata deems fit for their minds; “in public interest”, of course.

Arbitrary orders are invariably defended by absurd and contradictory explanations. On March 29, Mamata Banerjee and her Sancho Panza, Abdul Karim, Mass Education and Library Services Minister, explained: “We will promote local and small newspapers”. Some dailies on her approved list will not be flattered by this decision apart from the impropriety of State funding of the press.

There is a judicial ruling directly on point by a judge of eminence, Lord Justice Watkins, in the Queen’s Bench Division on November 5, 1986 (R. vs. Ealing Borough Council, ex. p. Times Newspapers Ltd. (1987) 85 L.G.R. 316). He quashed decisions by some borough councils in the U.K. to ban from public libraries within their areas newspapers and periodicals published by Times Newspapers and News Group Newspapers for the duration of an industrial dispute between them and their employees. This was done as a gesture of support to the employees. The court ruled that the authorities had taken into account an irrelevant factor and abused their powers as library authorities under the Public Libraries and Museums Act, 1964. In India, the Constitution itself will render such an act invalid as being an abuse of state power.

The petitioners, represented by Anthony Lester, Q.C., relied on Section 7 of the Public Libraries and Museums Act, 1964, which reads thus: “(1) It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof; (2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability — (a) of securing … that facilities are available for the borrowing of, of reference to, books and other printed materials, sufficient in number, range and quality to meet the general requirements and any special requirements of both adults and children …”

The abuse of power was blatant. The councils had but one purpose, namely to punish Rupert Murdoch for his stand in the industrial dispute. The ban was clearly for a purpose ulterior to Section 7. The violation of Section 7 was deliberate and wilful.

India’s written Constitution repairs the omission of any such statute. As H.M. Seervai pointed out in his work Constitutional Law of India, Article 294 vests the assets and properties in the Union or the State Governments, respectively, for the purpose of the Union or the State, in short, for a public purpose.

The U.S. Supreme Court ruled in 1884 that “the United States does not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts and excises must be laid and collected, to pay the debts and provide for the common defence and general welfare of the United States” (Van Brocklin vs Anderson; (1884-85 U.S. 117 U*S.151 at 158). Arbitrary expenditure unrelated to public purpose also violates the fundamental right to equality (Art. 14).

Landmark ruling

The Supreme Court of India’s landmark ruling in the International Airport Authorities Case in 1979 opened another avenue of challenge. Justice P.N. Bhagwati held: “The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual…

“It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which are not arbitrary, irrational or irrelevant.”

These tests render the order of March 14 a nullity on the very face of it. The Courts can strike it down suo moto or on the petition of any citizen.

They will render high service if they did so. For, it will provide a speedy and effective cure to a mindset which is completely out of sync with constitutional values and curbs. Ads have been stopped to “small” papers which depended on them for sheer survival. On Fools’ Day, it was disclosed that the list of Banga Bibhushan awardees, who received Rs. 2 lakh each, included artistes, poets and writers who had campaigned for the Trinamool. Didi looks after her own, albeit at public expense. An Urdu saying casts her in a different light — “Halvai ki dukan par nanaji ki fateha (Prayers for the soul of grandpa at the sweet maker’s shop, at his cost).

From Chief Minister to Chief Censor

Gigantic challenge

Posted in ENVIRONMENT, RIGHT TO LIFE, SUPREME COURT by NNLRJ INDIA on April 9, 2012

V VENKATESAN IN THE FRONTLINE

Ranjit Kumar, the amicus curiae in the interlinking of rivers case, is a senior advocate in the Supreme Court and has been practising for nearly 32 years. He has been the amicus curiae in about 14 matters before the Supreme Court, including the ones on the cleaning of the Yamuna and the sealing of illegal commercial establishments in Delhi. In this interview to Frontline, he tries to clarify many of the concerns voiced by experts about the Supreme Court’s judgment in the interlinking of rivers case.

Critics of the judgment have pointed out that none of the 30 projects being planned has been approved or sanctioned and that none of them is ready for implementation. The delay has been attributed to the divergence of perspectives on the project between the National Democratic Alliance government and the United Progressive Alliance government which succeeded it.

I don’t want to get into the political realm of the matter. What had already been achieved was that the peninsular and the Himalayan links had been identified. There are 14 Himalayan links and 16 peninsular links. That apart, most of the rivers are inter-State rivers. After the drawing up of the pre-feasibility reports, which itself took time, there was a bar chart presented by the government as to how much time it would take. The government had given milestone timetables under which the implementation of the project would be completed by December 31, 2016.

The steps required were first, the feasibility study, then funding proposals, then the concurrence of the Chief Ministers of the States and then the completion of the detailed project reports (DPRs). And even in 2002, while the matter was going on in the court, the government informed that feasibility studies in respect of six river links had already been completed. So, I would not like to say that none of the projects is lying in limbo. The Standing Committee of Parliament for Water Resources, which has been noticed in paragraph 24 of the judgment, had asked why the project was at a nascent stage. The committee had strongly recommended going ahead with the project. That was why I sought the court’s intervention. Undoubtedly, the ILR [interlinking of rivers] programme is a gigantic challenge, and a momentous one before the Union government.

The report of the National Council for Applied Economic Research (NCAER) appears to be the only basis for the judgment. Does this report adequately assess the gains from ILR for drought prevention and flood control?

The Union of India in all its affidavits filed in the Supreme Court always supported the programme and the NWDA [the National Water Development Agency] continued to function under the aegis of the Secretary, Water Resources. Feasibility reports and DPRs were made, or have been made in the cases of some. Therefore, to say that the NCAER 2008 report is the only basis for the judgment is not correct. The court has definitely lifted from the report’s conclusions dealing with the economic aspect and social impact and the benefits arising from the project.

The two basic premises that determined the admission of PIL in this case were that the ILR would lead to drought proofing and flood control and that there was consensus among the States. These two premises have subsequently become vulnerable.

I do not agree that they are vulnerable. Because nobody can deny that there is flooding every year and droughts every year. How much money does the Prime Minister’s Relief Fund have to expend to mitigate the devastation caused by floods and droughts? For the last 60 years, can we say that the premises of flooding and drought are vulnerable?

Critics point out that courts cannot lay down the manner in which the right to water should be ensured.

It is not the right to water which is being ensured. What is being ensured is the beneficial aspects of having 40 million hectares irrigated. And when you can have waterways systems, the yearly misery of droughts and floods can be got rid of. Chapter 2 of the NCAER report amply bears this out. It explains the benefits of river valley projects, namely, the Indira Gandhi Canal project, the Tennessee Valley project, the Colorado River Canal system and the Three Gorges dam.

The relationship between the right to water and the ILR project has been described as tenuous.

The judgment itself doesn’t say that there is a link between the right to water and the project. The court is only saying that the project is in the national interest. In paragraphs 50, 52, and 63, the court says that these are matters of national interest and national problems should be viewed with greater objectivity, rationality and spirit of service to the nation.

Does the ILR project adequately address the concerns on biodiversity and impact on the environment?

That is why environmentalists are in the task force. They have a big say in the matter. I have attended a few meetings of the task force. Most of the objections pertain to rehabilitation programmes for those being displaced. Therefore, the aspect which relates to rehabilitation will be a part of the project itself as we have seen in other places such as Tehri, and Narmada dam. I don’t agree that the project ignores the concerns on the environment and biodiversity. Even if environmentalists say so, they have to give reasons, and the court will look into the reasons. If it is successful all over the world, and specifically in China, Brazil and Pakistan, then surely it cannot be said that it will not be successful here.

Some of the projects may involve international agreements, especially between India and Bangladesh. Has the judgment taken this into account?

There are issues with Nepal and Bangladesh, which will be sorted out. This will be part of the implementation process. Whatever will be required will be done.

Has the court considered the need for clearances under the Environment Protection and Forest Conservation Acts and the National Rehabilitation Policy, and from the Planning Commission and the Cabinet?

These are all in the implementation process. Reports have to be filed. The court will consider the grounds cited by these agencies if they conclude that the project is not feasible and will dwell on it. I can file a contempt, if nothing is happening, for default or for non-compliance of the directions by the Supreme Court as mentioned in Paragraph 64 (XVI) of the judgment.

Did the UPA government make its stand clear to the court on the ILR project despite its reservations?

The government has at no stage expressed any reservation about the project. A few States may have. The Centre has never taken the stand that it is not feasible. It went along, filed status reports about what has been happening and how the matter has progressed. It did not say that it is not feasible or that we should not do it. If the government were to come to such a conclusion that it is not feasible, then it will make a somersault of its earlier position. Nobody can deny the benefits accruing from these projects.

How do you react to the criticism that the ILR can lead to fresh inter-State river disputes and that it may not solve the existing ones?

I have informed the court that in view of the provisions of the River Boards Act, 1956, enacted by Parliament, there is a declaration under Section 2 that the Central government should take under its control the regulation of inter-State rivers and river valleys. Section 13 provides for optimum utilisation of water resources and for promotion and operation of schemes of flood control. Section 15 empowers preparation of schemes to develop inter-State river or river valleys. And this has been noted in Paragraph 58 of the judgment. Therefore, if there is an existence of regulatory framework by the declaration of Parliament, there need not be any inter-State river dispute. The tribunal is not necessary. The Central government can exercise that power. The Central government never applied its mind to this Act when disputes arose and tribunals were set up. When I brought this to the notice of the court, the judges found a way to deal with the matter.

It is pointed out that the Supreme Court has failed to consider the diversity of views on the reasons for India’s water crisis and that the ILR may not be the best possible answer.

This judgment does not deal with water crisis. This judgment deals with the benefits arising from interlinking and the malice or misery that is prevailing on account of droughts and floods. This judgment does not deal with the water crisis to the extent of drinking water. But it deals with an aspect that if interlinking takes place, how many million hectares of land will be irrigated.

V VENKATESAN IN THE FRONTLINE

Cannot ban news as it is perishable, Supreme Court told

Posted in CENSORSHIP LAW, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on March 29, 2012

NEW DELHI: As Supreme Court Wednesday explored the option of postponing the publication of court proceedings in sensitive matters, including criminal cases, it was told that news was a perishable commodity which lost its value, if banned.

“We are not banning but are invoking the doctrine of postponement. It is a question of the timing” of the reporting of court proceedings, Chief Justice S.H. Kapadia told counsel Anup Bhambhani who appeared for News Broadcasters Association ( NBA).

While evaluating the option of postponing the publication of the court proceedings, the court indicated that it may frame guidelines as had been done in some specific cases. The postponement of the publication of the ongoing court proceedings in a case would amount to ban for a certain period thereby rendering it useless, Bhambhani told the apex court‘s constitutional bench of Chief Justice Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice R.P. Desai and Justice J.S. Khehar.

“News is a perishable commodity. If its publication is banned then it would lose its news value,” Bhambhani told the court adding that the “practical effect of what the court is contemplating would be something it had not even thought of”.

The court asked “can media analyse the evidence even before the court had done and prejudice the case of the accused facing trial”. The judges said this on an application by the Sahara India Real Estate Corp agitating its grievance over a news channel reporting its proposal made to the Securities and Exchange Board of India on securing the money it had mopped up from the market.

On an application by Sahara, the court said it would frame guidelines for reporting of sub-judice matters. Bhambhani said an accused facing trial in the 2G case could in future approach the court saying the media should be restrained from reporting the court proceedings in his case as it was affecting his business interest. “It (postponement) will open a Pandora’s box.”

He favoured putting in place guidelines as the broadcasters had already done for themselves under the stewardship of former chief justice J.S. Verma. Senior counsel Fali Nariman, appearing for Sahara, told the court that under Article 19 of the constitution people had a right to know and the right to be informed.

He said that live telecast of parliament proceedings were the satisfaction of the right to know and the right to be informed. Every citizen has a right to know what their elected representatives were doing in parliament even if they were staging a walkout, Nariman told the court, suggesting that the court proceedings could not be shielded from the people.

Addressing the court’s option of postponement of publication of court proceedings, Nariman said that there could not be any preventive relief.

He said that courts were not empowered to make such guidelines nor was there any statutory empowerment for then to do so. The court asked Nariman if he could suggest how to balance the freedom of press with the right of an accused facing trial. The court said that in Canada they do have some law and Ireland has guidelines that restrain one-sided reporting that causes prejudice to the accused.

SC will begin contemplating ‘framing of guidelines’ for court reporters

Posted in CONSTITUTION, MEDIA ETHICS, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on March 25, 2012

Supreme Court of India

MID DAY

Come Tuesday, the Supreme Court will begin contemplating ‘framing of guidelines’ for court reporters. How the hearings play out affects both reporters and you, the citizen

Picture this: After months of waiting, your property dispute or society imbroglio finally comes up for hearing. Enter the court reporter — seeing his presence in the court causes a palpable impact on the behaviour of lawyers and judges alike.  However, if the Supreme Court of India has its way this Tuesday, court reporters across India will now have to follow guidelines on how to report matters of their beat. The court will be hearing interventions in the matter of ‘framing of guidelines for reporting of cases in media.’

The guidelines the Supreme Court frames potentially impact coverage of all courts in India. In 2007, the SC had also framed a similar set of norms for accreditation of legal correspondents covering the apex court, which, among other things, insisted that journalists have a law degree, and a certain amount of experience. On March 20, a Constitution bench of the Supreme Court led by Chief Justice of India SH Kapadia took up the issue of framing guidelines for the media to report cases in courts. The setting up of the Constitution Bench by the CJI comes in the wake of misreporting of court hearings and leaking of confidential information affecting litigants.

Open court
Veteran journalist and columnist MJ Antony considered the impact the move would have on the freedom of the press. “If a report is found to have been in violation of the guidelines, are we going to scrutinise individual paragraphs to prove it? Who will be held liable for the mistake? What is the punishment and what is the remedy?” Besides, he points out that all media organisations have their own code of conduct, besides which exist bodies like the National Broadcast Association and the Press Council of India. Advocate Madhavi Divan, author of Facets of Media Law, a commentary on aspects of media law and its regulation emphasised that the ‘open justice system’ must not be forgotten. “Traditionally, any member of the public could come in and watch court proceedings. The logic of this has been that the public should be allowed to understand the administration of justice. As they say, ‘justice must seem to be done’.”

But she adds that the media is in a slightly different position. “Unlike the American Constitution, ours confers no special status to the press beyond ‘freedom of speech and expression‘, but the media still remains a trustee. The public relies on the media for responsible dissemination of news, and this must be taken into account. As long as the guidelines do not unreasonably restrict the freedom of speech and expression, the media cannot protest.”  Welcoming the move, court reporter-turned-advocate Rajiv Wagh said, “Reporting court proceedings is quite different from covering politics or crime. One does not need technical knowledge to cover those subjects. Some training imparted by news organisations would be helpful. The court itself could also consider running short training programs specifically for court reporters.”

To some extent, adds Antony, the media can correct its own mistakes. “If a doctor makes a mistake, the patient may die. If a structural engineer makes a mistake, a building might collapse. But if a newspaper makes a mistake, it can issue a clarification and rectify it.”

The biggest problem, say journalists, is the lack of a proper channel to dispense information from courts in real-time. Many orders and judgements are uploaded on the Internet, but that is often too late for reporters to make a good story of. Reporters must also be familiar with the laws of contempt, in order to safeguard their interests and yet manage to break stories.

Motive and Intent

Above all, added Wagh, your motives should be clear. “You can tell from a report when a story is motivated. When your motives are clear and your only  intent is  to get the truth out, you will rarely get into trouble.”  There is also an urgent need to implement a system of cross-verifying what a reporter hears in court. Divan said, “There has been talk of implementing video recording, which would go a long way in preventing inaccuracies. Abroad, every word uttered in court is recorded in writing, so the question of misreporting doesn’t arise.”

Concluded Divan, “It is unfortunate that the courts have had to step in; it should not have come to this. The media ought to have regulated itself from the outset.”

http://www.mid-day.com/news/2012/mar/250312-SC-will-begin-contemplating-framing-of-guidelines-for-court-reporters.htm

Justice barred

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on March 15, 2012
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

RD SHARMA IN THE TRIBUNE

Our judiciary creaking under the seemingly impossible load of cases awaiting disposal needs urgent attention if we have to avoid collapse of the system, which could put in jeopardy the whole state of orderly society.

Law courts no longer inspire public confidence, as litigants only get increasingly distant dates for their next hearings each time they approach them. The proverb “justice delayed is justice denied” too seems inadequate to describe the prevailing circumstances. Judgments come after endless wait, which ensures there is rarely any sense of satisfaction or justice. As pending cases pile up, the judicial system is not in a position to meet the challenge of arrears that have swamped courts from top to bottom.

According to the latest statistics available from the Supreme Court’s report on vacancies and pending cases, the apex court has now run up a backlog of 56,383 cases — the highest figure in a decade. The situation is similar in the country’s 21 high courts, where 42,17,903 cases are awaiting disposal. In lower judiciary, which constitutes the base of the entire judicial pyramid, the total number of such cases stood at 2,79,53,070 at the end of March 2011. And these figures do not include the cases pending in various tribunals and other quasi-judicial bodies. If those were also added to the grand total, the arrears in lower courts would well cross the figure of 3 crore, which is alarming, to say the least.

The right to fair and speedy trial holds little promise for the aggrieved who knock at the door of courts as a last resort for justice or relief. Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma. Prolonged delays also mean high rate of acquittal in criminal cases — it is as high as 93.02 per cent in India. Unable to get justice from courts, victims often take the law into their own hands to settle scores with culprits. This only multiplies the problem of law and order, and in turn the load on courts. It has also encouraged kangaroo courts in the form of khap panchayats or lynch mobs in many parts of the country, which mete out rough-and-ready justice on the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres owing to uncertain contract enforcement, higher transaction costs and general inflationary bias, which the finance minister has also acknowledged.

TOO FEW JUDGES

Among other issues, inadequate judge strength at all levels is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world. There are 13.05 judges per 1 million people, as against Australia’s 58 per million, Canada’s 75, the UK 100, and the USA 130 per million. In 2002, the Supreme Court had directed the Centre to raise the judge-population ratio to 50 per million in a phased manner, as recommended by the Law Commission in its 120th report. The suggestion has had little effect.

Even the existing judge strength is reduced further when judicial vacancies are not filled promptly. For instance, the Supreme Court had only 26 judges in October last year, including the Chief Justice of India, against the sanctioned strength of 31. The vacancy level in the 21 high courts of the country, if put together, is 32 per cent, with 291 posts of judge — against the sanctioned strength of 895 — lying vacant for a long time.

In subordinate courts, where we have the maximum backlog of cases, there are 3,170 posts vacant. The sanctioned strength of district judges has gone up to 17,151, according to the Supreme Court’s report on vacancies and pending cases. Filling these vacancies will have a direct impact on India’s governance indicators, improving investor sentiment and advancing economic growth.

If we look into the World Bank Institute‘s Governance Matters set of indicators specifically for rule of law, India had a percentile rank of 54.5 in 2010 (coming down from 60.3 in 2000), which compares ill to 97.2 for the Netherlands, 91.5 for the US, and 81 for South Korea. Other World Bank documents, quoting market analysts, say that it is not unusual for the first hearing in Indian courts to take six years, and the final decision up to 20 years.

SPEED UP SELECTION

The power of appointment to top judicial posts is vested in a collegium of senior judges, with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for months, or even more. The selection process, therefore, ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance and the process of appointment completed beforehand. In the case of resignation or death, the selection process should come into play without delay to ensure that the Benches work with full strength. And, if the wholesome principle of merit, enunciated by the Law Commission, is accepted in principle, there is no reason why there should be any delay in determining appointments or filling vacancies.

Also, unless the judiciary is given full financial autonomy, the problem of pendency of cases or non-appointment of judges will persist. Funds are required for creating new posts of judge, increasing the number of courts and providing infrastructure. The judiciary has to petition the Law Ministry each time it needs finances, which are forever hard to come by. Less than 0.3 per cent of the Gross National Product (GNP) — or 0.78 per cent of the total revenue — is spent on the judiciary in India. This, when more than half of the amount is being generated by the judiciary itself through court fees and fines. In the UK, USA and Japan, the expenses on judiciary are between 12 and 15 per cent of the total expenditure.

Together with adequate manpower, it is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times, a sure way to delay disposal of cases. In addition, there are myriad laws and other specious requirements, which have no relevance today, yet are frequently invoked. These must be repealed to expedite the judicial process. “Court procedure is not to be a tyrant but a servant, not an obstruction but an aid to justice, a lubricant and not a resistant in the administration of justice,” the Supreme Court has observed. After all, procedures are meant to help the law, not defeat it.

UNSCRUPULOUS LITIGATION

Impelled by the motivation of pecuniary gains, lawyers often indulge in unethical practices of stalling court proceedings deliberately. At every stage, a number of interlocutory applications are filed and adjournments on flimsy grounds sought to defeat the purpose of speedy dispensation of justice. Such is the situation that even expansion of the judicial machinery will not achieve much until rules about stay orders and adjournments are also changed to prevent lawyers from prolonging litigation. In addition, punitive fines should be imposed on unscrupulous litigants found to be abusing the process of law to discourage unnecessary or frivolous litigation and to make the judiciary self-supporting.

Instead of arguing their cases endlessly, it would be better for lawyers to present their submissions in writing to the judge so that cases could be decided on merit on the basis of documents and written submissions filed by both the parties before the judge, without the fanfare of formal court sessions and personal attendance of petitioners, respondents and lawyers. Direct written representation by the parties, rather than oral arguments spoken in the din and bustle of crowded courtrooms, would also lower the risk of miscarriage of justice. This practice, followed in the US Supreme Court (where oral arguments serve as additions to the obligatory written brief), can be easily adopted in Indian courts. Constitutional and corporate matters have little scope for courtroom histrionics.

Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages, incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and is paid for from the taxpayers’ money, and should not be wasted in expounding one’s personal ideologies. Justice, equity and fair play demand that judges are more crisp and precise while writing their judgments rather than rely on lengthy quotes and superfluous observations. They should deliver judgments as early as possible, instead of keeping them reserved for long durations.

AIM FOR CONCILIATION

The legal strategy for modern India should aim at conciliation and not confrontation, in keeping with our tradition of tolerance and mutual accommodation. The focus should be on “conciliatory legal realism”. A judge should not merely sit like an umpire, but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This would help reduce the backlog of cases, avoid the multi-tier process and also lead to reconciliation of legal disputes without causing much enmity and bitterness.

However, any attempt at judicial reform, including raising the number and strength of courts, improving the selection process of judges or setting up evening and fast-track courts throughout the country to dispose of cases quickly will fail unless high courts succeed in establishing that they are reliable and just, and instil such confidence in litigants that they forgo the last resort of the apex court, except in rare cases. At the same time, if the trial courts at the grassroots level are also properly strengthened and made effective instruments of justice in the real sense, the cycle of appeal and counter-appeal could be broken and delay reduced. The litigation backlog would then melt like an iceberg in a tropical sea.

The writer is a legal consultant, and advocate at the Delhi High Court and the Supreme Court

SOURCE : http://www.tribuneindia.com/2012/20120313/edit.htm#6

Preliminary probe or FIR first?

Posted in CONSTITUTION, CRIMINAL JUSTICE SYSTEM by NNLRJ INDIA on March 2, 2012

THE HINDU

Issue in cognisable offence referred to Constitution Bench

The Supreme Court has referred to a five-judge Constitution Bench the question whether the police are duty-bound to register a First Information Report on receipt of a complaint or information of commission of a cognisable offence or there is discretion on their part to order a preliminary probe before that exercise.

A Bench of Justices Dalveeer Bhandari, T.S. Thakur and Dipak Misra referred to Chief Justice of India S.H. Kapadia a writ petition which raised the important issue: whether it is imperative on the part of the officer in-charge of a police station to register a case under Section 154 of the Code of Criminal Procedure 1973 or whether he or she has the option or latitude of conducting some sort of preliminary enquiry before registering it. Writing the order, Justice Bhandari said: “We have carefully analysed various judgments delivered by this court in the last several decades. We clearly discern divergent judicial opinions on the main issue.”

The Bench said: “This court also carved out a special category… in the cases of Santosh Kumar and Dr. Suresh Gupta where a preliminary enquiry had been postulated before registering an FIR.”

Counsel for some States also submitted that the CBI Manual “envisages some kind of preliminary enquiry before registering the FIR,” the Bench said. “In view of the divergent opinions in a large number of cases decided by this court, it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench for the benefit of all concerned — the courts, the investigating agencies and the citizens.”

A case for judicial lockjaw

Posted in JUDICIAL ACTIVISM, JUDICIARY, JUSTICE by NNLRJ INDIA on February 27, 2012
JUDICIAL LOCKJAW

JUDICIAL LOCKJAW

ARGHYA SENGUPTA IN THE HINDU

Judgments should speak for themselves; when judges justify them in public, they run the risk of sounding like politicians.

Justice Felix Frankfurter, one of America’s most eloquent Supreme Court judges, speaking at an American Law Institute function in 1948, aptly described the infirmity of being unable to speak about one’s judgments publicly, an attendant facet of being a Supreme Court judge, as “judicial lockjaw.” For watchers of the Indian higher judiciary, which has adhered to this principle since its inception, the last fortnight has brought forth a surprising development in this regard. Justice Asok Kumar Ganguly, an erudite judge of the Supreme Court of India, who retired recently, has, since leaving office, actively engaged with the media, first in print and then electronically. While a retired judge writing and speaking extra-judicially per se on matters of public importance is a fairly common and welcome phenomenon, his participation in a feisty debate in a leading newspaper on the merits of one of his own judgments, and then agreeing to take part in a television interview whose questions focused solely on two of his controversial judgments, is uncommon. As well as raising questions of individual propriety, it contains possible portents of the slowly changing nature of the Indian higher judiciary.

Justice Ganguly’s rejoinder

Three days after his retirement, Justice Ganguly issued a startling written rejoinder to the criticism by former Lok Sabha Speaker Somnath Chatterjee of the 2G judgment, which he had handed down a few days previously. Not only did he defend his judgment, first by assuring Mr. Chatterjee that “the judgment was not delivered either out of temptation or out of any desire to appropriate executive powers” but also positively asserted that “[t]he judgment was rendered in clear discharge of duty by the Court” (The Telegraph, 6 February, 2012). His statements, especially to the extent they clarify and defend his judgment, raise deep questions regarding the proper role of judges in post-retirement public life. This is especially so in Justice Ganguly’s case, as it was followed up with an interview to a private television channel where, despite steadfastly refusing to comment on the merits of the 2G judgment or the judgment relating to sanctions for prosecution per se, his statements on the subject had the effect of giving the interviewer and the viewing public sufficient sound bytes on how the judgments ought to be interpreted. To cite a single instance — in response to a question as to whether the timeline set by the Court for the government to consider sanction requests against public servants should apply to the Chief Justice of India when permission is sought for a FIR to be filed against a judge, though he refused to give a direct answer, he suggested that the recommendations made in the judgment “should apply across the board.” To any reasonable viewer, this statement would certainly come across as a clarification on what the recommendations made in the judgment ought to mean.

It is not the legality of Justice Ganguly’s engagement with the media that is in issue here. Like any other citizen, he has a right to speak, and is free to exercise that right in whichever manner he desires, provided it is within the bounds of constitutional permissibility. But when a retired judge speaks, not in his capacity as an ordinary citizen but wearing the hat of a judge who was party to a particular judgment, as Justice Ganguly obviously did, the primary question is one of propriety. That the judge, after rendering judgment, becomes functus officio and the judgment of the Court speaks through itself, is a long established principle in the Indian judicial system. The rationale for the principle is salutary: that the decision of the Court when it is cited as a precedent in subsequent cases as a binding principle of law, ought to be interpreted on its own terms and not on the basis of any extra-judicial clarifications that may be issued subsequently. Of course, any academic discussion and criticism following the judgment may be relevant, but never involving the judge concerned himself, as that may have an unwarranted overriding influence on future interpretations of the decision. At the same time, the principle does not prohibit judges from writing their memoirs, which are often filled with delightful accounts of the unseen dynamics of a judicial decision, or commenting on the consequences of a case after a period of time or on a matter of significant national importance. However, coming so close on the heels of the judgments being delivered, Justice Ganguly’s statements in the media can neither count as an academic commentary nor be justified by a passage of time having elapsed. Propriety thus demanded that he thought better than articulating his views publicly in this manner.

Judge’s role in public

Equally importantly, Justice Ganguly’s actions point to a larger question as to what the role of a judge should be in public life. Unlike politicians or film stars who are public figures by virtue of their closeness to the people, judges are public figures precisely because they manage to keep their distance from the people. It is this detachment which allows judges to be immune from the passions of popular sentiment and political machinations, thereby facilitating the independence of the judiciary as an institution. Any engagement with the media by a judge in a judicial capacity, whether while holding office or post-retirement, fundamentally erodes the extent of this institutional detachment. Especially if the engagement primarily focuses on decisions given by judges, it runs the risk of turning judges into quasi-politicians, clarifying and justifying their judgments by direct appeals to the public, rather than simply allowing the reasons contained in the judgment to perform this justificatory function.

Comparative analysis

Indeed a comparative analysis across countries shows the links which can be drawn between extra-judicial utterances and the political savvy of judges. In England, where courts are largely apolitical, extra-judicial utterances are rare. Judges, except the Law Lords, were for a long period, conventionally governed by the Kilmuir Principles, key amongst which is the view that “[s]o long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable.” Though the Principles themselves are no longer strictly applicable, the tradition of extra-judicial silence continues. On the contrary, across the Atlantic, in the United States of America, whose Supreme Court is an overtly political institution, notwithstanding Justice Frankfurter‘s wise advocacy of restraint, judges have a long history of writing and speaking extra-judicially on their own judgments and on the Court itself — Justice Stewart wrote a letter to the Editor of the Wall Street Journal defending his majority opinion in a racial discrimination case; Justice Goldberg publicly defended the Court and its stance on judicial review and states’ rights in the New York Times; in fact even Chief Justice Marshall, back in the 19th Century, defended his landmark judgment, authoritatively laying down the nature of American federalism in McCulloch v. Maryland, albeit writing under a cleverly disguised pseudonym in the Philadelphia Union.

Sign of transformation

As this comparative experience demonstrates, the judicial propensity to engage directly with the public is clearly a symptom of a Court whose judges are keenly conscious of the immense political significance their decisions have. In this backdrop, Justice Ganguly’s comments, unwarranted as they may have been, perhaps provide an early sign of the subtle transformation of the Supreme Court of India into an overtly political institution, owning up and reacting to the immense political ramifications of its actions. Equally, they raise deep questions regarding the interaction between judges and the media, arguably two of the most powerful pillars in Indian democracy today. This is a complex, multi-dimensional issue that cannot be dealt with here. However it would suffice to say that the obtuse language used by judicial decisions, their unclear consequences and the difficulties faced by sections of the media in understanding the subtleties of legalese, all suggest that like several courts worldwide such as the Supreme Court of the United Kingdom and the European Court of Human Rights, the Indian Supreme Court too should issue official media summaries of important decisions. Not only will this facilitate wide comprehensibility of key judgments, but it will also ensure that judicial decisions are not wantonly misinterpreted. Most importantly, it will mean that judges, whether in office or speaking in their judicial capacity immediately post-retirement, will have an additional reason to remain lockjawed, allowing their judgment together with its officially authorised summary to do the talking.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and founder of the think tank The Pre-Legislative Briefing Service.)

SOURCE LINK : http://www.thehindu.com/opinion/lead/article2935696.ece?homepage=true

A case for judicial lockjaw

Reasonable restriction to Right of free speech and expression

Posted in CONSTITUTION, DEMOCRACY, FUNDAMENTAL RIGHTS, GOVERNANCE by NNLRJ INDIA on February 24, 2012
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Re-Ramlila Maidan Incident Dt … vs Home Secretary And Ors. on 23 February, 2012 – SUO MOTU WRIT PETITION (CRL.) NO. 122 OF 2011

1. At the very outset, I would prefer to examine the principles of law that can render assistance in weighing the merit or otherwise of the contentious disputations asserted before the Court by the parties in the present suo moto petition. Besides restating the law governing Articles 19(1)(a) and 19(1)(b) of the Constitution of India and the parallel restrictions contemplated under Articles 19(2) and 19(3) respectively, I would also gauge the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.’).

2. It appears justified here to mention the First Amendment to the United States (US) Constitution, a bellwether in the pursuit of expanding the horizon of civil liberties. This Amendment provides for the freedom of speech of press in the American Bill of Rights. This Amendment added new dimensions to this right to freedom and purportedly, without any limitations. The expressions used in wording the Amendment have a wide magnitude and are capable of liberal construction. It reads as under :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3. The effect of use of these expressions, in particular, was that the freedom of speech of press was considered absolute and free from any restrictions whatsoever. Shortly thereafter, as a result of widening of the power of judicial review, the US Supreme Court preferred to test each case on the touchstone of the rule of `clear- and-present-danger’. However, application of this rule was unable to withstand the pace of development of law and, therefore, through its judicial pronouncements, the US Supreme Court applied the doctrine of `balancing of interests’. The cases relating to speech did not simply involve the rights of the offending speaker but typically they presented a clash of several rights or a conflict between individual rights and necessary functions of the Government. Justice Frankfurter often applied the above-mentioned Balancing Formula and concluded that “while the court has emphasized the importance of `free speech’, it has recognized that free speech is not in itself a touchstone. The Constitution is not unmindful of other important interests, such as public order, if free expression of ideas is not found to be the overbalancing considerations.

4. The `balancing of interests’ approach is basically derived from Roscoe Pound‘s theories of social engineering. Pound had insisted that his structure of public, social and individual interests are all, in fact, individual interests looked at from different points of view for the purpose of clarity. Therefore, in order to make the system work properly, it is essential that when interests are balanced, all claims must be translated into the same level and carefully labelled. Thus, a social interest may not be balanced against individual interest, but only against another social interest. The author points out that throughout the heyday of the clear-and-present-danger and preferred position doctrines, the language of balancing, weighing or accommodating interests was employed as an integral part of the libertarian position. [Freedom of Speech: The Supreme Court and Judicial Review, by Martin Shapiro, 1966]

5. Even in the United States there is a recurring debate in modern First Amendment Jurisprudence as to whether First Amendment rights are `absolute’ in the sense that the Government may not abridge them at all or whether the First Amendment requires the `balancing of competing interests’ in the sense that free speech values and the Government’s competing justification must be isolated and weighted in each case. Although the First Amendment to the American Constitution provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the constitutional Government to survive. If it is to survive, it must have power to protect itself against unlawful conduct and under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time. In the case of Schenck v. United States [63 L ed 1173], the Court held :

The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force….the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

[Constitution of India, (2nd Edn.), Volume 1 by Dr. L.M. Singhvi]

6. In contradistinction to the above approach of the US Supreme Court, the Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1)(b). However, these rights are not free from any restrictions and are not absolute in their terms and application. Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein.

7. In face of this constitutional mandate, the American doctrine adumbrated in Schenck’s case (supra) cannot be imported and applied. Under our Constitution, this right is not an absolute right but is subject to the above-noticed restrictions. Thus, the position under our Constitution is different.

 8. In `Constitutional Law of India’ by H.M. Seervai (Fourth Edn.), Vol.1, the author has noticed that the provisions of the two Constitutions as to freedom of speech and expression are essentially different. The difference being accentuated by the provisions of the Indian Constitution for preventive detention which have no counterpart in the US Constitution. Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide. {Babulal Parate v. State of Maharashtra [(1961) 3 SCR 423]}.

9. The fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind. For instance, the right to freedom of speech and expression is not violated by a law which requires that name of the printer and publisher and the place of printing and publication should be printed legibly on every book or paper.

10. Thus, there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US laws. It is significant to note that the freedom of speech is the bulwark of democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a ;basic human right ;a natural right; and the like. With the development of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press.

11. In order to effectively consider the rival contentions raised and in the backdrop of the factual matrix, it will be of some concern for this Court to examine the constitutional scheme and the historical background of the relevant Articles relating to the right to freedom of speech and expression in India. The framers of our Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. This gave to the citizens of this country a very valuable right, which is the essence of any democratic system. There could be no expression without these rights. Liberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression. Placed as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally connected to the liberty of expression. (Ref. Preamble, The Spirit and Backbone of the Constitution of India, by Justice R.C. Lahoti). These valuable fundamental rights are subject to restrictions contemplated under Articles 19(2) and 19(3), respectively. Article 19(1) was subjected to just one amendment, by the Constitution (44th Amendment) Act, 1979, vide which Article 19(1)(f) was repealed. Since the Parliament felt the need of amending Article 19(2) of the Constitution, it was substituted by the Constitution (First Amendment) Act, 1951 with retrospective effect. Article 19(2) was subjected to another amendment and vide the Constitution (Sixteenth Amendment) Act, 1963, the expression "sovereignty and integrity of India was added. The pre-amendment Article had empowered the State to make laws imposing reasonable restrictions in exercise of the rights conferred under Article 19(1)(a) in the interest of 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 of an offence. To introduce a more definite dimension with regard to the sovereignty and integrity of India, this Amendment was made. It provided the right spectrum in relation to which the State could enact a law to place reasonable restrictions upon the freedom of speech and expression.

12. This shows that the State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder. {Ref.: State of West Bengal Vs. Subodh Gopal Bose [AIR 1954 SC 92]}.

13. I consider it appropriate to examine the term `liberty’, which is subject to reasonable restrictions, with reference to the other constitutional rights. Article 21 is the foundation of the constitutional scheme. It grants to every person the right to life and personal liberty. This Article prescribes a negative mandate that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure established by law for deprivation of rights conferred by this Article must be fair, just and reasonable. The rules of justice and fair play require that State action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law which prescribed that procedure and, consequently, the action taken thereunder.

14. Any action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the application of two standards – first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established under which that action is taken is itself unreasonable. The concept of `procedure established by law’ changed its character after the judgment of this Court in the case of Maneka Gandhi v. UOI [AIR 1978 SC 597], where this Court took the view as under : "The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this Court took the following view:

Procedure established by law are words of deep meaning for all lovers of liberty and judicial sentinels.

15. What emerges from the above principles, which has also been followed in a catena of judgments of this Court, is that the law itself has to be reasonable and furthermore, the action under that law has to be in accordance with the law so established. Non-observance of either of this can vitiate the action, but if the former is invalid, the latter cannot withstand.

16. Article 13 is a protective provision and an index of the importance and preference that the framers of the Constitution gave to Part III. In terms of Article 13(1), the laws in force before the commencement of the Constitution, in so far as they were inconsistent with the provisions of that Part were, to the extent of such inconsistency, void. It also fettered the right of the State in making laws. The State is not to make any law which takes away or abridges the rights conferred by this Part and if such law is made then to the extent of conflict, it would be void. In other words, except for the limitations stated in the Articles contained in Part III itself and Article 13(4) of the Constitution, this Article is the 13 reservoir of the fundamental protections available to any person/citizen.

17. While these are the guaranteed fundamental rights, Article 38, under the Directive Principles of State Policy contained in Part IV of the Constitution, places a constitutional obligation upon the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice – social, economic and political – shall inform all the institutions of the national life. Article 37 makes the Directive Principles of State Policy fundamental in governance of the country and provides that it shall be the duty of the State to apply these principles in making laws.

18. With the development of law, even certain matters covered under this Part relating to Directive Principles have been uplifted to the status of fundamental rights, for instance, the right to education. Though this right forms part of the Directive Principles of State Policy, compulsory and primary education has been treated as a part of Article 21 of the Constitution of India by the courts, which consequently led to the enactment of the Right of Children to Free and Compulsory Education Act, 2010.

 19. Article 51A deals with the fundamental duties of the citizens. It, inter alia, postulates that it shall be the duty of every citizen of India to abide by the Constitution, to promote harmony and the spirit of common brotherhood, to safeguard public property and to abjure violence.

20. Thus, a common thread runs through Parts III, IV and IVA of the Constitution of India. One Part enumerates the fundamental rights, the second declares the fundamental principles of governance and the third lays down the fundamental duties of the citizens. While interpreting any of these provisions, it shall always be advisable to examine the scope and impact of such interpretation on all the three constitutional aspects emerging from these parts. It is necessary to be clear about the meaning of the word "fundamental as used in the expression ;fundamental in the governance of the State to describe the directive principles which have not legally been made enforceable. Thus, the word "fundamental has been used in two different senses under our Constitution. The essential character of the fundamental rights is secured by limiting the legislative power and by providing that any transgression of the limitation would render the offending law pretendo void. The word fundamental in Article 37 also means basic or essential, but it is used in the normative sense of setting, before the State, goals which it should try to achieve. As already noticed, the significance of the fundamental principles stated in the directive principles has attained greater significance through judicial pronouncements.

21. As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, equally difficult it is to imagine the existence of a right not coupled with a duty. The duty may be a direct or indirect consequence of a fair assertion of the right. Part III of the Constitution of India although confers rights, still duties and restrictions are inherent thereunder. These rights are basic in nature and are recognized and guaranteed as natural rights, inherent in the status of a citizen of a free country, but are not absolute in nature and uncontrolled in operation. Each one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by the Parliament or the State Legislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable. It is for the State to place on record appropriate material justifying the restriction and its reasonability. Reasonability of restriction is a matter which squarely falls within the power of judicial review of the Courts. Such limitations, therefore, indicate two purposes; one that the freedom is not absolute and is subject to regulatory measures and the second that there is also a limitation on the power of the legislature to restrict these freedoms. The legislature has to exercise these powers within the ambit of Article 19(2) of the Constitution.

22. Further, there is a direct and not merely implied responsibility upon the Government to function openly and in public interest. The Right to Information itself emerges from the right to freedom of speech and expression. Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure security of the State as well as the social and public order. It has to give utmost regard to the right to freedom of speech and expression which a citizen or a group of citizens may assert. The State also has a duty to provide security and protection to the persons who wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech or otherwise. In the case of S. Rangarajan v. Jagjivan Ram [(1989) 2 SCC 574], this Court noticed as under : The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg

23. Where the Court applies the test of `proximate and direct nexus with the expression’, the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.

24. Now, I would examine the various tests that have been applied over the period of time to examine the validity and/or reasonability of the restrictions imposed upon the rights.

Upon the Rights Enshrined in the Constitution

 25. No person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:-

a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in Article 19(2).

 26. The questions before the Court, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V.G. Row [AIR 1952 SC 196] held :- "It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases.

27. For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict. [See: ChintamanraoAnr. v. State of Madhya Pradesh (AIR 1951 SC 118)].

 28. The courts must bear a clear distinction in mind with regard to `restriction’ and `prohibition’. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a `prohibition’ is imposed, besides satisfying all the tests of a reasonable `restriction’, it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case. This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as under:- "75. Three propositions are well settled: (i) ‘restriction’ includes cases of ‘prohibition’; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right…..

29. The obvious result of the above discussion is that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution.

 30. As already noticed, rights, restrictions and duties co-exist. As, on the one hand, it is necessary to maintain and preserve the freedom of speech and expression in a democracy, there, on the other, it is also necessary to place reins on this freedom for the maintenance of social order. The term `social order’ has a very wide ambit. It includes `law and order’, `public order’ as well as `the security of the State’. The security of the State is the core subject and public order as well as law and order follow the same. In the case of Romesh Thappar v. State of Madras [1950 SCR 594], this Court took the view that local breaches of public order were no grounds for restricting the freedom of speech guaranteed by the Constitution. This led to the Constitutional (First Amendment) Act, 1951 and consequently, this Court in the case of Dr. Ram Manohar Lohia v. State of Bihar [AIR 1966 SC 740] stated that an activity which affects `law and order’ may not necessarily affect `public order’ and an activity which might be prejudicial to `public order’ may not necessarily affect `security of the State’. Absence of `public order’ is an aggravated form of disturbance of public peace which affects the general current of public life. Any act which merely affects the security of others may not constitute a breach of `public order’.

31. The expression `in the interest of’ has given a wide amplitude to the permissible law which can be enacted to impose reasonable restrictions on the rights guaranteed by Article 19(1) of the Constitution.

 32. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty. When the courts are called upon to examine the reasonableness of a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article 51A are of relevant consideration. Article 51A requires an individual to abide by the law, to safeguard public property and to abjure violence. It also requires the individual to uphold and protect the sovereignty, unity and integrity of the country. All these duties are not insignificant. Part IV of the Constitution relates to the Directive Principles of the State Policy. Article 38 was introduced in the Constitution as an obligation upon the State to maintain social order for promotion of welfare of the people. By the Constitution (Forty-Second Amendment) Act, 1976, Article 51A was added to comprehensively state the fundamental duties of the citizens to compliment the obligations of the State. Thus, all these duties are of constitutional significance. It is obvious that the Parliament realized the need for inserting the fundamental duties as a part of the Indian Constitution and required every citizen of India to adhere to those duties. Thus, it will be difficult for any Court to exclude from its consideration any of the above-mentioned Articles of the Constitution while examining the validity or otherwise of any restriction relating to the right to freedom of speech and expression available to a citizen under Article 19(1)(a) of the Constitution. The restriction placed on a fundamental right would have to be examined with reference to the concept of fundamental duties and non-interference with liberty of others. Therefore, a restriction on the right to assemble and raise protest has also to be examined on similar parameters and values. In other words, when you assert your right, you must respect the freedom of others. Besides imposition of a restriction by the State, the non-interference with liberties of others is an essential condition for assertion of the right to freedom of speech and expression. In the case of Dr. D.C. Saxena v. Hon’ble the Chief Justice of India [(1996) 5 SCC 216], this Court held:

If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation. Therefore, freedom of speech and expression is tolerated so long as it is not malicious or libellous, so that all attempts to foster and ensure orderly and peaceful public discussion or public good should result from free speech in the market-place. If such speech or expression was untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right.

33. Every right has a corresponding duty. Part III of the Constitution of India although confers rights and duties, restrictions are inherent thereunder. Reasonable regulations have been found to be contained in the provisions of Part III of the Constitution of India, apart from clauses (2) to (4) and (6) of Article 19 of the Constitution {See Union of India v. Naveen Jindal and Anr. [(2004) 2 SCC 510]}.

34. As I have already discussed, the restriction must be provided by law in a manner somewhat distinct to the term `due process of law’ as contained in Article 21 of the Constitution. If the orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the test of reasonableness, which requires it to be free of arbitrariness, to have a direct nexus to the object and to be proportionate to the right restricted as well as the requirement of the society, for example, an order passed under Section 144 Cr.P.C. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 Cr.P.C. and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable restriction.

35. The distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.

36. It is keeping this distinction in mind, the Legislature, under Section 144 Cr.P.C., has empowered the District Magistrate, Sub- Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this Section exists and immediate prevention and/or speedy remedy is desirable. By virtue of Section 144A Cr.P.C., which itself was introduced by Act 25 of 2005, the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organizing or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of the public order. Section 144 Cr.P.C, therefore, empowers an executive authority, backed by these provisions, to impose reasonable restrictions vis-`-vis the fundamental rights. The provisions of Section 144 Cr.P.C. provide for a complete mechanism to be followed by the Magistrate concerned and also specify the limitation of time till when such an order may remain in force. It also prescribes the circumstances that are required to be taken into consideration by the said authority while passing an order under Section 144 Cr.P.C.

37. In Babu Lal Parate (supra) where this Court was concerned with the contention raised on behalf of the union of workers that the order passed in anticipation by the Magistrate under Section 144 Cr.P.C. was an encroachment on their rights under Articles 19(1)(a) and 19(1)(b), it was held that the provisions of the Section, which commit the power in this regard to a Magistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable. While examining the law in force in the United States, the Court further held that an anticipatory action of the kind permissible under Section 144 Cr.P.C. is not impermissible within the ambit of clauses (2) and (3) of Article 19. Public order has to be maintained at all times, particularly prior to any event and, therefore, it is competent for the legislature to pass a law permitting the appropriate authority to take anticipatory action or to place anticipatory restrictions upon particular kind of acts in an emergency for the purpose of maintaining public order.

38. In the case of Madhu Limaye v. Sub Divisional Magistrate and Ors. [AIR 1971 SC 2481], a Constitution Bench of this Court took the following view:

 The procedure to be followed is next stated. Under Sub-section (2) if time does not permit or the order cannot be served, it can be made ex parte. Under Sub-section (3) the order may be directed to a particular individual or to the public generally when frequenting or visiting a particular place. Under sub-section (4) the Magistrate may either suo motu or on an application by an aggrieved person, rescind or alter the order whether his own or by a Magistrate subordinate to him or made by his predecessor in Office. Under Sub-section (5) where the magistrate is moved by a person aggrieved he must hear him so that he may show cause against the order and if the Magistrate rejects wholly or in part the application, he must record his reasons in writing. This sub-section is mandatory. An order by the Magistrate does not remain in force after two months from the making thereof but the State Government may, however, extend the period by a notification in the Gazette but, only in cases of danger to human life, health or safety or where there is a likelihood of a riot or an affray. But the second portion of the sub-section was declared violative of Article 19 in State of Bihar v. K.K. Misra [1969] S.C.R. 337. It may be pointed out here that disobedience of an order lawfully promulgated is made an offence by Section 188 of the Indian Penal Code, if such disobedience causes obstruction, annoyance or injury to persons lawfully employed. It is punishable with simple imprisonment for one month or fine of Rs. 200 or both.

25. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence : see Mst. Jagrupa Kumari v. Chotay Narain Singh (1936) 37 Cri.L.J. 95 (Pat) which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.

 26. The criticism, however, is that the section suffers from over broadness and the words of the section are wide enough to give an absolute power which may be exercised in an unjustifiable case and then there would be no remedy except to ask the Magistrate to cancel the order which he may not do. Revision against his determination to the High Court may prove illusory because before the High Court can intervene the mischief will be done. Therefore, it is submitted that an inquiry should precede the making of the order. In other words, the burden should not be placed upon the person affected to clear his position. Further the order may be so general as to affect not only a particular party but persons who are innocent, as for example when there is an order banning meetings, processions, playing of music etc.

27. The effect of the order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. As was pointed out in Babulal Parate case where two rival trade unions clashed and it was difficult to say whether a person belonged to one of the unions or to the general public, an order restricting the activities of the general public in the particular area was justified.

28. …A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general the order may be questioned by appropriate remedies for which there is ample provision in the law. In the case of Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. [(1973) 1 SCC 227], again a Constitution Bench of this Court, while dealing with a situation where a person seeking permission to hold a public meeting was denied the same on the ground that under another similar permission, certain elements had indulged in rioting and caused mischief to private and public properties, held Rule 7 framed under the Bombay Police Act, 1951 as being arbitrary and observed as under :.It is not surprising that the Constitution makers conferred a fundamental right on all citizens ‘to assemble peaceably and without arms’. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Article 19(3). But it is urged that the right to assemble does not mean that that right can be exercised at any and every place. This Court held in Railway Board v. Narinjan Singh (1969) 3 SCR 548; 554 : (1969)1 SCC 502 that there is no fundamental right for any one to hold meetings in government premises. It was observed: `The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please’.

 40. Section 144 Cr.P.C. is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquility or a riot or an affray. These features must co-exist at a given point of time in order to enable the authority concerned to pass appropriate orders. The expression `law and order’ is a comprehensive expression which may include not merely `public order’ but also matters such as `public peace’, `public tranquility’ and `orderliness’ in a locality or a local area and perhaps some other matters of public concern too. `Public order’ is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. This concept came to be illustratively explained in the judgment of this Court in the case of Dr. Ram Manohar Lohia (supra) wherein it was held that when two drunkards quarrel and fight, there is `disorder’ but not `public disorder’. They can be dealt with under the powers to maintain `law and order’ but cannot be detained on the ground that they were disturbing `public order’. However, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of `law and order’ but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to `public order’. Section 144 Cr.P.C. empowers passing of such order in the interest of public order equitable to public safety and tranquility. The provisions of Section 144 Cr.P.C. empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquility is not ultra vires the Constitution.

 41. In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia, [(2004) 4 SCC 684], this Court, while observing that each person, whatever be his religion, must get the assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and the freedom of conscience, held more emphatically that the courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They are by and large the best to assess and handle the situation depending upon the peculiar needs and necessities within their special knowledge.

42. The scope of Section 144 Cr.P.C. enumerates the principles and declares the situations where exercise of rights recognized by law, by one or few, may conflict with other rights of the public or tend to endanger the public peace, tranquility and/or harmony. The orders passed under Section 144 Cr.P.C. are attempted to serve larger public interest and purpose. As already noticed, under the provisions of the Cr.P.C. complete procedural mechanism is provided for examining the need and merits of an order passed under Section 144 Cr.P.C. If one reads the provisions of Section 144 Cr.P.C. along with other constitutional provisions and the judicial pronouncements of this Court, it can undisputedly be stated that Section 144 Cr.P.C. is a power to be exercised by the specified authority to prevent disturbance of public order, tranquility and harmony by taking immediate steps and when desirable, to take such preventive measures. Further, when there exists freedom of rights which are subject to reasonable restrictions, there are contemporaneous duties cast upon the citizens too. The duty to maintain law and order lies on the concerned authority and, thus, there is nothing unreasonable in making it the initial judge of the emergency. All this is coupled with a fundamental duty upon the citizens to obey such lawful orders as well as to extend their full cooperation in maintaining public order and tranquility.

43. The concept of orderly conduct leads to a balance for assertion of a right to freedom. In the case of Feiner v. New York (1951) 340 U.S. 315, the Supreme Court of the United States of America dealt with the matter where a person had been convicted for an offence of disorderly conduct for making derogatory remarks concerning various persons including the President, political dignitaries and other local political officials during his speech, despite warning by the Police officers to stop the said speech. The Court, noticing the condition of the crowd as well as the refusal by the petitioner to obey the Police requests, found that the conduct of the convict was in violation of public peace and order and the authority did not exceed the bounds of proper state Police action, held as under: It is one thing to say that the Police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of arguments or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the Police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder couples with petitioner’s deliberate defiance of the Police officers convince us that we should not reverse this conviction in the name of free speech.

44. Another important precept of exercise of power in terms of Section 144 Cr.P.C. is that the right to hold meetings in public places is subject to control of the appropriate authority regarding the time and place of the meeting. Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an imminent breach of peace. Such orders constitute reasonable restriction upon the freedom of speech and expression. This view has been followed consistently by this Court. To put it with greater clarity, it can be stated that the content is not the only concern of the controlling authority but the time and place of the meeting is also well within its jurisdiction. If the authority anticipates an imminent threat to public order or public tranquility, it would be free to pass desirable directions within the parameters of reasonable restrictions on the freedom of an individual. However, it must be borne in mind that the provisions of Section 144 Cr.P.C. are attracted only in emergent situations. The emergent power is to be exercised for the purposes of maintaining public order. It was stated by this Court in Romesh Thapar (supra) that the Constitution requires a line to be drawn in the field of public order and tranquility, marking off, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of peace of a purely local significance, treating for this purpose differences in degree as if they were different in kind. The significance of factors such as security of State and maintenance of public order is demonstrated by the mere fact that the framers of the Constitution provided these as distinct topics of legislation in Entry III of the Concurrent List of Seventh Schedule to the Constitution.

45. Moreover, an order under Section 144 Cr.P.C. being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of the Cr.P.C., such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In the case of Dr. Praveen Bhai Thogadia (supra), this Court took the view that the Court, while dealing with such orders, does not act like an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimization by those in power. Normally, interference should be the exception and not the rule.

46. A bare reading of Section 144 Cr.P.C. shows that : (1) It is an executive power vested in the officer so empowered; (2) There must exist sufficient ground for proceeding; (3) Immediate prevention or speedy remedy is desirable; and (4) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.

47. These are the basic requirements for passing an order under Section 144 Cr.P.C. Such an order can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 Cr.P.C. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility. This Court in the case of Babulal Parate (supra) had clearly stated the following view : "the language of Section 144 is somewhat different. The test laid down in the Section is not merely `likelihood’ or `tendency’. The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.

48. The above-stated view of the Constitution Bench is the unaltered state of law in our country. However, it needs to be specifically mentioned that the `apprehension of danger’ is again what can inevitably be gathered only from the circumstances of a given case.

49. Once an order under Section 144 Cr.P.C. is passed, it is expected of all concerned to implement the said order unless it has been rescinded or modified by a forum of competent jurisdiction. Its enforcement has legal consequences. One of such consequences would be the dispersement of an unlawful assembly and, if necessitated, by using permissible force. An assembly which might have lawfully assembled would be termed as an `unlawful assembly’ upon the passing and implementation of such a preventive order. The empowered officer is also vested with adequate powers to direct the dispersement of such assembly. In this direction, he may even take the assistance of concerned officers and armed forces for the purposes of dispersing such an assembly. Furthermore, the said officer has even been vested with the powers of arresting and confining the persons and, if necessary, punishing them in accordance with law in terms of Section 129 Cr.P.C. An order under Section 144 Cr.P.C. would have an application to an `actual’ unlawful assembly as well as a `potential’ unlawful assembly. This is precisely the scope of application and enforcement of an order passed under Section 144 Cr.P.C.

Why India needs democracy

Posted in DEMOCRACY, FUNDAMENTAL RIGHTS, JUSTICE by NNLRJ INDIA on November 26, 2011
Sansad Bhavan, parliament building of India.

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JUSTICE MARKANDEY KATJU IN THE TIMES OF INDIA

What is our national aim? To my mind, our national aim must be to make India a highly prosperous country for its citizens, and for that it is necessary to have a high degree of industrialization.

Even setting up and running a single primary school requires a lot of money, e.g. for buying land, erecting the school building and providing for the recurrent expenditure for salaries of teachers, staff, etc. We have to set up in our country not just one primary school, but hundreds of thousands of primary schools, tens of thousands of high schools and colleges and engineering colleges, technical institutes, medical colleges, scientific research centres, hospitals, libraries etc.

Where is the money for all these to come from? Money does not fall from the sky. It can only come from a highly developed industry, and it is industrialization alone which can generate the wealth we need for the welfare of our people. Today India is a poor country. Nobody respects the poor. It is for this reason that we do not have much respect in the world community (whatever we may think of ourselves). One proof of this is that we are not given a permanent seat in the U.N. Security Council, although we have a population of 1200 million, whereas Britain and France with populations of 60 million each have permanent seats.

It is industrialization alone which can abolish poverty and unemployment, which are the main causes of crime and terrorism, and get us respect in the world community. Also, when there is rapid industrialization, which should be our national target, millions of jobs will be created which will solve the problem of unemployment. For industrialization, development of science is absolutely necessary, and for that freedom is also absolutely necessary, freedom to think, freedom to write, freedom to discuss with others, freedom to explain, freedom to criticize and freedom to dissent.

The growth of science requires certain supportive values, particularly liberty. This is because the thought process cannot develop without freedom. The values of a scientific community viz., pluralism, tolerance, individual freedom and free flow of information are very similar to the values of a democratic society (see ‘Science and the Making of the Modern World’ by John Marks).

A democratic society permits freedom of speech and expression, freedom to practice one’s own religion, which is based on tolerance, and freedom to dissent and criticize. These are precisely the values of a scientific community. In other words, in scientific matters authoritarianism and dogmatism are wholly out of place. Scientists must be largely left free to govern themselves, and have large amount of freedom which is necessary for innovation and creativity. Hence, democracy and liberty go hand in hand with the growth of science because both are based on tolerance, individual freedom and free flow of ideas. In democracy, as in a scientific community, there is freedom to speak, freedom to discuss, freedom to criticize and freedom to dissent.

Justice Louis D. Brandeis, of the U.S. Supreme Court in Whitney vs. California 274 U.S. 357, writing in 1927 observed:

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed”

Similarly, Justice William O. Douglas in Terminiello vs. Chicago 337 US 1 (1949) observed: “….[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest… There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups”.

In our own country, in ancient times the method of Shastrarthas had been developed. These were debates in which the thinkers of those times had full freedom to speak and to criticize their opponents in the opponent’s presence, and also in the presence of a large assembly of people. There are hundreds of references to such Shastrarthas in our epics and other literature. It was this freedom to freely discuss and criticize in ancient India which resulted in tremendous growth of knowledge even in such ancient times, including not only in philosophy, grammar law, etc. but also scientific knowledge, e.g. mathematics, astronomy, medicines, etc. The names of Aryabhatt, Brahmagupta, Bhaskar, Sushrut and Charak are known to all. With the aid of science we had built mighty civilizations e.g. the Indus Valley Civilization when people in Europe were living in forests.

In this connection, we may also mention about modern European history. England was the first country in the world to industrialize and modernize. This economic process was accompanied with the political struggle for liberty and democracy in the 17th and 18th centuries, which was particularly a struggle between the King and Parliament. As we all know, Parliament won, and this laid the foundation of freedom and civil liberties in England, which was necessary to create the atmosphere which science requires to prosper.

Similarly, in France, before the French Revolution of 1789, the thinkers of the Enlightenment — Rousseau, Voltaire, Diderot, Holbach, etc. who attacked feudalism and religious dogmatism paved the way for the Revolution of 1789 which destroyed feudalism, and led to scientific progress. On the other hand, in Italy, Spain and some other countries the Inquisition stifled free thinking and thereby scientific growth. All scientific ideas which were not consistent with the Bible were regarded as crimes e.g. the theory of Copernicus which stated that the earth moved around the sun and not the sun around the earth. As a result, these countries were left far behind England and France, and remained in the feudal dark ages for centuries.

The struggle to establish the scientific outlook was not an easy one. Scientific ideas initially were condemned because they were regarded as opposed to religious dogma. Voltaire and Rousseau had to fly for their lives to other countries. The Church persecuted the greatest scientists with blind cruelty, burning them at the stake (e.g. Bruno), torturing them (e.g. Galileo), and forbidding or destroying their works. As recently as in 1925 the teaching of Darwin’s theory of evolution was forbidden in the state of Tennessee in U.S.A., and a teacher John Scopes was tried in the famous ‘Monkey Trial’ for teaching that theory. For centuries the Church in Europe played an extremely reactionary role and fought pitilessly against the scientific conception of the world, and against the democratic movements. In India, if we are to progress and rise as a world power, we have to spread the scientific outlook to every nook and corner in our country, and destroy superstitions, e.g. the belief in astrology and palmistry, and the feudal ideas of casteism and communalism.

Science is that knowledge by which we can understand nature (and human society) and use this knowledge for our benefit. For doing so, the scientists rely on reason, observation and experiment. This obviously cannot be done on the dictates of anyone (though the government can certainly create the atmosphere where these can flourish). Science and democratic values go hand in hand.

In science, there is no final word, unlike in religion. Science questions everything and does not take anything for granted. Obviously, this approach is not permitted in an undemocratic society, e.g. feudal society (which is governed by religion) or fascist society (in which there is a dictator). Thus, Hitler, with his Nazi racial philosophy, caused an enormous setback to science in Germany by persecuting Jewish scientists and banning their works (e.g. Einstein).

Indeed, in India, after the Constitution was adopted in 1950, there was an atmosphere of liberal freedom in view of the fundamental rights guaranteed by the Constitution e.g. the right to free speech (Article 19), liberty (Article 21), equality (Articles 14 to 17), religious freedom (Article 25), etc. This helped growth of science and technology in our country, because it created an atmosphere of freedom where people including the scientists, could freely discuss and dissent. If we compare our country with the neighbouring countries, there were no such freedoms in those countries and hence those countries lagged far behind in economic growth.

Apart from the above, the advanced sections of society who want to take the country forward, and have the knowledge to do so, must have a lot of freedom to discuss, debate and criticize each other. They are the pioneers and are often entering into a new field, much of which is unknown. Hence, they must have freedom to think, discuss and criticize.

As pointed out by John Stuart Mill in his celebrated essay ‘On Liberty’, all progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc. which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. As pointed out by Mill, in any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress. The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e. majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that scientific progress can take place.

As Justice Oliver Wendell Holmes of the U.S. Supreme Court in his dissenting judgment in Abrams vs. United States, (1919) observed : “…The best test of truth is the power of the thought to get itself accepted in the competition of the market…”

The importance of the judiciary in India in this connection must also be highlighted in this country. In this connection reference may be made to two decisions of the Supreme Court delivered by me viz., Govt of A.P. and others vs. P. Laxmi Devi [2008 (4) SCC 720, JT 2008 (2) 639 and Deepak Bajaj vs. State of Maharashtra and others [JT 2008 (11) SC 609]. In these cases, I emphasized the importance of liberty for progress, and have observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism. I have also in my judgments spoken out against honour killing, fake encounters, dowry deaths, etc. India needs democracy and scientific knowledge, and that means patiently spreading scientific ideas amongst the vast masses, raising their cultural level and involving them actively in the task of nation building.

To my mind, harsh and draconian laws will curb liberty, and that will not only violate the right to liberty granted by Article 21 of the Constitution, but will also lead to great evils e.g. increase in corruption in the police and other law enforcing agencies, which will have much more opportunities to extort money from the citizens, apart from impeding scientific and economic growth, which is vital for our country.

I have gone into some detail on this subject because I wished to clarify that I am a strong votary for liberty and have been misunderstood. However, liberty cannot be equated with licence to do anything one wishes. Should one be given the liberty to spread superstitions, to fan caste/or communal hatred, or put over emphasis on film stars, pop music, fashion parades and cricket in a poor country like ours? I think not. All freedoms are coupled with responsibilities, and no freedom is absolute. It is for this reason that I believe that while ordinarily issues relating to the media should be resolved by the democratic method of discussion and dialogue, in rare and exceptional cases (which may not be more than 5 per cent) harsh measures may be required, but that too not by the government but by any independent statutory authority e.g. the Lokpal.

(Justice Markandey Katju is the Chairman of Press Council of India)

http://timesofindia.indiatimes.com/home/opinion/edit-page/Why-India-needs-democracy/articleshow/10857038.cms

The most precious of all freedoms

Posted in CENSORSHIP LAW, CONSTITUTION, FUNDAMENTAL RIGHTS by NNLRJ INDIA on November 25, 2011

Justice A P Shah in THE HINDU

Indian courts have consistently upheld and championed the fundamental right to free speech and expression enshrined in the Constitution. This includes the right to put forward different and contrary views, right or wrong. A recent instance saw the Supreme Court of India striking down Uttar Pradesh‘s ban on the film Aarakshan. This article by A.P. Shah, retired Chief Justice of the Madras and Delhi High Courts, sets out key issues relating to freedom of expression and censorship by the state. The article, written before the ban on the film, Dam 999, is highly relevant in the current context.

The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

— John Stuart Mill, On Liberty, 1859

A few months ago, Aarakshan joined a long list of films whose screenings were sought to be curtailed by the state instrumentalities, because the social aspects depicted by them were seemingly understood as being bold or uncomfortable to the interests of certain sections of society. This once again raises the question whether India has truly come of age, or whether the freedom to express oneself is subservient to the subjective satisfaction of the state.

Just before the release of Aarakshan, which attempts to critically analyse the system of reservation in admissions in the Indian education system, three States, namely, Punjab, Andhra Pradesh and Uttar Pradesh, decided to suspend the screening of the film in their respective States. The Director of the film approached the Supreme Court against this decision of the States, contending that it amounted to pre-censorship when no such power was vested in them. During the pendency of the petition, Punjab and Andhra Pradesh withdrew the order of suspension in their States. However, Uttar Pradesh remained adamant and decided to defend its order.

Striking down the decision of the Uttar Pradesh Government, the Supreme Court held that even delicate issues like reservation require public discussion and debate in a vibrant democracy such as ours. Such a discussion on social issues spreads awareness, which is required for the effective working of the democracy. In fact, such an informed and positive decision only helps society to grow.

Free speech and expression under the Constitution

The right to freedom of speech and expression is enshrined as a fundamental right under Article 19(1)(a) of the Constitution. Freedom of expression means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. Such is the importance of this right in a democracy that without this right, the attempt to achieve a democratic and principles would be a hollow formality.

Although this right has wide amplitude, our Constitution mandates that when seeking to uphold the larger interest of society, the rights of an individual must give way to such collective rights. It is for this purpose that the right to freedom of speech and expression under Article 19(1)(a) is qualified by “reasonable restrictions” under Article 19(2) of the Constitution. However, to preserve the essence of democracy as also to prevent the state from exercising its will arbitrarily, it is required that such restrictions must only be imposed with a great amount of care and caution.

The Supreme Court, in the case of Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992) 3 SCC 637, stated that the restriction had to be interpreted strictly and narrowly. Such restrictions are bound to be viewed as anathema, inasmuch as they are in the nature of curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities who seek to impose them.

In contrast to India, the American system places a much greater value on this right as the First Amendment to the U.S. Constitution does not permit any prior restraint, and the guarantee of free speech is absolute and unqualified.

Role of the censor

It was stated in K.A. Abbas v. Union of India and Ors., AIR 1971 SC 48that although it must be remembered that the cinematograph is a powerful medium, the mere portrayal of a social vice in a movie cannot attract the censor’s scissors: how the theme is handled by the producer should be the criterion. While analysing the role of the censor, the Supreme Court held: “The task of censor is extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination…..Our standards must be so framed that we are not reduced to a level where the protection of the least capable and most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom this leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.”

Lawrence Liang stated in his article headlined ‘Sense and Censorbility’: “The practical mission of censorship is closely tied to the idea of creating an ‘ideal citizen-viewer. The task of censorship is to teach the viewer to become a citizen through particular spectatorical practices, and the imagined gaze of the citizen-viewer determines the specific content of censorship laws.”

Censorship on the decline

In general, prior restraint regarding film screenings has been on the decline over the decades in the democratic world. Since the 1960s in the United States, the courts have prescribed rigid criteria for prior restraint in cinema. Gradually, film censorship became impractical and no prior administrative restraint of films exists today in U.S. However, supervision of films still exists in the shape of film classifications introduced by the Motion Picture Association of America. Similarly in England, there is no general legislation conferring powers to censor movies, but the common practice is that censorship is based on the classification of movies according to their suitability to different audiences.

However, in contrast, certain countries such as India and several other Asian countries still retain censorship powers on films. The same can at best be understood as something in the nature of enforced morality being subjected upon the citizens by their state.

Censorship in Israel

It is observed that censorship has been on the decline even in a country like Israel which is considered to be largely conservative. The Israel Supreme Court, through landmark decisions such as Israel Film Studios v. Gerry (1962) Isr SC 15 2407 and Bakri v. Film Censorship Board (2003) Isr SC 58 (1) 249, has been instrumental in negating the overreach of the censors even in cases where it was submitted that there would be “an outburst of negative feelings against the state,” and “severe offence to the feelings of a section of the society”. In Laor v. Film and Plays Censorship Board (1987) Isr SC 41 (1) 421, the Censor Board refused to permit the staging of the play Ephraim Returns to the Army, on the ground that it presented a distorted and false picture of the military administration and the occupied territories under Israeli military rule. The court overruled this objection and observed: “The parallel between the German soldier arresting a child and the Israeli soldier arresting an Arab youngster breaks my heart. Nonetheless we live in a democratic state, in which heartbreak is the very heart of democracy.”

The case of Ore Oru Gramathile

The case of S. Rangarajan v. P. Jagjivan Ram and Ors. (1989) 2 SCC 574, concerned a film Ore Oru Gramathile, which much like Aarakshan, was critical of the policy of reservation of the government. Allowing the screening of the movie, the Supreme Court held that in a democracy, it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. Movie is the legitimate and the most important medium in which issues of general concern can be treated.

The court also held that on the issue of balancing the two interests, the commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.

Censor board has failed

Despite the power of regulating the content of films being vested in the Censor, the Central Board of Film Certification (CBFC) has often failed in the task entrusted to it by either stifling creativity or hijacking morality and trying to substitute it with the morality of certain vested interests. It is at times like these that the courts have to step in as the saviour of freedom, safeguarding different forms of expression against the censorial instincts of the state.

The Anand Patwardhan case

In the case of Anand Patwardhan v. Union of India, AIR 1997 Bom 25, Doordarshan refused to telecast the petitioner’s film, In Memory of Friends, which was about the violence in Punjab. The Bombay High Court, while dealing with the objection to screening of a movie, held: “The film maker may project his own message which the other may not approve of. But he has a right to ‘think out’ and put the counter appeals to reason. The State cannot prevent open discussion and open expression, however, hateful to the policies.”

The court further held that the petitioner’s film must be judged in its entirety. The film has a theme and it has a message to convey.

The same film maker, in Anand Patwardhan v. Union of India 1997 (3) Bom CR 438, approached the Bombay High Court seeking a direction to Doordarshan to telecast his documentary Raam-Ke-Naam. Objection was taken to certain scenes in the film where akar sevak justified the assassination of Mahatma Gandhi by Nathuram Godse. Rejecting the point of view that the film provoked commission of offence, it was held that “viewed from the healthy and common sense of point of view, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists.”

Anand Patwardhan also challenged an order of the Film Certification Appellate Tribunal (FCAT), in Anand Patwardhan v. CBFC 2003 (5) Bom CR 58, which had directed changes to his documentary War and Peace (Jang aur Aman)that showed a Dalit leader questioning in his speech why the bomb had exploded on Buddha Jayanti day and not on Lord Rama’s birthday. The Bombay High Court held that it is only in a democratic form of government that the citizens have a right to express themselves fully and fearlessly as to what their point of view is towards the various events that are taking place around them.

Censorship against depiction of the aftermath of Godhra riots

The case of F.A. Picture International v. CBFC AIR 2005 Bom 145 was regarding the film Chand Bujh Gaya, which depicted the ordeal of a young couple — a Hindu boy and a Muslim girl — whose lives were torn apart in the State of Gujarat. The CBFC held that “the Gujarat violence is a live issue and a scar on national sensitivity. Exhibition of the film will certainly aggravate the situation.” The Bombay High Court held that no democracy can countenance a lid of suppression on events in society and stability in society can only be promoted by introspection into social reality, however grim it may be.

In Ramesh Pimple v. CBFC 2004 (5) Bom CR 214, the documentary film Aakrosh focused on the communal riots in Gujarat. The CBFC sought to curtail the screening of the movie on the ground that such exhibition would incite suppressed communal feelings. However, overruling this objection, the court gave the opinion that it is when the hour of conflict is over that it may be necessary to understand and analyse the reason for strife. We should not forget that the present state of things is the consequence of the past; and it is natural to inquire as to the sources of the good we enjoy or for the evils we suffer.

The Da Vinci Code controversy

The case Sony Pictures Releasing of India Ltd. v. State of Tamil Nadu, (2006) 3 M.L.J. 289, dealt with objection to the screening of Da Vinci Code, as the movie was considered to be offensive to the beliefs of Christians. Allowing the screening of the film, the Madras High Court held that the issue is whether there can be a work of art or literature or a film which propounds such interpretations, and whether the public have the right to decide whether to accept or reject such alternative interpretation. The issue is whether the state is bound to protect the person whose fundamental right is sought to be violated by people who threaten to breach peace, or whether the state will mutely watch such threats.

“When men differ in opinion, both sides ought equally to have the advantage of being heard by the public,” wrote Benjamin Franklin. If one is allowed to say that a certain policy of the government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support a governmental scheme, the other could as well say that he would not support it. The different views are allowed to be expressed by proponents and opponents not because they are correct or valid, but because there is freedom in this country to express differing views on any issue. The ultimate good in a society is better reached by free trade in ideas — the best test of truth is the power of the thought to get itself accepted in the competition of the market. Courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution.

(Justice A.P. Shah is a retired Chief Justice of the Madras and Delhi High Courts. He wrote this article in the context of the ban on Aarakshan.)

SOURCE : http://www.thehindu.com/opinion/op-ed/article2656995.ece

 

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