Upsetting a very fine balance

Three recent instances invite disturbing questions about the transformation of the Supreme Court

Sixty-seven years ago, the framers of our Constitution made a simple — yet radical — choice. They decided to trust the Indian people. The Indian Constitution, with its guarantee of universal adult suffrage, transformed colonial subjects into free and independent citizens, who were to use their own reason in governing themselves.

Our Constitution’s framers also made another important choice. Having fought so long against a repressive government, they were aware of how easily power is used to crush free thought, open discussion, and civil rights. While they trusted the Indian people, they did not trust their rulers. And so, in the Constitution, they guaranteed to all citizens fundamental rights, including the fundamental right to the freedom of speech and expression, subject only to specified restrictions.

Two layers of safeguards

The framers were careful about the language they used: restrictions upon a fundamental right could be imposed only by law. Only an elected legislature, after careful deliberation, could decide to restrict some speech in the interests of an overwhelmingly important public goal. This could then be challenged before independent courts. Thus, the Constitution protected citizens’ rights through two layers of safeguards: the legislature had to make a law, and then the courts could be called upon to test its constitutionality.
In the years after Independence, the framers’ delicate balancing act — between State and citizen, between rights and public goals, between legislatures and courts — has sometimes come under immense strain, but has survived more or less intact. In recent months, however, that balance is once again under stress. Only this time, it is not because of an overbearing Executive or a pliant Parliament. It is because of the Supreme Court. In the course of its history, the Supreme Court has performed its role as the guardian of our fundamental rights with a debatable degree of success: upholding the law of sedition while striking down Section 66A of the Information Technology Act, upholding the law of obscenity while gradually liberalising it over the years, and so on. However, what is happening now is more serious: of late, the Court has begun to redefine its own role under the Constitution, transforming itself from the guardian of civil rights to a great, overarching moral and political censor. This is a role that the framers never envisaged. Given that there is nobody to guard the guardians, it is a role that vests great power — without any accompanying responsibility — in the Court. And it is a role that runs contrary to the very spirit of our Constitution, and specifically to its structuring principle of autonomous, thinking citizens.

Three instances

Three recent instances have accelerated this nascent trend. Recently, the High Court of Bombay found that certain scenes in the film Jolly LLB 2 “defame” the legal profession. Despite the fact that the film had been cleared by the Censor Board, the Court set up an entirely fresh committee to “review” the film, and ordered four “cuts” to be made. The producers moved the Supreme Court, arguing that while the High Court could, admittedly, review the decision of the Censor Board, it could not create an entirely new censoring mechanism. However, the Supreme Court refused to intervene or to hear the producers on the merits of their case until the High Court had passed its final orders. When the Bombay High Court finally mandated cuts, the producers — understandably — saw little point in going back to the Supreme Court. Facing huge commercial losses (the film was set to release in four days), they managed to bargain and reduce the number of cuts. The film was released. The precedent that it set, however, is disturbing.
While the Supreme Court saw nothing wrong with the Bombay High Court’s invention of a parallel censorship mechanism, it saw everything wrong with the fact that cinema halls were not playing the national anthem before every film. Acting upon a “public interest litigation”, and without any basis in existing law, in November 2016, the Court passed an “interim order” compelling all cinema halls to play the anthem. For a moment, forget about whether this is a good or a bad thing. Instead, consider the following: is it legal? It is constitutional? Is this kind of compelled performance of patriotism something India’s Supreme Court can impose upon India’s free and independent citizens? Somewhere, drowned underneath the drumbeats of patriotism, these crucial questions are going unanswered.
And lastly, only last week, the Supreme Court passed yet more interim orders, in a case involving sex-determination tests. Ostensibly, the Court was acting under the authority of the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994, which prohibits advertisements regarding pre-natal sex determination.
However, fuelled by a sense of moral outrage, the Court had been passing a series of “interim orders” (eventually likely to become final) that were progressively increasing censorship; in the latest order, it directed search engines such as Google to constitute in-house committees to “block” access to such websites, and (in continuation of previous orders) to do so by blocking search “keywords”. In one stroke, the Supreme Court vested vast censorship powers in unaccountable private committees, something that Internet scholars and activists all over the world have repeatedly warned against. More worryingly, however, the Court’s orders amount to making entire swathes of the Internet off-limits for everyone, no matter what the purpose: research, investigation, or even simple curiosity. Or, to put it even more simply: because advertising for sex determination is illegal in India, the Court will make any attempt to look it up on the Internet also illegal. That is how totalitarian societies react to the Internet. It is not how the Supreme Court of India is expected to react.
The implications of these orders are frightening. Today, the Court wants Google to block access to search results involving the word “gender selection”. What will it be tomorrow? “Secession”? “Terrorism”? Or just about anything that the courts, in their wisdom, feel that Indian citizens cannot be trusted to read about?

Now, Supreme Censor?

There are a few unifying features about these three cases. All of them were brought to the Court as “public interest litigation”. There is a tragic irony here: public interest litigation began as a movement to democratise access to courts. It discarded traditional rules of evidence, and vested vast powers in courts to “do justice”. In 2017, the very dilution of rules and the existence of vast powers have become weapons in the hands of courts to cut down rights. More importantly, however, in all these cases, the Court’s censorial actions bear a tenuous connection — if any — to “law”. In the Jolly LLB 2 and National Anthem cases, the courts do not even attempt to demonstrate that what they are doing is within the legal framework. In the Sex Determination case, vague references are made to the IT Act, but that law simply does not contemplate judicial orders that make the Internet off limits. In short, the Court’s actions have upended the careful balance that the framers sought to achieve in the Constitution: instead of our elected representatives making laws, which the Court then tests for constitutionality, the Court has now begun to make its own laws limiting, restricting, and suffocating speech. And this is only the tip of the iceberg: the Supreme Court is currently hearing petitions seeking to ban pornography, order a keyword-block for rape videos, and ban racy pictures on condom packets. The Court’s jurisprudence also has an impact downwards: last year, the Madras High Court ordered that the teaching of the Tamil epic Thirukkural be made compulsory in all schools — again, in the absence of any law whatsoever.

In 2017, the Supreme Court has reduced us to passive subjects instead of active, thinking citizens. The Supreme Court tells us what we can watch and what we can’t watch. The Supreme Court tells us what we can search on the Internet, and what we can’t search. The Supreme Court tells us that we must be patriotic, and how, where, and when, we must be patriotic.

To the framers of our Constitution, who fought for political independence from colonial rule on the Enlightenment principle of “have courage to use your reason”, and who trusted the Indian people to make that most important of all decisions — the decision to choose their own rulers — we can only say that the transformation of the Supreme Court into the Supreme Censor would have come as an unpleasant shock