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