Guest Post: The Case Against Requiring Social Media Companies to Proactively Monitor for ‘Anti-Judiciary Content’

This post is authored by Dhruv Bhatnagar

Through an order dated July 19, 2022 (“Order”), Justice G.R. Swaminathan of the Madras High Court initiated proceedings for criminal contempt against YouTuber ‘Savukku’ Shankar. The genesis of this case is a tweet in which Shankar questioned who Justice Swaminathan met before delivering a verdict quashing criminal proceedings against another content creator. Shankar’s tweet on Justice Swaminathan has been described in the Order as ‘an innuendo intended to undermine the judge’s integrity’.

In the Order, Justice Swaminathan has observed that Chief Compliance Officers (“CCOs”) of social media companies (“SMCs”) are obligated to ensure that “content scandalising judges and judiciary” is not posted on their platforms “and if posted, [is] taken down”. To contain the proliferation of ‘anti-judiciary content’ on social media, Facebook, Twitter, and YouTube have been added as parties to this case. Their CCOs have been directed to document details of complaints received against Shankar and explain whether they have considered taking proactive steps to uphold the dignity of the judiciary.

Given that users access online speech through SMCs, compelling SMCs to exercise censorial power on behalf of State authorities is not a novel development. However, suo moto action to regulate ‘anti-judiciary content’ in India may create more problems than it would solve. After briefly discussing inconsistencies in India’s criminal contempt jurisprudence, this piece highlights the legal issues with standing judicial orders directing SMCs to proactively monitor for ‘anti-judiciary content’ on their platforms. It also catalogues the practical difficulties such orders would pose for SMCs and argues against the imposition of onerous proactive moderation obligations upon them to prevent the curtailment of users’ freedom of speech.

Criminal contempt in India: Contours and Splintered Jurisprudence

The Contempt of Courts Act, 1971 (“1971 Act”) codifies contempt both as a civil and criminal offence in India. Civil contempt refers to wilful disobedience of judicial pronouncements, whereas criminal contempt is defined as act(s) that either scandalise or lower the authority of the judiciary, interfere with the due course of judicial proceedings, or obstruct the administration of justice. Both types of contempt  are punishable with a fine of up to Rs. 2,000/-, imprisonment of up to six months, or both. The Supreme Court and High Courts, as courts of record, are both constitutionally (under Articles 129 and 215) and statutorily (under Section 15 of the 1971 Act) empowered to punish individuals for contempt of their own rulings.

Given that “scandalis[ing]” or “tend[ing] to scandalise” a court is a broad concept, judicial interpretation and principles constitute a crucial source for understanding the remit of this offence. However, there is little consistency on this front owing to a divergence in judicial decisions over the years, with some courts construing the offence in narrow terms and others broadly.

In 1978, Justice V.R. Krishna Iyer enunciated, inter-alia, the following guidelines for exercising criminal contempt jurisdiction in S. Mulgaokar (analysed here):

• Courts should exercise a “wise economy of use” of their contempt power and should not be prompted by “easy irritability” (¶27).

• Courts should strike a balance between the constitutional values of free criticism and the need for a fearless judicial process while deciding contempt cases. The benefit of doubt must always be given since even fierce or exaggerated criticism is not a crime (¶28).

• Contempt is meant to prevent obstruction of justice, not offer protection to libelled judges (¶29).

• Judges should not be hypersensitive to criticism. Instead, they should endeavour to deflate even vulgar denunciation through “condescending indifference…” (¶32).

Later, in P.N. Duda (analysed here), the Supreme Court restricted the scope of criminal contempt only to actions having a proximate connection to the obstruction of justice. The Court found that a minister’s speech assailing its judges for being prejudiced against the poor, though opinionated, was not contemptuous since it did not impair the administration of justice.

However, subsequent judgments have not always adopted this tolerant stance. For instance, in D.C. Saxena (analysed here), the Supreme Court found that the essence of this offence was lowering the dignity of judges, and even mere imputations of partiality were contemptuous. Later, in Arundhati Roy (analysed here), the Supreme Court held that opinions capable of diminishing public confidence in the judiciary also attract contempt. Here, the Court noted that the respondent had caused public injury by creating a negative impression in the minds of the people about judicial integrity. This line of reasoning deviates from Justice Krishna Iyer’s guidelines in Mulgaokar, which had advised against using contempt merely to defend the maligned reputation of judges. Not only does this rationale allow for easier invocation of the offence of contempt, but it is also premised on a paternalistic assumption that India’s impressionable citizenry may be swayed by malicious and irrelevant vilification of the judiciary.

Given the above disparity in judicial opinions, Shankar’s guilt ultimately depends on the standards applied to determine the legality of his tweet. As per the Mulgaokar principles, Shankar’s tweet may not be contemptuous since it does not present an imminent danger of interference with the administration of justice. However, if assessed according to the Saxena or Roy standard, the tweet could be considered contemptuous simply because it imputes ulterior motives to Justice Swaminathan’s decision-making.

It is submitted that the Mulgaokar principles more closely align with the constitutional requirement that restrictions on speech be ‘reasonable’ as the principles advocate only restricting speech that constitutes a proximate threat to a permissible state aim (contempt of court) set out in Article 19(2). For this reason, as general practise, it may be advisable for judges to consistently apply and endorse these principles while deciding criminal contempt cases.    

Difficulties in proactive regulation of ‘anti-judiciary content’

Justice Swaminathan’s observation in the Order that SMCs have a ‘duty to ensure content scandalising judges is not posted, and if posted is taken down’ suggests that he expects such content to be proactively identified and removed by SMCs from their platforms. However, practically, standing judicial orders imposing such broad obligations upon SMCs would not only exceed their obligations under extant Indian law but may also lead to legal speech being taken down. These concerns are elaborated below:

Incompatibility with legal obligations:

Although the Information Technology Act, 2000 does not specifically require SMCs to proactively monitor content, an obligation of this nature has been introduced through delegated legislation in Rule 4(4) of the 2021 IT Rules. This rule requires SMCs qualifying as ‘significant social media intermediaries’ (“SSMIs”) (explained here) to, inter-alia, “endeavour to deploy” technological measures to proactively identify content depicting rape, child sexual abuse or identical content previously disabled pursuant to governmental or judicial orders. However, ‘anti-judiciary content’ is not a content category which SSMIs need to endeavour to proactively identify. Thus, any judicial directions imposing this mandate upon them would exceed the scope of their legal obligations.

Further, in Shreya Singhal (analysed here), the Supreme Court expressly required a court order determining the illegality of content to be passed before SMCs were required to remove the content. However, if proactive monitoring obligations are imposed, SMCs would have to identify and remove content on their own, without a judicial determination of legality. Such obligations would also undermine the Court’s ruling in Visakha Industries (analysed here), which advised against proactive monitoring to prevent intermediaries from becoming “super censors” and “denud[ing] the internet of it[s] unique feature [as] a democratic medium for all to publish, access and read any and all kinds of information” (¶53).

Unrealistic expectations and undesirable content moderation outcomes:

Judicial orders directing SMCs to proactively disable ‘anti-judiciary content’ essentially require them to objectively and consistently enforce standards on criminal contempt on their platforms. This may be problematic considering that the doctrine of contempt emerging from constitutional courts, where judges possess a significantly higher degree of specialised knowledge on what constitutes contempt of court, is itself  ambiguous at best. Put simply, when even courts have regularly disagreed on the contours of contemptuous speech, it may be problematic to expect SMCs to take more coherent decisions.

A major risk with delegating the burden of complex decision-making about free speech to private intermediaries is excessive content removal. Across jurisdictions, platform providers have erred on the side of caution and over-removed content when faced with potential legal risks. This is evidenced through empirical studies on the notice-takedown regime for copyright infringing content in the US and due diligence obligations for intermediaries in India.

Given their documented propensity for over-compliance, directions by Indian courts requiring SMCs to proactively takedown ‘anti-judiciary content’, may incentivise excessive removal of even permissible critique of judicial actions by SMCs. This would ultimately restrict social media users’ right to free expression.

Way forward

Considering the issues outlined above, it may be advisable for the Madras High Court to refrain from imposing proactive monitoring obligations upon SMCs. Consistent with the Mulgaokar principles, judges should issue blocking directions for online contemptuous speech, in exercise of their criminal contempt jurisdiction, only against content which poses a credible threat to the obstruction of justice and not against content which they perceive to lower their reputation. Such directions should also identify specific pieces of content and not impose broad obligations on SMCs that may ultimately restrict free expression.

A fundamental right to virtual court hearings

This blog post has been authored by Shrutanjaya Bhardwaj.

The pandemic has brought about a paradigm shift in the way justice is delivered in India. To adapt to the exigencies of the situation, courts have shifted to a model that allows virtual (online) hearings. Hearings have been exclusively virtual during phases of the pandemic, i.e., during lockdowns. In 2020 alone, the Supreme Court conducted 43,713 virtual hearings as per a Standard Operating Protocol issued for this purpose. When the public health situation has improved, courts have experimented with “hybrid” hearings where parties could choose to appear either physically or virtually.

Diverging views have been expressed by lawyers and judges on the desirability of continuing virtual hearings even in the absence of lockdowns. Some lawyers have supported the continuation of virtual hearings, contending that they reduce public movement, thus helping prevent the spread of the virus. In November 2021, a group of more than 100 women lawyers wrote a letter to the Chief Justice of India requesting that hybrid hearings be allowed to continue because digitally equipped courts are “more equal for women lawyers,” especially those with care-giving responsibilities. A contrary view is that some lawyers, especially those at the Supreme Court and national tribunals who rely on an inflow of cases from outside Delhi, have suffered due to virtual hearings. This is in part because (when physical hearings are the norm) lawyers from outside Delhi find it inconvenient to travel to Delhi and handle the case on their own, incentivising them to engage a Delhi-based lawyer. With virtual hearings, outstation lawyers would have little incentive to engage a Delhi-based lawyer to handle cases. Another concern is that virtual hearings prevent junior advocates from getting noticed while assisting their seniors in court, which in turn reduces their chances of getting briefs.

While acknowledging the validity of these concerns, this piece explores the legal question of whether litigants have a fundamental right to opt for virtual court hearings. At the outset, it is clarified that this post does not envisage a prohibition on physical hearings, for that would overlook India’s digital divide — not all lawyers and litigants have access to a stable computer and high-speed internet services. The limited argument advanced is that the virtual option could be insisted on as a matter of right. Further, it is treated as a given that certain judicial functions cannot be exercised virtually, such as habeas corpus petitions (that require the physical production of the detenu), production of the accused before a Magistrate within 24 hours of arrest (this again involves physical production), or in camera proceedings, e.g. in matrimonial disputes under the Family Courts Act, 1984 (for which the Supreme Court has ruled that video conferencing is not permissible).

A right to access courts

The fundamental right to access justice stems inter alia from Articles 14, 19(1)(a), 21, 32, and 226 of the Constitution. There are two possible conceptions of this right. The broader conception views the litigant as an active participant in the litigation process—constantly giving feedback to their lawyer, demanding accountability, ensuring that their perspective and views find reflection in the case ultimately prepared and presented before the court, and generally being in-charge of their case. Under the narrower conception, the litigant is understood as a dormant stakeholder, far removed from the actual process of litigation because they have handed over their brief to the lawyer, whom they have no option but to trust.

To be meaningful, the right to access justice must be understood broadly to allow the litigant to monitor and control their case. Under the broader conception, then, the bare minimum requirement of access to justice is access to the courtroom itself. In a non-Covid world, this would imply that the litigant must have the option to remain physically present inside the courtroom when the matter is argued. This is not only to enable the litigant to evaluate their lawyer’s performance more accurately—which could theoretically be achieved simply by live-streaming proceedings—but also to allow them to assist the lawyer on a minute-to-minute basis based on the questions that fall from the bench.

Further, many litigants may choose to not engage a lawyer and argue their cases themselves, in which case—whether one accepts the narrow or the broad conception of the right to access justice—litigants must have access to courts.

The pandemic poses a unique and specific challenge with respect to access to courts, i.e., exposing oneself to a physical courtroom entails the risk of being infected, especially during an ongoing wave of infections. This is aggravated by the severe overcrowding that characterizes many of India’s courtrooms. The fact that courtrooms are plagued by congestion was noted by the Supreme Court in a 2018 judgment on live streaming of court proceedings. In fact, only two months before the first wave arrived, the then-CJI lamented the “severe problem” of overcrowded courtrooms even in the Supreme Court. Given such congestion, social distancing norms and the wearing of masks are much harder to enforce, especially in the subordinate courts that lack proper infrastructure and staff. Insisting on physical hearings, therefore, straightaway implies that the litigant must choose between their right to access justice and taking requisite health safety precautions during the pandemic.

Distance and Inequality

With respect specifically to the Supreme Court—which sits only in Delhi and has no other benches—virtual hearings also serve as an eliminator of inequality. Research has shown that litigants situated geographically closer to Delhi file more cases in the Supreme Court compared to litigants situated further away. One likely cause for this contrast is that faraway litigants are deterred by the time and cost required to travel to Delhi and litigate their dispute in the Supreme Court. It was perhaps in anticipation of this difficulty that Article 130 of the Constitution allowed additional benches of the Supreme Court to be set up by the Chief Justice of India in consultation with the President; however, that power has never been exercised. (Similar concerns would apply to central benches of other adjudicatory bodies, e.g., principal benches of national tribunals.)

Further, though comparative research for High Courts is not available, one can extrapolate that geographically larger states would face similar problems with litigants finding it difficult to manage the time and cost of travelling to the city in which the High Court is situated. To combat this and ensure accessibility, several large states have multiple benches across the state. Even in respect of subordinate courts, it is a common litigation strategy to file cases in faraway courts to harass opponents.  

Evolutionary reading of Article 19(1)(a)

Harassment of this nature was hard to address before the advent of video conferencing technology. But the Constitution must be receptive to technological advancement; our understanding of rights must change with evolving technological realities, and technological means should be used wherever possible to prevent and redress constitutional violations. On the issue of open courts, the Supreme Court adopted an evolutionary understanding of the right to receive information under Article 19(1)(a) of the Constitution. The earliest case to authoritatively rule on the right of the public to access courts was Kehar Singh (1988). The Supreme Court had held:

“The courts like other institutions also belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the courts. The courts have no such means or power. The courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing courts more and more to public gaze.”

The Kehar Singh Court obviously had only physical court hearings in mind. But these observations were loyally carried forward in later cases, and eventually in 2018, the Court acknowledged the immense role that technology can play in ensure open access to courts, and held that open live streaming of court proceedings was a fundamental right protected by Article 19(1)(a) of the Constitution:

“By providing “virtual” access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants. Open justice, after all, can be more than just a physical access to the courtroom rather, it is doable even “virtually” in the form of live streaming of court proceedings and have the same effect.”

(emphasis supplied)

Similarly, the rights of access to justice must be interpreted in consonance with technological advancements. Virtual hearings—which render distance meaningless—must now be understood as flowing from two distinct constitutional guarantees. The first is access to justice, which includes the right of the litigant to remain present in the courtroom. The second is the positive guarantee of “equal protection of the laws” under Article 14 of the Constitution, which implies equal opportunity for all litigants to access courts. Denying the option of virtual hearings to litigants would breach both these constitutional guarantees.

Conclusion

Conversations around continuation of virtual hearings—during and post the pandemic—must consider the fundamental rights of litigants to access courtrooms and to take reasonable health safety precautions to remain safe during the pandemic. While other policy concerns must be taken seriously, including the unique concerns of the members of the Bar discussed in the Introduction section, these cannot trump rights considerations flowing from Part III of the Constitution.

This blog was written with the support of the Friedrich Naumann Foundation for Freedom.