Supreme Court’s National Anthem Order: Forced Patriotism vs. Freedom of Expression

This post discusses the Supreme Court’s order mandating playing of the national anthem in all movie theatres and the incongruities that emerge from it vis-à-vis freedom of expression. The post seeks to highlight the fundamental problem of making patriotism a forced expression.

In a widely criticized move, a Supreme Court bench ruled that it is mandatory for movie theaters to play the national anthem before the screening of every movie. The Court also cast upon all cinema goers the obligation to stand up during the national anthem in a cinema hall.

The purpose for the measure as cited by the Court was to ‘instill the feeling of committed patriotism and nationalism within one’. It is, however, difficult to understand how playing the national anthem, particularly at cinemas, which are essentially a recreational avenue, will guarantee patriotic feelings.

Patriotism and Freedom of Expression:

Patriotism is a very personal sentiment and an individual’s right to express it in her own way is ingrained in the constitutional right to freedom of expression. To fortify this argument a parallel can be drawn to the reasoning adopted by the Supreme Court in its 1986 ruling in Bijoe Emmanuel vs. State of Kerala. Here, the Apex Court had extended protection to children belonging to the Jehovah’s Witness sect, who had refused to sing the national anthem during a school assembly. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held, “..There is no provision of law which obliges anyone to sing the National Anthem…”

Similarly, the US Supreme Court in the landmark case of West Virginia State Board of Education vs. Barnette, held illegal a resolution that allowed schools to expel its students who refused to salute the flag and undertake the Pledge of Allegiance. The US Supreme Court held that forcing students to salute and recite the Pledge constituted compelled speech and violated the right to free speech and expression guaranteed under the First Amendment. The majority decision given by Justice Robert Jackson held,

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. …We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression. The Court in Excel Wear Etc. vs. Union of India held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Correspondingly, the right to expression under Article 19 should also encompass within it a right not to express. The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. Furthermore, in this context, it is extremely pertinent to highlight Justice Jackson’s Barnette opinion on making ‘patriotic ceremonies’ a ‘compulsory routine’. He emphasizes that patriotic ceremonies should be voluntary and spontaneous instead of being a compulsory routine. To do so would be underestimating the institutions of free minds.

Constitutional Patriotism – a reasonable restriction under Article 19(2)?

In the present order, the Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’ when it held, “It does not allow any different notion or the perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.” While curtailing individual rights, the Court has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.

Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. According to this concept, constitutional principles should serve as the binding factor and nothing else. In this context, the Court’s rationale behind making it mandatory to play the national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national anthem, if anything, is symbolic of the nation and not of the constitution.

In Bijoe Emmanuel, the Court clearly laid down that any regulation or curtailment of free speech and expression should have statutory backing and fall under the reasonable restrictions prescribed under Article 19(2). There can be no other basis for incursion into the ambit of fundamental rights. The Court’s recourse to ‘constitutional patriotism’, an extra constitutional principle, to restrict fundamental rights without any constitutional or statutory basis, sets a very dangerous precedent.

Deeming Fundamental Duties Enforceable

The Court has taken refuge of Article 51A of the Indian Constitution to direct individuals to compulsorily stand up during the national anthem as a ‘sacred obligation’. Article 51A(a) of the Constitution only casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’ and does not prescribe specific standards such as being required to sing and/or stand to show respect. The Court has failed to note that though there is an inherent compulsion to comply with the fundamental duties, there is no legal sanction provided for the violation or non-performance of such duties.

Moreover, the Prevention of Insults to National Honour Act, 1971 (‘Act’) which has been referred to in the order does not mandate that a person must necessarily sing and/or stand during the national anthem. Section 3 of the Act merely criminalizes any act done intentionally to prevent the singing of, or causing disturbance during, the national anthem. By issuing the present order, the Court has effectively deemed this fundamental duty enforceable, non-compliance of which may attract contempt of Court proceedings. Furthermore, in the absence of any law prescribing punishment for not standing and/or singing the national anthem, the present order is a clear case of encroachment into the legislative domain.

As a fallout of the Supreme Court order, the Kerala police had arrested eleven people for showing disrespect to the national anthem by not standing up at an international film festival held in Thiruvananthapuram. Though the ‘accused’ were released on personal bail, they have been charged under Section 188 of the Indian Penal Code, which prescribes punishments for disobeying an order passed by a public servant.

Conclusion:

This order could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order. Most recently, a paraplegic man was assaulted in a theatre in Goa for not standing up during the national anthem and a group of college students were manhandled and threatened for not standing up during the national anthem at a theatre in Chennai.

Curiously, on 2nd December, 2016 a similar plea to make the playing of the national anthem mandatory in all Courts was rejected by the Supreme Court calling it an ‘overstretch’. Considering the interim order has been severely criticized, it will be interesting to trace the course that the matter takes on the next date of hearing which is 14th February, 2017.

Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 2 Updates

NOTE: The title of the post was edited subsequent to the SC rejecting a plea to reexamine the meaning of Hindutva as interpreted in the 1996 Manohar Joshi judgment

Mr. Arvind P. Datar continued his arguments on Day 2. He commenced by referring to his earlier arguments from the previous day on the interplay of Sections 98 and 99 of the Representation of People Act, 1951 (‘RPA’) and reiterated the issues framed by the three judge bench mentioned here.

He submitted that there is no conflict with the stand taken by the Supreme Court in the Manohar Joshi case. He read out several relevant portions of the judgment which talks about the mandatory nature of Section 99 especially where a returned candidate has been alleged of corrupt practice vicariously for the conduct of any other person with his consent. He stated that the question regarding the returned candidate being guilty of corrupt practice can be decided only at the end of the trial after an enquiry against the other person is concluded by issuing them notices under Section 99 and accordingly, the trial under Sections 98 and 99 has to be a composite trial. According to Mr. Datar, it will lead to an absurd situation if the trial against the returned candidate is concluded first and then the proceedings under Section 99 are commenced for the purpose of deciding whether any other person is also required to be named as being guilty of the corrupt practice. After extensive arguments on this issue, Justice Goel was of the opinion that the trial under Sections 98 and 99 must be one composite trial which may take place in two steps but not in two separate phases.

The Court then posed a question to Mr. Datar regarding the stage at which notice can be issued to a third party and the nature of such notice under Sections 98 and 99 since none of the previous cases have examined or answered this issue. Mr. Datar reiterated his submission that Sections 98 and 99 have to be interpreted to mean that notice to a third party can be issued only during trial and not at the conclusion of the trial. Furthermore, the Chief Justice opined that a notice cannot be issued mechanically by the High Court. Before issuing such notice, the High Court has to be prima facie satisfied with the role of the collaborators in the commission of the corrupt practice.

In regard to the nature of notice under Section 99, Mr. Datar referred to the third issue framed by the three judge bench i.e.,

“On reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?”

Mr. Datar contended that the notice to a third party or collaborator should contain the specific charges and specific portions of the speech allegedly amounting to corrupt practice. With reference to the Manohar Joshi case, he contended that the notice does not have to be in the form of a mini judgment. At this juncture, the Chief Justice expressed reservations on the use of the phrase “mini judgment” and opined that it is not appropriate to use the word in this context.

The Court also observed that the judicial principles that govern the analogous provision contained in Section 319 of the Criminal Procedure Code should also apply to Section 99 of the RPA. The Court further observed that since it is a quasi-criminal charge under the RPA, apart from the evaluation of evidence, the third person or collaborator to whom notice is being issued has to be informed of the reasons for such issuance of notice.

Thereafter, the Court considered the issue of ‘naming’ of a third person or a collaborator under Section 99. The issues under consideration were firstly, when can you ‘name’ a third party or collaborator and secondly, whether ‘naming’ is mandatory under Section 99. Mr. Datar contended that on a conjoint reading of Sections 98, 99 and 123(3), it is clear that there are only three categories of persons who can be named i.e. the candidate, his agent or any other person who has indulged in corrupt practices with the consent of the candidate.

While dealing with this subject, the Chief Justice posed a very pertinent question as to whether a person can be ‘named’ for corrupt practices under Section 99 for a speech made prior to the elections. To exhort his point further he gave an instance where elections may be scheduled for after four years. But, a person preparing to contest the elections may request some religious leaders to make speeches on his behalf. The candidate may then use the video recording of the speech at the time of elections. In such a situation can the religious leaders be ‘named’ under Section 99 for having committed a corrupt practice since the speeches were made prior to the notification of elections?

After testing various such propositions, the Chief Justice concluded that the test is not whether the speech was made prior to the elections but whether it was made with the consent of the candidate. If it was made with the consent of the candidate then the religious leaders can very well be named for having committed corrupt practices. He further questioned whether it is mandatory for the Court to name every person who has committed a corrupt practice but is not made a party. Mr. Datar replied in the negative to this proposition.

Mr. Datar through an example sought to distinguish between two scenarios – firstly, where two corrupt practices were committed, one by the candidate independently and one by his agent. Secondly, where the candidate is alleged of a corrupt practice based on the conduct of another. He reasoned that in the first scenario since the candidate had committed a corrupt practice independently, his agent need not be named. Whereas, in the second scenario, since the allegation of corrupt practice against the candidate was based on the conduct of another person, it was necessary to name that other person in order to prove corrupt practice. Therefore, ‘naming’ under Section 99 in the second scenario was contended to be mandatory and non-compliance of which would vitiate the finding of corrupt practice against the candidate.

Taking his argument forward, Mr. Datar said that there cannot be a straitjacket formula while coming to the conclusion of corrupt practice. As stated in the second scenario mentioned above, it is mandatory to name and hear the third person who made the speech before holding the candidate guilty of consenting to the corrupt practice.

The Chief Justice opined that there cannot be recording of finding of corrupt practice unless the person who has committed such corrupt practice is identified. The Chief Justice then considered the case of Mr. Abhiram Singh on its merits and observed that since all the evidence and findings are against Mr. Abhiram Singh and he was given an opportunity of being heard and to prove his case, then it is irrelevant whether the other persons were named or not. Therefore, this does not vitiate the finding or decision against him.

Post lunch, Mr. Shyam Divan appearing for one of the respondents in a connected matter commenced his arguments by narrating the brief facts of his case. Thereafter, he addressed the Court by referring to the legislative history of Section 123(3) of the RPA in order to better understand the scope and interpretation of the said section.

Mr. Divan elaborated that the issue for consideration before the bench was only limited to the interpretation of “his religion” appearing in Section 123(3). For a better understanding of Section 123(3), Mr. Divan briefly took the Court through the parliamentary debates pertaining to the section and also the various legislative amendments to the Section.

Mr. Divan will continue with his submissions when the hearing continues tomorrow.

Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 1 Updates

NOTE: The title of the post was edited subsequent to the SC rejecting a plea to reexamine the meaning of Hindutva as interpreted in the 1996 Manohar Joshi judgment

Today, a seven-judge Constitutional Bench of the Supreme Court of India comprising of Chief Justice T.S Thakur and Justices Madan B. Lokur, S.A Bobde, A.K Goel, U.U Lalit, D.Y Chandrachud and L.N Rao commenced hearing a batch of petitions to examine whether appeals in the name of religion for votes during elections amounts to “corrupt practice” under Section 123(3) of the Representation of People Act, 1951 (‘RPA’). The Court is relooking at the 1996 judgment where it was held that seeking votes in the name of “Hindutva” or “Hinduism” is not a corrupt practice and therefore, not in violation of RPA.

One of the appeals which has been tagged in the present case was filed by a political leader Mr. Abhiram Singh whose election to the legislative assembly in 1990 was set aside by the Bombay High Court in 1991 for violation of this provision.

Section 123(3) of RPA prohibits a candidate or his agent or any other person with the candidate’s consent to appeal for votes or refrain from voting on the grounds of his religion, race, caste, community or language. The issue before the Court was whether ‘his religion” mentioned in this provision referred only to the candidate’s religion or if it also includes the voters’ religion to be considered as a corrupt practice.

Mr. Arvind P. Datar, appearing on behalf of Mr. Abhiram Singh commenced his arguments by stating that for the purposes of Section 123(3) a reference to religion in a candidate’s electoral speech per se would not deem it a corrupt practice. It would amount to a corrupt practice only if such a candidate uses religion, race, caste, community or language as a leverage to garner votes either by appealing people to vote or refrain from voting on such basis. He further argued that “his religion” mentioned in Section 123(3) should be construed to mean only the candidate or the ‘rival’ candidate’s religion. It should not be read to include the voters’ religion.

In this context, the Chief Justice through an example tried to counter Mr. Datar’s submission of giving “his religion” a restrictive meaning. He put forth a hypothetical situation where a candidate belonging to religion ‘A’ appeals to people belonging to religion ‘B’ to vote for him or otherwise they would incur “divine displeasure”. In the instant case, though the candidate is not referring to his own religion but he is still appealing on the basis of religion i.e. religion of the voters. He further gave instances to draw a distinction between appealing on the basis of the candidate’s religion and religion per se.

To emphasize his point further, the Chief Justice put forth other scenarios where religious sentiments may be invoked directly or indirectly to seek votes by the candidate or any other person on his behalf. During the course of the hearing, Justice Bobde observed that “making an appeal in the name of religion is destructive of Section 123(3). If you make an appeal in the name of religion, then you are emphasizing the difference or you are emphasizing the identity. It is wrong.” The Court was inclined to give a broad interpretation to “his religion” to include within its ambit not only the candidate or the rival candidate’s religion but also the voters’ religion. .

The hearing post lunch was more focused on the merits of Mr. Abhiram Singh’s petition which devolved on the interpretation of Sections 98 and 99 of the RPA. Section 98 of the RPA provides for the decisions that a High Court may arrive at after the conclusion of the trial of an election petition. Section 99(1)(a)(ii) of the RPA further provides that in case of an allegation of any corrupt practice at an election, the high court shall name all persons who have been proved to be guilty of any corrupt practice, however, before naming any person who is not a party to the petition, the high court shall give an opportunity to such person to appear before it and also give an opportunity of cross-examining any witness who has already been examined.

In this backdrop, the following issues which were framed earlier by the three judge bench were considered by this Court:

  1. Whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators (leaders of the political party under whose banner the returned candidate contested the election) or any other person on his behalf?
  2. Whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?
  3. On reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?

The Court was of the opinion that the answer to the second issue is in the affirmative and the Court shall only consider the remaining two issues.

Mr. Datar argued that the election of Mr. Abhiram Singh was set aside by the Bombay High Court on the basis of the speeches made by Mr. Balasaheb Thackeray and Mr. Pramod Mahajan in which they made reference to ‘Hindutva’ to garner votes for the Shiv Sena and BJP candidates. His argument was that before coming to this conclusion, the Bombay High Court should have complied with the mandatory procedure provided in the proviso to Section 99(1)(a) which has been explained above.

The Court countered this submission by stating that the finding against Mr. Abhiram Singh stands independently irrespective of whether the process laid down in Section 99 has been followed by the Bombay High Court or not. The Court also observed that in case the High Court names certain individuals for indulging in corrupt practice without following this provision, then it is for such individuals to approach the High Court under Section 99. The Court further stated that the judgment against Mr. Abhiram Singh certainly cannot be vitiated due to such non-compliance. Mr. Datar continued to stress on his argument that the process under section 99 of the RPA must be followed by the High Court before any conclusion of a corrupt practice has been arrived at. He relied on the judgment passed in the earlier cases to buttress his submissions. Additional updates from Day I are available here.

The seven-judge bench will continue the hearing today. We will keep you posted regarding the further developments in this case.

Aadhaar (the Larger Bench): Day I

Written By Joshita Pai

The 5 judge bench this afternoon commenced with the Aadhaar hearing after reference from the Supreme Court on the issues of existence of privacy as a constitutional right and on clarifications of the interim order issued on 11th of August. The bench seemed determined to focus on the clarification issue and the as the beginning of the proceedings, the CJI stated with particular regard to the privacy issue that he has not concluded what bench can be constituted to determine the question.

Mr. Shyam Divan, Senior Advocate insisted on delivering preliminary findings concerning privacy and in the latter part of the hearing, he introduced the subject again and threw considerable light on the previous orders issued by the Court in the matter. The Attorney General’s arguments primarily were based on firstly, the authentic nature of Aadhaar cards; secondly, on the non-viability of procurement of other identity cards such as PAN cards and driving license by the poorest of the poor, thirdly, that 92 crores of the population has already enrolled for Aadhar; fourthly, that the Aadhaar project is centred around a social welfare scheme, finally, on the premise that the card does not contain the biometric information and only displays the unique identification number.

Referring to the Big Brother concerns, the AG asserted that communication on WhatsApp can be snooped into by Facebook. Whatsapp however, in the light of the recent encryption debacle had assured that the encryption keys loaded at the time of sending a message by a particular user can be read in readable format only by the targeted receiver. Certainly, doubts galore the credibility of such end to end encryption. Moreover, commercial use of data is a tangential concept to surveillance and maintenance of database by the Government.

Delving upon the 92 crores Aadhar card holders, the bench asked the AG if he ruled out the possibility that these many people volunteered for aadhar since that would be their only means to access the proposed schemes. The Court, referring to the interim orders sought clarification w.r.t. the voluntary nature of Aadhaar post those orders. The advocates for the string of defendants reinstated that for all schemes outside PDS and LPG, it has been voluntary and insisted that they wish to resume schemes since they are attached to Aadhar.

Arguing for the petitioners, Mr. Shyam Divan reintroduced privacy concerns and stressed upon how the issue can not be looked into in isolation since the basis for Aadhar is built on collection of biometric information and fingerprinting which has been conducted in the absence of any statutory backing or in the least, issuance of a circular. He also mentioned that the enrollment form does not contain the requirement of supplying biometric data. He read out the interim order issued by the Court on August 11th and stated that there was no notice served to the petitioners from the Centre stating that its challenging the Court order.

The bench intermittently expressed concerns about how the order would be carried out since post clarifications by the constitutional bench of the 11th August order, the same would be referred back to the 3 judge bench. The Court will begin by looking into the interim order issued by the court last week in the next hearing, which is scheduled for 2 pm tomorrow.

We are not a totalitarian state and cannot be asked to moral police: AG tells SC in the Porn Petition

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet and was used conveniently by the Government to order the disablement of over 850 website last week came up before the bench headed by the Chief Justice today.

Mr. Mukul Rohatgi, the Attorney General of India represented the Union along with ASG Ms. Pinky Anand. He stated that after the last hearing the petitioners gave a list of 857 websites to the Government, which were blocked by the Department without any verification. Subsequently, the Department verified the list and then asked the Internet Service Providers to only block websites with child porn.

He said that if someone wants to watch porn in the confines of their bedroom how can we interfere. He subsequently stated that there are various kinds of pornography- hard-core, soft, violent porn. At this juncture the Chief Justice quipped ‘Mr. Rohatgi how do you know all this’, to which the AG replied ‘your lordship I have not watched it, but I do plan to, since that is the only way to understand the concerns, moreover my juniors are very tech savy’. He also stated that pornography is a grey area and there are no straight answers.

The AG argued that the geographical frontiers are no frontiers on the Internet and it is a borderless space, and it is very difficult to block anything on it. He said that if we block ten sites another five would pop up with new names at new locations.

He again reiterated that if someone wants to watch this in the privacy of their bedroom, the state cannot be a moral police or enter peoples bedrooms. He added that there are issues of freedom of speech and expression under article 19(1)(a) involved in the case.

The AG stated that the Government is committed to Internet freedom and has launched the ambitious Digital India project, which aims to connect crores of people to the Internet. He added that the MyGov website is becoming the converging point of lots of people to send ideas to the Government and connect with it.

He stated that the petitioner’s argument that the law as it stands today is ineffective and thus unconstitutional is not a valid argument. He cited an example of a case of customs officers in Mumbai who were booked as they were watching porn within a bungalow and the High Court acquitted them, as that is not an offence. He stated that the case is pending before the Supreme Court.

The AG submitted that there is no doubt that child porn has to be banned and the Government will make every effort to do that. However, he added that effective banning on the Internet is very difficult. He also stated that sites these days pick up profiles of the surfer and then the person gets targeted advertising, which the Government cannot block and we are not willing to take up the mantle of moral policing.

He stated that as of today our position is that child porn needs to be banned, beyond that if someone gives us a site which has child porn we will block it or block sites based on court orders as laid down in Shreya Singhal. Beyond that this issue is a larger debate, which can happen in court or outside it in Parliament or in the society.

At this point Mr. Vaswani’s lawyer, Vijay Panjwani stated that a criminal activity is a criminal activity whether in public or in private and transmission of pornography is a criminal activity, which the ISPs are doing. He added that we have the technology to block these sites, parties including people from Banaras Hindu University have filed affidavits in the case stating the same. He said that there is a seven-years imprisonment for anyone transmitting absence content under the Information Technology Act, but we are not even asking for that, we are just asking for the sites to be blocked.

The Attorney General interrupted at this point and stated that today every computer has a child/parental lock and can be used to limit children’s access to such sites and there are other softwares being developed for mobiles and other devices.

He added that the best filter is not to block this content at the gateway but if individuals want they can do it on their devices, as if two adults want to watch it for entertainment we cannot enter their houses. The AG further stated that we cannot become a totalitarian state and there is right to information and entertainment under article 19(1)(a).

Ms. Meenakshi Arora, Senior Advocate being briefed by AoR Mr. Rahul Narayan appearing for the Internet Service Providers Association of India argued that there is a conflict between the two orders issues by the DoT on 31st July and 4th August 2015. She added that ISPs are not responsible for the content added by intermediaries.

The first order asked ISPs to disable 857 websites, but the subsequent orders asked us to unblock 857 URLs. She stated that there is a difference between a website and a URL and added that we will block whatever we are asked to under the law and our license agreements but we need to have clear instructions regarding what needs to be blocked. The Government cannot ask us to identify and block content and that is unreasonable burden on the ISPs.

The CJI speaking for the bench stated that we have never passed any order in this case or asked for any blocking. The AG agreed with the Court and stated that since there has been no order by the Court, he will ask the Department of Telecom (DoT) and Department of Electronics and Information Technology (DeitY) to meet with ISAPI and sort out the difficulties.

The AG informed the court that they are working on some self-regulation mechanisms and requested to court to list the matter in October.

(Sarvjeet is a Senior Fellow & Project Manager at the Centre)

A basic right is in danger

The post originally appeared in The Hindu on 31st July 2015.

The Attorney General’s argument questioning the right of Indians to privacy is wrong on two counts. But worse, it goes against the interests of the people on every count.

“While opinions may vary about Aadhar, the government is expected to act in the best interests of the people.” Picture shows biometric particulars being collected in Tamil Nadu. Photo: K. Ananthan

“While opinions may vary about Aadhar, the government is expected to act in the best interests of the people.” Picture shows biometric particulars being collected in Tamil Nadu. Photo: K. Ananthan

The last ten days have spelt dark times for the right to privacy. On one hand, the DNA Profiling Bill, which may result in a database of sensitive personal data with little to prevent its misuse, is being tabled in Parliament. On the other hand, the Attorney General took a shocking position in the Supreme Court of disputing the very existence of the right to privacy in the Aadhar case.

Undermining decades of evolution of this right through Supreme Court judgments, Mukul Rohatgi argued that it is necessary to put together a constitutional bench to determine whether the citizens of India have a right to privacy.

He is in the wrong for two reasons. The first is technical: he is mistaken in his assertion that M.P. Sharma v Satish Chandra and Kharak Singh v. the State of U.P. created legal doctrine that is no constitutional right to privacy. The second reason is political. A lawyer holding the Attorney General’s office should consider the appropriateness of using that office and public resources when denying that Indian citizens have privacy rights, which are universally recognised human rights. This is all quite apart from the fact that India has ratified the International Covenant on Civil and Political Rights, which unequivocally supports the existence of the right to privacy. The United Nations has gone so far as to create a Special Rapporteur on the right to privacy this year. In the context of US surveillance of its citizens, the Indian government has acknowledged the existence of the right to privacy.

In the Constitution

The two decisions that Mr. Rohatgi references did not raise questions about the right to privacy as a whole. Both confined themselves to the limited question of whether principles mirroring the US Fourth Amendment may be read into the Indian Constitution, which is only one element of the right to privacy. The M.P. Sharma case did this while ascertaining if there are any constitutional limitations to the government’s search and seizure of people’s homes, persons and effects; and the Kharak Singh case did this in the context of physical surveillance of ‘history sheeters’.

In M.P. Sharma, the judgment states, “When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a totally different fundamental right by some process of strained construction” (emphasis added). This makes it clear that it is not the right to privacy as a whole that is being referred to. The American Fourth Amendment pertains to the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, not to the right of privacy in its entirety.

The M.P. Sharma judgment goes further to say, “It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate… When such judicial function is interposed between the individual and the officer’s authority for search, no circumvention thereby of the fundamental right is to be assumed.” This makes it evident that the court desisted from intervening because it saw the requirement of a Magistrate’s order as safeguard enough.

Similarly, although the judgment in Kharak Singh contains the sentence with the ominous beginning “as already pointed out, the right of privacy is not a guaranteed right under our Constitution”, this sentence cannot be taken out of context. The ‘already pointed out’ refers to an earlier portion of the same judgment in which the court quotes the U.S. Fourth Amendment, and then declares that our Constitution does not confer any ‘like constitutional guarantee’. This makes it clear that it is the Fourth Amendment text specifically that the court was referring to.

The court also belied its own position by finding that unauthorised intrusion into a person’s home violates the common law principle of “every man’s house is his castle”. The judgment explicitly takes the position that Article 21 is a repository for residual personal liberty rights, leaving it open for future reading of such rights into Article 21.

It is apparent that the two cases do not rule out a broad constitutional right to privacy. It is almost impossible to consider the right to privacy in its entirety in a single case since it is a bundle of rights including everything from safeguards against unauthorised collection of personal data to restrictions on intrusion into private spaces. The cases that have emerged from the Supreme Court over the years make this apparent.

Different elements of privacy rights have been read into our right to life and our right to free expression. We have a right against untrammelled interception of our communication, and against doctors divulging personal medical information. Long before the Constitution or the Constituent Assembly came into being, the right to privacy of women in purdah was acknowledged by common law, which forbade the building of balconies above their quarters. We do, therefore, have a rich history of enforcing the right. Like many other nations, we called it by different names and have found it within legal and cultural norms unique to India.

It is common for lawyers to use every strategy they can to win cases but the Attorney General is no ordinary lawyer. S/he is a constitutional authority. It is inappropriate for someone of that stature to argue that the people of India do not have a right to privacy. Former Attorney General Niren De was criticised sharply for telling the Supreme Court that it could be helped if the right to life was violated during Emergency. Mr. Rohatgi’s argument is comparable.

This is a democracy, and while opinions may vary about Aadhar, the government is expected to act in the best interests of the people. Here, we have the Attorney General stepping away from arguing that the government’s actions are in the interests of the people to say that the people do not have rights in the first place.

It is not a case of the government’s lawyer arguing for the prevalence of the wider community’s interests over individual rights, or disputing what is in the interests of the majority of citizens. Mr. Rohatgi, on behalf of the Indian government, is making an argument that is blatantly against the rights and interests of all citizens of India.

Interestingly, the argument runs contrary also to the Minister of Communications and Information Technology’s statements recognising citizens’ right to privacy in the context of both US and Indian surveillance.

Time to clarify

This incident is about more than an argument made in court. It is a serious problem if the Union government makes statements that respect privacy and then takes actions that attempt to destroy it. It is also inconsistent for the government to argue internationally that the U.S. has violated Indian citizens’ right to privacy and then to argue before the Supreme Court that Indian citizens do not have the right to privacy.

Under the circumstances, it is necessary for the government to issue a statement clarifying its stand, which I hope will consist of some form of support for citizens’ privacy rights. Once this is clear, perhaps the Attorney General could continue the arguments that take his client’s wishes into account.

A clear statement from the Prime Minister’s office might also enable other ministries to ensure that they embed this right in their policies. This, for example, might have gone a long way in ensuring that cast-iron privacy safeguards were added to the DNA Profiling Bill.

Ignoring the right to privacy will not only affect India’s ‘global image’ more than any critical documentary does, it will also complicate international commercial relations. Who would send their information or employees to a country that disregards its residents’ right to privacy?

Busy Day for Free Speech in the Supreme Court: Defamation and Pornography

Subramanian Swamy v. Union of India

The Supreme Court bench of Justices Dipak Misra and Prafulla Pant today heard a bunch of almost two-dozen petitions, which challenge the constitutional validity of criminal defamation (sections 499 and 500 of the Indian Penal Code). Among the more prominent ones are petitions from Mr. Subramanian Swamy, Mr. Rahul Gandhi, Mr. Rajdeep Sardesai and Mr. Arvind Kejriwal, whose government incidentally days after him challenging the validity of criminal defamation came out with a circular “to deal with instances of defamatory imputations covered under Sec 499/500 of IPC against the CM and ministers”.

Attorney General Mr. Mukul Rohatgi and Additional Solicitor General Mr. PS Narasimha represented the Union of India. The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.

The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

Mr. Andhyarujina informed the court that among the various terms mentioned under Article 19(2) of the Constitution there is no judgment on the issue of defamation and what the court needs to decide is whether the right to freedom of speech and expression as guaranteed under Article 19(1)(a) is inhibited by defamation being a penal provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time taken to decide such suits will have no bearing on that.

Mr. Andhyarujina stated that theses sections are used as an inhibitor for freedom of speech and expression specially in political context, to which the court stated that different people have different views regarding the validity of the provisions under Article 19(2) including the two amicus appointed by the Court and the matter should be carefully considered.

The bench specifically asked the amicus to assist the court with two questions. Firstly, whether sections 499 and 500 can be read down if required and secondly, whether the fact that there has been a trend of some countries abolishing criminal defamation will have any impact on this court deciding the constitutional validity of a statutory provisions in light of our written and organic constitution.

The court has directed the Union of India to file a counter by 11th July and all the petitioners to file their propositions of law by 14th July which is the next date of hearing.

Kamlesh Vaswani v. Union of India

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet came up before the bench headed by the Chief Justice today. The petitioner stated that they have filed an affidavit highlighting the issue of revenge porn. The Court agreed with the seriousness of the matter and agreed to look at the issue of revenge porn. However, the Chief Justice refused to passed any interim order in the matter and stated that the Court cannot interfere in what adults do inside the four walls of their house and doing so may be violate of their Article 21 rights. The bench has asked the Union to file it’s reply in four weeks.

(Sarvjeet is a Project Manager & Fellow at the Centre)