There are times when the judiciary is faced with the momentous task of balancing executive power based on draconian laws and the liberty of a citizen. Seven high courts (Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan) during the Emergency held in favour of the preventively detained citizen. In 1976, a five-judge bench of the Supreme Court adjudicated the correctness of the judgments of the seven high courts. Regrettably, four judges of the Supreme Court, in an appeal against the above high court judgments, caved in to the executive. Those who heard the arguments of various distinguished counsel such as Soli Sorabjee and Shanti Bhushan for the detenues and Attorney General Niren De for the government rested their hopes on three judges — Justices Y.V. Chandrachud, P.N. Bhagwati and H.R. Khanna. It was evident that Chief Justice A.N. Ray and Justice M.H. Beg endorsed the government’s stance and no one held any hope that they would uphold the cause of individual liberty. Indeed, the attorney general’s deplorable statement that even if an individual was shot dead by the executive, he had no remedy in law, went unquestioned by the judges. This led to one of the most unfortunate judgments rendered by the Supreme Court, in A.D.M. Jabalpur vs Shukla. Chandrachud and Bhagwati belied the expectations of all right-thinking Indians and endorsed the deplorable stand of the government, negating any legal remedy to a citizen deprived of his liberty without following judicial process. However, Khanna stood tall as a sentinel, and in one of the most celebrated minority judgments of the Supreme Court, upheld the cause of personal liberty. He had to suffer his supercession, leading to his resignation.
The Supreme Court in 2015 was faced with the issue of the exercise of an obnoxious provision, that is, Section 66A of the Information Technology (Amendment) Act, 2008, which was a serious onslaught on the most sacrosanct fundamental right: that of freedom of speech and expression. It is to the credit of Justices J. Chalmeshwar and Rohinton F. Nariman that they stood firm and answered in favour of the freedom of speech and expression of the citizen. The court commendably did not take the easy way out by referring the case to a larger bench of three judges or to the Constitution Bench.
There are some extraordinary circumstances surrounding this judgment. The writ petition was filed by a law student, Shreya Singhal, the great granddaughter of the late H.R. Gokhale, the law minister at the time of the Emergency. F.S. Nariman, father of Rohinton Nariman, was the additional solicitor general in 1976, who resigned during the Emergency. Even the Bennett Coleman case upholding the freedom of the press that has been relied upon in the present judgment was argued for the government by F.S. Nariman.
The court has eloquently categorised the freedom of speech and expression into three categories — discussion, advocacy and incitement, referring to Mark Antony’s speech in Shakespeare’s Julius Caesar. The court further held that: “If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as ‘grossly offensive’ or ‘menacing’ are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A.”
The judgment has been welcomed by almost all political persuasions,
not only those who had brought in this law but also those then in opposition. In one of the most poignant passages of the judgment, the court rejected the assurance of the present government in defence of Section 66A that it would not be misused in the following terms: “Governments may come and governments may go but Section 66A goes on forever. An assurance from the present government, even if carried out faithfully, would not bind any successor government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered…”
This passage stands in stark contrast to the eloquent though naive hope expressed by one of the judges in the A.D.M. Jabalpur case that the Emergency provisions would not be misused: “Counsel after counsel expressed the fear that during Emergency, the executive may whip and strip and starve the detenu, and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.”
It would have done credit to this government if it had agreed to repeal Section 66A. However, the defence of the provision demonstrates how stances change depending on which party is in power. In a speech in the Rajya Sabha on May 17, 2012, then leader of opposition Arun Jaitley defended the freedom of speech and expression with respect to the IT Act as follows: “I always believe that if the internet had been in existence, the internal Emergency of 1975 would have been a big fiasco. You could restrain and create awe by censorship of the print media and control the electronic media, but you could never control the internet. Therefore, there would be a free flow of information, information would come from all over the world. There would be angry exchange of articles and the circulation would have been so wide that the whole fear psychosis which was built up would itself have been demolished. Therefore, these institutions, which have come up by virtue of technology, have a great role to play.”
However, while upholding the freedom of speech and expression guaranteed under Article 19(1)(a), the court was fully conscious of the mandate of the Articles 19(2) and 19(6), which impose reasonable restrictions. This is evident from the fact that Section 69A and Section 79 of the IT Act have been upheld with certain riders.
The writer is a retired judge of the Delhi High Court, and former chief justice of Punjab and Haryana High Court (2009-11).
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