– Thulasi K. Raj*
Authoritarian states have often been uncomfortable with the right to free speech. Different strategies are employed to resist criticism and dissent. In Brazil, the government under Bolsonaro has curbed media freedom significantly, by censorship and targeting journalists. In India, opposition leaders, activists, and writers are routinely threatened with coercive action.
While such government measures against free speech have some global history, a new phenomenon that has emerged is the attack by the judiciary on free speech. The emergence of courts as enablers of totalitarian regimes is characterised as ‘abusive judicial review’ by Rosalind Dixon and David Landau. It is argued with examples that courts undermine, instead of protecting, democratic values and civil rights. In this vein, Indian courts have started to impose speech restrictions as conditions of bail. In this post, I argue that the approach of restraining speech through bail orders is legally and politically problematic.
The following examples illustrate this trend. In November 2020, the Kerala High Court issued an order against Rehana Fathima, an activist, prohibiting her from expressing herself through any media. She had uploaded a cooking video using cow meat, in which she described the meat as ‘gomatha’. The Allahabad High Court granted bail to a person who was accused of making objectionable remarks against Yogi Adityanath, while requiring him not to use social media for two years or until the end of trial. In November 2019, the Madras High Court directed the accused charged with making a derogatory post against Narendra Modi, not to use social media for a year.
We must consider the socio-political implications of such orders in the light of an intolerant political environment in contemporary India. Courts have started to adopt such conditions as a pattern in cases where an offence is alleged to have been committed on social media. Further, these cases arise out of criticism against the ruling government or right-wing ideology, as in the case of Rehana Fathima. Criminal charges are often made for exercising self-expression and freedom of thought. Writers, activists, and poets are constrained to approach the courts for bail, merely for disagreeing with the government, or expressing an undesirable opinion. India is becoming, as the Economist describes, a ‘diminishing democracy’. In this context, it is significant how the courts respond to threats to speech, in a shrinking space for expression. The consequence of imposing such conditions in a politically volatile environment is especially troubling. Broadly, at least five problems can be identified.
First, such conditions lack the authority of the law. Section 437 of the Code of Criminal Procedure deals with the powers of the courts to impose bail conditions. The provision states that these can be imposed in three circumstances. Compliance with bond conditions, and a broader ‘interest of justice’, are two instances. Although the ‘interest of justice’ clause is widely phrased, it is to be interpreted more strictly as ‘good administration of justice’ or ‘advancing the trial process’, as the Supreme Court clarified in Kunal Kumar Tiwari. The salient purpose of this requirement is to ensure the efficacy of the investigation and prevent the accused from absconding. Gag orders are hardly justifiable since there is no plausible link between a gag order and free investigation.
A plausible justification of such conditions would appeal to the third circumstance provided under the provision: ‘preventing a repeat offence’. The question that arises is why the court cannot impose a ban under this ground. Here, it is important to interpret this ground correctly. The provision permits preventing the accused person from repeating the same conduct. In cases involving speech, this would possibly mean uttering the same words. However, the conditions in question go overboard. They do not merely ask the accused to not repeat the same words, but to abstain from speaking altogether. For example, in the case of Rehana Fathima, it is not that she is prevented from uttering the same words on ‘gomatha’ on the media platform, but prohibited from saying anything at all. This is not something that the statute permits. Preventing repetition of a particular conduct is different from a total ban on any (speech related) conduct. Now, section 437(3)(b) permits the court to even impose conditions to prevent offences similar to the alleged offence. While it is often difficult to determine this similarity, these conditions in the bail orders are not narrowly tailored to meet even this ‘similarity’ requirement.
Over time, courts have clarified that factors such as likelihood of evidence tampering or threat or inducement etc., could be sufficient grounds. However, in the guise of imposing conditions, valuable rights cannot be entirely taken away, such as the right to travel abroad. The court has noted in Sumit Mehta that the discretion to impose bail conditions under the law does not mean an unfettered power to impose any condition. It stated that “(t)he object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law”. This observation is significant. In the examples above, it is difficult to see how the absolute ban on speech is linked with investigation in any meaningful way. The court has been conscious of the need to balance personal liberty with fair police investigation, and has recently reiterated the same in Parvez Lokhandwalla. However, currently, under the ambit of ‘preventing a repeat offence’, persons are prohibited from speaking, before determining their guilt under the offences charged. Onerous and unreasonable conditions do not have the sanctity of law.
Second, such orders are exploitative. The accused is placed in a vulnerable position in these cases, where criminal offences are charged for merely speaking up. While it is true that in bail orders, some restriction on the freedom of the accused is typically imposed, in speech-related cases, curtailing the right to expression on social media altogether is a disproportionate measure. This puts the accused in a unique position, as different from other cases where reasonable bail conditions are imposed without unduly restricting personal liberty. The courts offer some sort of ‘conditional freedom’ where the accused must forfeit her right to free speech entirely if she wants to secure her liberty. This puts her in a deeply difficult situation where she must choose between two undesirable options – which is not really a choice at all. As practising lawyers will know, clients and their lawyers are coerced into accepting these conditions since they have extremely weak bargaining power at the time. The accused is constrained to give up one right to secure freedom from imprisonment.
Third, these conditions are difficult to challenge and have lifted. Actions of the executive or the legislature are challenged in courts under judicial review – at least ideally, where a system of checks and balances is in place. Therefore, infringement on free speech can be called into question in courts, and the State is required to explain the reasonableness of the restriction. When courts themselves restrain speech, it makes it difficult for the accused to challenge them. There is no more a forum to argue on the legality of these conditions. The appeal remedy is insufficient, due to the high amount of discretion permitted for the lower courts granting bail and serious backlog of cases.
Fourth, these restrictions are practically blanket bans. There is absolute prohibition on the exercise of speech through any media, under these orders. Under the constitutional framework under Article 19(2), laws regulating specified types of speech are permissible. The essential object of the framework is that curbing speech must not come at a low cost – that is to say, speech is restricted when it harms another person’s reputation, in the case of defamation, or leads to violence, in the case of incitement to an offence. Specified restrictions alone can be used to limit speech. The blanket ban goes against the foundation of this protection. These restrictions form extra-constitutional limitations on free speech. It is not as if speech inciting violence or defamatory is sought to be curtailed, all kinds of speech is banned.
The Supreme Court, while refusing to stay such a bail order said orally that if “participation of a person creates some mischief on social media”, the courts may impose such conditions. It is not clear what “mischief” means, but it is much broader than prohibited speech. The statement is confused, as preemptive steps taken to ensure independent investigation is qualitatively different from restricting speech altogether. There is no link between the purpose of prohibiting a person from using social media and the autonomy of investigation.
In support of such orders, many argue that such restrictions are necessary to prevent ‘offensive speech’— to deter the accused from saying undesirable things. But this argument mistakes undesirable speech with unprotected speech. Offensive speech – speech that annoys, provokes, angers – is protected under our constitution. If the constitution only protected speech that is desirable, or with which everyone is comfortable, the freedom would mean much less.
It is often forgotten that social progress occurs through provocation. The Origin of Species by Charles Darwin was banned from the library of Trinity College, Cambridge. Communist literature and work by well-known authors were banned and burned in Nazi Germany. Speech once considered repulsive and shocking is later recognised to be valuable and respected. The subjective feelings that speech invokes must therefore not justify its prohibition.
Lastly, gag orders shrink the political space for free speech. One of the significant purposes of free speech is to enable an “uninhibited marketplace of ideas” – a place where ideas are not restricted due to disagreement or discomfort. Gag orders actively interfere with this free expression and thought. These blanket bans have a dual effect. They constitute prior restraint, since the persons are prohibited from future speech. Speech is therefore blocked before it takes place. They also have a chilling effect on any kind of exercise of speech, both for the accused, and for the others who hold similar views, as it becomes costly to speak. The restrictions therefore are harmful to a free-thinking polity. In conclusion, blanket speech restrictions as conditions of bail orders are unsustainable, and it is imperative that the courts recognise this.
* Thulasi K. Raj is a lawyer at the Supreme Court of India and the Kerala High Court. She is also an Equality Fellow at the Centre for Law & Policy Research, Bangalore.