The Court Fails the Citizen
The dismissal of the case on misuse of the sedition law suggests the Supreme Court is removed from reality.
The Supreme Court order dismissing Common Cause’s writ petition seeking directions against the misuse of Section 124A of the Indian Penal Code, 1860 is a monumental abdication of the judicial function. In choosing to summarily dismiss the concerns raised by the petitioner over the abuse of the sedition law, the Court has shut its eyes and ears to the events that are taking place just outside its gates. It has chosen to continue to live in a make-believe world where a precedent laid down in 1962 interpreting the sedition law continues to be understood andapplied by the police in good faith, with no pressure from the state or central governments. The honourable judges seem to be in a fantasy land where dissent faces no retribution in the form of abuse of process by a vengeful government.
Whether it is the first information reports (FIRs) againstprotestors at Koodankulam or the recent complaints against Kanhaiya Kumar or Amnesty International, Section 124A has been used by governments of all shades to stifle dissent. The relatively small number of cases should not hide the intention of the government—to have a chilling effect on dissenting speech. Save for rare cases, an FIR almost inevitably follows the complaint, the criminal justice system proceeds to grind down the accused, who no matter how obviously innocent, is forced todefend herself and run from court to police station to clear her name. Even when a court ultimately finds that the complaint and the FIR were entirely frivolous, there is no remedy or compensation offered to the exonerated for the blatantly illegal acts unless she wants to once again run from court to court seeking compensation. The simple relief claimed by Common Cause, and refused by the Supreme Court, was for a judicially created oversight mechanism to prevent such straightforward abuse of process.
On its own, the order of the Supreme Court seems perplexing. However, seen in the context of recent decisions, it is indicative of the Supreme Court’s views. In the last two years alone, the Court has upheld the constitutional validity of criminal defamation laws by placing the right to reputation above the right to free speech, has invented a new ground not found in the Constitution for restricting freedom of speech (defamation of famous personalities), taken up public interest litigation on regulating jokes against the Sikh community and is considering how to impose a ban on pornography in a manner beyond the existing law.
Far from carrying out its constitutional duty of protecting fundamental rights, the Court seems to think its role is to find new ways to restrict this right, get into freewheeling and absurd litigation by busybodies to help restrict others’ rights and take the side of the government as well as the rich and the powerful who want to curb the right to free expression of views. Increasingly, its path-breaking decision in the Shreya Singhal v Union of India case, in which the Court struck down Section 66A of the Information Technology Act, 2000 declaring it unconstitutional, seems like an outlier. Apart from giving full effect to the right to free expression under the Constitution, the Shreya Singhal judgment was also willing to take into account the actual, real world impact of a law in curtailing freedom of speech. Unfortunately, the Court has repeatedly rejected this enlightened approach. Indeed, there is not a single case in the last two years where the Court has cited the Shreya Singhal judgment with approval.
If this presents a bleak picture of the Court’s antipathy to the freedom of speech in India, it is entirely intentional. The coverage of the Supreme Court by the mainstream media has also played a role in arriving at this situation with its focus on casual and stray observations made from the bench, and the routine hearing and disposal of cases involving politicians and celebrities. This has not allowed for a proper critique of the Supreme Court as an institution, its ideology, and its manner of functioning save for the tired tropes of judicial activism that are trotted out whenever a controversial judgment is delivered without ever adding insight into what the Court should or should not be doing.
The recent trend in the apex court’s jurisprudence in the context of freedom of expression suggests a court that is increasingly out of touch with reality on the threats to free speech in India. Whether it is in the context of abuse of criminal defamation laws or sedition laws, the Supreme Court has been happy to hand out homilies from the bench while keeping in place the structure that allows for the abuse of these laws. As an institution that has been given the constitutional duty to defend citizens’ rights against encroachment by the state, if the Supreme Court’s claims to independence and autonomy from the government are to be taken seriously, it must show that such independence and autonomy is for the benefit of the people at large and not for its own institutional ends.
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