social media law
Case BriefsForeign Courts

   

United States Court of Appeals for the Fifth Circuit: While determining the constitutionality of Texas statute- House Bill 20, which generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker, the Bench of Edith H. Jones, Leslie H. Southwick and Andrew S. Oldham*, JJ., rejected the platforms' attempt to extract a freewheeling censorship right from the Constitution's free speech guarantee. It was observed that the platforms are not newspapers, and their censorship is not speech. Thus, they are not entitled to pre-enforcement facial relief. It was held that HB 20 is constitutional because it neither compels nor obstructs the platforms' own speech in any way.

Facts of the Case: The case revolves around House Bill- 20, a Texas statute brought in to regulate large social media platforms with more than 50 million monthly active users, such as Facebook, Twitter, and YouTube. HB 20 was conceptualized due to the fact that Texas legislature had observed that the social media platforms “function as common carriers, are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States.” It was further found that “social media platforms with the largest number of users are common carriers by virtue of their market dominance”.

Net Choice and the Computer & Communications Industry Association, trade associations representing companies that operate platforms covered by HB 20, sued the Attorney General of Texas on 22-09-2021, before HB 20 went into effect.

Provisions of HB-20 Relevant to the Case-

Section 2 imposes certain disclosure and operational requirements on the platforms. Firstly, the platforms must disclose how they moderate and promote content and publish an “acceptable use policy”; secondly, “biannual transparency report” and thirdly must maintain a complaint-and-appeal system for their users. Only the Texas Attorney General may enforce Section 2 and the Attorney General may seek injunctive relief but not damages.

Section 7 of HB-20 A social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on viewpoint of the user or another person; the viewpoint represented in the user's expression or another person's expression; or a user's geographic location in Texas or any part of Texas. The provision also has a narrow remedial scheme according to which if a social media platform violates Section 7 with respect to a user, then that user may sue for declaratory and injunctive relief.

Legal Trajectory: The District Court issued a preliminary injunction on 01-12-2021. It held that Section 7 is facially unconstitutional stating that social media platforms are not common carriers. It then concluded that platforms engage in some level of editorial discretion by managing and arranging content, and viewpoint-based censorship is part of that editorial discretion. It was thus held that HB 20's prohibition on viewpoint-based censorship unconstitutionally interfered with the Platforms' protected editorial discretion.

The District Court also declared Section 2 to be facially unconstitutional and stated that disclosure and operational provisions are inordinately burdensome given the unfathomably large numbers of posts on these sites and apps. The court reasoned that Section 2 will “chill the social media platforms' speech” by disincentivizing viewpoint-based censorship.

However, the District Court did not explain how the facial challenge to constitutionality of Sections 2 and 7 was appropriate.

The District Court further held that HB 20 discriminates based on content and speaker, because it permits censorship of some content (like specific threats of violence directed at a protected class) and only applies to large social media platforms; and HB 20 fails any level of heightened scrutiny.

Texas when into appeal to put a stay on the preliminary injunction which was granted by the Fifth Circuit. On 31-05-2022, in a 5—4 decision, the Supreme Court vacated the stay. Justice Kagan noted her dissent. Justice Alito, joined by Justice Thomas and Justice Gorsuch, authored a six-page dissenting opinion to argue that the Circuit Court's stay should have remained undisturbed.

Observations: While reviewing the findings and injunction of the District Court, the Circuit Judges observed that-

  • Regarding the power to issue preliminary injunction, the Fifth Circuit observed that a preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. It was pointed out that a District Court abuses its discretion if it grants an injunction based on clearly erroneous factual findings or erroneous conclusions of law.

  • Regarding the constitutional validity of Sections 2 and 7 of HB-20, the Court observed that the social media platforms' real complaint about how HB 20 will be enforced is a purely speculative one. The social media platforms asked a federal court to invalidate HB 20 in its entirety before Texas even tried to enforce it. It was pointed out that pre-enforcement facial challenges to legislative acts are disfavored as the judicial power vested in Courts by Article III does not include the power to veto statutes. It was further observed that a federal court has “no jurisdiction to pronounce any statute, either of a state or of the United States, void, because they are irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies”.

  • It was further pointed out that pre-enforcement challenges are “nettlesome affairs” as such suits usually do not present “flesh-and-blood legal problems with data relevant and adequate to an informed judgment”; instead, they require the courts “to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,” forcing courts to deploy the severe power of judicial review “with reference to hypothetical cases.”

  • Furthermore, it was pointed out that the respect owed to a sovereign State demand that courts look particularly askance at a litigant who wants unelected federal judges to countermand the State's democratically accountable policymakers.

  • Deliberating over HB-20’s implication on First Amendment, the Court pointed out that First Amendment overbreadth doctrine recognizes a type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. It was observed that the overbreadth doctrine however, does not apply to Section 7, as the provision does not chill speech; instead, it chills censorship. Therefore, there can be no concern that declining to facially invalidate HB 20 will inhibit the marketplace of ideas or discourage commentary on matters of public concern. Section 7 might make censors think twice before removing speech from the Platforms in a viewpoint-discriminatory manner.

    “Texas enacted HB 20 to address the Platforms' evolution into internet censors. Explaining the perceived need for the law, Texas and its amici cite numerous instances in which the Platforms have censored what Texas contends is pure political speech”

  • The Court pointed out that the social media platforms primarily contended that HB-20 should be declared facially invalid because it prohibits the them from censoring “pro-Nazi speech, terrorist propaganda, and Holocaust denials”. To this the Court states that- Far from justifying pre-enforcement facial invalidation, the Platforms' obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that in determining whether a law is facially invalid, we should avoid “speculating about ‘hypothetical' or ‘imaginary' cases.

  • The Court observed that Section 7 does not operate as a prior restraint on the platforms' speech. Section 7 also does not prevent anyone from expressing their good-faith opinions on matters of public concern. “Section 7 protects Texans' ability to freely express a diverse set of opinions through one of the most important communications mediums used in that State. And it leaves the Platforms free to similarly opine”.

  • The Court noted that a social media platform is not like a newspaper; they exercise virtually no editorial control or judgment and use algorithms to screen out certain obscene and spam-related content. Section 7 neither compels platforms to speak nor does it do anything to prohibit the Platforms from speaking. Section 7 does not impose a content-based penalty on the platforms' speech. Section 7 does not create a special privilege for those who disagree with its views; rather, it gives the exact same protection to all platform users regardless of their viewpoint.

  • Section 7 serves Texas's important interest in protecting the widespread dissemination of information, is unrelated to the suppression of free expression, and does not burden substantially more speech than necessary to advance Texas's interest. Section 7 therefore satisfies intermediate scrutiny and would be constitutional on that basis even if its censorship prohibitions implicated the platforms' First Amendment rights.

  • Comparing HB-20 with Florida's SB 7072, which sought to protect political candidates and journalistic organizations from censorship by large social media platforms, the Court pointed out that both the laws are different, as SB 7072 only targets censorship of speech by political candidates and journalistic enterprises, as well as censorship of speech “about” political candidates. While HB 20 prohibits some censorship of all speakers. Texas's law permits non-viewpoint-based censorship and censorship of certain constitutionally unprotected expressions regardless of who the speaker is.

  • The Court stated that the First Amendment protects speech and generally prevents the government from interfering with people's speech or forcing them to speak. “The Platforms argue that because they host and transmit speech, the First Amendment also gives them an unqualified license to invalidate laws that hinder them from censoring speech they don't like. And they say that license entitles them to pre-enforcement facial relief against HB 20”.

  • Holding HB- 20 to be constitutional, the Court thus concluded that the District Court erred in concluding otherwise and abused its discretion by issuing a preliminary injunction.

Justice Leslie H. Southwick dissented in part with the decision. Southwick, J., dissented on the application of First Amendment principles to the anti-discrimination provisions of Section 7. The Judge observed that that the majority is forcing the picture of what the platforms do into a frame that is too small. “The frame must be large enough to fit the wide-ranging, free-wheeling, unlimited variety of expression — ranging from the perfectly fair and reasonable to the impossibly biased and outrageous — that is the picture of the First Amendment as envisioned by those who designed the initial amendments to the Constitution”.

[Net Choice LLC v. Ken Paxton, No. 21-51178, decided on 16-09-2022]

*Judge who delivered the opinion


**Sucheta Sarkar, Editorial Assistant has prepared this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Sanjay Dhar, J. dismissed a petition which was filed challenging FIR registered under Sections 153, 353 Ranbir Penal Code, 1989 and 13 of Unlawful Activities (Prevention) Act, 1967 (ULA(P) Act).

Petitioner was working as Assistant Professor, Geography, at Government Degree College and it was averred that the petitioner is an RTI activist and has filed many RTI applications for advancing the interests of the society so that public funds are utilized in a better manner. In January, 2017 he had filed a writ petition before the High Court calling into question the illegal extraction of minerals wherein an interim direction was passed by this Court and as a consequence of this, District Magistrate, Kulgam, asked Principal, Government Degree College, Kulgam, to enquire into the activities of the petitioner and in the report nothing adverse was found against the him. It was further averred that the petitioner filed an RTI application seeking information regarding recruitment of Rahbar-e-Khel in the year 2018. According to the petitioner, all the aforesaid activities irked the respondents, as a consequence whereof, the impugned FIR came to be lodged against him.

Respondents, on the other hand, submitted that the petitioner was indulging in criminal activities and he has been misusing and abusing the freedom of expression by taking aid of social media. According to respondents, the activities of the petitioner have the effect of motivating the students of the college to disrupt peace and tranquility in the area as he is provoking them to indulge in violence against the State Administration.

The Court, after perusing the case diary, noted that the respondents recorded statements of the witnesses under Section 161 of the Criminal Procedure Code, 1973 (CrPC) and they have also seized the video clips which are alleged to have been uploaded by the petitioner on YouTube where he was trying to motivate the common people towards separatism and was provoking them against the police and security forces as also against district administration. Upon watching the video clips the Court found that in one video petitioner was seen conveying to his audience that the children of Kashmir are being oppressed by the security forces and the army. In yet another video clip, the petitioner was conveying that the army is hampering the movement of the people and it is obstructing the children from going to schools which has led to closure of schools. In yet another video clip, the petitioner was seen pleading cause relating to release of a person who was in custody for indulging in stone pelting and terrorist activities.

Consequently, keeping in mind the material collected by the investigating agency during the investigation of the case, the Court, prima facie, found that the petitioner was provoking or at least intending to provoke his audience to use force or violence against the institutions like the army, the police and the civil administration. promoting enmity between the people living in Kashmir and those living in other parts of the country.

The Court was of the opinion that what offences are exactly established or made out against the petitioner would be known only after the investigation is completed by the respondents and final report is laid before the competent court but at this stage of the investigation, it can safely be stated that the material collected by the investigating agency so far, does disclose commission of cognizable offences against the petitioner.

The Court, relying on Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, 2021 SCC Online SC 315, reiterated that the Supreme Court had clearly stated in this case that High Court should exercise its powers under Section 482 of the CrPC to quash the investigation in an FIR in exceptional circumstances because it is the statutory duty of an investigating agency to take the investigation into an FIR to its logical conclusion.

Thus, the Court dismissed the petition holding that instant case does not fall into the category of cases in which this Court would exercise its powers under Section 482 of the CrPC to quash the proceedings in the impugned FIR.

[Abdul Bari Naik v. State of J&K, 2022 SCC OnLine J&K 666, decided on 29-08-2022]


Advocates who appeared in this case :

P.S. Ahmad, Advocate, for the Petitioner;

Usman Gani, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: While deciding the instant issue related to the First Amendment, the SCOTUS Justices had to decide that whether the City of Boston violated the Free Speech Clause in refusing to allow a local organisation fly their “Christian flag”. In an unanimous decision, the Court held that the flag-raising program did not express government speech; therefore, Boston’s refusal to let petitioners fly their flag, violated the Free Speech Clause of the First Amendment, as third- party flag raisings form private speech and not government speech.

Background and Legal Trajectory: There are three flagpoles outside the entrance to Boston City Hall, on City Hall Plaza. The first and the second flag pole carries the American flag and the flag of the Commonwealth of Massachusetts respectively. The third flag pole usually flies Boston’s own flag, but the City had allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag- like other countries’ flags, or flags associated with groups or causes, like the Pride Flag, a banner honoring emergency medical service workers etc.

In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community. As part of that event, he wished to raise what he described as the “Christian flag”. Concerned that flying a religious flag at City Hall could violate the Establishment Clause and finding no past instance of the city’s having raised such a flag, the Commissioner of Boston’s Property Management Department told Shurtleff that the group could hold an event on the plaza but could not raise their flag during the celebrations.

Shurtleff and Camp Constitution took the legal route claiming that Boston’s refusal to let them raise their flag violated, among the First Amendment’s Free Speech Clause.

The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. The same was affirmed by the First Circuit.

*The First Amendment provides that Congress makes no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redressal of grievances[1].

Observations: The Full Bench of the Court comprising of John Roberts, C.J., Stephen Breyer (who delivered the opinion of the Court), Clarence Thomas, Samuel Alito, Elena Kagan, Sonia Sotomayor, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barret, JJ., upon perusing the facts of the case, framed the issue that whether the flags Boston allows others to fly, express government speech, and whether Boston could deny petitioners’ flag-raising request.

Vis-a-vis government speech, the Court noted that The Free Speech Clause does not prevent the government from declining to express a view.  The government must be able to decide what to say and what not to say when it states an opinion – “The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression”.

It was observed that at the time of refusal, Boston had no written policy limiting use of the flagpole based on the content of a flag – “The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent…But the key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own”.

Referring to the precedents of Walker v. Texas Division, Sons of Confederate Veterans, Inc., et al., 2015 SCC OnLine US SC 67 , Matal, Interim Director, United States Patent and Trademark Office v. Tam, 2017 SCC OnLine US SC 84 and Pleasant Grove City v. Summum, 2009 SCC OnLine US SC 22;  the Justices stated that the city’s practice was to approve flag raisings without exception. Since at the time, Boston had no clear written policies or internal guidance about what flags groups could fly and what those flags would communicate; thus Boston’s control is not comparable to the degree of government involvement like in the selection of park monuments (Summum) or license plate designs (Walker).

Conclusion: With Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages, the Court went on to classify the third-party flag raisings as private and not government speech

Further noting that Boston denied the petitioner’s request on the sole concern of the religious nature of the flag, the Court held that since the flag-raising program did not express government speech, and Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment – “When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination””.

[Harold Shurtleff v. City of Boston, No. 20–1800, decided on 02-05-2022]


[1] The Constitution, The White House


Sucheta Sarkar, Editorial Assistant has reported this brief.

Legal RoundUpSupreme Court Roundups

Year 2021! The year that started with the hope of the COVID-19 Pandemic nearing an end with countries starting vaccination, ended up becoming deadlier than the year gone by. A year of losses for many, 2021 was also the year when the Supreme Court judges lost one of their own. Justice MM Shantanagoudar, a sitting judge of the Supreme Court, breathed his last on April 24, 2021.

Read: The Judicial Legacy of Justice MM Shantanagoudar

As the Nation was crippled with hardship and adversity, the Supreme Court refused to bog down and went on to deliver 865 judgments, which is a lot more than the number of judgments delivered in the 2020.

The year also witnessed the appointment of 9 judges, including 3 women judges and if all goes well, Justice BV Nagarathna, might take oath as the first woman Chief Justice of India in 2027!  Read more…

5 judges, including the former CJI Justice SA Bobde, retired. Justice NV Ramana took oath as the 48th Chief Justice of India. Read more…

Also read:

·        Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19

·        A Winner All Along – Justice Indu Malhotra

·        Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

·        A Multifaceted Expert — Justice Rohinton Fali Nariman

·        A Champion who applied technology to optimize human potential and capabilities – Justice Navin Sinha

Let’s go through the most important of the 865 judgments delivered by the Supreme Court in the year 2021. 

CONSTITUTION BENCH VERDICTS

Only 3 Constitution Bench judgments were delivered in the year 2021. Read all about them here.


THE MOST TALKED ABOUT CASES

Central Vista Project

The year began with the Supreme Court giving a go-ahead to the Central Vista Project in a 2:1 verdict. While the majority found itself compelled to wonder if it can dictate the government to desist from spending money on one project and instead use it for something else, Justice Khanna, in his dissenting opinion, observed that citizens have the right to know and participate in deliberation and decision making. [Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7]

Read: Supreme Court gives a go-ahead to Central Vista Project in a 2:1 verdict

Also read: Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Farm Bill and Farmer Protest

While the repeal of the Farm laws came at the fag end of the year, the Supreme Court stayed the implementation of these Laws right in the beginning of the year after noticing that despite the peaceful protest, a few deaths had already taken place as Senior Citizens, youth and children were exposing themselves to not just the cold weather but also to COVID-19. [Rakesh Vaishanv v. Union of India,  (2021) 1 SCC 590]

Read: Supreme Court stays implementation of Farm Laws

Also read: Farmer Protests| Shashi Tharoor and 6 journalists not to be arrested for now over tweets on protester’s death during Republic Day Tractor Rally

Here’s a list of some more unmissable high-profile cases:


THE WAY FORWARD

The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.

Nitisha v. Union of India

2021 SCC OnLine SC 261

In 2021, the Supreme Court showed the way forward by giving many progressive orders/judgments. One of the top stories from the year 2021 was where the Court said that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch was arbitrary and irrational.

In another important ruling, before taking the oath as the Chief Justice of India, Justice NV Ramana noticed that the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome. He added that the issue of fixing notional income for a homemaker, therefore, served extremely important functions.

Here is the list of all the judgments that take us as a nation a step forward:


SEDITION AND FREE SPEECH

By way of a series of judgments and orders on free speech, the Supreme made clear that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries.

In a big move, the Supreme Court also agreed to decide the constitutionality of Section 124A IPC after it was submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 required reconsideration. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Read everything here:


IBC – THE IMPERFECT LAW?

While stating that “there is nothing like a perfect law and as with all human institutions, there are bound to be imperfections”, the Supreme Court, in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. [Manish Kumar v. Union of India,  (2021) 5 SCC 1]

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

This judgment was followed by a series of judgments and orders on IBC. Check out the list below to read more:


RIGHTS OF PERSONS WITH DISABILITIES

“In their blooming and blossoming, we all bloom and blossom.”

Vikash Kumar v. Union Public Service Commission,

(2021) 5 SCC 370

This year witnessed many Supreme Court Judgments and orders on the Rights of Persons with Disabilities.

Check out this list to know more:


DEMOCRACY AND TRANSPERANCY

No-one is above law; this was the Supreme Court message as it stressed on importance of transparency by Political Parties and Government Institutions.

Read here:


THE CONSTITUTIONAL RIGHT TO PROPERTY

In a case where State took possession of surplus land in absence of surplus land, this Supreme Court’s verdict served as a reminder that right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27]

Read: Right to property is still a constitutional right under Article 300A of the Constitution


WHEN A CONSTITUTIONAL AMENDMENT WAS STRUCK DOWN

In a rare move, the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B was ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. [Union of India v. Rajendra N. Shah2021 SCC OnLine SC 474]

Read: Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC


THE “EVEN MORE DESERVING PARTIES”

Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

The Court observed that the parties agreeing to out-of-court settlement are “even more deserving”. [High Court of Madras v. MC Subramaniam(2021) 3 SCC 560]

Read: Parties agreeing to out-of-court settlement without judicial intervention under Section 89 CPC can’t be denied benefit of refund of court fees


BANKS AND BANKING

While the Constitution bench looked down upon the “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial and directed that the magistrates “must” record reasons, many other important decisions were given in 2021.

Read here: 


CONSUMER PROTECTION

The Supreme Court took cognizance of Government’s lackadaisical attitude towards consumer empowerment and observed that the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaint.

Here are the important rulings on Consumer Protection that you cannot miss:


FROM “DEATH” TO “LIFE”

In 3 cases, the Supreme Court commuted the death sentences of the convicts to Life Imprisonment and in one case, 3 death row convicts were acquitted of all charges.

Read here:


MOTOR ACCIDENTS CLAIMS

Read how a one-stop online platform for all parties involved and Motor Vehicle Appellant Tribunals will help in achieving a hassle free disposal of Motor Vehicle Accident claims:


ARBITRATION

No year goes by without the Supreme Court delivering some important ruling on Arbitration and the year 2021 was no different.

Read the updates here:


A GUIDE FOR THE BENCH!

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

Krishna Lal Chawla v. State of U.P.,

2021 SCC OnLine SC 191

In 2021, the Court also delivered a number of judgments on the issues of pendency of cases, judicial vacancies and overall standard to be followed by the members of bench while dealing with case.

Read all about these judgments here:


COVID-19

As the second wave of COVID-19 brought the nation to its knees, the Supreme Court did everything in it’s power to ensure that the loss is minimized.

Read all the important judgments here:

Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench comprising of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ. has held that representatives of Facebook will have to appear before the Committee on Peace and Harmony constituted by the Delhi Legislative Assembly. At the same time, the Court felt constrained to put certain fetters qua the exercise sought to be undertaken by the Committee.

The instant petition challenged the notices issued by the Committee directing the petitioners to appear before it. The Conclusion of the Court is delineated below, after which follows a detailed analysis of the controversy and the Court’s discussion and opinion.

(i) There is no dispute about the right of the Delhi Assembly or the Committee to proceed on grounds of breach of privilege per se.

(ii) The power to compel attendance by initiating privilege proceedings is an essential power.

(iii) Members and non-Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath.

(iv) In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of para 4(vii) of the Terms of Reference of the Committee taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made.

(v) Canvassing a clash between privilege powers and certain fundamental rights is also preemptory in the present case.

(vi) In any case, the larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger Bench in N. Ravi v. T.N. Legislative Assembly, (2005) 1 SCC 603.

(vii) The Delhi Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the Information and Technology Act, 2000.

(viii) The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on the ground governance being in the hands of the Delhi Government.

(ix) Para 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields.

Disruptive Potential of Social Media

In the opening paras, the Court noted that,

“[W]hile social media, on the one hand, is enhancing equal and open dialogue between citizens and policy makers; on the other hand, it has become a tool in the hands of various interest groups who have recognised its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation.

Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, more so as they are said to employ business models that are privacy-intrusive and attention soliciting. The effect on a stable society can be cataclysmic with citizens being ‘polarized and parlayzed’ by such ‘debates’, dividing the society vertically. Less informed individuals might have a tendency to not verify information sourced from friends, or to treat information received from populist leaders as the gospel truth.”

Later, the Court also said that the unprecedented degree of influence of social media necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must subserve the principal objective as a valuable tool for public good upholding democratic values. Our country has a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role.

Use of Algorithms and the Role of Facebook

The Court rejected the simplistic approach adopted by Facebook ─ that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information. The Court said that companies like Facebook cannot deny that they use algorithms (sequences of instructions) with some human intervention to personalise content and news to target users. The algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting replicated and reinforced. The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content.

Factual Context and the Writ Petition

The backdrop of the present case is set in the unfortunate communal riots in different parts of North-East Delhi in February, 2020. In the wake of these riots, the Legislative Assembly of NCT of Delhi resolved to constitute a Committee on Peace and Harmony to a “consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups.”

The Committee received thousands of complaints which suggested that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. This was further fuelled by an article published in the Wall Street Journal on 14-8-2020 titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” suggesting that there was a broad pattern of favouritism towards the ruling party and Hindu hardliners. The Article also made serious allegations of lapses on the part of Facebook India in addressing hate speech content.

Subsequently, the Delhi Assembly issued notice for appearance (“first summons”) to the Mr Ajit Mohan, Vice President and Managing Director of Facebook India. Mr Mohan was the first petitioner in the instant writ petition. The first summons highlighted the factum of numerous complaints alleging intentional omission and deliberate inaction on the part of Facebook in tackling hate speech online. It was clearly stated that he was being called as a witness for testifying on oath before the Committee on 15-9-2020. Significantly, no consequences in the form of breach of parliamentary privilege were intimated in case Mr Mohan refused to appear.

In its reply, Facebook objected to the first summons and requested to recall it. This was rejected by the Delhi Assembly, and a second summons was issued. It is at this stage that a perceived element of threat was held out to Mr Mohan stating that his refusal to appear was inconsistent with the law of privileges of a legislature (which extends to the Committee and its members). He was asked to appear before the Committee on 23-9-2020 in the “spirit of democratic participation and constitutional mandates.” Importantly, it was clearly stated that non-compliance would be treated as breach of privilege of the Committee and necessary action would be taken.

It is this second summons which triggered the filing of the instant proceedings under Article 32 of the Constitution of India. It was prayed that (a) the first and the second summons be set aside; (b) the Delhi Assembly be restrained from taking any coercive action against the petitioners in furtherance of the impugned summons. Notably, during pendency of the proceedings, the two summonses issued to Mr Mohan were withdrawn and a new summons dated 3-2-2021 was issued to Facebook India alone.

Analysis and Opinion

Contradictory stand in different jurisdictions not acceptable

“Facebook has the power of not simply a hand but a fist, gloved as it may be.”

The Court was not convinced by the simplistic approach of Facebook, and was of the view that the business model of intermediaries like Facebook being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the USA, Facebook projected itself in the category of a publisher, giving them protection under the ambit of the First Amendment of its control over the material which are disseminated in their platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand depending upon its suitability and convenience. The Court said:

Role of Facebook need to be looked into

Turning to the incident at hand, the Court said that the capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be. It is in this background that the Assembly sought to constitute a peace and harmony committee. The Assembly being a local legislative and governance body, it cannot be said that their concerns were misconceived or illegitimate. It is not only their concern but their duty to ensure that “peace and harmony” prevails.

Three broad heads

(a) Issue of Privilege

The privilege issue arose out of the plea advanced by the petitioners that both, the first and the second summons, were to summon petitioners with a threat of “privilege”. This argument was coupled with a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence/opinion that he is not inclined to state.

While on this, the Court noted that the wordings of Article 194(3) of the Constitution of India are unambiguous and clear. It was the Court’s opinion that it would be a monumental tragedy to conclude that the legislature is restricted to the function of enacting laws. The legislature debates many aspects, and at times records a sense of the House. This is not unusual or without precedent. Further, once the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws is recognised, any act in furtherance of this wider role and any obstruction to the same will certainly give rise to an issue of parliamentary privilege.

The Court saw no merit in the line of argument that no non-member could be summoned if they had not intruded on the functioning of the Assembly; or that the non-participation of the petitioner would not have adverse consequences as it did not disrupt the functioning of the Committee. The petitioners, more so with their expanded role as an intermediary, can hardly contend that they have some exceptional privilege to abstain from appearing before a committee duly constituted by the Assembly.

Noting that only a summons has been issued for appearance before the Committee and the question of any privilege power being exercised is yet far away; the Court observed:

“This case is a preventive endeavour by the petitioner to preclude the respondents from even considering the aspect of privilege by seeking this Court’s intervention at a pre-threshold stage, only on the premise of the absence of legislative power.”

The Court was not impressed by the argument that the privilege powers of the Assembly are not constitutional in character but flow only from the Government of National Capital Territory of Delhi Act, 1991. It was Court’s opinion that the scheme of privilege has to be seen in the context of provisions of Article 239-AA of the Constitution, as well as the GNCTD Act. They are not divorced from each other.

The Court held the power of the Assembly to summon in the format it sought to do is beyond exception and in accordance with law; and that the stage for any possible judicial intervention had not arisen in the instant case.

(b) Privileges, Free Speech and Privacy

Petitioners sought to pit the expanded right of free speech and privacy against privilege, emphasising that the petitioner had a right to remain silent. It was submitted that the mere threat of “necessary action” i.e., the possibility of a breach of privilege, was enough to infringe both the right to free speech and privacy. Thus, “the threatened invasion of the right” could be “removed by restraining the potential violator”.

The Court refrained from entering into any substantial discussion on this point, as such issue is also a subject of reference pending consideration before a 7-Judge Bench.

(c) Legislative Competence

This head dealt with the perceived remit of the Committee and whether the remit has the sanction of the Constitution in the context of division of subject matter under the three Lists of the Seventh Schedule. The bedrock of petitioner’s submissions was based on the alleged lack of legislative competence of the Delhi Assembly and consequently of the Committee to look into the subject matter qua which the notice had been issued to the petitioners. The submission, thus, was that in the absence of any such legislative competence, the petitioners were entitled to approach the Court at this stage itself rather than being compelled to wait for further progress in the proceedings.

On this, the Court reiterated the proposition that the division of powers between the Centre and the State Assemblies must be mutually respected. The concept of a wide reading of Entries (in the three Lists) cannot be allowed to encroach upon a subject matter where there is a specific entry conferring power on the other body. The Court was of the view that the recourse to Entries 1 and 2 of List III cannot be said to include what has been excluded from the powers of List II, i.e., Entries 1, 2 and 18. Similarly, Entry 45 of List III relating to inquiries would again not permit the Assembly or the Committee to inquire into the aspects of public order or police functions. That a law and order situation arose was not disputed by anyone, and that this law and order issue related to communal riots also could not be seriously disputed. That the Assembly cannot deal with the issue of law and order and police is also quite clear.

“Peace and Harmony” as opposed to “Law and Order”

The respondent’s argument was premised on a broader understanding of the expression “peace and harmony”, as opposed to it being restricted to law and order.

The moot point was whether the expression “peace and harmony” can be read in as expanded a manner as respondent sought to do by relying a on a number of Entries in List II and List III. The Court had no doubt that peace and harmony, whether in the National Capital or in a State context, is of great importance. But it would be too much to permit the argument that peace and harmony would impact practically everything and thus, gives power under different entries across the three lists.

The divergent contentions lead the Court to conclude that the Committee can trace its legitimacy to several Entries in List II and List III without encroaching upon the excluded fields of public order or police to undertake a concerted effort albeit not to the extent as canvassed by the respondents. Facebook cannot excuse themselves from appearing pursuant to the new summons issued to them on 3-2-2021. Areas which are not otherwise available to the legislature for its legislative exercise may, however, be legitimately available to a committee for its deliberations. This is so in the context of a broad area of governmental functions. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in the dual power structure in Delhi. The complexity of communal tensions and their wide-ranging ramifications is a matter affecting citizens of Delhi and it cannot be said that the Government of NCT of Delhi cannot look into the causal factors in order to formulate appropriate remedial measures. Appropriate recommendations made by the State Government in this regard could be of significance in the collaborative effort between the Centre and the State to deal with governance issues.

The Court was of the view that because of the pervasive impact of the riots, the Committee could legitimately attend to such grievances encompassing varied elements of public life. Thus, it would be entitled to receive information and deliberate on the same to examine their bearing on peace and harmony without transgressing into any fields reserved for the Union Government in the Seventh Schedule.

Terms of Reference of the Committee on Peace and Harmony

The Court discussed that a part of the Terms of Reference of the Committee on Peace and Harmony was clearly outside the purview of the powers vested with the Assembly. This problem was compounded by what transpired in the press conference held by the Chairman of the Committee. Speaking on behalf of the members of the Committee, the Chairman made certain statements that assume greater significance by virtue of being in the public domain.

While respecting the right of the Committee to the extent that there exists an obligation on the petitioners to respond to the summons, the Court was of the view that it could not permit the proceedings to go on in a manner that encroaches upon the prohibited entries. The Court did not seek to control how the Committee proceeds. In fact, the Committee was yet to proceed. But certain provisions of the Terms of Reference coupled with the press conference is what persuaded the Court to say something more than simply leaving it to the wisdom of the Committee to proceed in the manner they deem fit.

The Court found that para 4(vii) of the Terms of Reference was a troublesome aspect. It read: “(vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence”.

It was held by the Court that clearly it is not within the remit of the Assembly to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement of violence. This is an aspect purely governed by policing. It is the function of the police to locate the wrong doer by investigation and charge them before a competent court.

In order to justify the legislative competence and the remit of the Committee, the respondents practically gave up this para 4(vii) and the Court made it clear that this cannot be part of the remit of the Committee.  It was also recorded that by issuing the new summons which withdrew the earlier summons, fallacies in the notices stood removed.

Press-conference by Chairman of the Committee

The Court noticed that the statements made by the Chairman of the Committee during the press conference on 31-8-2020 could not be diluted or brushed aside. It was stated by the Chairman that the material placed before the Committee had resulted in a “preliminary conclusion”. Thereafter it was stated that “prima facie it seems that Facebook has colluded with vested interests during Delhi riots”. He further said: “Facebook should be treated as a co-accused and investigated as a co-accused in Delhi riots investigation”, and “As the issue of Delhi riots is still going in the court, a supplementary chargesheet should be filed considering Facebook as a co-accused”.

Such statements and conclusions, as per the Court, were completely outside the remit of the Committee and should not have been made. That it may give rise to apprehension in the minds of the petitioners could also not be doubted. Such statements are hardly conducive to fair proceedings before the Committee and should have been desisted from. This is especially so as that was not even the legislative mandate, and the Assembly or the Committee had no power to do any of these things.

Putting fetters qua the exercise undertaken by the Committee

In view of the aforesaid, while giving the widest amplitude in respect of inquiry by a legislative committee, the Court was constrained to put certain fetters in the given factual scenario otherwise tomorrow the proceedings itself could be claimed to be vitiated.

The Court said that the Committee cannot have a misconception that it is some kind of a prosecuting agency which can embark on the path of holding people guilty and direct the filing of supplementary chargesheet against them. This aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge.

In any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e. law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings.

The Court expressed its confidence that such an eventuality will not arise, given the important role that the Committee is performing and that it will accept the sagacious advice. So much and not further.

The writ petition was accordingly dismissed. [Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456, decided on 8-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


 

Case BriefsCOVID 19District Court

Sessions Court, Jammu and Kashmir: Tahir Khurshid Raina, J., denied anticipatory bail to the person accused of obstructing the vaccination drive and spreading rumours regarding the vaccination. The Bench said, 

“It is very unfortunate that while on one hand, the govt. is making painstaking efforts to ensure the safety of the people against the deadly virus by vaccination drives, the rumour mongers like the petitioner are acting as stumbling block in this lofty endeavor of the government.”

The instant application had been filed by the accused seeking anticipatory bail alleging that some false and frivolous complaint had been lodged against him. It was averred that the respondent/police wants to malign the image of the petitioner by taking him into custody. On presentation of the same, though the Court granted interim anticipatory bail, it also called for the report from the concerned Police Station. After perusal of the report, and going through the C.D. of the alleged incident the Bench reached the following findings:

Background

The facts of the case as reflected from the case diary was that on 21-06-2021, a Revenue team headed proceeded to Ashmuji for Covid-19 vaccination drive at Government Higher Secondary School. When the revenue team along with the medical team reached the spot, the petitioner made hue and cry, instigated and provoked local inhabitants there against the team and halted the vaccination drive. The petitioner assembled a large crowd there, diverted the vaccination drive towards other unnecessary issues in order to restrain the general public from vaccination. On the basis of that an FIR was registered against the accused of commission of offences under Sections 188, 269, 353 IPC.

Perusal of statements of the revenue team revealed that they all had supported the contents of the complaint lodged against the petitioner and how his hate campaign against vaccination obstructed the vaccination drive by spreading misinformation. The petitioner was also said to have used filthy language against the team members who were on the spot in connection with the vaccination drive.

Opinion and Findings of the Court

Relying on the statement of WHO, “but it’s not vaccines that will stop the pandemic, its vaccination”, the Bench stated that during the world crippling pandemic our experts in the medical field had acted as front warriors to save the humanity and at the same time played an exemplary role in preparing a vaccine to act as a shield against the attack of the virus, yet unfortunately,

“By spreading rumors and disinformation campaign against the vaccination, the petitioner and their ilk were creating lot of fear psychosis and confusion among the general public about the vaccination. Such unsubstantiated and profane act of the petitioner is not only grossly illegal but amounts to pushing the life of the people in peril, who, if not get promptly vaccinated, may fall prey to the deadly virus.”

The Bench emphasised not to forget the melancholic situation the country had faced recently, on account of second wave of the pandemic, which consumed lacs of precious human lives. Further to avoid the fatal impact of the third wave which can be more fatal as compared to second-wave the only remedy available and suggested by the experts is to get more and more people vaccinated. Expressing concern, the Bench said that it had been witnessed that at various places the health workers had to face stiff resistance from the people during vaccination drive and even had been subjected to assault at same places due to myths, rumors and canard being spread by the people like the petitioner and on account of it the people, especially living in the rural areas are getting skeptical and cynical about vaccination.

Opining that the act of rumour-mongering with regard to vaccination amount to putting the large chunk of people in jeopardy and at the same time to defeat the govt. in its drive of achieving the target of fully vaccinated country and finally to save the countrymen of the brutal effect of any further wave of the pandemic, the Bench held that the petitioner’s act of blocking the vaccination drive was detestable and illegal, hence, extending anticipatory bail to him would mean to put premium on his criminality.

Quoting Rumors are carried by haters, spread by fools and accepted by idiots”, the Bench added, let a message travels in the length and breadth of our society at large that no such unbecoming and illegal attempt of rumor mongers will be tolerated who are creating a hurdle in the way of vaccination drive. They will be dealt strenuously under law. Moreso, such haters do not deserve concession of anticipatory bail, rather their free movement and free speech is a threat to the society at large which requires to be circumscribed in accordance with the law for the general good of the society. Accordingly, the interim bail granted to the petitioner along with his bail application was dismissed.[Ghulam. Jeelani Rather v. UT of J&K, CNR.No.JKKGO10005062021, decided on 02-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Applicant: Advocate Arshad Baba

For the UT of J&K: P.P. Aijaz Ahmad Najar

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: The Court by an overwhelming majority of 8:1 held that a student’s suspension from school’s cheerleading squad because of her off-campus Snapchat posts expressing her frustration with the school, violates such student’s Freedom of Speech and Expression as enshrined within the First Amendment. The Court observed that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the Mahanoy Area High School are not sufficient to overcome B.L.’s interest in free expression in this case. The majority consisted of John Roberts, CJ., Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Amy Coney Barret, Brett Kavanaugh, Neil Gorsuch, JJ.

Background and Legal Trajectory: B.L., a student of Pennsylvania’s Mahanoy Area High School, at the end of her freshman year, tried out for a position on a private softball team. She did not make it to the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad’s junior var­sity team. She did not accept the coach’s decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team. While visiting a local convenience store over the weekend, B.L. posted two images on Snapchat, (a social media ap­plication for smart phones that allows users to share temporary images with selected friends) expressing frustration with the school and the school’s cheerleading squad. One of the posts contained vulgar language and gestures.

The first image B. L. posted showed her and a friend with middle fingers raised bearing the caption: “F–k school f–k softball f–k cheer f–k everything.”  The sec­ond image was blank but for a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?”  

When school officials learned of the posts, they suspended B.L. from the junior varsity cheerleading squad for the up­coming year.

B.L. contended that the school authorities by suspending her for the Snapchat posts have violated her right of free speech as protected by the First Amendment. B.L.’s parents made unsuccessful attempts to reverse the school’s decision, therefore approaching the courts. The District Court granted an injunction ordering the school to reinstate B.L. to the cheerleading team. The District Court found that B.L.’s punishment violated the First Amendment because her Snapchat posts had not caused substantial disruption at the school. The Third Circuit affirmed the judgment, but reasoned that schools had no special license to reg­ulate student speech occurring off-campus.

Observations: The Judges observed that in Tinker v. Des Moines Inde­pendent Community School Dist., 393 U. S. 503, the Court had stated that schools have a special interest in regulating on-campus student speech that “materially disrupts class­ work or involves substantial disorder or invasion of the rights of oth­ers”, however, the special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off-campus. Circumstances that may implicate a school’s regulatory interests include serious or severe bul­lying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning les­sons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.

Vis-à-vis off-campus speech, the Court observed that-

  1. A school will rarely stand in loco parentis when a student speaks off cam­pus;
  2. From the student speaker’s perspective, regulations of off-campus speech when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day, that means courts must be more skeptical of a school’s efforts to regu­late off-campus speech, for doing so may mean the student cannot en­gage in that kind of speech at all.
  3. The school itself has an inter­est in protecting a student’s unpopular expression, especially when the expression takes place off-campus, because America’s public schools are the nurseries of democracy.

If all the aforementioned features are read together then these mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

The Majority concluded that the school violated B.L.’s First Amendment rights when it sus­pended her from the junior varsity cheerleading squad. B.L.’s Snapchat posts are entitled to First Amendment protection- for they reflect criticism of the rules of a community of which B.L. forms a part; B.L.’s message did not involve features that would place it outside the First Amendment’s or­dinary protection.

The circumstances of B.L.’s speech diminish the school’s inter­est in regulation.  B.L.’s posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B.L. also transmitted her speech through a per­sonal mobile phone to an audience consisting of her private circle of Snap-chat friends. “The school’s interest in teaching good manners and conse­quently in punishing the use of vulgar language aimed at part of the school community is weakened considerably by the fact that B.L. spoke outside the school on her own time and she spoke under circum­stances where the school did not stand in loco parentis. The vul­garity in the B.L.’s posts encompassed a message of criticism.

Dissenting Opinion- Justice Clarence Thomas was the sole dissenter. He observed that the Majority took a common law approach to decide the matter and criticised the Court’s lack of clarity in identifying the principles in the case. “In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an “example” and “leaves for future cases” the job of developing this new common-law doctrine. But the Court’s foun­dation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means.

[Mahanoy Area High School v. B.L. (a minor through her father Lawrence Levy), No. 20-255, decided on 23-06-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Upholding the citizens’ right to criticise the government, the bench of UU Lalit* and Vineet Saran, JJ, has quashed the FIR lodged against Journalist Vinod Dua over his YouTube show on communal riots in Delhi earlier this year.

The Court held,

“… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.”

What was the controversy?

According to the complaint, Dua had accused Prime Minister Narendra Modi of using “deaths and terror attacks” to get votes.

The FIR read,

“On 30th March, 2020, Mr. Vinod Dua, in his show namely The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations (details of particular moments are provided below) by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24th March 2020.”

According to the F.I.R. “…by making such false statements, Mr.Vinod Dua spread fear amongst the people. This video will only create a situation of unrest amongst the public which will result in panic and people not obeying the lockdown to come out and hoard essentials which is absolutely unnecessary.…. The rumours were spread with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity.”

Why no case of sedition was made out against Dua?

Deaths and terror attacks

The statements attributed to Dua that the Prime Minister had used deaths and terror attacks to garner votes or that the Prime Minister had garnered votes through acts of terrorism, were not made in the Talk Show. No such assertions find place in the true translation nor were any objections raised that the translated version was in any way incorrect. The petitioner did say that the air strikes by India on Balakot and attacks on Pathankot and Pulwama were used as political events to garner votes but no allegations were made against the Prime Minister as was stated in the F.I.R.

COVID-19 Testing facilities

Considering the size of the population of this country, the testing facilities to gauge and check the spread and effect of the Pandemic, at least in the initial stages of the surge, were not exactly adequate. If in that light, the petitioner made any comments about testing facilities or PPE Suits, N-95 masks and masks of ply, those comments in first two statements, cannot be anything other than appraisal of the situation then obtaining.

Migrant workers

As on 30.03.2020, migrant workers in huge numbers were moving towards their hometowns/villages. In the circumstances, there would naturally be some apprehension about the shelter and food to be provided to them en-route. The former Chief Statistician had expressed a possibility with the intent to invite the attention of the authorities.

If Dua, in his talk show uploaded on 30.03.2020, that is even before the matter was taken up by the Supreme Court, made certain assertions, he would be within his rights to say that as a Journalist he was touching upon issues of great concern so that adequate attention could be bestowed to the prevailing problems.

It cannot be said that the petitioner was spreading any false information or rumours.

“It is not the case of the respondents that the migrant workers started moving towards their hometowns/villages purely as a result of the statements made by the petitioner. Such movement of migrant workers had begun long before.”

In the circumstances, these statements can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots. The situation was definitely alarming around 30.03.2020 and as a journalist if the petitioner showed some concern, could it be said that he committed offences as alleged.

Conclusion

According to the Court, only such activities which would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence – are rendered penal.

Based on the aforementioned analysis of the statements, the Court said that the said statements,

“can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence.”

Hence, the prosecution of Dua for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.

[Vinod Dua v. Union of India, 2021 SCC OnLine SC 414, decided on 03.06.2021]


Judgment by: Justice UU Lalit

For Petitioner: Vikas Singh, Senior Advocate

For Respondents: Solicitor General Tushar Mehta, Additional Solicitor General S.V. Raju, Senior Advocates Mahesh Jethamalani and Vinay Navre

Case BriefsSupreme Court

Supreme Court: After two Telegu News channels, namely, TV5 and ABN, approached the Court aggrieved by a First Information Report registered against them for sedition under the provisions of Sections 124, 153A, 505 read with Section 120B of the Penal Code 1860, the 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has issued notice in the matter, returnable after 6 weeks and said,

“… the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation.”

The FIR indicates that it is a “suo motu case” based on an enquiry report of the DIG, CID, AP, Mangalagiri, Guntur District dated 13 May 2021. The two channels had broadcasted certain programmes wherein Raghurama Krishnam Raju, Member of Parliament had allegedly expressed views critical of the State Government and the Chief Minister. While Raju, has been named as the first accused, TV5 and ABN have been named as the second and third accused. It is pertinent to note that Raghurama Krishnam Raju has been granted bail by the Supreme Court.

It was submitted before the Court that the allegations in the FIR do not establish any offences under the provisions which have been invoked against them and that,

“… the FIR constitutes an attempt to muzzle the electronic media and is an assault on the freedom of speech and expression under Article 19(1)(a) of the Constitution.”

It was also submitted that while dealing with the suo motu Covid-19 case, the Court, in its order dated 30 April 2021, had made categoric observations in regard to the need for restraint on the invocation of the coercive arm of the law against persons voicing comments critical to matters of governance which arise in the context of the Covid crisis.

While issuing notice, the Court directed that,

“Till the next date of listing, there shall be a stay on the respondents adopting any coercive proceedings in pursuance of FIR No 12 of 2021 dated 14 May 2021 against the two television channels which are the petitioners before the Court, namely, TV5 and ABN, as well as their personnel.”

It is also important to note that in another case, the Court has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

Supreme Court to decide constitutionality of Section 124A IPC. Read why it came into force and why 5-judge bench in Kedar Nath Singh verdict found it constitutional

[Aamoda Broadcasting Company Private Limited v. State of Andhra Pradesh, 2021 SCC OnLine SC 407, order dated 31.05.2021]


For Petitioners: Mr. Sidharth Luthra, Sr. Adv. Ms. Prerna Singh, Adv. Mr. Guntur Pramod Kumar, AOR Mr. Anmol Kheta, Adv. Mr. Shezaan Hashmi, Adv. Mr. Shyam Divan, Sr. Adv. Mr. P.B Suresh, Adv. Mr. Vipin Nair, AOR Mr. Karthik Jayashankar, Adv. Mr. Sudipto Sircar, Adv. Mr. Agnish Aditya, Adv. Mr. Arindam Ghosh, Adv. Mr. Kutur Parikshit, Adv. Mr. Anshumaan Bahadur, Adv.

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Case BriefsHigh Courts

Rajsthan High Court: The Bench of Dinesh Mehta, J., slammed the ICAI for illegally withholding the result of a young girl-student of 21 years of age due to her alleged derogatory e-mail. The Bench remarked,

“The Institute of Chartered Accountants of India is a statutory body. Hence, its decisions, actions and adjudication are supposed to conform to the standards expected of State. A State that suppresses freedom of speech and inflicts or imposes extreme punishment treating an act or attempt of criticism and/or if it treats any suggestion for improvement as a challenge to its authority or supremacy is a State, that disregards rather violates fundamental rights of a citizens guaranteed by Article 19(1)(a) of our Constitution.”

Factual Fulcrum of the Case

On account of unprecedented situation of spread of Covid-19 and imposition of lock-down, the exams due in May, 2020 were cancelled by the ICAI and were re-scheduled to be conducted between 21-11-2020 to 14-12-2020. Owing to the said rescheduling, the Institute gave an option to all those candidates to either appear in the examinations to be held in November, 2020 or opt-out of examinations with a liberty to appear in subsequent examinations in January, 2021.

On 20-11-2020, the petitioner chose to address an e-mail to the office bearers of the Institute. In the said e-mail, the petitioner highlighted the situation of spread of Covid-19 and cautioned that if the examinations were held, it would lead to exponential growth in number of Covid cases. The thrust of her e-mail was only to suggest that online infrastructure be developed so that all levels of CA Examinations be conducted online. Evidently, the petitioner opted out of the November exams and appeared in all the papers/exams held as per above schedule.

On 22-02-2021, as a bolt from the blue, the Dy. Secretary (Examinations) wrote a e-mail informing the petitioner that her result had been put on hold, because of derogatory remarks she had made in her e-mail and an explanation was also sought as to why disciplinary proceedings not be initiated against her for the same. No sooner had the petitioner received the notice than she sent an e-mail expressing her unconditional apology for her inappropriate remarks. Regardless of the aforesaid letter, the institute proceeded to send her a communication with the subject “Alleged resort to unfair means/derogatory remarks during Chartered Accountants Examinations – November 2020.” Consequently, the petitioner appeared before the examination committee and put forth her explanation, but she was kept uninformed about the order/result of the hearing.

Later on, on surfing the official website on the day of result the petitioner found out that her result had been cancelled, under caption “ADOPTED UNFAIR MEANS. LETTER FOLLOWS”. On making a query she was informed by the institute that the Examination Committee had reached a conclusion that she was guilty of making derogatory remarks in the captioned examination and thus, her result had been cancelled.

Findings of the Court

Having waded through the record, the Court opined that not only the initiation of proceedings against the petitioner, but also the manner in which, the proceedings had been conducted so also its culmination in cancellation of petitioner’s result suffered from vices. On the perusal of the contentious e-mail sent by the petitioner, the Court said that the same was addressed to Institute’s President and other office bearers and not to the Examination Committee. Hence, the Examination Committee ought not have taken cognizance of an e-mail. Further, the Bench remarked,

“There is hardly anything in the e-mail, for which it can be alleged/ considered as or even construed to be derogatory. The very initiation of the proceedings against the petitioner alleging that the e-mail contains derogatory remarks was uncalled for and unwarranted. On the contrary, this Court feels that action of the respondents was rather over bearing or high handed.”

Quoting Voltaire, the Bench said, “With great power comes great responsibility”, thus, the Institute which is adorned with enormous power to elevate or uplift the lives of vulnerable & struggling students, is required to practice greater restraint in invoking its powers especially against the students. The Bench added,

One cannot lose sight of the fact that on receipt of the notice dated 22-02-2021 itself, the petitioner had practically knelt down in subservience before respondent No.2 urging that she regretted her action and would not repeat the same in future.”

But for the reasons best known to the Examination Committee, instead of burrying the hatchet, it literally opened a battle-front and summoned the petitioner to Jaipur to defend her cause. Opining it disturbing that the petitioner was personally heard yet no order was ever communicated to her and that her result was cancelled that too, citing “adopted unfair means”; the Bench held that the actions of the institute were without jurisdiction and against the principles of natural justice on one hand and capricious and arbitrary on the other.

Evidently, the Institute had warned the petitioner of dire consequences, if she further indulged in addressing any such communication to ICAI or any other organization concerning examinations.  Indisputably, the petitioner had not written even a single letter to the Institute or to any other authority after 20-11-2020. The respondent-Institute, therefore bound by its own notice was estopped from initiating any action much less disciplinary proceedings. Hence, the Bench held that the impugned proceedings were fundamentally without any basis besides being arbitrary. Since there was no mentioning or even indication of cancellation of result neither in the e-mail dated 22-02-2021 nor in the subsequent communications, there remains not even an iota of doubt that the impugned order of cancelling the result was inherently illegal, falling foul to Article 14 of the Constitution of India and the same was quashed.

Whether the Examination Committee had the jurisdiction to cancel petitioner’s result?

The moot question, required to be decided was whether the Examination Committee had the jurisdiction to cancel petitioner’s result in the present factual matrix.  Regulation 41 of the Regulations of 1988 revealed that the Examination Committee can initiate disciplinary proceedings in connection with the Examination. The language used therein is unequivocal, leaving no room for ambiguity that an action can be taken if a candidate behaves in a disorderly manner in or near an examination hall or has resorted to unfair means. The incidence or the e-mail in question had no nexus or proximity with the examination hall, hence, the proceedings under challenge were void since their inception or very beginning.

The institute’s action of reflecting such mis-information in its official website, in clear contrast with the actual facts is beyond acceptable limits.

The Examination Committee ought to have realized that such casual rather reckless approach involving imputation on reputation may have serious repercussions on emotional or mental equilibrium of a student.”

Verdict

The writ petition was thus, allowed with the cost of litigation quantified at Rs.20,000. On referring the result produced by the institute in a sealed envelope, the Court found out that the petitioner had passed the CA Intermediate Examination. Hence, the ICAI was directed to send original mark sheet and certificate to the petitioner and further, directed the institute to appropriately reflect petitioner’s result on its official portal. Lastly, the Bench warned the ICAI to take criticisms in positive stride, the Court stated,

A professional body like the respondent Institute should introspect and ensure that its over-enthusiasm of attaining professional excellence and endeavors of setting high standards of discipline should not silence rather stifle the speech of a student or its member in the manner that has been done in the present case.”

[Risha Lodha v. ICAI,  2021 SCC OnLine Raj 457, decided on 13-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For Petitioner(s): Adv. Vikas Balia

For ICAI: Adv. Manoj Bhandari and Adv. Anjay Kothari

Gauhati High Court
Case BriefsHigh Courts

 Gauhati High Court: The Bench of Ajit Borthakur, J., granted bail to the renowned Assamese writer, Sikha Sarma in connection with sedition case lodged against her for posting controversial facebook post regarding death of 22 CrPF jawans in an anti-naxal operation.

Factual Matrix of the Case

An F.I.R. has been lodged against the petitioner alleging that her facebook post posted on 05.04.2021 showed disrespect to the martyrs of the Nation. It was also alleged that the accused petitioner in her post maligned and disregarded the sacrifice of the martyrs by urging ‘Media’ not to generate public sentiments in their favour and not to term them as ‘Swahids’ as they were drawing salary for the services they were providing to the nation. It was further alleged that the defamatory post had also encountered public outrage in social media as on that day, the nation was mourning the martyrdom of 22 Jawans killed during anti-naxal operation in Chattisgarh on 03-04-2021 which also included two jawans from the State of Assam. The alleged post read as:

A person who draws salary for his service cannot be considered to be a martyr/swahid if he dies on duty. If it is so, then, an electrical worker who dies in an electric shock should also be considered as Swahid. News media do not make the public emotional.

The state was of the opinion that the accused not only showed disrespect to the martyrs of the nation but at the same time tried to invoke anti-social element that killing of our soldier is not a crime. Through the said post the accused tried to create hatred against the government in the execution of lawful duty. Further, her statement fermented disaffection towards the government of India and had potential to give rise to terrorist and anti-national forces.

Stand Taken by the Accused

The counsel for the petitioner, Mr. A.M. Borah argued that the accused had no malafide while posting the messages on her facebook account. She neither made any anti-national statement nor made the statement which brings or attempts to bring or create any hatred, enmity, contempt or disaffection towards the Government established by law. It was submitted by the petitioner that the word ‘Swahid/martyr’ is not defined in law or by any Government notifications etc., the accused petitioner committed no offence in law for exercising her freedom of expression on good faith. The reliance was placed by the petitioner on the judgments of the Supreme Court in Bilal Ahmed Kaloo v. State of A.P., 1997) 7 SCC 431 and  Common Cause v. Union of India, in Writ Petition (Civil) No. 683/2016.

Findings of the Court

Considering the abovementioned, the Bench opined that,

The accused petitioner prima facie expressed her personal views on the use of the term Swahid/martyr through social network in respect of 22 brave hearts/patriot soldiers including 2 such soldiers from the State of Assam, who laid their lives in action or killed on duty, which evoked widespread criticism in social networking platform.

Having considered the pros and cons of the allegations and evidence so far collected by the investigating officer and also, taking note of the apprehension of threat to health of the prisoners due to the ongoing second wave of novel Covid-19 pandemic, the Bench opined that  further continuation of detention of the accused petitioner, who is a woman and had been in judicial custody since 07-04-2021, may not be necessary in the interest of the ongoing investigation. Accordingly, the Court allowed the bail application of the petitioner and directed the authority concerned to release the petitioner on bail of Rs.30,000 with one surety of like amount.

[Sikha Sarma v. State of Assam, 2021 SCC OnLine Gau 1070, decided on 19-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Advocate for the Petitioner: A M Bora
Advocate for the Respondent: PP, Assam

Case BriefsHigh Courts

Bombay High Court: In a controversial case, wherein an FIR had been filed against the petitioner, Sunaina Holey for allegedly creating hatred and enmity between different religious communities, the Division Bench comprising of M.S. Karnik and S.S. Shinde, JJ., held that,

“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”

Reportedly, the Petitioner had been booked under Section 153A of the Indian Penal Code, 1860 for her “Tweet” which she had posted on the social media website on 14-04-2020. The said tweet reads as: “Crowd shouting Yeh ALLAH KE TARAF SE NAHI HAI YE MODI KE TARAF SE HAI- What’s going to happen next @ ofceofut @ AUThackeray @priyankac19? PR karona ab. Blame it on @narendramodiji.Hain? Bandra Masjid Location Hai. Ab aur kuch bolu? Single Source Kaaf Hai. @ Dev_Fadnavis Help”.

Admittedly, in the video reposted by the petitioner a member of the crowd was seen blaming the Prime Minister of India for the outbreak of Covid-19 pandemic. It was the stand of the petitioner that the Petitioner was not the author or the creator of the said video and that, no case had been registered against the person(s) who created the said video. The Petitioner was unhappy with this viewpoint and reposted the video in order to criticize the same.

Whether reposting the video along with the tweet makes out a case of constituting offence under Section 153A of IPC?

Relying on the decision in Whitney v. California, 274 U.S. 357, 375—377[1927], the Bench reiterated, “fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.”

While considering the validity of the FIR against the Petitioner the Bench referred to various decisions of the Courts around the world including the Supreme Court of India. Consequently, the Bench opined that, some of the propositions which could be culled out and be considered in the contextual facts of the present case were:

  1. It is not an absolute proposition that one must wait for investigation to be completed before quashing FIR under Section 482 of Cr.PC as the same would depend upon the facts and circumstances of each case. (Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1 and State of Haryana v. Chaudhary Bhajanlal 1992 SCC (Cri.) 426)
  2. The intention of the accused must be judged on the basis of the words used by the accused along with surrounding circumstances. (Manzar Sayeed Khan Vs. State of Maharashtra (2007) 5 SCC 1)
  3. The statement in question must be judged on the basis of what reasonable and strong minded persons will think of the statement, and not on the basis of the views of hypersensitive persons who scent danger in every hostile point of view. (Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1)
  4. In order to constitute an offence under Section 153A of the IPC, two communities must be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either Section 153A. (Bilal Ahmad Kaloo v. State of A.P. (1997) 7 SCC 431 )
  5. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea on the part of the accused. (Balwant Singh v. State of Punjab, (1995) 3 SCC 214)
  6. A citizen or even an influential person is under no obligation to avoid a controversial or sensitive topic. Even expressing an extreme opinion in a given case does not amount to hate speech. (Amish Devgan v. Union on India, (2021) 1 SCC 1)
  7. The likelihood of harm arising out of the accused’s speech must not be remote, conjectural or far-fetched. ((Amish Devgan v. Union on India, (2021) 1 SCC 1)

Noticing that, the petitioner was not the author of the video. She had merely reposted it on her twitter, expressing her opinion thereby, criticizing the member in the crowd who blamed the Prime Minister of India for the outbreak of the pandemic and that no offence had been registered against the author of the video reposted by the petitioner, the Bench expressed,

“The State wants us to read too many things between the lines to come to the conclusion that an offence under Section 153A IPC is made out.”

The tweet in question, if judged on the basis of what a reasonable and strong minded person will think of it, would leave little manner of doubt that the same was only expressing a hostile point of view. Observing that the said video was already in circulation and the petitioner merely reposted the video on her twitter feed objecting the view point of the person in the video who was blaming the Prime Minister for the spread of virus., the Bench stated,

“The intention on the part of the Petitioner can by no stretch of imagination be said to cause disorder or incite people to violence which is sine qua non for the offence under section 153A of IPC.”

Assuming that the said tweet was an extreme view expressed in retaliation, the same still had to be judged from the standpoint of what the reaction of a strong minded, reasonable or a prudent person would be. Moreover, the contents of the tweet would reveal that neither any community nor any religion was named. The Bench stated that though the police machinery had ample opportunity to investigate, nothing had been placed on record to indicate that the said tweet led to any disturbance. Merely because a reference was made to Bandra Masjid in the tweet by the Petitioner would not attract the provisions of Section 153A of IPC since there was no disturbance reported immediately after the tweet was posted or even during the course of investigation as a result of the tweet. The Bench remarked,

“The Respondent’s approach towards the tweet is hypersensitive and over cautious thereby trying to scent danger in the hostile point of view expressed by the Petitioner.”

Consequently, after a careful and in-depth consideration, the Bench quashed the FIR filed against the Petitioner. [Sunaina Holey v. State of Maharashtra, Cr. WP No. 4732 of 2020, decided on 05-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Dr.Abhinav Chandrachud, Chandansingh Shekhawat, Yashowardhan Deshmukh, Sailee Dhayalkar and Farishta Menon

Counsels for the State: Manoj Mohite, Vivek Babar and J.P.Yagnik

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

The notice is returnable on July 12, 2021.

Section 124-A IPC and it’s history 

124-A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards,  [* * *] the Government established by law in  [India],  [* * *] shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

The section corresponding to Section 124-A was originally Section 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal Code as it was enacted in 1860. The reason for the omission from the Code as enacted is not clear, but perhaps the legislative body did not feel sure about its authority to enact such a provision in the Code. Be that as it may, Section 124-A was not placed on the Statute Book until 1870, by Act 27 of 1870.[1]

Sedition, which is an offence against the State, was not an invention of the British Government in India, but has been known in England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.[2]

However, criticism on political matters is not of itself seditious. The test is the manner in which it is made. Candid and honest discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case when the natural consequence of the prisoner’s conduct is to promote public disorder.[3]

Law laid down under Kedar Nath Singh

The 5-judge bench had held that the Section 1240A was constitutionally valid as it, “strikes the correct balance between individual fundamental rights and the interest of public order”

“… the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

The Court noticed that the gist of the offence of “sedition” is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State.

“This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order.”

[Kishorechandra Wangkhemcha v. Union of India, 2021 SCC OnLine SC 374, order dated 30.04.2021]


[1] Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, Para 10

[2] Ibid

[3] Commentaries on the Laws of England, 21st Edn., Vol. IV, at pp. 141-42

Case BriefsSupreme Court

“Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Supreme Court: The division bench of L. Nageswara Rao* and S. Ravindra Bhat, JJ has quashed the criminal case registered against Shillong Times Editor Patricia Mukhim under Sections 153 A, 500 and 505 (1) (c) of the Indian Penal Code, 1860.

Why was the case registered against Mukhim?

Last year, 25 unidentified boys had assaulted youngsters playing basketball in Block 4, Lawsohtun with iron rods and sticks, after which, Mukhim had, in a Facebook Post, written,

“Conrad Sangma CM Meghalaya, what happened yesterday at Lawsohtun where some Non-Tribal youth playing Basketball were assaulted with lethal weapons and are now in Hospital, is unacceptable in a state with a Government and a functional Police Force.

(…)

The fact that such attacker and trouble mongers since 1979 have never been arrested and if arrested never penalized according to law suggests that Meghalaya has been a failed State for a long time now.

(…)

We hope that this will not be yet another case lost in the Police files. We want action. Criminal elements have no community. They must be dealt with as per the law of the land. Why should our Non-Tribal brethren continue to live in perpetual fear in their own state? Those born and brought up here have as much right to call Meghalaya their State as the indigenous Tribal does. Period”

Following this, the Headman and the Secretary, Dorbar Shnong, Lawsohtun, Shillong filed a complaint that the statement made by the Appellant on Facebook incited communal tension which might instigate a communal conflict.

The Appellant filed a petition in the High Court of Meghalaya for quashing the FIR. The High Court, however, by its judgment dated 10.11.2020 dismissed the said petition.

Analysis

What does the law state?

Freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution is a very valuable fundamental right. However, the right is not absolute. Reasonable restrictions can be placed on the right of free speech and expression in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence.

However, speech crime is punishable under Section 153 A IPC. Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony is punishable with imprisonment which may extend to three years or with fine or with both under Section 153 A.

“Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed.”

The gist of the offence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole.

“One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.”

Did Patricia Mukhim’s post incite communal tension?

India is a plural and multicultural society. The promise of liberty, enunciated in the Preamble, manifests itself in various provisions which outline each citizen’s rights; they include the right to free speech, to travel freely and settle (subject to such reasonable restrictions that may be validly enacted) throughout the length and breadth of India. At times, when in the legitimate exercise of such a right, individuals travel, settle down or carry on a vocation in a place where they find conditions conducive, there may be resentments, especially if such citizens prosper, leading to hostility or possibly violence. In such instances, if the victims voice their discontent, and speak out, especially if the state authorities turn a blind eye, or drag their feet, such voicing of discontent is really a cry for anguish, for justice denied – or delayed. This is exactly what appears to have happened in this case.”

After scrutinising the Facebook post, the Court noticed that the agony of the Appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribals youngsters. The Appellant referred to the attacks on nontribals in 1979.

“At the most, the Facebook post can be understood to highlight the discrimination against nontribals in the State of Meghalaya.”

The Court noticed that the Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya.

“In our understanding, there was no intention on the part of the Appellant to promote class/community hatred. As there is no attempt made by the Appellant to incite people belonging to a community to indulge in any violence, the basic ingredients of the offence under Sections 153 A and 505 (1) (c) have not been made out.”

The attack upon six non-locals, carried out by masked individuals, is not denied by the State; its reporting too is not denied. The State in fact issued a press release. There appears to be no headway in the investigations.

“The complaint made by the Dorbar Shnong, Lawsohtun that the statement of the Appellant would incite communal tension and might instigate a communal conflict in the entire State is only a figment of imagination. The fervent plea made by the Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech. It was a call for justice – for action according to law, which every citizen has a right to expect and articulate.”

The Court, hence, held that no case was made out against Mukhim for an offence under Section 153 A and 505 (1) (c) IPC.

[Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258, decided on 25.03.2021]


*Judgment by: Justice L. Nageswara Rao

Appearances before the Court by:

For Patricia Mukhim: Counsel Vrinda Grover

For State of Meghalaya: Counsel Avijit Mani Tripathi

Case BriefsSupreme Court

Supreme Court: After it refused to accept the explanation of advocate Prashant Bhushan in the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ has framed larger questions in the matter that will have far-reaching ramifications.

On August 10, 2020, in Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 635, the Court had noticed that that further hearing was required in the matter.

“Before reaching to any finding whether the statement made as to “Corruption” would per se amount to Contempt of Court, the matter is required to be heard. “

Issues framed

  • In case a public statement as to corruption by a particular Judge(s) is permissible, under what circumstances and on what basis, it can be made, and safeguards, if any, to be observed in that regard ?
  • What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting Judge ?
  • Whether against retired Judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?

The Court will now hear the matter on August 25, 2020.

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 651, order dated 17.08.2020]


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Case BriefsSupreme Court

Supreme Court: In the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the bench headed by Arun Mishra, J refused to accept the explanation of advocate Bhushan and said that further hearing is required in the matter.

“Before reaching to any finding whether the statement made as to “Corruption” would per se amount to Contempt of Court, the matter is required to be heard. “

The will now hear the matter on August 17, 2020.

Earlier, on August 4, the Court had said that there is a thin line between freedom of speech and the need to protect the dignity of the judiciary as an institution and it sought to balance both. The hearing in the 11-year-old case which pertains to an interview given by Bhushan to Tehelka where he said that half of past 16 Chief Justices of India (CJIs) were corrupt.

On July 22, 2020, in another matter, a 3-judge bench of Arun Mishra, B R Gavai and Krishna Murari, JJ had issued notice in the suo motu contempt petition initiated by the Supreme Court against Advocate Prashant Bhushan and Twitter.

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

In his reply to the suo motu petition, Bhushan said that

“The expression of opinion, however outspoken, disagreeable or unpalatable to some, cannot constitute contempt of court…”

According to PTI, in a 142-page reply affidavit filed through lawyer Kamini Jaiswal, the activist lawyer has referred to several Supreme Court judgments, speeches of former and
serving judges on contempt of court and the stifling of dissent in a democracy and his views on judicial actions in some cases. He has also stood by his two tweets.’

“To prevent a citizen from forming, holding, and expressing a bonafide opinion’ in public interest on any institution that is a creature of the Constitution is not a reasonable restriction and violates the basic principles on which our democracy is founded.”

The affidavit said the power of contempt under Article 129 of the Constitution should be utilized to aid in administration of justice and not to shut out voices that seek accountability from the court for the errors of omissions and commissions.

Senior advocate Dushyant Dave, appearing for advocate Prashant Bhushan, in the suo motu contempt petition initiated by the Supreme Court against Advocate Bhushan, asked the Court,

“This is criticism… Why don’t you take it objectively?”

He also submitted that if a judge is defamed, he should seek relief in the ordinary laws of defamation.

He further submitted that a sitting judge, who went on to become a CJI, had ‘criticised’ the functioning of the Supreme Court in a presser in January 2018. Justice Ranjan Gogoi, one of the four judges who had met the media, went on to become the 46th Chief Justice and Justice Bobde’s immediate predecessor. Dave, in his submission said,

“The holding of January 2018 press conference was fully justified. If the then CJI was not listening to their points, what could they do? If citizens stand up and criticise the system, say everything is not hunky-dory, how can it be contempt?”

The Court has reserved the judgment in the said matter. Read more

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 635, order dated 10.08.2020]


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Case BriefsSupreme Court

Supreme Court: “This is criticism… Why don’t you take it objectively?” asked senior advocate Dushyant Dave, appearing for advocate Prashant Bhushan, in the suo motu contempt petition initiated by the Supreme Court against Advocate Bhushan.

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

Stating that the right to dissent and free speech cannot be controlled by contempt proceedings, Dave told a 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ that

“Contempt is to be used sparingly and only for administration of justice. If a judge is defamed, he should seek relief in the ordinary laws of defamation,”

He further submitted that a sitting judge, who went on to become a CJI, had ‘criticised’ the functioning of the Supreme Court in a presser in January 2018. Justice Ranjan Gogoi, one of the four judges who had met the media, went on to become the 46th Chief Justice and Justice Bobde’s immediate predecessor. Dave, in his submission said,

“The holding of January 2018 press conference was fully justified. If the then CJI was not listening to their points, what could they do? If citizens stand up and criticise the system, say everything is not hunky-dory, how can it be contempt?”

The Court has reserved the judgment.

In January, 2018, the senior most judge of the Supreme Court of India, Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference at his residence to put an end to the speculations making rounds over the differences between the judges and the then Chief Justice of India, Justice Dipak Misra, over the assignment of cases.

A letter addressed to the then CJI Justice Dipak Misra by the aforementioned judges stated:

“There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs. We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.” 

[In Re Prashant Bhushan, SMC (Crl.) No. 1/2020, order dated 05.08.2020]

(With inputs from The Hindu)


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Hot Off The PressNews

Supreme Court: In the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the bench headed by Arun Mishra, J said that there is a thin line between freedom of speech and the need to protect the dignity of the judiciary as an institution and it sought to balance both. The hearing in the 11-year-old case which pertains to an interview given by Bhushan to Tehelka where he said that half of past 16 Chief Justices of India (CJIs) were corrupt, was conducted in-camera.

On July 22, 2020, a 3-judge bench of Arun Mishra, B R Gavai and Krishna Murari, JJ had issued notice in the suo motu contempt petition initiated by the Supreme Court against Advocate Prashant Bhushan and Twitter. The Court will hear that matter tomorrow. The Court, in it’s order, recorded:

“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large.”

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

In his reply to the suo motu petition, Bhushan said that

“The expression of opinion, however outspoken, disagreeable or unpalatable to some, cannot constitute contempt of court…”

According to PTI, in a 142-page reply affidavit filed through lawyer Kamini Jaiswal, the activist lawyer has referred to several Supreme Court judgments, speeches of former and
serving judges on contempt of court and the stifling of dissent in a democracy and his views on judicial actions in some cases. He has also stood by his two tweets.’

“To prevent a citizen from forming, holding, and expressing a bonafide opinion’ in public interest on any institution that is a creature of the Constitution is not a reasonable restriction and violates the basic principles on which our democracy is founded.”

The affidavit said the power of contempt under Article 129 of the Constitution should be utilized to aid in administration of justice and not to shut out voices that seek accountability from the court for the errors of omissions and commissions.


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