STAY ON FARM LAWS - A REAL VICTORY OR A POTENTIAL DEFEAT : A REFLECTION ON THE SUPREME COURT ORDER IN Rakesh Vaishnav v. Union of India (decided on Jan 12, 2021)

                                                               Anurag Deep

                                                                                                   Professor

                                                                                        Indian Law Institute, New Delhi

1. Introduction

2. The Supreme Court Order

3. Operative Part of the Supreme court order 

4. Obiter dicta 

5. Comments

1. Was the stay extraordinary?

2. What was going on in the mind of judges? 

3. Was the Supreme court influenced by Shaheen Bagh judgement?  

4. Article 370, CAA petition : Is the Supreme court unfair

5. Will no cooperation with Committee be a Contempt of Court ? 

1. Introduction  

On Jan 11, 2021 a full bench (three judges led by Bobde, CJ) of the Supreme court warned the Government of India that they will stay the controversial farm laws. Next day they confirmed the warning and surprised many by staying a parliamentary amendment on farm laws. Following is the analysis of the order in the case of Rakesh Vaishnav v. Union of India Jan 12, 2020

2. The Supreme Court Order

Court order by full bench mentions following things-

1. There are 3 types of petition 

1. Challenging constitutional validity of amendment in 3 farm laws 

2. Supporting constitutional validity of these amendment 

3. fundamental right violation because of agitation and blockage 

2. During  agitation 

1. Vulnerable group people are exposed to fatal health hazards

2. A few deaths like farmer suicide  

3. Farmers agitations are largely peaceful but the concern is 

1. Non farmers also joined the agitation 

2. Allegedly a banned organisation like “Sikh for justice” is financing agitation.

4. Lawyers team of some agitating farmers absent on the day of order. 

5. Allegation that Jan 26, 2020 can be disrupted by proposed tractor rally was taken note of. It was declined by one lawyer. 

6. An expert body constituted to negotiate between the farmer's body and government. It may help improve trust deficit. The Attorney General agreed. Some farmers bodies also agreed for an expert body.  

7. Stay of implementation of amended laws may “assuage the hurt feelings of the farmers” and encourage them to the negotiation table. 

8. The Attorney General disagreed on the stay of laws because 

1.  He quoted 4 precedents like Bhavesh D Parish v. Union of India, (2005) 5 SCC 471, Health For Millions v. UoI 2014 (14) SCC 496 :  State of UP v. Hirendra Pal Singh 2011 (5) SCC 305 ; Siliguri Municipality v. Amalendu Das,1984 (2) SCC 436 

2. The opponents of laws did not point to any provision detrimental to farmers. 

3. There is presumption of constitutionality  

9. The Court has previously stayed executive action under the statute. The Court referred Dr. Jaishri Laxmanrao Patil v. The Chief Minister (Civil Appeal No.3123 of 2020) where the Supreme court stayed the enactment. [It provided for admissions to educational institutions for the Academic Year 2020-21 and appointments to public services and posts under the Government shall be made without reference to the reservation provided under the impugned legislation.]

10. Counsel of some farmers' bodies agreed to stay the law. Others bodies disagreed. One reason for disagreement on stay was that any stay on law means “21 million tonnes of fruits and vegetables will rot.” [why so, not understandable]. 

11. The Court considered the argument that 

1. Minimum Support Price is not “being done away with. The same may not be dismantled.” 

2. There are inherent safeguards, in-built in the Farm Laws, for the protection of the land of the farmers and 

3. it will be ensured that no farmer will lose his land

III. Operative Part of the Supreme court order 

The Court passed following orders -

1. The implementation of the three farm laws remain stayed till further orders-

1. Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; 

2. Essential Commodities (Amendment) Act, 2020; and 

3. Farmers (Empowerment and Protection) Agreement on Price Assurance and

4. Farm Services Act, 2020

2. Consequently, the earlier situation is restored-

1. The Minimum Support Price System in existence before the enactment of the Farm Laws shall be maintained 

2. The farmers’ land holdings shall be protected, i.e., no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws. 

3. An Expert Committee is being constituted comprising of 

1. Shri Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India Kisan Coordination Committee; 

2. Dr. Parmod Kumar Joshi, Agricultural Economist, Director for South Asia, International Food Policy Research Institute; 

3. Shri Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices; and 

4. Shri Anil Ghanwat, President, Shetkari Sanghatana, 

4. Direction to and Mandate of the Supreme Court Constituted Expert Committee on Farm Laws Amendments, 2020  

1. The first sitting shall be held within ten days from today, ie Jan 22, 2021. 

2. It will listen to 

1. the grievances of the farmers relating to the farm laws 

2. the views of the Government and 

3. other stakeholders 

  c.It will make recommendations to the Supreme    court. 

4.  within two months of the first sitting ie latest by March 22, 2021.  

5. Direction to government for the Committee 

1. This Committee shall be provided a place as well as Secretarial assistance at Delhi by the Government. 

2. All expenses for the Committee to hold sittings at Delhi or anywhere else shall be borne by the Central Government. 

3. The representatives of all the farmers’ bodies, whether they are holding a protest or not and whether they support or oppose the laws shall participate in the deliberations of the Committee and put forth their view points. 

6. Next hearing after eight weeks, ie after Feb 10, 2021.  

IV. Obiter dicta 

The Supreme court has made certain expectations which are not binding like operative part as mentioned above. The expectations which are persuasive in nature are as under: 

1. The Supreme court hoped and expected “that both parties will take this [stay order and setting up of an expert committee] in the right spirit and attempt to arrive at a fair, equitable and just solution.” 

2. A peaceful protest cannot be stifled. However This stay order is extraordinary in nature. 

3. Such stay order should be “perceived as an achievement” for protestors and supporters for now. The farmers' bodies should convince their members to get back to their livelihood. This will protect their own lives and health and also protect the lives of others and properties.  

V. Comments

1. Was the stay extraordinary? 

It was surprising that the Farm laws were stayed. The Supreme court also expressed that the order is “extraordinary”. The stay was unexpected because 

1. The Supreme court refused to entertain the petition in October, 2020 and asked a petitioner to approach the High court. A central law having all India impact and potential opposition in various states should have been heard under article 32 to reduce multiplicity of proceedings in various courts. It was not correct to ask the petitioner to approach under article 226 in this case.    

2. Later on the Supreme court entertained the petition but did not accept the prayer of staying the farm laws. 

3. There were a few hearings in 2020 and the Court did not express its desire to stay it. The agitation took momentum. The talks between government and farmers bodies started. There was news of some breakthrough but the protest continued. The Supreme court thought that it should intervene. 

2. What was going on in the mind of judges? 

1. There was news that the celebration of January 26, 2021 may be used for the purpose of farmer agitation to press demand and to attract international media. There is already a declaration of tractor rally. Last year the visit of the President of the USA, Donald Trump in India in Feb, 2020 was used to protest the demand to repeal the Citizenship Amendment Act, 2019. Unfortunately the protest went out of hand. There were instances of provocative speeches, seditious expressions. Disorder ensued, followed by violence which led to serious Hindu Muslim riots. 53 persons were killed including government officials besides life changing injuries to hundreds of persons and loss of property. It seems the Court was little worried that the mass agitation against farm laws may turn into a more unpleasant situation.  

2. In the farm agitation, there were a few disturbing news and incidents referred by the Supreme court, like alleged involvement of banned organisations (here Sikh for Justice who is agitating for Khalistan) for unlawful, terrorist and secessionist activities. Such organisations use these situations as breeding grounds to gain sympathy for the sufferings of farmers, agitators. They hunt young people for radicalisation. Such radicalised youth are used by terrorist organisations, foreign players to work against territorial integrity of the country or disturbing harmony among Indian citizens.  

3. There are eyebrows raised on the stay order. Is the Supreme court encouraging the agitation, protest, blockage etc which is conducted without permission of the government? Is the stay order a prize to the agitators who brought great inconvenience to daily commuters on the road? Or is it the prize for the sacrifice made by the protestors because they left their convenience of home, faced cold waves, slept in tents in winters. Was the Court concerned for the agitators many of whom were from vulnerable groups like senior citizens, women and even children?  

4. The answer may also be traced in a passage from Bandhua Mukti Morcha v. Union of India which  may suggest possible reason for the intervention of the Supreme court which is as under : 

When  the Court  entertains  public  interest litigation, it does not do so in a cavilling spirit or in a confrontational mood  or with a view to tilting at executive authority or  seeking to  usurp it, but its attempt is only to  ensure   observance  of   social  and   economic  rescue programmes, legislative as well as executive, framed for the benefit of  the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the  constitutional obligation  of the  executive. The Court is  thus merely  assisting in  the realisation  of the constitutional objectives.

 

There is no doubt that the Court stayed the farm laws with the pious objective to find a common ground. 

3. Was the Supreme court influenced by Shaheen Bagh judgement?  

When the CAA protest in Shaheen bagh was going on in winters of 2020, the Supreme court intervened. During the hearing of the case of Shaheen Bagh (Amit Sahni v. Commissioner of Police) two interlocutors were appointed, Mr. Sanjay R.Hegde and Mrs. Sadhana Ramachandran. They tried to persuade the protestors but in vain. The Supreme court provided a different ground for such extraordinary approach of appointment of interlocutor which is as under: 

fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters. 

In the Shaheen Bagh case the Supreme court appointed committee could not convince the protestors. There was “no constructive outcome”. Later on due to “hand of god” ie CoVID19 the protest was discontinued. Ultimately the Supreme court also decided that the protestors have no fundamental right under article 19 to agitate at public place. The right to dissent and demonstration is limited by designated place else it "would only lead to a chaotic situation". The Supreme court through Sanjay Kishan Kaul, J. observed as under : 

What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self- ruled democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. 

The extraordinary approach of the Supreme court to intervene had “rights” as justification in Bandhua Mukti Morcha (1984) while in the case of Shaheen Bagh, (2020) it was “duty” as justification. The Court further propounded that :

we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. 

This was a message to all protestors of the future. In Farm Law case the protestors are blocking public ways and have occupied public spaces. While in Shaheen Bagh the protest was limited to a place, in the Kisan agitation the protest is at many places in and outside Delhi. The obiter remarks in Rakesh Vaishnav has clear message for protestors also. If the protest continues in the same manner the Supreme court will follow the precedent of Shaheen Bagh pronouncement. The Shaheen Bagh (Amit Sahni v. Delhi) laid down the law as under: 

We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.

 The Kisan and their supporters will be given a designated place to raise their voice and continue their protest so that other citizen, like commuters can move freely. The profession, occupation, trade and business is trying to rejuvenate after the “hand of god” (covid19) which was beyond control. The mass protest for months must be an additional burden on those affected by such protest which is indeed man made tragedy and not beyond control. Shaheen Bagh judgement has expected the future course of action for the government and for the judiciary as under: 

We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.

4. Article 370, CAA petition : Is the Supreme court unfair

The Supreme court in Rakesh Vaishnav case, has stayed the implementation of farm amendment laws of 2020. It raises a question of the standard of judicial review and discriminatory judicial process applied in various cases. Why did not the Court demonstrate similar concern in other petitions like those dealing with article 370, CAA etc. and stay other laws. Was it because the Court was trying to favour the central government as argued by a few experts? A line of reasoning is that the judges want to favour the government because they are  rewarded by the government when they retire. Sweeping generalisations have been made by such arguments and motives have been attributed. The integrity of judges are questioned that they want post retirement benefits. Even in Rakesh Vaishnav case the impartiality of the Committee has been doubted by some scholars, experts and politicians because the experts have written in favour of Farm Laws. Writing for media on farm laws and submitting an expert report to the Supreme court are two different things. If the rule of natural justice is extended to this level, it will be almost impossible to govern. In the Shaheen Bagh case the interlocutors were known for their open support to the protesters of CAA. But the Court has given the responsibility to them and appreciated their endeavour. The rule of law cannot survive if doubts are raised on the democratic institutions on the drop of a hat. If the composition of the committee really matters, it can be requested to the Court and the Court will definitely look into the matter. Coming to the issue of judicial treatment of article 370, CAA it is necessary to understand the jurisprudential aspects of judicial review. The petition dealing with article 370 and CAA are directly and proximately connected to the sovereign jurisdiction of the Parliament to address the matters of national security (article 370) and foreign policy (CAA)? The matter of farm laws are distinct from other petitions like reorganisation of Jammu and Kashmir or CAA. Farm laws will face strict scrutiny of judicial review as it is more a matter of fundamental right than that of mere government  policy. On the other hand the petitions on JK, CAA are more a matter of government policy and less a matter of fundamental right. The petitions on JK, CAA will follow deferential review (not strict scrutiny) where the Parliament and the Government are given more leeway and deference than in pure fundamental right cases. Separation of power is more active and relevant in these cases which are matters of sovereign jurisdiction.  

5. Will no cooperation with Committee be Contempt of Court ? 

The Supreme court order also says that it is mandatory for the parties to participate in the interaction with the Expert Committee. Can an order of the Supreme court compel a body (under no legal obligation) to participate? Does it mean denial to talk will amount to contempt of court? The answer seems yes. 

The Supreme court has expressed that the stay will help farmers’ bodies to come to the negotiation table.  The farmers came for every round of negotiation and talks. Then why this expectation? The stand of the farmer's body is determined rather adamant. They want laws to be repealed only. The government has demonstrated their will to amend laws. The message for farmers seems to be to relax their approach and be lenient in demand. The unexpected step of staying three amendments in farm laws has a message for the government also that they ought to be more active in resolving disputes. Both parties have competing claims.  Hope the preambular mandate of justice, social, economic and political will be served.   

 

KERALA ORDINANCE 2020 TO PENALISE THREATENING, ABUSIVE, HUMILIATING OR DEFAMATORY CONTENT AND FREE SPEECH

Kerala Police Ordinance 2020 : A Valid Concern or a Political Move?

                        

Dr Anurag Deep,

Associate Professor,

The Indian Law Institute, New Delhi

[The author sincerely acknowledges the significant inputs of Adv Prashant Padmanabhan.]

I. INTRODUCTION

The Government of Kerala has issued an ordinance on Nov. 21, 2020 to tackle the problem of  "threatening, abusive, humiliating or defamatory" messages. This is in response to the problem of fake or misleading or extreme content in the social media and online news portals though it is applicable to offline mode of communication also. The Kerala Govt says that the purpose is to protect women from such inappropriate and menacing content.

II. ORDINANCE 2020

The Kerala Police (Amendment) Ordinance, 2020 as issued by the Governor is as under:

“118 A. Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.─

Whoever makes, expresses, publishes or disseminates through any kind of mode of communication, any matter or subject for threatening, abusing, humiliating or defaming a person or class of persons, knowing it to be false and that causes injury to the mind, reputation or property of such person or class of persons or any other person in whom they have interest shall on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both.”

III. WHY THIS ORDINANCE

After section 66A of the Information Technology Act, 2000 (which dealt with rumour, false or inappropriate messages) was declared unconstitutional in a division bench judgement in Shreya Singhal (March 24, 2015). Indeed a similar provision, S. 118(d) of the Kerala Police Act, 2011 was also declared unconstitutional in the same judgement by a division bench.  A void was created. Social media with all its boon has dangerous tentacles. In the recent judgement of the Supreme Court in Shaheen Bagh case (Amit Sahni v. Commissioner of Police, Oct 7, 2020) Justice Kaul also acknowledged the double edge sword of social media. A need for a law to check the menacing effects of social media was under discussion in the central govt. Indeed a committee (headed by former Lok Sabha Secretary General T.K. Viswanathan) under Govt of India has proposed a draft amendment in IPC to deal with inappropriate and false social media content leading to hate speech. But the central Govt is scared of bringing a law because of free speech cry. The central govt has also been accused of misusing laws against liberal views and free speech. The ordinance by Kerala govt will encourage the central govt as well as other govt to bring similar laws. The ordinance will be challenged in the Supreme Court very soon.

IV. FREE SPEECH CONCERNS

A group of free speech defenders will jump to criticise the enactment though the intensity will be low because the ordinance is coming from Kerala Govt led by left wing which is considered to be less conservative. Liberals, especially those who rely on USA model of free speech will make superficially attractive arguments. Many of them do not know that India has rejected USA model which is a "rights" based model. India has accepted "rights with restriction" model, which permits penalising those free speech which are in appropriate or irritating in nature and has tendency to create violence or disorder. (Pl see, Anurag Deep, "Criminalisation of Membership of Terrorist Organisations in India" in the book Judicial Review, Cambridge University Press, 2020). The templet of arguments against this law can be like, this word is not defined, that word is very wide, police will misuse it etc. These templates are significant and have merits but many enthusiastic scholars do not consider practical difficulties. It will be too early to state whether the law is constitutionally permissible or not because it needs a detailed study of all material before the Kerala Govt. Kerala Govt will have to answer --

(a) Why is the Ordinance 2020 passed when there are many provisions of IPC, IT Act, 2000, POCSO, 2012, SCST Act. The cyber crimes against women can be addressed under section 354A, 354C 354D and IT Act.

(b) Why is this ordinance when section 118 of the Kerala Police ACt, 2011 itself is broad enough to address the concern, which is as under-

118. Penalty for causing grave violation of public order or danger.— 

Any person who,— 

(a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself; or 

(b) knowingly spreads rumours or gives false alarm to mislead the police, fire brigade or any other essential service; or 

(c) knowingly and willfully causes damage to an essential service, in order to create general panic among the public; or 

(d) causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means; or  

(e) knowingly does any act which causes danger to public or failure in public safety; or 

(f) transports explosive articles or dangerous substances without being lawfully authorized to do so; or 

(g) is found under suspicious circumstances, in a public place, being a goonda or a rowdy in possession of equipments which are intended to be used for any activity in the neighbourhood for facilitating any anti-social activity as defined under the Kerala Anti-Social Activities (Prevention) Act, 2007 (34 of 2007) ; or 

(h) violates the provisions of section 73 or imparts physical training in contravention of the said provision; or 

(i) gives or sells those who are below eighteen years any intoxicating substance or to children any articles or substances which are harmful for their physical and mental health or procure the same near school premises for that purpose, 

shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.

However both these questions are matters of desirability of law which cannot be judicially litigated though the same may be raised in political and civil discourse. 

V. IS THE ORDINANCE A POLITICAL MOVE?

Kerala is infamous for political violence and murders. Congress vs Left, Left vs RSS has led to 100s of murders. Rahul Gandhi is an MP from Kerala, and congress is trying to regain its political constituency. The BJP has also found significant space in Kerala. Alleged love jehad issue has found discussions in Kerala assembly and in the Supreme Court of India [Shafin Jahan v. Asokan K.M. case (Hadiya case) 2018]. The enforcement of Sabarimala judgement [Indian Young Lawyers Association v. The State of Kerala (Sabarimala)] on the entry of all women in Sabarimala temple has also attracted criticism from conservative quarters. Traditional Hindu voters are inching towards BJP in Kerala. They are becoming more vocal in all platforms including social media in Kerala. Kerala has been one of the worst hit in Covid19 cases. The opposition is encashing these shortcomings of the kerala govt. The recent results of Bihar elections and by elections have made NDA especially BJP more powerful. The supporters of right wing have learnt the trick of selective processing of ideas and ideology from left and now using the same trick against them or other opponents. Kerala elections are scheduled for May 2021. The track record of a communist ideology to tolerate dissent is poor and they believe in crushing the opponents by all means possible "without mercy". Is this law passed to suppress the voice of dissent or is it the true reflection of addressing problem of social media which has gone beyond control? Is this ordinance, 2020 (section 118A, Kerala Police Act) presented to fill the void created by Shreya Singhal judgement or it another political instrument to grant more penal power to the Police? Will innocent people, young social media users, uncomfortable voices, media persons, political opponents be arrested and persecuted? Fortunately there are some good news and relief for now.

VI. PERSONAL LIBERTY CONCERNS

The first concern with a penal law is FIR and the second concern is arrest. Indeed an FIR can be tolerated to some extent but an arrest deprives a person from his personal liberty which may violate article 21, art 19 and 14. The police is infamous to play on the tunes of HMV(his master's voice) in all political regime. The intensity of abuse may increase or decrease. The concern of a citizen depends on whether there is any initial check on registration of FIR and arrest or not. Unfortunately there is no such check.

Section 125 (3) of the Kerala Police Act, 2011 throws light which is as under --

125.Cognizable offences and bailable offences.

(1) Offences under sections 116,117,118, [118A] and 119 of this Act shall be cognizable and bailable and an offence under section 115 shall be cognizable and non-bailable.

(2) Notwithstanding the provisions of sub-section (1), a police officer shall have power to arrest a person only if,—

(a) his arrest is necessary to prevent or not to continue any offence; or

(b) it is manifestly evident that locating such person subsequently is not possible; or

(c) such person is likely to hurt himself or any other person; or

(d) there is any special and emergent circumstances warranting the arrest.

(3) All other offences under this Act shall be non-cognizable and bailable: Provided that a police officer present at the spot may remove a person temporarily for the purpose of preventing the continuance of an offence in his presence.

Through section 4 of the 2020 ordinance, section 125 of the Kerala Police Act, 2011 has also been amended and the new law ie section 118A has been incorporated. Section 118A is cognizable and bailable. In other words  

(i) Once an information under section 118A is received, FIR has to be registered under section 154 of CrPC. As the offence is declared cognizable, it is obligatory on the Police to register FIR (as per the constitution bench direction of Lalita Kumari v. Government of UP, Nov 12, 2013). 

(ii) As the offence is cognizable under section 118A, a police officer can arrest the suspect without any restriction or permission of a magistrate.

However, there are two reliefs-

(i) As the minimum punishment under newly inducted section 118A is fine and maximum is 3 years of imprisonment, the Arensh Kumar guidelines (July 2, 2014) by the Supreme Court is binding which suggests to arrest only if it is essential. (which is indeed the spirit of the law of arrest). The Police can easily skip this part because the Arnesh Kumar guidelines are not being enforced properly. 

 (ii) The offence under section 118A is bailable. This is a big relief. The Police will be duty bound to release the accused on bail from the police station itself and the accused can seek bail as a matter of right without going to the court. 

Section 118A contains mens rea element of knowledge (second degree of mens rea). Many Supreme Court judgements also mandate that in free speech cases the tendency of violence or disorder is an additional element. Kedarnath Singh case (1962) which is on section 124A of IPC (sedition) can be one example. But the Police ordinance incorporates a law which punishes expression against person or group of persons. In such cases the requirement of Kedarnath Singh seems persuasive only. In Defamation judgement (Subramanian Swamy v. Union of India-2016) section 499 was declared as constitutional though it does not need any element of tendency of violence or disorder.

VII. Reforms

The rigour of section 118A can be checked by making this provision as non cognizable. It will reduce the chances of abuse because of three reasons-

(i) No FIR can be registered if section 118A is non cognizable. Only an NCR can be registered under section 155 of CrPC.

(ii) No investigation can be initiated without the permission of concerned judicial magistrate if section 118A is made non cognizable. [section 155(2)]

(iii) No arrest can be made without warrant if section 118A is made non cognizable. [section 2(l) read with section 41(2) of CrPC]

It is surprising to see that despite having various provisions under IPC, IT Act, POCSO, and the Kerala Police Act, 2011 the new law (section 118A) was not only introduced through ordinance but it was made cognizable. This will grant the Police more power to abuse its authority to register motivated FIR, make arbitrary arrest. It will bring more corrupt practices also.

Another way to check the abuse of the Police power is to make the use of section 107, 108 of CrPC as a condition precedent.

The ordinance is as under--

Kerala Police (Amendment) Ordinance, 2020 [issued Nov 2020]

GOVERNMENT OF KERALA OF KERALA Law (Legislation-E) 

Department NOTIFICATION No. 15312/Leg.E1/2020/Law. 

Dated, Thiruvananthapuram, 21st November, 2020 

6th Vrischikam, 1196 30th Karthika, 1942. 

In pursuance of clause (3) of Article 348 of the Constitution of India, the Governor of Kerala is pleased to authorise the publication in the Gazette of the following translation in English language of the Kerala Police (Amendment) Ordinance, 2020 (79 of 2020). 

By order of the Governor, ARAVINTHA BABU P. K., Law Secretary.

ORDINANCE NO. 79 OF 2020 THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020 

Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India. 

AN ORDINANCE further to amend the Kerala Police Act, 2011. 

Preamble.—WHEREAS, it is expedient further to amend the Kerala Police Act, 2011 (8 of 2011) for the purposes hereinafter appearing; 

AND WHEREAS, 

the Legislative Assembly of the State of Kerala is not in session and the Governor of Kerala is satisfied that circumstances exist which render it necessary for him to take immediate action; NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor of Kerala is pleased to promulgate the following Ordinance:— 

1. Short title and commencement.—

(1) This Ordinance may be called the Kerala Police (Amendment) Ordinance, 2020. 

(2) It shall come into force at once. 2. Act 8 of 2011 to be temporarily amended.—During the period of operation of this Ordinance, the Kerala Police Act, 2011 (8 of 2011) (hereinafter referred to as the principal Act) shall have effect subject to the amendments specified in sections 3 and 4.

3. Amendment of section 118.—

In the principal Act, after section 118, the following section shall be inserted, namely:— “118 A. Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.─

Whoever makes, expresses, publishes or disseminates through any kind of mode of communication, any matter or subject for threatening, abusing, humiliating or defaming a person or class of persons, knowing it to be false and that causes injury to the mind, reputation or property of such person or class of persons or any other person in whom they have interest shall on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both.”. 

4. Amendment of section 125.—In sub-section (1) of section 125 of the principal Act, after the figures and symbol “118,” the figures, letter and symbol “118A,” shall be inserted. 

ARIF MOHAMMED KHAN, GOVERNOR. 

CONTEMPT OF COURT VIS A VIS FREE SPEECH : A COMMENT ON PRASHANT BHUSHAN CONTEMPT CASE

Prashant Bhushan, In re (Contempt Matter), (2021) 1 SCC 745, decided on 14.08.2020

                               Anurag Deep, Associate Professor, ILI, 

New Delhi

 

I. Introduction

The law of contempt is a blend of liberty of individual and responsibility of individuals. It contains the competing idea of restraint of power of the Court and restraint of freedom of the citizen. The contemnor insists that the Courts must restrict their power to punish for  contempt in a democracy while the Court insists that the citizen must limit their liberty to speak anything and everything against the Court because “abuse of liberty is not the path to freedom or justice”. (Dias -Jurisprudence). It will lead to anarchy. Krishna Iyer, J. in the case of In Re: S. Mulgaokar (1978) 3 SCC 339 has designed the contempt law as an "accommodation of two constitutional values-the right of free speech and the right to independent justice." Iyer, J. can be further interpreted. A1 has the fundamental right to freedom of expression by virtue of which he can severely criticise the court. Likewise A2 whose case is pending before a court has right to get 'independent justice', which is unbiased, delivered without any fear or compulsion. If the expression of A1 interferes in the course of justice or shrinks the confidence in judiciary, the right to justice to A2 cannot be said to be independent.

II.FACTS

The facts of Prashant Bhushan contempt case is that the accused, a well-known advocate, posted the following tweets in June 2020 :

Tweet 1-“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”

Tweet 2-“When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

III. ISSUES

The Contempt of Court Act, 1971 provides certain grounds of insult or defamation of court. One is “scandalising or lowering the authority of the court".  

a) The issue before the Court was whether these tweets were covered under the provision "scandalising or lowering the authority of the court” or should the judiciary “be willing to ignore, by a majestic liberalism” such tweets even though they are in bad taste, inappropriate and couched in irresponsible words? Was the tweet a legitimate exercise of freedom of speech and expression under article 19 or was it in violation of reasonable restrictions provided under article 19(2)? Did the tweet underline the genuine concern of a common citizen or did it undermine the integrity of judges? The Court held that the tweets amounted to contempt of court.   

There were other issues 

(b) Maintainability- the contempt petition was filed by Advocate Maheshwari but the Supreme Court treated it as suo motu. Is it permissible under the Contempt of Court Act, 1971? It was a question on maintainability of petition. The Court held that the powers of the Supreme Court to initiate contempt are not in any manner limited by the provisions of the Act of 1971. This Court is vested with the constitutional powers under article 129 and 142(2) to deal with the contempt. 

(c) Liability of social media-Can the social media platform “twitter” which is an intermediary, be proceeded against for the tweet and will the "safe harbour" clause under section 79 of Information technology Act, 2000 provides a defence? Safe harbour is a legal provision by which a party can get exemption from liability under certain circumstances. Like the take due diligence, due cognizance of the such disputed matters and take necessary steps. Twitter informed that it has "blocked the access to the said tweets and disabled the same" within a couple of days.  The Court accepted the defence of twitter and discharged the notice issued to twitter.

IV. The Judgement  

On the issue of contempt, the Court referred Ravichandran   Iyer   v.   Justice   A.M.   Bhattacharjee, (1995) 5 SCC 457 where it was observed that 

"fair criticism is based on  the authentic and acceptable   material  permissible   but   when   criticism   tends   to   create apprehension in the minds of the people regarding integrity, ability and fairness of the Judge, it amounts to contempt.   Such criticism is not protected under article 19(1)(a) of the Constitution.” 

While examining the first tweet, (which claimed that the CJI kept the Court in lock down) the Court held that “during the said period, the vacation Benches of the Court were regularly functioning. the Court has heard 12748 matters. 686 writ petitions filed under Article 32.” Therefore, it is factually incorrect to say that the Supreme Court was in lockdown. “In this premise, making such wild allegations thereby giving an impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in lockdown mode and thereby denying citizens their fundamental right to access justice, is undoubtedly false, malicious and scandalous. It has the tendency to shake the confidence of the public at large in the institution of judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice.” Advocate Prashant Bhushan was found guilty for the first tweet. He was also found guilty for the second tweet which was not on fact but was an opinion. Second tweet is not the subject matter of this comment because of space restriction.

V. COMMENTS

Whether the tweet is an opinion or a fact? An opinion gets greater protection than a statement based on fact. A fact can be true, false or misleading. The truth provides scope for argumentation. A statement which is factually wrong places the accused in an extremely defensive position. A statement is said to be misleading if it provides some part of fact and conceals other parts. If the concealment is deliberate it amounts to cheating and fraud. If it is not deliberate, it amounts to misrepresentation. First tweet was factually wrong. The factual inaccuracy was deliberate. It caused harm to the reputation of the Supreme Court. The followers of tweet or readers of tweet have the right to know the correct fact. It was pandemic time. Common persons were in lock down. There was no occasion to know whether the Court was functioning or not. A practicing lawyer of the Supreme Court was the best person to act as a carrier of correct information. In this situation, he owed a responsibility towards his followers and readers. There was an implied relationship of trust between a lawyer of his distinction and his readers. A false information amounts to breach of trust. Part IVA (h) calls upon every citizen “to develop the scientific temper” for which flow of correct fact is a precondition. His tweet was also in breach of fundamental duty. The contemnor knew this fact very well not only because he was a practicing advocate in the Supreme Court but also because he himself got relief in article 32 case on an urgent basis. He approached the Supreme Court in the case of Prashant Bhushan v. Jaydev Rajnikant Joshi on April 30, 2020 during lockdown. His case was listed for the very next day, ie May 1, 2020 and he got interim relief from the Court. This establishes that the contemnor has also committed intellectual dishonesty, cheating and fraud to those who believe in him. It was not only morally inappropriate and unlawful under civil law but also harmful enough to attract criminal sanction. 

VI. CONCLUSION

FREE SPEECH AND CONTEMPT OF COURT-THREE CATEGORIES

The freedom of speech and expression against the Court has three classifications. 

(a)Those which are criticisms of the court, its functioning and the judgements. They do not risk the independence of the judiciary. Indeed, criticism of the institutions of State including judiciary is oxygen for democracy. Disagreement and dissent with the judiciary is an essential mode of checks and balances in rule of law. The freedom of expression constitutes an integral part of democracy based on fearless dialogue, seamless discussion, sharp disagreement and strong dissent. (See, Manoj K Sinha and Anurag Deep, Law of Sedition in India and Freedom of Expression, 2018, ILI) Sometimes the dissents are inappropriate, uncalled for but they can be within legal limits of reasonable restrictions. To criticise a “judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy.”  

(b) Those expressions which are manifestly inappropriate because the language, time, place and the contemnor has a particular context. They amount to indirect threat to the independence of the judiciary. But the Courts exercise restraint and record warnings. When such expressions are not only misleading but false, they have potential to break the trust with the judicial system. They are an attempt to indirectly intimidate the judges. Prashant Bhushan case comes under this. He is a representing in many cases which is pending in the Supreme Court. The tweets have a tendency to intimidate judges who were/are unfavourable to him. 

(c) Those expressions which are a direct threat to the independence of the judiciary. They intimidate the judges directly. They destroy the rule of law and demonstrate no respect for democratic institutions as well as  constitutional values. It is the domain of the Court. Justice Karnan case is an illustration of this. The independence of the judiciary is under threat due to such irresponsible conduct of a person belonging to an intellect class.

In the case of In Re: S. Mulgaokar, [(1978) 3 SCC 339] Krishna Iyer, J. after warning that contempt jurisdiction ought to be rarely used, rightly observed that in contempt cases 

(i) the Court should consider totality of factors, 

(ii) the Court must reach  a conclusion that the attack on judge or judiciary is scurrilous, offensive, intimidatory or malicious 

(iii) it has crossed beyond condonable limits,

(iv) then the Court must “strike a blow on” the contemnor. 

Despite this judicial dictum the Court (led by Arun Mishra, J.) has not sent the convicted contemnor to jail and fined him ₹ 1 only. The Court has demonstrated its large heart and generosity. 

Free speech in India is different from the UK because there is no constitutional protection and limitation. It is not like the USA where free speech is couched in terms of “absolutism” and there are no express restrictions in the Constitution of the USA except those developed through a few doctrines like the doctrine of police power. The doctrine of free speech in India rests on “rights with restrictions” model. In the last decade there has been a growing trend to take protection of free speech after indulging in vilification of courts. The conviction of Prashant Bhushan should convey to all such people to “take heed for they will act at their own peril.” Liberty of free speech should not slip into a license to browbeat an institution. The judgement on Prashant Bhushan contempt case rejects superficially attractive arguments of free speech and rightly relies on substantially enduring rationale based on P5 (principles, provisions, precedents, policy and professional opinion). It is high time the judicial institution be preserved and protected from such internal attacks from the Bar. 

[The author acknowledges the editing done by Ms Charvi Kumar, PhD scholar, ILI, New Delhi]

 

NON OBSTANTE CLAUSE-NOTWITHSTANDING ANYTHING-SCOPE AND LIMITATION-RTI vsi a vis HC rules

Non-obstante clause-

Many statutes use the terms ‘notwithstanding anything’. This is famously known as non obstante clause. It is used in the beginning of the provision and indicates the overriding effect of the provision over others. [It is also used in between the provision like, sec 78 of IPC which has similar impact but they are not frequent. A control F search indicates that in IPC it is used three times]. In the Constitution of India this term is used more than hundred times. In the provisions of citizenship, article 31A, article 136, article 226, article 256, article 368 etc. Non-obstante clauses have the tendency of providing additional power to the authorities in comparison to other provisions. The draftsman had primarily in mind those Provisions which stood in the way of the provision containing non obstante clause.    

Article 31A deals with “Saving of laws providing for acquisition of estates.” clause (1) says “Notwithstanding anything contained in article 13…”. This means in case of any conflict between article 13 and 31A, article 31A will prevail. Similarly article 35 deals with “Legislation to give effect to the provisions of this Part.” It states that “Notwithstanding anything in this Constitution,...” The purpose of this provision is to make it clear that in case of any inconsistency between article 35 and any provision of the Constitution, the priority should be given to article 35.  Article 136 makes provision for “Special leave to appeal by the Supreme Court.” Clause (1) states “Notwithstanding anything in this Chapter,...”. This conveys that in case any provision in this chapter (not the whole constitution) comes in the way of article 136, later will prevail. Article 368 provides for the “Power of Parliament to amend the Constitution and procedure therefore.” Clause (1) says that “Notwithstanding anything in this Constitution,...”. Article 368 will prevail over other provisions of the Constitution. But one sd not make any sweeping generaisation as if this clause trumps all other clause.

Table -overriding effect and limitation

Subject matter	Provision	Overriding effect over which provision	No Overriding effect over
Override one provision	Article 31A -“Notwithstanding anything contained in article 13	Article 31A overrides only article 13	Does not override any other provision of the constitution
	Article 226. (1) Notwithstanding anything in article 32	Article 226 overrides only article 32	Does not override any other provision of the constitution
Override one Chapter	Article 136 Clause (1) “Notwithstanding anything in this Chapter,...”.	Article 136 overrides the whole chapter ie chapter IV.	Article 136 is in Part V ‘the Union’. It has five chapters.  Article 136 does not override chapter ,I,II, III or V or any other part  of the constitution
Override the whole law	article 35, 368 “Notwithstanding anything in this Constitution,...”	Article 35 and 368 overrides all provisions of the constitution and not just one article or one chapter

Lesson from the table 

This table indicates that the non obstante clause makes us understand the intention of our forefathers in the constituent assembly. The judiciary should interpret keeping in mind this internal aid of non obstante clause. But we should not rush to any conclusion that non-obstante clause makes it all powerful. The non obstante clause is not a free elephant without a hook. It is subject to principles of law (like separation of power, federal principle, rule of law, constitutionalism, sovereignty etc) and basic rules of interpretation. The intention of Indian Parliament is different from those of the UK Parliament because in the UK the Parliament is sovereign and there is no written constitution while in India the Parliament is not sovereign. It is subject to the Constitution of India. This is the main reason why the Supreme Court has introduced the doctrine of  basic structure theory while interpreting article 368, though it begins with “notwithstanding anything in the Constitution.” The rule of interpretation suggests that the Court ought to make a harmonious construction. It should be careful that the alleged inconsistency is real and not imaginary. An additional condition is not necessarily an inconsistency. Chief Information Commissioner v. High Court of Gujarat [2020 (4) SCC 702] presents this with clarity which is discussed below.      

  Limitation of non obstante clause : Overriding but not repealing 

What is the scope of the words “notwithstanding anything”. It is well known that a non obstante clause has overriding effect over other provisions mentioned in the non obstante clause. It may override that provision or it may override other provisions or it may override the chapter or may have an overriding effect over the whole enactment. Does it mean the non obstante clause neutralises the effect of other provisions of law or does it mean overriding effect in case of any inconsistency.  

In the matter of Chief Information Commissioner v. High Court of Gujarat [2020 (4) SCC 702] the issue was interpretation of Right to Information Act, 2005 vis a vis the HC (Gujrat) rules. The HC (Gujrat) rules provided that any third party information can be obtained under an affidavit narrating the reason why the information is required.On the other hand, the RTI Act does not require any affidavit and reason. The RTI Act contains a non obstante clause. The argument was that the non obstante clause overrides other laws. Therefore, if the information is sought under RTI Act, the provision of RTI Act will prevail over the HC (Gujrat) rules. As RTI Act does not require any reason for an information, any other law like  HC (Gujrat) rules cannot require it. It is an inconsistency and non obstante clause is meant to override any other law. However, the full bench of the Supreme Court refused to accept this argument. It has made a distinction between an inconsistent provision and an additional requirement as under: 

     The non-obstante clause of the RTI Act does not mean an implied repeal of the High Court Rules and Orders framed under Article 225 of the Constitution of India; but only has an overriding effect in case of inconsistency. A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause, unless there is clear inconsistency between the two legislations. 

In other words the Court held that there is no inconsistency. The HC (Gujrat) rules do not prohibit or deny information. It provides additional conditions. An additional condition cannot be termed as inconsistency between the two laws. 

The full bench proceeded with the similar logic as under: 

Section 22 of the RTI Act lays down that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than RTI Act. Learned Senior counsel for the appellant has submitted that since the requirement under Rule 151 of the Gujarat High Court Rules of filing an affidavit stating the grounds for seeking the information is directly contrary to Section 6(2) of the RTI Act and there is direct inconsistency between the provisions of the RTI Act and the Gujarat High Court Rules and in the event of conflict between the provisions of the RTI Act and any other law made by the Parliament or a State Legislature or any other authority, the RTI Act must prevail.   

Comments on this case

Non obstante clauses do not have a repealing effect though they have an overriding effect. The judgement may not be in tune with the requirement of transparency in judicial governance but the modification in law cannot be made by judicial interpretation. It may amount to judicial legislation which should be resorted to only if it is essential. Just because something is good for democracy does not mean the judiciary should do it. The Parliament has to make necessary amendments in the light of this judgement so that the common mass is not required to give reasons and devoid of information in the Courts. This interpretation may be used by other wings of State to frustrate the purpose of the RTI Act, 2005.

One aspect of the judgement needs to be noticed by the judicial officers. It provides a conclusion. Many judges write a conclusion but many do not write and they only provide operative part of the judgement, of course after discussion. A conclusion let the readers, the lawyers and the judicial officers understand the take home from the pronouncements. It restricts further interpretation. If conclusion is not given, we draw it from the whole judgement and in that process we draw other conclusion also. This creates confusion and may lead to further litigation. All judicial decisions should contain a conclusion and the law laid down. It will help reducing inconsistency in judicial process. The code of conduct of judges or rules regarding judgement writing may include these things. In certain judgements the HC have not mentioned the facts.

 Minimum content of a judicial decision : Sangeeta Agrawal case What should be the minimum content of a judgement on section 482 of CrPC 1973? Is it necessary to narrate facts in brief and to examine facts? Is it not enough if a decision states the laws laid down through various precedents and then decides the case. Sangeeta Agrawal v. State of Uttar Pradesh [MANU 2018 SC 1377] is a case where charges were framed by sessions court under sections 498A, 304B of the Indian Penal Code, 1860 and section 3/4 of the Dowry Prohibition Act, 1961. The charges were challenged in the High Court with the prayer to quash it under section 482 of CrPC 1973 which the High Court refused to do. The Supreme Court quashed the order of the High Court making following observation:

    "On perusal of the impugned order, we find that the Single Judge has only quoted the principles of law laid down by this Court in several decisions relating to powers of the High Court to interfere in the cases filed under Section 482 of the Code from Para 2 to the concluding para but has failed to even refer to the facts of the case with a view to appreciate the factual controversy, such as, what is the nature of the complaint/FIR filed against the appellants, the allegations on which it is filed, who filed it, the grounds on which the complaint/FIR/proceedings is challenged by the appellants, why such grounds are not made out under Section 482 of the Code etc. We are, therefore, at a loss to know the factual matrix of the case much less to appreciate except to read the legal principles laid down by this Court in several decisions." The Supreme court laid down the minimum contour of a judicial decision as under: "In our view, the Single Judge ought to have first set out the brief facts of the case with a view to understand the factual matrix of the case and then examined the challenge made to the proceedings in the light of the principles of law laid down by this Court and then recorded his finding as to on what basis and reasons, a case is made out for any interference or not. In our view, this is the least that is required in every order to support the conclusion reached for disposal of the case. It enables the Higher Court to examine the question as to whether the reasoning given by the Court below is factually and legally sustainable." Judgement writing is one of the big problems of the judicial process in India. It has two aspects. Form of the judgement and content of the judgement. There is no uniformity in writing judgements. Some judges write with heads and sub heads. Some begin with issues while others begin with facts. Some write philosophical introductory notes. As it is a subjective matter it is unwise to suggest any set pattern, form or the content of a judgement. But certain things are too basic to explain. Facts and all significant arguments of both sides should be recorded because they make everyone aware of the case and precedents. Issues should be mentioned preferably in the beginning because issues determine the relevance of judgement. Major heads and subheads help like issues, facts, arguments, principles of law, decision, summary, operative part etc makes the judgement more readable, organised and meaningful. A few orders of the Supreme Court on section 304B are not well reasoned orders, for example Archana Mishra v. State of U.P, 2017(4) RCR (CR.)736, Sarada Prasanna Dalai v. Inspector General of Police, Crime Branch, Odisha, (2017) 5 SCC 381. and Ananda Bapu Punde v. Balasaheb Anna Koli, (2017) 4 SCC 642. In the same case during various hearings on various dates reasons are given but the final hearing order does not contain the reasons. Many times it is difficult to discover reasons of acquittal, conviction, or reduction of punishment etc. The judiciary needs to improve its judgement writings. To begin with all pronouncements must contain a conclusion.