RIGHT TO DISSENT AND ROLE OF THE FREEDOM OF SPEECH AND EXPRESSION - ONGOING STRUGGLE FOR MAINTAINING EQUILIBRIUM IN A DEMOCRACY

INTRODUCTION

The running blood of individual liberty and Freedom of Expression is Dissent. It is essential to make a distinction between Dissent and incitement to violence for any nation. It feeds into the image of those who want abuse and not dialogue by approaching them all with the same good mandate. The uproar 'anti-national' is a chewy mess. The ideal of justification and contemplation within a democracy guarantees that opposing opinions and Dissent are not looping holes and assures that any decision is not only a decision within aggression but more of a collective consensus.

The aggression on Dissent is at the Centre of a democratic rational discussion. Hence, the State must make its resources accessible for safeguarding Freedom of Expression under the boundaries of the law and eradicate effort to construct terror and to suppress Freedom of Expression. Dissenters are hounded by sedition laws and the utter contempt of the Court, which violate their Right to the processes to exercise Freedom of Expression. They are blamed for those activities which are calculated by either phrases, deeds, or publications to interrupt the harmony of the State and to lead people to undermine the rule of law.

SEDITION VS. RIGHT TO DISSENT

The sedition law is frequently misused by overly enthuse and ideologically controlling enforcement bodies in a modern democracy, where freedom of Expression is a jewel among fundamental rights.

There have been a significant number of cases of seditions in India, such as Kedarnath vs. the State of Bihar, Balvant Singh vs. State of Punjab, Nazir Khan vs. State of Delhi. In all this cases case, the Supreme Court found that, while intense and repugnant or even uninformed, simple criticism on the ruling party or the people in power at the Centre  or State or, in simple terms, what we called a government and bring dissenters under the purview of Sedition. Criticizing remarks on the Government do not entail sedition. Its scope was confined to acts of violence that were aimed at disrupting law and order.

The allegation of sedition on Kanhaiya is entirely undeserved. He was used as a hostage for private interests. True concerns are distorted and ignored behind the 'anti-national' controversy of Kanhaiya. The bail order issued by Justice Pratibha Rani of the Delhi High Court itself was famed because it unreasonably contrasted Kanhaiya Kumar's alleged "anti-nationalism" to a "society pathogen that risks turning into gangrene."

The draconian sedition law has been cited every time the State has indeed offended by condemnation as it can be seen in the history from the award-winning booker writer Arundhati Roy, the anti-nuclear campaigner SP Utagakumar to the folk singer S Kovan, to the ideological cartoonist Aseem Trivedi, to the former Delhi University professor SAR Geelani.   Cases of sedition, such as Kanhaiya Kumar, Aseem Trivedi, and others, are similar since they all evoke the essence of disagreements. The dichotomy of Country and society reveals how the individual rights of the people are considered as a menace in democracy, where the State has restricted possibilities for remedy.

CONTEMPT vs. RIGHT TO DISSENT

Judge Krishna Iyer warned in the case of Baradakanta Mishra vs The Registrar Of Orissa High Courtthat the Law of contempt was intended to reaffirm public confidence in the Supreme Court, and if misused, it may generate a sense of resentment against the judiciary.

JUSTICE KARNAN'S CASE (IN RE: HON’BLE SHREE JUSTICE C.S KARNAN)

The Controversial Contempt Case of Justice C.S. Karnan v. The Honourable Supreme Court of India marked a question of the Constitutional Validity of Judicial Orders and how those orders vaguely hinder the freedom of expression.

Firstly, no grounds for the conviction of Karnan were disclosed by the Supreme Court's original judgment. The order by the Supreme Court itself was unjustified and represent a misuse of judicial power.

A High Court or the Supreme Court judge could only be discarded, in compliance with Article 124(4) of the Constitution of India , by majority vote in the Parliament. And that's where the order is confusing whether Karnan is dismissed as a judge, a decision which is to be made by the Legislature and not by the Judicial system of the Country.

To be exact, before Justice Karnan was even found guilty of contempt, the Supreme Court suspended him from all legal duties. There were no grounds in these instructions to relieve Karnan of his posts. It is not clear under what legislative basis the Court chose to expel the High Court judge from his duties.

It is alarming that the top Court of the Nation foresaw the procedure laid down under Constitutional Law for removal of the High Court or the Supreme Court judge in its judgment and it is very well established that the Supreme Court rulings are constitutionally binding for posterity. So, it means this judgment may or can develop into a bad precedent.

The top Court prohibited the media from promulgating assertions raised by Justice Karnan. And from this, no one knows Justice Karnan's side of the story.

The question arises why there has been a censorship on Karnan’s speech and expression by the top Court or Judiciary of the Nation? Why is there a violation of Freedom of Expression by the very proctor of our very own Indian Constitution? 

Gautam Bhatia's opinion aptly fit in this current scenario as he quoted “The Judiciary's task is to protect citizens' Right to free speech from executive and legislative tyranny, not to get into the business of censoring speech itself.”

SR. ADVOCATE PRASHANT BHUSHAN'S CONTEMPT

The case of Sr. Adv Prashant Bhushan has highlighted India's most esteemed institution and poses questions about the hypersensitivity of the institution to criticism.

Article 19(2) of the Indian Constitution allows reasonable restraints on speech on the grounds of "contempt of the court." The Supreme Court and the High Court are allowed to prosecute the suspect for the contempt under Articles 129 and 215 of the Constitution of India. Furthermore, the Contempt of Courts Act of 1971, derives its roots from English Statute, describes and governs the jurisdictions' powers and practices concerning contempt of civil and criminal nature.

The purpose of these rules in a democratic nation is to make the administration of justice possible and thus to safeguard the integrity of the Judiciary. Reasonable criticism of Judicial operations does not entail contempt, as the same has been explained under Section 5 of the Contempt of Courts Act of 1971.

The Supreme Court considers Sr. Adv Prashant Bhushan guilty of contempt for two tweets on August 14, 2020, just before the eve of Independence Day. The Judicial bench comprises Justice Arun Mishra, Justice B.R. Gavai, and Justice Krishna Murari held that such tweets were centred on "distorted facts" and were a "farce / malicious attack" on the "intact Supreme Court of Country."

The first tweet in which Bhushan claimed that the CJI was driving Rs. 50 lakh motorcycle belonging to the BJP leader, while keeping S.C. in lock-down mode and attempting to deny civilians the fundamental Right of access to justice, was utterly untrue. The Court noted that it was undermining the integrity of the institution in regard to Bhushan's second tweet, which focused on the degradation of Indian democracy and the role played by the previous four CJIs in this 'degradation.' The Court has declined to show "magnanimity" about this complaint which is "uncharitable" even though it is part of the system of outrageous and impartial Judiciary. It asked Bhushan, however, again and again, to forgive him for 'hurting' the sentiments of the Court.

No intervention in the administration of justice is evident as he tweeted about the acts of the last four CJIs in the 'destruction of democracy' in the nation. The belief that the credibility of the Judiciary is extracted and preserved by public sentiment serves as a significant barrier to Dissent with it. The Court observed in Dr D.C. Saxena v. Hon'ble the Chief Justice of India that criticism of the Judicial establishment is permissible. In the case of Baradakanta Mishra v. The Registrar of Orissa High Court, it was held that any attempt at vilifying a judge wasn't really disdainful: "The degree of damage caused to the administration of justice would not have to be treated by the Court as affecting it and, if it is mild and uncertain, the Court will not punish for contempt." As is stated in the case of In Re: S. Mulgaokar, this jurisdiction must be practiced where there is a 'planning or design' to injure the reputation of the Court purposely.

Seeing at Bhushan's tweets, the only clear conclusion that can be drawn is that an individual is voicing in distress. Whilst each of these assertions is quoted in the Prashant Bhushan opinion, and its substantive implications are neglected. The decision does not examine whether the damage incurred by tweets by Bhushan is adequate to explain the disrespect procedure nor tries to address how critics hinder the reputation of the Supreme Court. 

DISSENTING OPINION IN SUPREME COURT RULINGS

Justice Subba Rao: -

 Right to Privacy is a fundamental right. "It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty." It was held in Kharak Singh vs. State of Uttar Pradesh that the Right to privacy doesn't come under the ambit of fundamental Right.

Nearly 55 years later, a 9-judge bench in the judgement of K.S. Puttaswamy vs. Union of India (UOI) observed the whole Right to privacy as a fundamental right.

Justice H.R. Khanna’s most prominent example of Dissent is the valiant decision in which he upheld in ADM Jabalpur vs. Shivkant Shukla that the fundamental rights of a person can't be violated in any circumstances. He suspected that he was placing his career at risk as Chief Justice of India. Knowing the previous experience where three senior judges were ignored to designate as Chief Justice of India, he acknowledged that he was likely to face the same outcome. It did not dissuade him from carrying out his duties and giving a verdict, which, even today, has been accepted to be the right order of law.

Justice Chandrachud in the Aadhaar Judgment (K.S. Puttaswamy vs. Union of India (UOI)– According to Article 110(1), the Aadhaar Act, 2016, is ruled unconstitutional for not meeting the criteria for being classified as Money Bill. "Our Constitution does not provide absolute power to any institution. It sets the limits for each institution. Our constitutional scheme envisages a system of checks and balances."

Justice Indu Malhotra in Sabarimala Judgement (Indian Young Lawyers Association v. The State of Kerala): 'the minimal prohibition on women 's entry into the age group notified would be outside the scope of Article 17 of the Indian Constitution'.

CONCLUSION: -

"Suppression of intellect is the suppression of the conscience of the nation,"

-Justice D.Y Chandrachud

In a democracy, independence of thought and speech is a fundamental virtue, which is of the highest priority within our constitutional system. Our dedication to freedom of speech ensures that it should not be restricted without the grave consequences of the circumstances generated by freedom requiring and the endangering of the common interest.

The concept of sovereignty and governmental power of the courts is clearly different from the present one of governance and even of masses more generally. It is clear that, when contentious politics is relatively common, in a complex democracy such as India, it is inevitable that people should express their disaffection and treat every form of Expression in different ways.

In India, the problem is not that the Constitution does not ensure freedom of Expression, but is quickly silenced by combining overbroad legislation, inefficient criminal justice systems, and the above-mentioned lack of consistency of the legal system. The legal framework of India is famed for being obstructed and overloaded, resulting in long and expensive delays that may also prevent the weak from battling for freedom of speech.

The legislation shall match with freedom of speech, and the obstructing Dissent is unbearable in a society because the freedom of the press has always been a spectator. However, treating Critic as Crime would never be sustained in Republic Nation. Nevertheless, Dissent has always been a privilege in a democracy.

Kedarnath v. the State of Bihar., AIR 1962 SC 955

Balvant Singh v. State of Punjab., AIR 1995 SC 1785

Nazir Khan v. State of Delhi (2003)., AIR 2003 SC 4427

Baradakanta Mishra v. The Registrar of Orissa High Court.,AIR 1972 SC 710 (15)

In Re: Hon’ble Shree Justice C.S Karnan., (2017) 7 SCC 1

D.C. Saxena v. Hon'ble the Chief Justice of India., AIR 1996 SC 2481

supra at 4

In Re: S. Mulgaokar., AIR 1978 SC 727

Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295

K.S. Puttaswamy v. Union of India (UOI) (2018) 1 SCC 809

ADM Jabalpur v. Shivkant Shukla., AIR 1976 SC 1207

supra at 10

Indian Young Lawyers Association v. The State of Kerala., (2019) 11 SCC 1 

The opinions/analysis expressed in this blog are those of the author. They do not purport to reflect the opinions or views of the SCLHR or its members.

Featured Image Source: The Wire.