[This is a guest post by Krishaan Doctor.]
Earlier this year, the Supreme Court passed an order imposing a blanket ban on an NCERT Class VIII textbook that contained a section on “corruption in the judiciary”. The order directed the immediate cessation of all further publication, printing and digital dissemination of the textbook, along with the seizure and removal of all physical and digital copies from circulation. In a piece titled “Can The Supreme Court Ban a Book?” Bhatia argued that this order was without jurisdictional foundation, proceeding on the following line of reasoning.
- Article 19(2) of the Constitution only permits restriction upon speech to be done through a “law” that is made by the “State.”
- It has long been established that judicial decisions do not constitute “law” for the purposes of Article 19, and the judiciary does not constitute “State” for the purposes of the bill of rights (Mirajkar’s Case; Rupa Ashok Hurra’s Case).
- Consequently, the judiciary does not have the constitutional power to directly restrict speech (that is, to ban books or censor films via judicial decree).
This blog takes a contrary view to that advanced above. It argues that the Supreme Court does have the power to restrict the fundamental right to freedom of speech and expression under Article 19(1)(a) when exercising its inherent power to punish for contempt under Articles 129 (and the High Courts would have a similar power under Article 215). However, this power is not unlimited, and like every other restriction permitted by Article 19(2) is subject to the requirement of reasonability. Drawing on Sahara v SEBI, I then make a case for a proportionality style review of judicial orders made pursuant to the Court’s contempt power, applying this standard to the NCERT book ban to examine its constitutionality.
Does a restriction require a “law” that is made by the “State”?
Bhatia’s argument relies on the premise that a restriction on a fundamental right can only be done through a “law” made by the “State”. However, Article 19(2) would not require a restriction on speech to be made only by a law made by the State, if the restriction flows from a particular constitutional provision.
In Raja Ram Pal v. Hon’ble Speaker , a group of MPs expelled from the House in exercise of the privileges vested in it by Article 105(3) of the Constitution challenged their expulsion, contending inter alia that their fundamental right to practise any profession or carry on any occupation under Article 19(1)(g) could only be restricted by a law made by the State under Article 19(6). They argued that since no specific law had been enacted by Parliament to crystallise or define the scope of parliamentary privileges, the expulsion could not validly restrict their fundamental rights under Article 19(1)(g). Rejecting this contention, the Court held that
We are of the view that where there is a specific constitutional provision that may have the effect of curtailing these fundamental rights, if found applicable, there is no need for a law to be passed in terms of Article 19(6). If Article 105(3) provides for the power of expulsion (though not so expressly mentioned), it cannot be said that a specific law in public interest is required. Simply because Parliament is given the power to make law on this subject is no reason to say that a law has to be mandatorily passed, when the Constitution itself provides that all the necessary powers of the House of Commons vest until such a law is made. Thus, we find that Article 19(1)(g) cannot prevent the reading of power of expulsion under Article 105(3).
The Court clarified that when a constitutional provision (here, Article 105(3)) itself vests the relevant power or privilege, the absence of enabling legislation does not render the exercise of that power unconstitutional vis-à-vis fundamental rights.
Along analogous lines, the Constitution itself provides the source of authority for Courts to restrict the fundamental right to speech and expression under Article 19(1)(a) in exercise of their contempt powers. Article 129 vests the Supreme Court with all powers of a court of record including the power to punish for contempt of itself. This power has been understood fairly expansively – and has been read to include the “power of the Courts to prevent such acts which interfere, impede or pervert administration of justice” – which the judicial book ban would prima facie fall under. Additionally, Article 19(2) of the Constitution itself contemplates “contempt of court” as a permissible restriction on Article 19(1)(a).
A harmonious reading of the two provisions was undertaken in EMS Namboodiripad v TN Nambiar – where the Supreme Court observed that Article 19(2)’s entry on “contempt of court” must be read conjunctively with Arts. 129 and 215 which “specially confer on this Court and the High Courts the power to punish for contempt of themselves.” In view of this broader constitutional design and the principle laid down in Raja Ram Pal, a separate “law” made by the “State” is not required before the Supreme Court can exercise its contempt jurisdiction to restrict freedom of speech and expression. The Constitution appears to both confer this power through Article 129 and expressly recognise it as a valid restriction on Article 19(1)(a) through Article 19(2).
The Court Was Not Acting Under The Contempt of Courts Act 1971
Before proceeding to a discussion of how such orders ought to be reviewed, it would be worthwhile to respond to a claim advanced by a commenter on Bhatia’s post on this topic. The commenter appeared to argue that the Supreme Court’s order banning the NCERT textbook was passed pursuant to the Contempt of Courts Act, 1971, which constitutes a “law” made by the “State” within the meaning of Article 19(2). There are two problems with this view. First, a bare reading of the Act would find that it does not contain any provision that authorises the power to issue a book ban. It only regulates the procedure through which a Court can punish contempt, and the quantum of punishment it can award. Second, it is settled law (see Supreme Court Bar Association v Union of India) that the Act is neither an exhaustive code nor the source of the Court’s contempt powers. The Supreme Court’s contempt jurisdiction is sui generis, and derives from Article 129 of the Constitution. It is this jurisdiction the Court was relying upon when it issued the decree banning the NCERT textbook.
Reasonability and Proportionality Review
The text of Article 19(2) saves contempt-based restrictions on speech only to the extent that they constitute “reasonable restrictions”, and therefore the Court’s power to prevent contempt of itself would be subject to the requirement that such an exercise is reasonable. In Sahara India Real Estate Corp. Ltd. v Securities and Exchange Board of India (‘Sahara’), a five judge constitutional bench was tasked with deciding whether judicial postponement orders (directions to the media to temporarily defer reporting of sub-judice proceedings) constituted a reasonable restriction upon Article 19(1)(a).
The contention raised was that “excessively prejudicial publicity” by the newspapers could amount to a media trial, violating the accused’s Article 21 rights to a free trial and the presumption of innocence. Locating the power to issue postponement orders – which were prima facie a restriction on the freedom of the press – within its inherent contempt jurisdiction under Articles 129 and 215, the Court held that such orders would be permitted only if they were “reasonable” in nature – laying down the following set of guidelines.
… such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint.” [Para 42]
And on necessity and proportionality separately:
In passing such orders of postponement, courts have to keep in mind the principle of proportionality and the test of necessity. [Para 34]
It is worth noting that the Court crafted such a narrowly tailored test for “reasonableness” despite having to balance the Article 19(1) rights of the media with the Article 21 interests of the accused – which arguably presented the strongest possible justification for a form of judicial prior restraint. On the other hand, the NCERT order was pursuant to the Court’s power to punish publications that interfere with/scandalise the administration of justice more generally – and did not involve a competing Article 21 interest. In my view, such restrictions ought to be assessed with even greater scrutiny than postponement orders – which at the very least are concerned with preventing prejudice in identifiable legal proceedings. In any case, while both the Sahara postponement and NCERT orders engage different limbs of the definition of criminal contempt under Section 2(c) of the Contempt of Courts Act, they are made pursuant to the same constitutional contempt power under Article 129 and must therefore require an inquiry into the reasonableness of measures taken.
We cannot directly import the Sahara test to the present case because it was crafted in a different context, but can apply the general principles of proportionality, necessity and reasonableness in assessing the book ban. In Modern Dental College, the Supreme Court endorsed a four-pronged test for proportionality, which included the following:
… iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation;.(iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
The necessity or the least restrictive means test requires that the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation. It is evident that the blanket ban on the publication, reprinting or circulation of the book was not the least restrictive measure the Court could have taken. As opposed to the ban, the Court could have considered requiring the removal or modification of specific passages, directing the publisher to issue a prominent disclaimer or contextual note, or requiring that future or reprinted editions be revised to address the allegedly harmful content. The ban is disproportionate insofar as it also serves as a blanket prohibition on the remaining contents of the textbook, which did not raise any constitutional concern.
Second, the Court failed to undertake a balancing/strict sensu analysis between the importance of protecting the “administration of justice”and the author/publisher’s right to express, but also the public’s (especially children’s and students’) right to receive information essential for informed citizenship. The blanket ban not only deprives the public of access to the entire textbook but also creates a severe chilling effect on educational discourse and academic freedom – which when weighed again the Court’s highly speculative and generalised concerns about a diminished institutional perception – is plainly disproportionate.
Postscript: Person Ban
After the book ban, the Court passed a subsequent order directing all institutions receiving State funds to disassociate from rendering any service which would mean payment to the alleged contemptors from public funds. This order, as has been noted, has the practical effect of a near-total destruction of Article 19(1)(g) for this class of persons. The Court’s direction here was simply without jurisdiction, regardless of whether it was a “reasonable restriction” or not – which it most certainly would not amount to. There is no basis in either the Constitution or the common law for contempt of court to be a permissible restriction on the right to practise any profession under Article 19(1)(g).
As the Court has pointed out in SCBA v Union of India, no new type of punishment can be created or assumed in exercise of the Court’s contempt powers. Specifically, it held that its contempt jurisdiction “cannot be expanded to include the capacity to summarily determine whether an advocate is also guilty of professional misconduct eschewing the process outlined in the Advocates Act”. On similar lines, the power to blacklist an individual from having dealings with the State is the domain of the relevant executive authority and cannot be usurped by the Court in exercise of its contempt powers. Interestingly, the Court has itself noted in Eurasian Chemicals Ltd v State Of West Bengal that blacklisting orders are ‘instruments of coercion’ that involve serious civil consequences and has accordingly observed that the “fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist” – which was not followed in the present case.