Today, the Supreme Court passed an order banning an NCERT Class VIII textbook that had a section on “corruption in the judiciary.” These proceedings have generated a substantial amount of heat and noise – not least because the Supreme Court initiated a suo motu case after certain senior counsel urged the Chief Justice to take action. This blog post does not engage with the content of the textbook, but with a crucial anterior question that needs to be considered, which is whether the Supreme Court has the constitutional power to ban books in the first place.
This question was not raised in the proceedings before the Court, because all parties seemed to agree with each other (and with the Court) on the issue. Besides, as we have seen multiple times on recent occasions, the question of whether or not the Court has the jurisdiction to engage in certain actions has vanished from judicial consideration. The question remains important, however, for two reasons: one, as with all other constitutional authorities, the Court does not possess unlimited power. It is crucial to seriously consider what constraints the Constitution places upon judicial power. And two, asserting the power to ban a book is not limited to the facts of this case. The power of censorship in a democratic society is a power of vast scope and proportions, and it is therefore crucial to examine when, under what circumstances, and by whom, it can be exercised.
In fact, the question of whether the judiciary can directly restrict or censor speech has been considered multiple times on this blog, ever since the Court’s 2016 order mandating playing the national anthem in cinema halls. The answer is very straightforward, and it is: no.
The legal reasoning for this is simple, and can be set out schematically.
- 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).
Apart from the plain text of the Constitution, there is a deeper reason, grounded in the separation of powers, for why the Constitution does not vest this power in the judiciary. I made this argument on this blog in 2016, and the passage of a decade has yielded no particular reason why it does not hold. I set out the argument once again:
As the Supreme Court held in Kharak Singh vs State of UP, if the State action is to be upheld against Part III claims, the State must “satisfy that… the fundamental rights are not infringed by showing that there is a law and that it does amount -to a reasonable restriction. within the meaning of Art. 19 (2) of the Constitution.” The phrase “there is a law” is crucial, because it sets up a threshold safeguard for the protection of fundamental rights. Plain executive action cannot infringe fundamental rights, even if it is “reasonable” within the meaning of Article 19(2). This is because “law”, which ultimately traces its authority to Parliament (whether it is in the form of legislation, or delegated law-making, such as rules or regulations), envisions a public, deliberative process during which – presumably – civil liberties concerns are taken into account at the time of framing. And after the State makes the law, the Constitution envisages a second layer of safeguards, in the form of judicial review. After the State makes the law, aggrieved citizens can approach the Courts arguing that it violates their fundamental rights … by engaging in direct judicial censorship, the Court short-circuits this crucial two-step safeguard, and bypasses Parliament altogether. By directly restricting speech, it ensures that the deliberative process envisaged by the Constitution when it requires the State to “make a law” under Article 19(2) is rendered chimerical. This is why such judicial action violates the separation of powers.
It should therefore be clear that judicial orders banning books are without jurisdictional foundation, and incorrect in law. While such analysis may have no purchase in the practice of the Court, that is only a reason to critique the Court’s practice, and to re-assert that the exercise of power must always conform to principle.
