Protector of Fundamental Rights
Supreme Court has been rightly said as the guardian of the constitution as it safeguards the fundamental right of the citizens. And this we all recently saw in the two cases concerned with the Right to freedom and Speech, i.e., cases of journalist Prashant Kanojia and Priyanka Sharma. The facts here are quite simple. Both cases involve criticism/mocking of CMs of two different states, and both approached the supreme court after being taken into custody. Any informed person would know how illegal their detainment was. The court, as always, did uphold their rights and then what, Saviour of our Fundamental Right is here!
But the things which couldn’t be digested well were the findings and directives by the Supreme Court which were made to the aggrieved. The order in the case of Priyanka Sharma clearly tells the detained to ‘tender an apology in writing for putting up/sharing the pictures complained of on her Facebook Account.’ Initially, the court had made apology conditional to her release but later on removed that part and just asked the aggrieved to apologise.
Now coming to the case of Prashant Kanojia. In the order which Supreme Court passed, it clearly talked about the fundamental rights being non-negotiable, but judges did make some oral findings such as
Order should not be construed as an approval of posts/tweets in the social media.
…Principle of forgiveness should be followed for citizens…
When a judge asks a citizen to apologise for saying something, even though what she is saying is her fundamental right, then that amounts to imposing a compelled speech. Why should a person apologize for conduct which is completely protected by part III of the constitution? One must also know that this order was a bail order. In such orders, the courts only have to look at the legality of the detainment. But the court here seems to cross that threshold and went on analysing the moral aspect of the post she tweeted. This can be culled out from the oral findings of Indira Banerjee J., that it was ‘wrong to put one person’s face on another’. One more essential fact on which the court should have directly given the bails to the aggrieved without even looking at the aforementioned issues was the invocation of section 66A and other such sections of Information and Technology Act. This section was outrightly held void in the Shreya Singhal judgement. Still, such laws were used by the police in this case, or rather it is used by the police across India time and again.
In the case of Prashant Kanojia, oral findings of the court are also not something to be happy of, as it suggests something grim. When court talks of the principle of forgiveness, then what it essentially portrays in the minds of a citizen is that even while the exercise of one’s fundamental right, one can be doing something wrong, even though it is not accountable in the court of law. Such judgements work as a restraint in the free flow of ideas and speech, an essential component for the efficient working of democracy. So even though court by such orders seems to be acting as a safeguard of the true values of our democracy, it is actually hurting the values of our democracy.
Let’s have a look at what Lawyers and Students of Law have a say in this:
There is no doubt about the order coming in as a help for these aggrieved people, but at the same time, being a bail order, court should have taken into consideration only the relevant aspects of the matter and should have restrained itself from going beyond it. Even though there was a deliberate action on the part of the aggrieved persons, still this was something which has to be seen later on only, as the matter is pending and vires of her speech is still to be decided.
When one looks at both of these decisions, one would find non-uniformity as in one case the court has said that freedom of speech is non-negotiable, i.e., absolute and whereas in the other case it is requesting an apology, i.e., indicating that the right is subject to morality.
I feel that the law is based on the moral principle we adhere to in our day to day lives , and in country like India, these are major part of the society. So, a judgment COLORED with morality may seem fair, it may not always be so, of it is antithetical to the constitutional principles of the country. Our constitution is supreme, nothing is above it, not even custom, or norms of the society.
As it seems, the approach taken by the court should have been such which would have curbed this menace of charging people under inappropriate laws and while stressing on the matter, instead of mulling over the morality and appropriateness of the post, it should have stuck to the legality of detainment and should have passed the bail order accordingly.
A Second Year B.A. LL.B. (Hons.) student of National Law University, Delhi. Interested in Constitutional Law, International Law and ADR, he is an avid devotee of astronomical science, and yeah he enjoys good company too!