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Speech, Association, Personal Liberty, and the State of Exception: Jyoti Chorge v. State of Maharashtra
Freedom of opinion and freedom of association … [are] the two lungs that are absolutely necessary for a man to breathe the oxygen of liberty.
M.K. Gandhi, speech at the 36th Congress Session (1921)
I do not think that it was ever intended that Parliament could, at its will, treat the normal as the abnormal or the rule as the exception.
Justice Fazl Ali (dissenting), A.K. Gopalan v. State of Madras
ON 24 MARCH 2015, in Shreya Singhal v. Union of India,1 the Supreme Court struck down Section 66A of the Information Technology Act. This provision, which criminalized ‘grossly offensive’, ‘annoying’, and ‘inconvenient’ online speech, had been regularly used to target political opposition. In a soaring judgement that dwelt upon the foundational importance of free speech in a pluralist democracy, Justice Rohinton Nariman marshalled half a century of legal precedent to hold that the Constitution’s free speech guarantee allowed advocacy of repugnant or even revolutionary views, and only permitted the State to penalize speech that constituted ‘incitement to violence’.
The Unlawful Activities Prevention Act (UAPA) is India’s umbrella anti-terrorism legislation. Section 2(o)(ii) of the UAPA defines an ‘unlawful activity’ to include anything that ‘disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India’.2 Associations with ‘unlawful activity’ as their object can be banned by the government,3 and members of these associations imprisoned for up to two years.4 There are parallel and more stringent punishments associated with membership of ‘terrorist gangs’.5
How could the jurisprudence of the Supreme Court in Shreya Singhal coexist with a law that criminalizes ‘questioning … the sovereignty of India’, and punishes a concept as fluid as ‘membership’? In Jyoti Chorge v. State of Maharashtra,6 the Bombay High Court held that it could not. Dealing with the bail applications of a group of individuals accused of being members of the banned Communist Party of India (Maoist)—popularly known as Naxals—Justice Abhay Thipsay held that the prosecution’s evidence—that the accused had attended meetings, and were found in possession of literature supporting Naxalism—was insufficient to establish even a prima facie case under the UAPA. The concept of ‘membership’ of unlawful groups and terror gangs did not include passive membership (such as attending meetings, expressing sympathy, and so on), but only active membership, which was limited to incitement to lawless action.
In this manner, Justice Thipsay reconciled the Supreme Court’s free speech jurisprudence with the text of India’s anti-terror legislation. However, just a few months later, another judge of the Bombay High Court rejected the bail applications of individuals who were part of the very same group.7 And Justice Thipsay’s judgement remains an outlier.Not rejected by the Supreme Court, but not endorsed either, it enjoys a curious life in limbo.
In this chapter, I argue that Jyoti Chorge v. State of Maharashtra was a transformative judgement, because it was the clearest and most coherent act of judicial resistance to an almost overwhelming trend in Indian constitutional jurisprudence: the courts’ willingness to uphold and endorse laws that severely curtail civil liberties by citing exceptional situations. I begin by outlining the gradual evolution of the Supreme Court’s jurisprudence on the freedom of speech and association, which is meant to apply to times of normalcy (I); the Court’s pro-liberty standards, however, have never been applied to two legal regimes that are specified under the Constitution: preventive detention under Article 22 (II), and the state of ‘Emergency’ (III).
In the context of the relationship between individual rights and State power, both these situations have seen the Court invert its normal legal and constitutional standards. However, while preventive detention and Emergencies are defined within the Constitution itself, over time, the Court has allowed its approach to these exceptional situations to become a norm, especially in the context of ‘anti-terror’ laws. Effectively, in assessing such laws, the Court has replicated its state of exception jurisprudence, and endorsed the creation of ‘a permanent state of emergency’.8
In this context, I argue (V) that Justice Thipsay’s judgement in Jyoti Chorge repudiated every element of this ‘permanent state of exception jurisprudence’. Furthermore, this approach was the correct one: the framing of the Constitution marked a decisive break from the colonial culture of authority to a rule-bound regime, where exceptions were to be strictly and narrowly defined (VI). I conclude by examining the impact of Justice Thipsay’s approach upon other restrictive legal regimes that continue to exist in various states, and how we might examine their constitutionality afresh (VII).
I. States of Normalcy: Freedom of Speech and Association under the Constitution
Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression.9 Article 19(2) permits the State to impose ‘reasonable restrictions’, ‘in the interests of’ eight specified grounds. Three of these grounds, viz., the sovereignty and integrity of India, the security of the State, and public order, suggest that the regulation of subversive or revolutionary speech is an important constitutional concern.10 Of course, Article 19(2) does not interpret itself: the question of what constitutes a reasonable restriction in the interests of public order (for example) has to be decided by the courts.11
In interpreting reasonableness, the Court began its journey by adopting a highly deferential approach towards the State. It upheld a colonial blasphemy law (S. 295A of the IPC) as well as a colonial-inspired press censorship law, holding that the State’s assessment of the dangers of subversive speech must be trusted. In 1960, however, this began to change. In striking down a law that criminalized advocating for tax evasion, the Court began to hold that the State must establish a relationship of ‘proximity’ between the speech that it wished to control or censor, and the public disorder that it feared. While the Court backslid a mere two years later in upholding the hated colonial law of sedition, its jurisprudence since then has been largely progressive. In 1989, it held that the connection between speech and public disorder must be as proximate as that of a ‘spark in a powder keg’. And this finally culminated in Shreya Singhal v. Union of India, where the requirement of proximity and imminence was recast in the language of advocacy and incitement.
The history of the Court’s free speech jurisprudence and, by extension, its jurisprudence on the freedom of association and assembly is thus an arc that gradually bends towards greater freedom. After Shreya Singhal, not only is incitement to imminent lawless action the only situation in which speech is punishable, but the burden of proving that there exists such a situation is placed upon the State, and is always subject to judicial scrutiny.12 However, as the succeeding sections show, when it comes to ‘exceptional situations’, the Court has honoured its own civil rights jurisprudence far more in breach than in observance.
II. States of Exception—A: Preventive Detention
On 8 June 2017, in the aftermath of caste violence in the district of Saharanpur, the Government of Uttar Pradesh arrested Chandrashekhar Azad, a rising Dalit leader, on charges of rioting, attempt to murder, and looting. Azad was granted bail in November of that year, with the judge observing that the charges appeared to be ‘politically motivated’. Even before he could walk free, however, the government issued an order of preventive detention against him under the 1980 National Security Act, on the basis that his release ‘could’ threaten public order and security.13 Azad spent more than a year in jail without bail or trial before being released.
Azad’s detention was not unique. In 1982, Professor Upendra Baxi wrote that the Indian legal system was constituted by two parallel regimes: while the criminal justice system (CJS) was characterized by elements of due process, personal rights, and rigorous judicial review of State power, these features were absent in a parallel ‘preventive detention system’ (PDS). According to
Baxi, the PDS was an institution ‘authorized by the Constitution itself’.14 By this, Baxi presumably meant Article 22, which mandates that every arrested person be produced before a judicial authority within twenty-four hours, but, at the same time, allows Parliament to override this safeguard through legislation.15 Further safeguards—in the form of periodic review of detention by an Advisory Board16—can also be overridden by Parliament.17
Of course, the preventive detention regime is not self-interpreting. Its ‘parallel’ operation, therefore, flows not so much from the constitutional text, as it does from the jurisprudence of the Supreme Court. This jurisprudence is marked by two glaring features: first, the Court has insulated the preventive detention regime from the rest of the Fundamental Rights chapter; and then, within the now self-contained regime of preventive detention, it has upheld executive supremacy and judicial deference.
The insulation of the preventive detention regime began in 1950 with A.K. Gopalan v. State of Madras.18Gopalan challenged the first (of many) preventive detention laws passed by the newly independent republic, and saw the first (of many) judicial verdicts in favour of the State.
In Gopalan, the Supreme Court rejected a constitutional challenge to the Preventive Detention Act of 1950. The case saw six separate opinions written by the six Justices on the bench (one of whom, Fazl Ali, dissented), and its exact ratio has always been controversial. It is broadly accepted, however, that Gopalan advanced the ‘silos theory’19 of fundamental rights: that is, separate fundamental rights (such as Articles 14, 19, 21, etc.) were to be read separately. An individual detained under a preventive detention law, authorized by Article 22, could not argue that because his detention violated his freedom of speech, it should also be tested under Article 19(1)(a) of the Constitution. If the preventive detention law fulfilled the procedural requirements of Article 22, it was constitutionally valid.
The silos theory was famously overruled in R.C. Cooper v. Union of India,20 which held that fundamental rights formed an integrated whole and had to be read together. Now, had this approach been followed faithfully, a preventive detention law—which, undoubtedly, violated a detainee’s right to freedom of speech and expression—would have had to be tested on the proximity requirement of Article 19(2). In other words, the mere fulfilment of the safeguards under Article 22 (the constitution of the advisory board or the legislative overruling of it) would no longer be enough to sustain the constitutional validity of a preventive detention law. However, somebody forgot to inform the Supreme Court.
In Haradhan Saha v. State of West Bengal,21 the Court somehow managed to hold,‘even if Article 19 be examined in regard to preventive detention, it does not increase the content of reasonableness required to be observed in respect of orders of preventive detention’.22 This reasoning, however, is deeply flawed. Article 22 merely lays down some procedural formalities that preventive detention has to comply with (such as the existence of parliamentary legislation), and it has nothing to say about substantive reasonableness. So, despite R.C. Cooper, and despite the fact that the Supreme Court would go on to hand down a host of judgements over the years in which it ‘read together’ Articles 14, 19 and 21,23 in the very domain of law that originally gave rise to the silos theory, i.e., preventive detention, the Court continued to pretend that Article 22 existed in splendid isolation.24
The effect of this was simple and devastating. A number of provisions that simply wouldn’t have withstood scrutiny had the Court applied its evolving civil rights jurisprudence (that would eventually culminate in Shreya Singhal) were upheld simply because they were part of a preventive detention law. So, for example, in State of Punjab v. Sukhpal Singh,25 while interpreting preventive detention under the anti-terror Terrorist and Disruptive Activities (Prevention) Act (TADA), the Court held that:
The power of preventive detention is precautionary power exercised reasonably in anticipation and may or may not relate to an offence … the anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may provide sufficient ground for detention.26
Readers will notice the striking similarity of the judgement with the Supreme Court’s early free speech jurisprudence. For example, in Virendra v. State of Punjab, pre-censorship of a magazine had been justified on the grounds that a language agitation in Punjab ‘might at any time’ take a violent turn. Similarly, here the ‘anticipated behaviour’ of an individual, though based on ‘adequate materials’, was held to be sufficient justification for preventive detention.27 And like Virendra, Sukhpal Singh decided that this judgement was best left to the executive, because ‘those who are responsible for the national security or for the maintenance of public order must be the judges of what the national security or public order requires’.28 Both cases, therefore, justified the infringement of civil liberties for preventive reasons, without any substantive check on how these reasons were invoked by the State. The only distinction is that while this position was entirely reversed by Ram Manohar Lohia in the domain of free speech and civil liberties, it continued to hold the field in the domain of preventive detention.
This exceptional character of the preventive detention regime was highlighted even more starkly in A.K. Roy, where the constitutionality of Indira Gandhi’s National Security Act (the law under which Chandrashekar Azad was detained) was challenged. In A.K. Roy, the Court held adequate a chain of authority and accountability that solely involved executive action (the commissioner of police as the detaining authority, subject to review powers by the central government).29 Furthermore, the trigger for the government exercising its powers of preventive detention was its subjective satisfaction that a person needed to be prevented from ‘acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India’.30 Notably, the latter two categories simply replicated two of the sub-clauses of Article 19(2), and it was argued in A.K. Roy that their very elasticity and vagueness effectively vested unbridled power in the hands of the executive. The Court’s answer to this, in effect, was,‘that’s too bad’:
… there are expressions which inherently comprehend such an infinite variety of situations that definitions, instead of lending them a definite meaning, can only succeed either in robbing them of their intended amplitude … if it is permissible to the legislature to enact laws of preventive detention, a certain amount of minimal latitude has to be conceded to it in order to make those laws effective. That we consider to be a realistic approach to the situation … though an expression may appear in cold print to be vague and uncertain, it may not be difficult to apply it to life’s practical realities.31
There are two remarkable features about this passage. The first is that the Court ran together three very different concepts: one, that an expression, by its very nature, had infinitely wide amplitude; two, that the legislature was being given ‘minimal’ latitude; and three, that the legislature was acting ‘realistically’. In running them together, the Court effectively stated the realistic approach simply was to allow the legislature minimal latitude by permitting the use of words with an infinite amplitude. However, if infinite amplitude was both minimal and realistic, then it is difficult to see what, if anything, would violate either of those two conditions, and when, if ever, a law could be held unconstitutional (in other words, judicial scrutiny became essentially meaningless).
And secondly, while accepting that the words ‘in print’ may appear vague and uncertain, the Court held that they may not prove difficult in application (by the executive). This was a striking reversal of the doctrine of vagueness as applied to ordinary statutes. A few decades later in Shreya Singhal, as the Court would explain, vague statutes were unconstitutional precisely because they allowed the executive too great a discretion to infringe upon people’s rights. In A.K. Roy, however, the Court held that a vague statute was constitutional because, presumably, the executive would apply it in a straightforward and predictable way. Almost four decades of the NSA
’s operation, culminating in the detention of Chandrashekhar Azad, show that, not for the first or the last time, the Court’s faith in allowing vast discretionary powers to be vested in the executive was misplaced.
This Janus-faced approach of the Court—rhetorically repudiating the silos theory, while continuing to quietly apply it, and effectively insulating Article 22 from the rest of the Fundamental Rights chapter—continues till date, and was evident as recently as 2012. In Dropti Devi v. Union of India,32 the Supreme Court upheld the constitutional validity of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), whose stated justification for authorizing preventive detention was ‘the conservation and augmentation of foreign exchange and prevention of smuggling activities’.33
After reciting the now-familiar development of law that made preventive detention laws subject to Articles 14, 19, and 21, the Court’s legal analysis of whether the requirements of these Articles were satisfied occupied precisely zero paragraphs. After noting, ‘the menace of smuggling and foreign exchange violations has to be curbed’,34 the Court simply stated, like an incantation, that ‘on the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconstitutional’.35
Why? The Court did not—or could not—answer.
We are now in a position to understand Baxi’s insight, with which we began this section: that the preventive detention regime exists parallel to the criminal justice regime. This has happened through a two-step process: first, the preventive detention regime has been effectively insulated from the rest of the Fundamental Rights chapter, by allowing the ghost of Gopalan to live on within the shadow of Article 22. And then, the foundational principles that govern the interpretation of other fundamental rights have been inverted under the preventive detention regime. At the heart of this inversion is the fact that the enabling legislation establishes a regime of executive supremacy. As the Nazi legal theorist Carl Schmitt famously wrote, ‘Sovereign is he who decides the state of exception.’36 The preventive detention regime is our first indigenous, judicially sanctioned state of exception.
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