Protecting the Dissent: Relationship between Individual and the Parliament

Recently, in the Writ Petition filed by Justice (Retired) Markandey Katju, former Judge of the Supreme Court, challenging the unanimous resolutions passed by the Rajya Sabha on 11^th March, 2015 and the Lok Sabha on 12^th March, 2015, condemning the expression his views on Mahatma Gandhi and Subhash Chandra Bose the Supreme Court has appointed noted jurist Fali S. Nariman as amicus curiae and has requested the Attorney General for India for assistance.  In the order dated 3^rd August, 2015, the Supreme Court has observed that it is prima facie  not impressed with the argument that any fundamental right had been violated enabling Justice Katju to approach the Supreme Court. Perhaps, because, it is a ‘hard case’. In the contemporary times, Gopal Subramanium, who is appearing for Justice Markandey Katju is re-emerging as one of the strongest defenders of freedom of speech and expression and Constitutionalism. His arguments in Devidas Ramchandra Tuljapurkar case (decided May 14, 2015) have been vividly noticed by the Supreme Court:

93. There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation.

103. Mr. Subramanium would submit that the free speech is a guaranteed human right and it is in fact a transcendental right. The recognition of freedom of thought and expression cannot be pigeon-holed by a narrow tailored test. The principle pertaining to the freedom of speech has to be interpreted on an extremely broad canvas and under no circumstances, any historical personality can cause an impediment in the same. It is urged that the Constitution of India is an impersonalised document and poetry which encourages fearlessness of expression, cannot be restricted because of use of name of a  personality. Learned senior counsel has further submitted that freedom to offend is also a part of freedom of speech. Poetry, which is a great liberator, submits Mr. Subramanium, can be composed through a merely voice explaining plurality of thought. He would submit the instant poem is one where there is “transference of consciousness” that exposes the social  hypocrisy and it cannot be perceived with a conditioned mind.  

104. The principle that has been put forth by Mr. Subramanium can be broadly accepted, but we do not intend to express any opinion that freedom of speech gives liberty to offend. 

Amongst the various issues that emerge in Justice Katju’s, a few are of utmost importance. Most prominent amongst them is that of freedom of expression. It requires no reiteration that freedom of speech and expression is one the fundamental pillars on which any democracy, including ours, rests. Therefore, it should logically follow that a person has right to express his views fearlessly, without there being any threat of condemnation by any authority or being dissuaded by spectre of any form of repression by persons not in authority.

An individual may have reasons to disagree with Justice Katju’s view that Mahatma Gandhi injected religion into country’s blood stream; however, it does not follow that an institution such as the Parliament gets any right to ‘have an opinion’ to condemn Justice Katju (or any individual) merely for expressing his opinion. Condemnation by an individual is not the same condemnation by an institution. The Constitution does not contemplate that the Parliament would even take cognizance of expression of opinions by individuals who are not speaking in their official capacity. Where in the law making process, opinion of citizens has to be considered – there is a separate mechanism for the same. This is also supplemented by the Rules made by both the Houses. For instance, Rule 157 of the Rajya Sabha Rules of Procedure and Conduct of Business provides that a resolution “shall not refer to the conduct or character of persons except in their official or public capacity”. Clearly then, Justice Katju’s views could not have been subject matter of a resolution in the Rajya Sabha. The Parliament is obliged to secure freedom of speech and expression, and the limited restrictions that it can impose have to be ‘by law’ legislated by them, which has to be applied by executive if applicable, and individual’s liberty is to be safeguarded by the judiciary. That is the structure contemplated under the Constitution.  Separately on another issue, on the day when the case was first listed, one of the arguments that arose was whether, just like the Parliament as an institution – it would be legal of the judiciary  as an institution to take stand in respect of debated historical fact and then condemn an individual unheard. It was submitted that an institution taking notice of things outside its scope of functioning was unheard of.

Justice Katju’s view on Mahatma Gandhi and Netaji may or may not be correct. The fact remains that similar views have been taken by a number of academics. In the contemporary times, when there is serious affront to academic independence and academic freedom, the unanimous expression of condemnation without hearing the person to be condemned or properly considering the basis of his views, poses a great danger to academic freedom in the country. It sets a bad precedent to say the least.  The unanimous condemnation of Justice Katju by both houses of the Parliament does have an extreme chilling effect and is bound to result in noticeable restraint in expression of dissent and alternative views – which certainly is not in the nation’s interest. Such chilling effect is directly results in generation of unprecedented public opinion against an individual, in respect of which there is and cannot be any remedy in law. In my view, ‘academic freedom’ is not limited formal academics alone, but ought to be extended to every person who engages himself in scholarly pursuits. Incidentally, it may be mentioned that the South African Constitution, which draws much from our Constitution expressly recognizes the right to academic freedom.

Article 51-A (h) of the Constitution provides that “It shall be the duty of every citizen of India to develop scientific temper, humanism and the spirit of inquiry and reform;”. Development of scientific temper necessarily involves observation, analysing, questioning and hypothesising. Central to development of ‘scientific temper’ is the spirit of inquiry – which does not accept anything without testing and trial, and the freedom to differ from previous conclusions, without being penalised for the same. Passing of unanimous resolution by the Parliament, condemning Justice Katju’s view, which is symbolic of academic freedom and expression of dissent, seeks to suggest that Parliament does not seem to believe that inquiry and expression of any perspective other than the popular one is relatable to the freedoms guaranteed under the Constitution.   One must not forget that transition of India into a modern nation is a consequence of inculcation of ‘scientific temper’ by the likes of Sir Syed Ahmad Khan and Raja Ram Mohan Roy.

The fundamental right of a person can be said to have been violated when a person has been deprived of his right to freedom of speech and expression except in the manner provided in the Constitution, or has been treated arbitrarily, or his right to reputation has been prejudicially affected.  In Justice Katju’s case, the passing of the resolutions, in respect of which the Parliament lacked jurisdiction, is evidently without the authority of law and suffers from all three vices. Undeniably, the undercurrent of such resolutions is to ‘shame’ the person who has ventured to express his views, which do not resonate with the popular perspective.

An overarching issue that also arises is whether the Parliament can arrogate unto itself the power to adjudicate, and then to use for itself that power to adjudicate that expression of personal views on historical figures by Justice Katju (an individual) is worthy of unanimous condemnation, that too without affording him any opportunity to explain his case. It had long been settled by the Supreme Court, including that of Indira Gandhi v. Raj Narain (1975), that the Parliament could not perform adjudicatory functions.

Regular reliance to the Parliament’s plenary powers and its comparison with the Parliament of the United Kingdom is untenable. One must not lose sight of the fact that in the UK the Parliament is sovereign, but in India – it is the Constitution that reigns supreme.

In fact, academically, Justice Katju’s case is not a case about Justice Katju at all. It is a case that begs the Supreme Court to define the relationship between the Parliament as an institution and an individual citizen in the framework of the Constitution with reference to the cherished values of the freedom movement.  On a larger level, this case defines relationship between individual and the organs of the State, singularly or as a conglomerate. I am hopeful that values of the freedom movement as enshrined in the text and meaning of the Constitution would only be cemented by the Courts.

  

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CJI on Individual Rights in India: The Supreme Court's Perspective

In a presentation titled "Individual Rights in India: A perspective from the Supreme Court" (April 3-6, 2009) at the International Roundtable Conference’ University of Georgia, Mr. K.G. Balakrishnan, the Chief Justice of India , provides an elaborate view of the protection provided to individual rights by the Constitution of India and how they have come to be interpreted by the Supreme Court of India over the last sixty years. He concedes that it is not possible to present a complete understanding of individual rights in all spheres of public law.

He mainly focuses on the evolution of ‘religious freedom’, the interplay between individual rights, groups and governmental interests and the need to balance them. He dwells upon the ‘seemingly existential question’ of whether the guarantees provided by Articles 25-30 of the Constitution are veered towards ‘No Concern Secularism’ or ‘Equal Respect Secularism’ and the conflicting notions of secularism that were propounded and debates upon by the members of the Constituent Assembly . He also mentions how the Indianised version of secularism i.e. 'Equal Respect Secularism’ recorded a significant victory, though certain concerns of ‘No Concern Secularism’ were also accommodated. The allowing of religious instructions in private and partially aided educational institutions is the result of the compromise between the competing strands.

He also discusses in detail the nexus between the protection of minority rights and the exercise of ‘religious liberty’ which have been further complicated by debates on interference with personal laws of the religious minorities and the feasibility of Uniform Civil Code for them. He points out that ‘personal laws’ were not included in definition of law under Article 13 of the Constitution and hence cannot be scrutinized on the basis of constitutional principles. The clash between the ‘group rights of religious minorities’ and ‘the individual rights of the members of the minority groups’ is clearly reflected in the difficulty posed in reconciling the competing interests of ‘non-interference with customary practices’ as they are regarded as an essential condition for protecting the group rights of religious minorities and the duty of the State to bring an end to those customs that have the effect of continuing gender-discriminatory practices.

Among other issues, the presentation also deals with the ideal of ‘state neutrality’ and how its practice by the Indian state has been repeatedly questioned in the recent past. The CJI suggests that the codification of a Uniform Civil Code presents a ‘litmus test for legislative interference and codification as a strategy of social reform.’ He takes a stand that the religious freedom impedes the pursuit of constitutional objectives of strengthening democracy, minority rights and rule of law. To quote him, “It has also been argued that these western notions of secularism are unsuitable for the Indian cultural setting, but unfortunately those who have argued for an indigenous notion of privileging religious autonomy have also tended to support religious extremism. In this respect the onus has been on the Supreme Court to show the way.”

The shaping up of secularism and minority rights in Constitutional Assembly Debates has been also dwelt upon by Rochana Bajpai (Lecturer, School of Oriental and African Studies, University of London) in an article published in May 27, 2000 issue of Economic and Political Weekly.

New Meaning for Equality - Comments on Naz Foundation Case

In this article – ‘Reading Swaraj into Article 15: A New Deal for All Minorities’, Tarunabh Khaitan (Lecturer, Christ Church College, University of Oxford) highlights the counter-majoritarian role taken up by the Delhi High Court in the Naz Foundation case which decriminalizes homosexuality. Tarunabh suggests that the judgment goes beyond merely decriminalizing homosexuality and gives an innovative and progressive interpretation enabling Article 15 to come on its own from the shadow of Article 14. These innovations are :

1) Reading in of unspecified analogous grounds under Article 15;
2) Strict scrutiny of laws infringing Article 15;
3) Protection against discrimination not only from state ( vertical discrimination) but also by private bodies( horizontal protection)
4) Substantive protection to all vulnerable groups that includes protection from not only direct but also indirect discrimination.

He argues that the judgment is set to lead to an era of greater recognition of personal autonomy and freedom to all minorities whose individual members are vulnerable to discrimination owing to their membership in that particular group. The judgment is all the more impressive and progressive given the fact that such reinterpretation of Article 15 according protection to all minorities was ‘not strictly necessary’ to reach the result in this particular case.

He further argues argues that numerical strength, though one of the major determinants of vulnerability is not the sole determining factor to be recognized as a minority. A community may be vulnerable politically, socially or economically or on account of any other limiting factor. Any such factor can be debilitating on its own to trigger protection under Article 15 and need not be accompanied with any other vulnerability. The case also makes it clear that the ‘popular morality’ or the ‘public disapproval’ is no ground to justify any restriction on Fundamental Rights. Restrictions of the nature based on morality that may be permitted in the extreme cases of compelling state interest have to be prescribed by ‘constitutional morality’ and not public morality.

Interestingly, he dismisses any notion of permanent majority or minority. To quote him , "The Naz court has invoked the swaraj-driven spirit of the Constitution and crafted a remarkably progressive jurisprudence on antidiscrimination law. Article 15 is set to become one of the key constitutional guarantors of personal autonomy for vulnerable minorities....The Court has recognized that pluralist societies rarely have permanent majorities or minorities. The Constitution stands for the principle of minority protection, whoever they might happen to be."

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