SC Bench Asking if Litigants Have the Right to Protest May Have Ignored Key Precedents

The two-judge bench missed the point that a mere propriety not to be seen to influence the judges cannot be used to obliterate the right to protest.

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New Delhi: The Supreme Court bench of Justices A.M. Khanwilkar and C.T. Ravikumar, on October 4, deemed it appropriate to examine the “central issue” as to whether the right to protest is an absolute right and the writ petitioner before it can be permitted to “urge much less assert” that they can still resort to protest in respect of the same subject matter which is already sub judice before the court.

The writ petitioner, Kisan Mahapanchayat, has filed a writ petition before the Rajasthan high court’s Jaipur bench, challenging the three contentious farm laws passed by parliament. Before the Supreme Court, the Mahapanchayat’s prayer is for permission to hold a protest at Delhi’s Jantar Mantar against the three laws. On October 1, the bench asked the petitioners to file an affidavit through email  declaring that they are not part of the protests which are blocking national highways at Delhi’s borders.

Despite the petitioner agreeing to declare to that effect, the bench went ahead to frame the question the way it did in order to examine, prior to answering its prayer. This makes it clear that its “examination” would be purely academic, and not at all relevant to decide the question before it in the present case.

The sequence of these orders makes one wonder whether the bench is unsure of their merit. If on October 4, the bench wanted to examine the “central issue” as to whether a petitioner can be permitted to protest in respect of the same subject matter which is already sub-judice before the court, it is clear that the bench could not have imposed a pre-condition for hearing the matter, by directing the petitioner to file an affidavit declaring that they are not part of the border protests.

The two orders, on the face of it, are inconsistent. The October 1 order shows that the bench has already made up its mind about what it calls as the “central issue” while the October 4 order indicates that it has an open mind on the issue, and would like to be persuaded by the opposite viewpoint, if there is any.

Sahara India Real Estate case

 Does a litigant lose her right to protest, the moment the matter litigated becomes sub judice? In other words, could the Supreme Court have refused to hear the Kisan Mahapanchayat’s plea for permission to protest at Delhi’s Jantar Mantar, if it had been already part of the public protests against the farm laws?

In seeking to expand the ambit of restrictions on the litigants in sub judice matters, the apex court’s two-judge bench seems to have ignored key precedents. The first and foremost is the decision of the Supreme Court’s constitution bench in Sahara India Real Estate v SEBI in 2012. In this case, the five-judge bench led by the then CJI, S.H. Kapadia, had refrained from laying down omnibus guidelines across the board when the petitioner sought appropriate directions on the extent of media reporting in sub judice matters. However, it held that the courts have the power to postpone reporting of judicial proceedings in the interest of administration of justice. The bench held:

“Such orders of postponement of publicity shall be passed for a limited period and subject to the courts evaluating in each case the necessity to pass such orders not only in the context of administration of justice but also in the context of the rights of the individuals to be protected from prejudicial publicity or mis-information, in other words, where the court is satisfied that Article 21 rights of a person are offended. There is no general law for courts to postpone publicity, either prior to adjudication or during adjudication as it would depend on facts of each case. The necessity for any such order would depend on extent of prejudice, the effect on individuals involved in the case, the over-riding necessity to curb the right to report judicial proceedings conferred on the media under Article 19(1)(a) and the right of the media to challenge the order of postponement.”

In seeking to deprive litigants their right to join public protests on sub judice matters, the present two-judge bench appears to have ignored the spirit of the previous judgment, delivered by a larger bench, in the Sahara India Real Estate case. In that case, the constitution bench evolved the doctrine of postponement as a balancing exercise between two competing rights, namely, freedom of expression and the right to a fair trial. The Supreme Court was conscious that the freedom of expression is not an absolute right, and therefore, balanced it with a competing public interest, right to fair trial, under Article 21. In Kisan Mahapanchayat, it is not clear which competing public interest under Article 21 the two-judge bench seeks to balance with the right to join a public protest, while seeking to curb the latter in the case of litigants in a sub judice case.

Also read: Full Text | ‘No Laws Says If You Go to Court You Cannot Protest’: Justice Lokur

On the contrary, in Sahara India Real Estate, the Supreme Court’s constitution bench justified its decision to invoke powers of postponement in the context of contempt of court, one of the grounds for reasonably restricting freedom of expression under Article 19(2). As the bench put it, the expression ‘contempt of court’ in Article 19(2) is to regulate and control administration of justice. In Kisan Mahapanchayat, the two-judge bench does not even remotely hint that it aims to curb the right to protest of a litigant in sub judice matters, in order to serve administration of justice.

Even if it is conceded that the bench may articulate it in its judgment after the hearing, it is difficult to imagine how the bench may do so, given the fact that exercise of the right to protest of a litigant outside the court could hardly lead to usurpation of the functions of the court – a key factor which may affect the administration of justice. In Sahara India Real Estate, the Constitution bench reasoned that excessive prejudicial publicity could lead to usurpation of the functions of the court, thereby jeopardising its ability to protect presumption of innocence, and therefore, brought in the doctrine of postponement. Similar reasoning may not make sense in Kisan Mahapanchayat.

In any case, the decision of the bench in Kisan Mahapanchayat to examine the “central issue” in the absence of a lis before the Court, is troubling, especially because it is likely to seriously impact the precious right to protest, guaranteed by the Constitution as a part of the fundamental right to free expression. In Sahara India Real Estate, the Constitution bench not only refused the suggestion that it was acting suo motu, but offered not to hear the case if the parties withdrew their Interlocutory Applications seeking its intervention in the matter. The bench went ahead and heard the matter only after the parties declined to withdraw their IAs.

Also read: Of the ‘Thin Line’ Between Dissent and Terrorism: The Substance of Democracy

In Sahara India Real Estate, the Constitution bench was conscious of the potential of the freedom of expression in a democracy, even while balancing it with the right to fair trial of an accused. The bench observed:

“Freedom of expression is one of the most cherished values of a free democratic society. It is indispensable to the operation of a democratic society whose basic postulate is that the government shall be based on the consent of the governed. But, such a consent implies not only that the consent shall be free but also that it shall be grounded on adequate information, discussion and aided by the widest possible dissemination of information and opinions from diverse and antagonistic sources. Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know.”

In Kisan Mahapanchayat, it is not clear how the bench prima facie believes that the freedom of expression of a litigant in a sub judice case can be restricted without the corresponding need to balance it with an equally valuable right.

Possible influence

In Kisan Mahapanchayat, the two-judge bench perhaps sought to curb the right of a litigant to join the protests outside the court in a sub judice case, on the ground that such an action may influence it. But judges are assumed to be immune to external pressures by virtue of their legal training and experience. Unlike lay people, they are not likely to be swayed by public debate, let alone protests, on a matter before them. A professional judge will not consciously allow herself to take account of anything other than the evidence and arguments presented to her in court.

Case for narrow application

International case law supports the contention that sub judice rule should be invoked narrowly and only when justified in the circumstances. It has been pointed out that there is nothing in and of itself pernicious in commentary and discussion of litigation – let alone protests – whether before, during, or after its conclusion. There is a meaningful and crucial difference, however, between commenting on litigation and improperly influencing that litigation – or the integrity and impartiality of the courts generally. It is not clear how a litigant can be said to improperly influence the litigation or the integrity and impartiality of the courts, if she joins a public protest on the very subject matter of the litigation.

Let us imagine that the petitioner challenging the farm laws in the Supreme Court tells the media on what grounds her organisation has challenged them. This cannot be seen as influencing the court, as the petitioner would only be repeating what is already there in her petition. Supposing if the same petitioner joins a public protest against farm laws, either before or after filing the petition, in which she articulates the same grounds aiming to inform public opinion, and that public protest results in inconvenience to the commuting public during the duration of the protest, how would that be seen as influencing the court, let alone, interfere with the administration of justice, a possible reason to justify restriction on the right to protest? If peaceful public protests are seen as another way of expressing one’s grievance effectively across to the government, and as a means of educating public opinion, the court cannot use different yardsticks to evaluate different forms of public expression – whether it is a media interview or a peaceful public protest.

Other relevant cases

In Paragraphs 64 and 65 of In Re: Prashant Bhushan, the Supreme Court relied on Dharmkosh-43 (Narad 36-4-5) thus: judges have to be well versed in the laws and impartial towards friends and foes. The bench interpreted this to mean that the judicial decision cannot be influenced by the opinions expressed in the media.

In paragraph 66, however, the bench, appeared to be concerned with the very opposite, and deprecated Bhushan’s talking to the media during the hearing of the matter.  The bench held that in a sub judice matter, releasing his statement to the press in advance was an act of impropriety, and had the effect of interfering with the judicial process and the fair decision making, and was clearly an attempt to coerce the decision of the court by the influence of newspaper and media, which cannot be said to be conducive for the fair administration of justice etc.

Also read: Physically Confining Protests to Out-of-the-Way Locations Inflames the Aggrieved Group

The bench accused Bhushan of resorting to unscrupulous methods to test the tolerance of the court. Despite recording Bhushan’s counsel Rajeev Dhavan’s disapproval of Bhushan’s conduct, and his plea to lay down guidelines for future guidance to the members of the Bar and the litigants on such aspects, the bench didn’t do so, but was content to let Bhushan go with a symbolic punishment of payment of fine of Re 1, as a sign of its “magnanimity”.

In Kisan Mahapanchayat, the two-judge bench has to ask itself whether its decision would be influenced by the public protests, if joined by a litigant before it, on the very matter of litigation.

In J.R.Parashar, Advocate and Others v Prashant Bhushan, decided by the Supreme Court in 2001, the Supreme Court had to decide the alleged contempt by the respondents, who joined a dharna against the court’s decision in the Narmada case within the court’s premises. The court held that holding a dharna by itself may not amount to contempt. “But if by holding a dharna access to the courts is hindered and the officers of court and members of the public are not allowed free ingress and egress, or the proceedings in court are otherwise disrupted, disturbed or hampered, the dharna may amount to contempt because the administration of justice would be obstructed,” the court held.

The court found in this case that there was no allegation in the petition that the participants – who were also litigants before the court – in the dharna had picketed the gates of the Supreme Court and prevented lawyers or litigants from entering and leaving the court premises. While discouraging the dharna before the court, the Supreme Court made it clear that raising public opinion and exhibiting the extent of public opinion – which are the objects of holding a dharna – do not weigh with courts when deciding a case. “Judges are required to decide what they think is right according to the law applicable and on the material placed before them and not swayed by public opinion on any particular issue,” the court held.

In Kisan Mahapanchayat, there is no reason why the Supreme Court should not follow its own precedent in J.R.Parashar, and abandon its move to examine whether litigants in a sub judice case must be deprived of their right to join a peaceful protest on any issue, even if it pertained to the matter of litigation.