In a previous article for the Hindustan Times, I had flagged a number of concerns with the way that the Supreme Court of India is handling the case of the YouTuber Ranvir Allahbadia, who is presently facing police prosecution for cracking a crass – but decidedly not criminal – joke on his channel. While Allahbadia had approached the Supreme Court with a prayer for clubbing the FIRs against him so that he would not be dragged from state to state having to defend himself in identical proceedings, the court instead took the opportunity of hectoring him for his “immoral” content, banned him from airing further shows on YouTube, and called for greater “regulation” of online content. In the article, I had noted that the last point, in particular, suggested that instead of performing its constitutionally-mandated role as the guardian of fundamental rights, the court was turning towards the opposite direction: that of pre-emptively inviting a regime of online censorship.
Yesterday’s order – the second in the proceedings – accentuates these concerns. On the one hand, the court lifts the ban on Allahbadia’s YouTube activity, on the condition that the show “would maintain the desired standards of decency and morality so that viewers of any age group can watch it.” While it was unclear on what legal basis the court had imposed its initial ban, it is even more unclear on what legal basis it now “conditionally” lifts this ban and forces Allahbadia to host only U/A content on his channel. Unfortunately, we do not have the privilege of reading and engaging with the court’s legal reasoning on this point, since it provides us with none. There is little profit, then, in analysing this further, beyond what I have already written.
Also read: Parasites, Perversion and Brazenness: Why Judges’ Remarks Spark Concerns Over Bias in Indian Courts
This brings us, however, to the significant point of concern, which is the court traversing further down the road of pre-emptively inviting online restriction of speech. In the latest order, the court states that it is “inclined to expand the scope of the hearing”, and asks the state’s law officers to come up with “regulatory measures” to prevent airing of programs “offensive to well-known moral standards of society.” It then notes that such draft regulatory measures would be “brought in public domain to invite suggestions from all stakeholders before taking any legislative or judicial measures.”
In doing so, however, the Court seeks to alter its role from a judicial organ to a super-regulator of online speech. This is extremely problematic, because it essentially eviscerates the carefully-crafted constitutional scheme that is designed to protect individual rights from the state. Under the Constitution – as is clear from the design of Article 19, for example – in order to regulate or restrict the right to free speech, at the first instance, there must exist a law (that is, a parliament-enacted statute). At the second instance, if this law is challenged, the judiciary exercises the power of judicial review over the law, during the course of which it examines whether the law complies with the Constitution. These two stages are clearly distinct, the bodies that they involve are clearly distinct, and the tasks that they perform are also clearly distinct. And this is for very good reason: the Constitution envisages a two-tiered structure of protection for fundamental rights, where first, the people’s representatives debate and enact a law, and then secondly, the court applies constitutional standards to review this law.
The court’s order, however, proposes a process that is entirely alien to the Constitution: a set of regulations that will be brought into force under this “expanded scope” of judicial proceedings (we still do not know what this “expanded scope” entails, because the court has not told us). The independent role of parliament in all this is unclear, but other than that, as we can see, it entirely blurs the distinct steps set out in the Constitution. And under this proposed process, the court appears no longer to be acting like a judicial organ, but like a regulator, under whose supervision “stakeholders” will submit their “suggestions.”
Constitutional issues aside, it is easy to see how this will turn out: let’s say that the state brings in a set of regulations, to which the Court – continuing to act under this “expanded scope” – accords its approval. Now these regulations will have judicial sanction. This, in turn, means that citizens’ ability to mount a constitutional challenge to these regulations will be blocked in perpetuity. What if I want to challenge these regulations before a high court? Which high court will admit a challenge to regulations that have been granted a seal of approval by the Supreme Court – regardless of the fact that the said seal of approval was granted in proceedings that were not constitutional challenges? And what sense would it make to challenge the regulations before the Supreme Court, given that a two-judge bench of that very court has approved of them? Thus, not only does the Court blur functions, not only does it adopt a role that the Constitution does not envisage, not only does it act outside its jurisdiction, but in doing so, it effectively deprives citizens of any meaningful judicial remedy for whatever form these regulations will eventually take.
On this blog, for the better part of a decade, and in multiple contexts, we have argued that the Supreme Court’s continued propensity to act as a “super-regulator” or “super-censor” of speech is extra-constitutional and beyond its jurisdiction. Yesterday’s order continues that regrettable propensity. It is an order that manifestly lacks any legal or constitutional foundation, and constitutes an abuse of the court’s jurisdiction.
Gautam Bhatia is a lawyer. This article was originally published on the author’s blog. It has been lightly edited for style.
