SUPREME COURT DOES IT AGAIN; BUT IN OPPOSITE DIRECTION

SC CALLS FOR NEW LAW TO REGULATE SOCIAL MEDIA : TIMES OF INDIA

What went up has come down or one may add the pendulum has swung into other direction; hardly five months passed since the netizens rejoiced and celebrated the brilliance exhibited by Justice R.F. Nariman in striking down Sec 66A of the Information Technology Act. I was however skeptical and warned in my blog that still it was possible to harass a common man for what he would express in social media, if the state machinery was so determined.

I put down my fears that it was not the law but the criminal procedure, particularly the powers available with the state to arrest and incarcerate any person even before securing a conviction; those hailing the Judgment and the legal brains discussing the niceties of the law involved, I thought were totally alienated from the ground situation.

I did not feel happy when I was proved right in my apprehension by our police two days back; they could arrest and send a young laboratory owner to jail who without knowing what was to come posted a gossip on the health condition of Chief Minister, in his WhatsApp account.

The Supreme Court yesterday, feeling the heat from what spread through the social media on the conduct of Senior Lawyers and Judges turned to the government for rescue; but how? Alas, pleading the Parliament to bring a new law to curb social media!

I restate, it is not the substantive law but the procedure which requires attention, if we really want to curb this menace. We have had enough of laws to meet this situation and a new legislation is the last thing we need to think of. The legal pundits who discuss and think over this are oblivious of a painful reality that our budgetary constraints would keep our infrastructure awfully short of what is actually required to meet the demands of a county of one billion; either it is the law enforcing authority or the justice delivery system.

It takes more than a decade to prosecute and punish a corrupt or even a terrorist, whose crimes are to be given utmost priority. New legislation means giving birth to new crimes or rechristening existing crimes, which consequently bring additional pressure upon the system, which already is bursting in its seams; about judiciary less said the better, it looks as if we are witnessing a star collapsing on its own weight.

That brings into focus, the evil of quick justice; arrest, remand and be satisfied that the accused is harassed enough with the incarceration and running forever through the maze of judicial complexities; the problem is the possibility of dragging innocents into this mess without any accountability as this process does not require the adherence to the natural justice principle of audi alteram partem.

Chilling effect is already there, irrespective of the striking down of Section 66A and any new legislation may help in freezing the ideas of a free mind with more severity.

Legally speaking, what best that could be done at present is to carry forward the directions of the Supreme Court in Arnesh Kumar (2014) 3 MLJ (Crl) (SC) and to hone it to perfection by experience. It is unfortunate the directions remain a dead letter and no Court is taking serious note of such blatant contempt of the Supreme Court.

If we leave aside law, I would like to conclude that it is time we must realise that we are living in digital age which has changed the rules of life; earlier gossips spread by words of mouth with little reach and lesser shelf value but social media has made it possible with a click of mouse it to reach every corner of the world and worse with permanency; no law or court can curb slander anymore as social media has no physical borders and with an additional insulation of anonymity. We need to realize this and learn to accept slander in our stride and to ignore; most politicians have evolved, judges are following and lawyers have no option.

THE CHICKENS WILL COME HOME TO ROOST

The judgement of the Supreme Court in Shreya Singhal is lauded, quite rightly for its scholarly attempt in striking down a penal legislation and the English press is more vociferous in its excitement. However two of the grounds on which the constitutionality of Section 66A is mainly tested viz., its vagueness and chilling effect may embarrass the Supreme Court when it sits to hear a Criminal Appeal pending on its file in Criminal Appeal No. 1234 of 2007.

It was in 2007, Mid Day ran certain investigative stories on the retired Chief Justice Y.K.Sabharwal, suggesting that he allowed his sons to benefit from the series of orders he passed, presiding the Court as Chief Justice to seal thousands of shops, houses and commercial complexes that cropped up all over Delhi in violation of Master Plan. The allegation was that such steamrolling of all commercial establishments into dust raised the demand for spaces in the Malls, where his sons had stakes.

Mid Day made known its intentions more succinctly by publishing a cartoon, depicting Chief Justice Y.K.Sabharwal in his robes holding a bag with currency flowing out and a man in the sidewalk crying ‘Help! the mall is in your court’

It was the cartoon more than the articles, which made the Delhi High Court to go livid with anger when Senior Advocate R.K.Anand brought them to its notice, which promptly initiated Contempt proceedings against the Cartoonist Irfan Khan besides the Editor, Printer and the Publisher trio. In the words of the Delhi High Court, the cartoon and the articles were aimed at lowering the image of judiciary. As expected Bhushan Sr. and Junior, stepped in aid of the contemnors.

In a strange irony of facts, R.K.Anand who made the Court to initiate contempt proceedings against Mid Day within few days found himself caught on tape in a sting operation, bribing a witness in the infamous BMW hit and run case and was proceeded against for contempt and punished within an year.

In Mid Day case, Bhushans defended the contemnors, submitting that Justice Y.K.Sabharwal was already retired no longer holding Court; and the element of truth. The Delhi High Court was not impressed and in a brief order sentenced the contemnors to imprisonment for four months. The Delhi High Court held that in the garb of attacking a retired Justice, the contemnors scandalised the Institution. The press all over India instantaneously rose up in protest against the sentence.

The Supreme Court brought in a temporary truce in suspending the sentence and it will be exciting to any student of law, if the Supreme Court takes up these appeal and hear it in the light of its observations in Shreya Singhal case on the ‘manageable standard' by which a person can be said to have committed an offence or not have committed an offence’

It is interesting to note whether the terms ‘scandalising the institution’ and ‘lowering the image of judiciary’ will be examined in the new findings of the Supreme Court that ‘ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place’

The Mid Day Cartoon and the Articles were there before the nation and the entire press, barring few exceptions thought that the contemnors did not cross the ‘Laxman rekha’ to be hauled up for contempt; Will it be safe, in such a scenario to leave it to the wisdom of two learned Judges to say the collective wisdom of thousands of Cartoonists, Correspondents and Intelligentsia who rose in support of the contemnors as wrong?

I can’t wait, the day when the chickens will come home to roost!

Madurai
29/03/15