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The heckler’s veto
By: A.S. Panneerselvan | MARCH 20, 2017(Ref: thehindu.com)

The apex court must issue guidelines to the lower courts to refrain them from being an echo chamber for the heckler’s veto

The plight of artist M.F. Husain and of Salman Rushdie’s The Satanic Verses, the forced exile from writing for Perumal Murugan, and the pulping of the earlier biography of the former Tamil Nadu Chief Minister, J. Jayalalithaa, written by Vaasanthi are some of the cases where the threat to freedom of expression came from powerful sections who could use their proximity to administrative power and the lacunae in our judicial systems with a sense of entitlement and impunity.

Upholding freedom of expression

There are a number of Supreme Court judgments that have interpreted Article 19 of our Constitution, including the section dealing with ‘reasonable restrictions’, in a manner that upholds the principles of freedom of expression. Justice Krishna Iyer questioned in the Periyar Ramayana case the overzealousness of State governments: “The possible invocation of powers under Section 99A of the Code of Criminal Procedure by various state governments on several occasions induces us to enter a caveat. Basic unity amidst diversity notwithstanding, India is a land of cultural contrarieties, coexistence of many religions and anti-religions, rationalism and bigotry, primitive cults and materialist doctrines. The compulsions of history and geography and the assault of modern science on retreating forces of medieval ways — a mosaic like tapestry of lovely and un-lovely strands — have made large and liberal tolerance of mutual criticism. Even though expressed in intemperate diction, a necessity of life. Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsher directives for forfeiture.”

Justice Sanjay Kishan Kaul, nearly a decade before his elevation as a Supreme Court judge, delivered in the M.F. Husain case a very sobering judgment: “A liberal tolerance of a different point of view causes no damage. It means only a greater self-restraint. Diversity in expression of views whether in writings, paintings or visual media encourages debate. A debate should never be shut out. ‘I am right’ does not necessarily imply ‘You are wrong’. Our culture breeds tolerance — both in thought and in actions.”

The relationship between a free press and a vibrant democracy has been studied in detail. The broad consensus is that when the enabling environment for free speech gets vitiated, it undermines the redeeming features of democracy. The lower courts in India, barring some notable exceptions, in contravention to the legal position taken by the apex court have repeatedly endorsed the heckler’s veto. Is there a procedure that enables all the lower court judges to be familiar with some of the defining pronouncements of the higher courts?

Granting an ex parte injunction

The heckler’s veto, according to legal scholars, is a process by which socially powerful groups can shut down critical or inconvenient speech by threatening public disorder or disturbance. One of the ways in which the lower courts encourage the heckler’s veto is by granting an ex parte injunction against publication or broadcast of news. For instance, there are about 45 cases of ex parte injunctions against news media organisations in Karnataka alone.

Though these are called interim injunctions, in reality they do become a prior restraint, which is not permissible under the Supreme Court judgment in the R. Rajagopal v. State of Tamil Nadu (1994) case. Early this year, the first bench led by the Chief Justice of India, J.S. Khehar, made it clear that pre-broadcast or pre-publication censorship is not the business of the court and that all grievances against objectionable content will be dealt with in accordance with the law of the land after its publication.

I would like to share the operative part of a recent injunction to bring out the sweeping nature of this exercise that denies people vital, credible information. One of the courts in Karnataka, in a hold-all judgment against 27 news media organisations, both print and television, said: “Hence defendants 2 to 28 are hereby restrained by order of temporary injunction from telecasting or publishing any defamatory and malicious visuals or report in their news channels/newspapers about any subsidiaries run by Plaintiff including Plaintiff pertaining to the project namely _____ in any manner till next date of hearing”. The time has come for the Supreme Court to issue some guidelines to the lower courts to refrain them from being an echo chamber for the heckler’s veto.

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