Free speech, multiple proceedings and chilling effects

The Supreme Court has dismissed an application by painter MF Hussain ‘for immunity from prosecution in any court in the country except in Delhi’. Multiple proceedings against Shilpa Shetty, Khushboo and MF Hussain recently have seen the abuse of a procedural loophole to punish them for speech acts even before the crime can be established.

Here is an argument why this procedural loophole is unconstitutional:

1. All criminal acts that have ‘speech’ or ‘expression’ as constituting actus reus need justification under Article 19(2) as a ‘reasonable’ restriction.

2. This applies not only to substantive laws but also procedural laws.

3. Irrespective of the content of the speech, the possibility of multiple legal proceedings against a person in several parts of the country (that the current law on criminal jurisdiction allows) has serious ‘chilling effects’ even before the speech is made [Chilling Effect – ‘a situation where speech or conduct is suppressed or limited by fear of penalization at the hands of an individual or group’]. This is a restriction on Article 19(1).

4. The restriction is unreasonable because –
(a) no state interest is served by having the same act tried in several jurisdictions. Because no person can be convicted of the same act twice, even if two courts find him/her guilty, only one punishment will sustain. Therefore, in reality, the speech acts only amount to procedural harrassment.
(b) multiple proceedings waste precious judicial time. what 10 different courts can do, one court can do equally well. Public resources are also wasted because such multiple proceedings inevitably lead to a case-by-case Supreme Court intervention (like for Shilpa Shetty and Hussain) ordering transfers – a one time solution will save precious judicial time.
(c) all this, of course, besides the harrassment of the speaker EVEN BEFORE THE SPEECH IS FOUND TO BE CRIMINAL, and the chilling effects of such restriction.

An exception to be carved in the jurisdiction clauses of the Criminal Procedure Code for all crimes that are constituted by ‘speech or expression’so that a criminal case in such crimes can be filed only at the defendant’splace of ordinary residence (if in India), or in Delhi (if outside India). This must be irrespective of the content of the speech.

Written by
Tarunabh Khaitan
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  • I had also thougt of the same remedy. But, on a deeper evaluation, I am of the opinion that an absolute statutory bar could impede justice in the long run, and would increase difficulty for poor litigants who cannot afford to travel that much.

    Thus, as a mid-way solution to this: It could be specifically provided that in all such cases, concerned magistrate would have to examine if it would amount to abuse of process to allow a litigant who can otherwise afford to file the case at the place where the defendant resides. (Such a discretion, I believe, is embedded in the judicial system; making it explicit will only make things easy).

    Also, one must keep in mind that Section 482 of the Cr.P.C. covers such specific situation. The defendant can approach the concerned high court for quashing the proceedings if s/he can establish that it amounts to abuse of process.

  • You can probably add Sania Mirza (insult to the national flag I think) and Richard Gere to the list. MF Hussein does not want to come back to India and Sania has now decided not to play, some of it thanks to our justice system. I understand your point about the jurisdiction question but the harassment is not abated very much if people were to file petition after petition even in the town/city where the artist/celebrity resides (say every time Hussein paints a new canvas). So should all and sundry be allowed to file petitions claiming insult to some sentiment? Should this privilege not be limited to those who actually represent the people? Is it the job of every artist/celebrity (the same thing is happening to businesses as well) to act only in such manner as pleases every citizen of the country? Is this supposed to be the cost of name recognition?

  • dear dilip and talha
    1. on talha’s point – criminal cases are of a different character to civil cases and i am not sure whether there is a ‘right’ to institute criminal proceedings on part of individuals (of course, i hesitate to say this, given the reluctance of the state to prosecute in Gujarat). but the criminal justice system’s main priority must be protection of the rights of the accused – too many civil liberties have already been lost in the questionable ‘victim’s rights discourse’. victims rights should be restricted to civil process, and not enter criminal law (and again, i hesitate to make this point). but i lose my hesitation once i notice that the only people ‘hurt’ in speech crimes are extremist politicians and political groups. the so called ‘poor people’ perhaps couldnt care less.
    2. dilip, i agree with you entirely. it is a matter of shame and calls for a rethinking of entire procedural and substantive laws that restrict speech and expression. right wing groups have long abused it. i was making a rather limited, though certainly not exclusive, argument of what a purposive interpretation of Article 19 may achieve.

  • Hi,
    My point was in view ,of Section 156 of the Cr. P. C. that provides for a complaint before a magistrate. Then there are sections in the Act that provide for jurisdiction.

    When we are talking of amendment, we must not allow emotions alone to hold the fort. It is true that largely people of definite political groups are the one that file such cases; but does not limit the possibility of any other person filing a complaint. There should not be any restriction in law that inhibits a person wanting to take action, from taking it solely because of financial reason.

    Additionally, it could be considered rule of procedure laid down by concerned high court provide for strict scrutiny of such complaints; and costs must be imposed for abuse of process wherever required.