I am currently reading the Bombay High Court’s 150-pages judgment in R.V.Bhasin v. State of Maharashtra delivered recently. According to news reports, the Court has upheld the ban on the book, even while defending free speech. Our blog has discussed free speech jurisprudence on many occasions, and readers are welcome to read the previous posts using the label, free speech. I’ve posted the link to the Bombay High Court judgment in view of our keen interest on the subject, even while reserving my comments till I finish reading.
I have only read the judgment and there is a basic dichotomy that I detect and one issue the court did not address itself to, as I have outlined briefly below. Feel free to correct me if I am wrong.
On the one hand the Court declines the pre-decisional hearing challenge of the Petitioner on the ground that the concerned provision of the CrPC (S.95) deals with a situation that is almost an emergency and needs to be rectified immediately.
However, the judgment later goes on to dismiss the claims of the petitioner that there was in fact no such emergency-like situation which prompted the ban in the first place.
In any case, if it had accepted that S.95 deals with an emergency like situation, in the context of the Constitutional challenge to the ban, the Court should have at least attempted to differentiate from the American jurisprudence on "clear and present danger" (Schenk, et al)instead of casually dismissing them all on the basis that the American Constitution is different.
Likewise, I felt that the Court did not properly address itself to the question whether the notification itself was a reasonable restriction of the fundamental right to freedom of speech and expression, i.e., was the ban reasonable in light of the danger posed by it.
We often note that the court failed to considered such and such issues, but there is an 'inherent dichotomy' in the judicial process itself – which more often seeks to confine the decision within the precincts of arguments raised and argued by the parties. At times, going beyond the case of the parties, amounts to answering 'academic questions'.
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