Justice Markandey Katju-
Freedom of speech and individual liberty are enshrined in the Indian Constitution, in Articles 19(1)(a) and 21. However, despite these provisions, the truth is that violation of these rights is commonplace and often occurring with impunity nowadays in India.
Like all other rights, freedom of speech and liberty are not absolute rights but subject to reasonable restrictions. What would be a reasonable restriction is an extremely important matter to consider, as on that would depend on the validity of several detention orders and prosecutions in India.
In America, the earlier decisions of the US Supreme Court had laid down the ‘bad tendency’ test to determine whether the restriction was reasonable or not. This test was that free speech or acts could be prohibited if they were likely to adversely affect the public welfare.
However, Justice Oliver Wendell Holmes, the celebrated judge of the US Supreme Court, felt that the bad tendency test was too vague and ambiguous. So, in Schenck vs United States, 1919, he laid down the ‘clear and present danger’ test to determine the reasonability of the restriction. This test meant that a restriction would be reasonable only if the speech or action constitutes a clear (i.e. not vague or imaginary) and present (and not remote) danger to state security or public order.
The clear and present danger test was not consistently followed by the US Supreme Court e.g. in Dennis vs United States, 1950 in which a ‘ balancing ‘ test was adopted.
However, in Brandenburg vs Ohio, 1969 (see online) the clear and present danger test was in fact expanded, and the ‘imminent lawless action’ test was laid down by the US Supreme Court, which has never been departed from ever since. This test states,”The constitutional guarantee of free speech does not permit the state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed to inciting or producing imminent lawless action ”
The word ‘imminent’ used in the judgment is extremely important. Imminent, as defined in all dictionaries, means ‘ likely to happen very soon ‘, ‘ at hand ‘, ‘ fast approaching ‘.
Two decisions of the Indian Supreme Court, Sri Indra Das vs State of Assam, and Arup Bhuyan vs State of Assam (see online) followed the decision in Brandenburg vs Ohio, and so Brandenburg has become the law of the land in India too.
By applying the Brandenburg test, it becomes evident that the prosecution against the Bhima Koregaon accused, Prof Sai Baba, Shehla Rashid, Pawan Jaiswal. and many others deserve to be quashed because surely the acts or speeches of these accused did not create any danger of any imminent lawless act. The recent detention of many persons in Kashmir ( except those accused of militant activities ) would also be illegal from that standpoint.
Recently, the Bombay High Court rejected the plea of Gautam Navlakha, an accused in the Bhima Koregaon case, for quashing the criminal proceedings against him, observing that there was some material to indicate that the accused was in contact with Naxalites. But being in contact with a militant organization cannot by itself be a crime, as it does not result in any imminent lawless act. One may be a writer who gets into contact with Naxalites for doing research about them, or a social activist, or even a sympathizer. That would be quite legal, being within the ambit of the Brandenburg test.
It is submitted with respect that the Bombay High Court decision is incorrect, and should be set aside by the Supreme Court, which should reaffirm the Brandenburg test. That would pave the way for quashing several detentions and prosecutions ( many of them based on manufactured evidence ) which are a slur on democracy and liberty in the country.
These are critical days for liberty in India, and a heavy responsibility lies on its Supreme Court to uphold the fundamental freedoms of citizens guaranteed by the Constitution. If it fails to do so, the dark days of another Emergency may be dawning soon in the country.
[Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. The views expressed are his own]