By Prof Upendra Baxi
We are accustomed to prolix and profound constitutional homilies from the Supreme Court of India (SCI). These are, of course, very crucial. But the very short order delivered last week by Justices Sanjay Kishan Kaul and MM Sundresh in Nupur J. Sharma vs State of West Bengal is also constitutionally poignant and perennial. It directs attention to civility and dignity of political discourse, which the norms of the Constitution command.
Purists may, indeed, trivially argue that there was no scope for the judicial observations given the fact that the State had indicated that it would withdraw from prosecution of all criminal cases registered by the West Bengal police against editors and journalists of web portal OpIndia. But they would miss the offensive act comprised of the fact that FIRs were lodged in the first place! These were launched against OpIndia editor Nupur J Sharma, her husband Vaibhav Sharma, portal founder and CEO Rahul Roushan, and former editor of its Hindi division Ajeet Bharti. The cases invoked charges relating to promoting enmity between religious groups, outraging religious feelings, attempt to provoke breach of peace and defamation. Despite the State’s gesture, the SCI took a welcome opportunity to make a number of pertinent general observations on the matter. It is the settled law that the considered observations, (obiter dicta) by the SCI are binding law.
The brief observations should be carefully read by all citizens, who in the old Aristotelian sense, are beings who know how to be ruled and how to rule. The Registry of the SCI will be well advised to send a certified copy of the order to all High Courts and district courts in India, chief ministers and chief secretaries of all states and Union Territories, the Prime Minister’s Office, all political parties registered with the Election Commission, police chiefs and the media for wider and constant sharing. The Prasar Bharati and the mass media, especially social media, should be able to devise ways on every national day (Independence Day, Republic Day, Martyr’s Day and Constitution Day) for wider sharing. The observations should also be forwarded to the Bar Council, bar associations, judicial academies and law schools in India.
What did the Court (as per Justice Sanjay Kishan Kaul) momentously urge? The SCI explicitly stated that it was “not inclined to let go off the Opportunity of saying something which is troubling the society and the Court the debasement in the dialogue” across the country. Democratic constitutionalism does not consist in soliloquies of power but rests on dialogue between the rulers and the ruled, which constantly interrupts power in all its unfolding. This “debasement” of dialogue is now a national problem, though it has been inflicted upon the constitutional have-nots since Independence.
I refer here to the National Human Rights Institutions (NHRI) who regularly archive the episodes of uncivil conduct and coercion and force of the dominant. The NHRI (and their state counterparts)—Human Rights Commissions, Women’s and Child Commissions, Disabilities Commission, Law Commissions and Scheduled Castes and Tribes Commission, for example, occasionally even swing into action and award compensation for the harms done. And reams of paper in citizens’ reports and acres of space in the electronic media dwell on the incivility of the “VVIP” culture in public life. It is most precious to have now a judicial reminder that the constitutional assurance of the basic right of dignity of all citizens includes the integral idea of civility in use of power. In fact, this is of the essence of good constitutional governance. “Reverence for the Constitution” and “constitutional renaissance” remain possible only by restoring the dignity of public discourse.1
How did the SCI bench manage to say this in such a short compass? First, it urged for at least a modicum of civility in public life. The SCI lamented the tendency “to use the State’s powers to intimidate journalists for reporting on something which is already in public domain or is in exercise of their right to free speech and expression”. Second, it expressed a strong concern at “the debasement in the dialogue which is taking place” and which “needs introspection from the political class across the country”. No doubt, in “a country which prides itself on its diversity, there are bound to be different perceptions and opinions, which would include political opinions”, and that difference is “the very essence of a democracy”. At the same time, one may add, debasement diminishes the dignity of the other, which is prohibited by the Constitution under Article 21’s rights to personal liberty and life. Debasement of discourse also offends the human right to privacy as a core of life with dignity.
Third, indeed, the threat or use of state force may serve as an indicator of debasement of political discourse. As the Court said: “State force should never be used to either browbeat a political opinion or the journalists suffer the consequences of what is already in the public domain.” Certainly, show or use of force against co-citizens and persons without a justifiable cause for it constitutes a grave breach of constitutional civility and even of basic fundamental rights.
Fourth, while noting with full force that “at times their exchanges may get heated” in the very nature of things and by the “very nature of the job required to be performed by the political class”, the Court alerted the constitutional elites that lest it should “explode” into utter public lawlessness and societal disorder such difference “in perception … be expressed in better language”. The SCI, however, added that “this does not take away the responsibility of the journalists in how they report the matter, more so in a Twitter age”. Civility is not inimical to social responsibility. Urging the “political class to be more tolerant of each other’s opinion in their critiques”, the Court said that the “debasement in dialogue has become a chief problem of democracy”. If not checked in time, this could lead to the very demise of constitutional democracy.
Associated with “debasement” of political discourse and incivility of power, I may add (with respect) that the concept of non-humiliation is deeply embedded in Articles 14, 15, l6, 17, 23 and 24 of the Constitution. “Compassion for every living being” is also a fundamental duty of every citizen; a duty to avoid practices derogatory of the dignity of women is also one such duty. And to shun mediocrity in exercise of power under the law and Constitution is also proscribed by Article 51-A because there is a fundamental duty to develop a spirit of “excellence in all walks of life, singular and collective”. A lazy or wicked threat or use of legal power offends the Constitution; this most mediocre political practice offends, being an enemy of constitutional excellence. Such performance of power stands altogether ruled out by Article 51-A’s fundamental duty of non-humiliation.2
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1As I have said in my article “Revolutionary Judiciary” (India Legal, February 14, 2020) referring to Government of NCT of Delhi vs Union of India & Another, Para 5 (per Dipak Misra, A.K. Sikri, and A. Khanwilkar JJ.; 2018, Justice Dipak Misra has bequeathed several new, and enriching, concepts such as “constitutional renaissance”, “constitutional trust” and “pragmatic and purposive interpretation”.
2See, Upendra Baxi, “Humiliation and Justice”, Chapter 5 in Gopal Guru (Ed) Humiliation: Claims and Context (New Delhi; New York, NY: Oxford University Press, 2011).