The Ugandan President-Dictator Idi Amin once said, “there is freedom of speech, but I cannot guarantee freedom after speech.”
To put it in less colourful language, Idi Amin was issuing a general warning to the populace: yes, you formally have your constitutional rights, which we cannot formally repeal because it looks bad; but if you try to exercise your rights – as we say in a legal notice – “the costs and consequences will be yours.”
In recent times, the Indian judiciary has been evolving its own version of Idi Amin jurisprudence. Petitioners approach the Court seeking enforcement of fundamental rights against State action. The Court not only holds in favour of the State (this is not particularly surprising), but goes a few miles further, by turning on the petitioners, and trying to make an example out of them for having the temerity to challenge the State in legal proceedings. This was done in the Zakia Jafri case where Khanwilkar J.’s observation that those who’d brought the Article 32 petition to Court “need to be in the dock and proceeded with in accordance with law” was followed by the arrest and incarceration of Teesta Setalvad for two months, before she was given bail (discussed here). It was also done in Himanshu Kumar vs State of Chhatisgarh, where a petition seeking investigation into extra-judicial killings was met with a Rs 5 lakh cost upon the Petitioner (in a judgment authored by Pardiwala J), along with similar observations: indeed, the Court even helpfully suggested to the police what sections of the criminal law might be invoked against the petitioners (criminal conspiracy and section 211 of the IPC) (discussed here).
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The latest example of this is yesterday’s judgment of the Karnataka High Court, concerning Twitter’s challenge to the government’s power to block twitter accounts. The challenge was as mainstream a legal and constitutional challenge as it gets: it was questioned whether the government’s blocking powers extended not just to specific tweets but to entire accounts, the absence of due process requirements before blocking, and so on. At the High Court, Krishna Dixit J dismissed Twitter’s case on the basis that hundreds of pages of documents had been filed (?), that “worthier causes of native litigants” suffered while the case was being heard for “days” (??), and that it was “speculative litigation” (???). The learned judge then went on to impose a Rs 50 lakhs cost. Keeping aside the incoherence of each of these three reasons for imposing costs, one can note that Rs 50 lakhs is a drop in the ocean for Twitter. It is a lot more than a drop for individuals who might be thinking of challenging arbitrary State action in court, especially when it comes to blocking accounts and stifling speech online.
What is striking about these cases is that they were not instances of private litigation between individuals, where costs are built into the common law system. They were all cases of constitutional challenges to State action. Nor were they instances of frivolous litigation that were dismissed at the outset, and costs were imposed as some kind of punishment for wasting the court’s time: in each of these cases, notice was issued (which means, at the very least, a prima facie case founded on some legal or constitutional provision). Arguments were heard in full, and in each of these cases, the Courts had to end up writing 100-page long judgments in order to justify the State’s action. Thus, when one strips away the verbiage, what remains is my observation above: these heavy costs and judicial dog-whistles to law enforcement are nothing more than making examples of people who have chosen to challenge the State in the most lawful manner imaginable: by filing a petition before a constitutional court, and arguing it.
Idi Amin jurisprudence: “there is freedom to come to court, but we cannot guarantee freedom after you’ve come to court.”
In recent times, the Indian judiciary has made many significant contributions to global constitutionalism, such as the doctrine of sealed covers, Humpty Dumpty jurisprudence, and judicial evasion. No doubt, soon enough, Idi Amin jurisprudence will rank among these proud achievements.
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