A New Constitutional Standard For Persons Of Influence?

In December 2020, the Supreme Court decided a case that has far-reaching implications for the freedom of speech and expression in India. In Amish Devgan v. Union of India, a bench of two judges of the Supreme Court held that those who occupy positions of influence have to be “more responsible” while exercising their fundamental right to freedom of speech and expression. This new ‘show me the man and I will show you the rule’ test sets a dangerous precedent that threatens to undermine some of the basic principles which underscore the fundamental right to free expression.

The facts of the case were quite interesting. A prominent news anchor hosted a debate on television in which he referred to a beloved religious saint as a “terrorist” and “robber”. He later issued an apology and said that he meant to refer not to the saint, but to a tyrannical king who had a similar sounding name. Several cases were registered against him under Section 153A of the Indian Penal Code, which makes it a criminal offence for a person to promote enmity or hatred between different groups of people on religious or other grounds. He approached the Supreme Court and asked it, among other things, to put an end to all those cases. The court refused to do so, directing the police to complete their investigation of the cases, but asking them not to arrest him as long as he cooperated with the investigation.

In arriving at its decision, the Supreme Court made several observations that are certainly commendable and will go a long way in protecting the freedom of speech and expression.

For instance, borrowing the words of Justice Vivian Bose, the court held that when a question arises as to whether a person’s speech tends to cause public disorder, the words used by that person must be judged from the standard of “reasonable, strong-minded, firm and courageous men”, not those who have “weak and vacillating minds” or “those who scent danger in every hostile point of view”. This is a categorical rejection of what is referred to in constitutional law as the “heckler’s veto”.

This principle can be explained with a simple example. Let’s say that an artist has painted a picture, or an author has written a book. A mob of unreasonable people decides that what has been painted or written offends their sensibilities. They threaten to erupt into spontaneous violence unless the painting is withdrawn, the book forfeited, or the artist or author put behind bars. If the mob gets its way, then it would essentially be given a veto over what can and cannot be said in public. It can essentially censor any person by threatening to resort to violence on the streets if that person is not censored. Rejecting the heckler’s veto in Amish Devgan’s case, the Supreme Court has reiterated the principle that the legality of a person’s speech must not be judged from the standpoint of whether a hypersensitive person has taken offence to it.

There were several other such principles that the Supreme Court reiterated in its judgment.

For instance, the court correctly held that every citizen of India has the right to express “divergent” and “extreme” views on “controversial and sensitive topics”. Merely expressing an opinion on a heated subject is not a criminal offence. Further, a speaker should only be prosecuted if there is a real and serious likelihood that his or her speech will result in “insurrection, riot, turbulence or crimes of violence”. In other words, the possibility of public disorder must not be “remote, conjectural or farfetched”.

Finally, the words which have been spoken must not be over-zealously interpreted by a court to find tenuous hidden meanings embedded within them. In short, if a person has merely said that two plus two equals four, a court should not infer that the speaker also meant to say that two plus two equals five, six, seven, and eight.

It held that a “person of influence” such as a “top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show” has “more credibility and impact” than a “common person on the street”. Audiences may react with “indifference” to speeches made by the latter, said the court. However, since “persons of influence” have great “reach, impact and authority”, the court said that they “owe a duty and have to be more responsible” while exercising their right to freedom of speech and expression.

At first blush, the Supreme Court seems to have done nothing more than lay down the irrefutable principle that those who occupy positions of power must wield that power responsibly – in Spiderman’s words, “with great power comes great responsibility”. However, a deeper investigation reveals that there are several problems with the new test which has been developed by the court in this case.

For instance, how will the court identify those who occupy positions of power and influence? By “social leader of following”, did the court mean social media influencers? There are those who have several thousands of followers on websites like Twitter. For example, the fast-food company “McDonalds India” has 55,000 followers on Twitter. Another company, “Mad Over Donuts”, which, as its name suggests, sells donuts, has 15.3 thousand followers. A scholar of constitutional law, Gautam Bhatia, has 63.8 thousand followers on Twitter. Now, are all of these people going to have to discharge a greater burden if a criminal case is registered against them for their tweets, because they are “persons of influence”? Further, what quantitative test will the court adopt in identifying “social leaders of following”? Will those who have 5,000 followers be “persons of influence” in the court’s formulation? How about those who have 10,000, 20,000, or 2 million followers? Where does one draw the line?

Our judicial system is founded on the premise that the law is equally applied to all persons, regardless of who they are. In a recent case, a judge of the Bombay High Court was asked by the government to deny bail to a person because she was a celebrity. The judge refused the government’s request and granted her bail, stating that the law cannot be applied more harshly against celebrities because everybody is equal before the law. On the other hand, here we now have the Supreme Court saying that those who are “influential” will have a different legal standard applied to them.

While much of what the Supreme Court has said in its recent judgment is commendable and noteworthy, the new “persons of influence” test is a step in the wrong direction.

Abhnav Chandrachud is an advocate at the Bombay High Court and the author of ‘Republic of Rhetoric: Free Speech and the Constitution of India’ (Penguin 2017). A Marathi version of this article first appeared in Loksatta on Jan. 6, 2021.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.