Kerala High Court: Freedom Of Speech And Criticism Of The State
Transgender community members and supporters hold placards during a protest on Dec. 28, 2018. (Photograph: PTI)

Kerala High Court: Freedom Of Speech And Criticism Of The State

BloombergQuintOpinion

India doesn’t have enough legal safeguards to protect expression of healthy criticism, but a recent Kerala High Court judgment might go a long way to change that.

When governments, both central and state, are not tolerating genuine criticism of governmental actions, and the courts are not doing much to protect the freedom of expression, a recent judgment by the Kerala High Court introduces a fresh breeze in an otherwise tense environment, where the voices of only some kinds of majorities are being entertained, while voices of minorities are being suppressed. Also, the judgment goes a long away in furthering the labour rights of employees, to express their opinion, even if it amounts to criticism of their employer or superiors.

If at all there is a trend in the Indian political scenario since 2014 which can be called consistent, it is the suppression of dissent. Governments have been treading every possible route to quell dissent, from within and outside their systems, and this led political pundits to argue that the democratic fabric of India is in danger. Under these grim circumstances, certainly the fundamental right which is most affected is the freedom of speech.

However, the performance of courts, which call themselves the sentinel on the qui vive of fundamental rights, has been far from satisfactory. Increasingly, courts have given wings to SLAPP suits filed by corporates and politicians against journalists and media houses, and contributed to the current suffocating political environment, instead of giving a higher pedestal to fundamental rights. Even the Supreme Court is not an exception to this trend, and the disappointing judgment of the majority in the recent case of Romila Thapar v. Union of India stands testament to the same.

Several argued that the current political atmosphere is reminiscent of the Internal Emergency 1975-77.

It is intriguing to note that another parallel can be drawn between the current political scenario and the Emergency of 1975-77, which is the attitude of the courts towards violations of civil liberties.

Much like the (in)famous judgment of the majority in A.D.M. v. Shivkant Shukla, the judgment of the majority of the Supreme Court in Romila Thapar case let down the dissentients, when they needed its support the most.

This makes one wonder about the contrast between the Supreme Court’s emphasis on the need for dissent in a democracy, and its non-intervention in cases of suppression of dissent.

As noted above, in this tense atmosphere, the courts have failed to grant the much-needed refuge to dissentients. While this is the case generally, a recent judgment of the Kerala High Court by Justice A Muhamed Mustaque comes as a fresh breeze in upholding the right of a dissentient to criticise a governmental organisation.

Batting For Democratic Dissent

In this case, the petitioner was removed from the position of head of department for criticising on his Facebook page, the employer-university for taking legal action against a PhD student. While reversing the action of the University, the court held that even though the university has the power to replace the head of department, the fact that the person divested of power may suffer “civil consequences” as well as the fact that the action would attach stigma to the career of prejudiced person should be taken into consideration.

Considering the need for criticism and freedom of expression of individuals as the guiding lights for its decision, the court guarded the freedom of expression of the petitioner in a careful manner by stating that expression of opinion is different from, and cannot be considered as criticism.

Then, the court remarkably noted that an individual “cannot be prevented from expressing his views [against the employer] merely because he is an employee”, thereby drawing a fine line between what would qualify as a “misconduct” under labour regulations and genuine expression of opinion, which is guarded by the Constitution.

Criticism, And Not ‘Misconduct’

This is a plausible move because the judgment has the effect of excluding expression of opinion from being prosecuted as “misconduct” in an industrial proceeding.

The court then justified the reason for protecting, and to that extent prioritising genuine criticism by holding that in a democratic society, every institution ought to be governed by democratic norms, and that “healthy criticism is the better way to govern a public institution” thereby read into the constitutional goal of democracy, the concept of genuine criticism.

The right to express healthy criticism, the High Court held, however, is not an absolute right and is subject to the “collective interest” of the university.

When governments, both central and state, are not tolerating genuine criticism of governmental actions, and the courts are not doing much to protect the freedom of expression, this judgment incredibly guides the focus towards the necessitous protection of fearless expression of dissent.

The judgment, as noted above, introduces a fresh breeze in an otherwise tense environment, where the voices of only some kinds of majorities are being entertained, while voices of minorities are being suppressed. 

Also, the judgment goes a long away in furthering the labour rights of employees, to express their opinion, even if it amounts to criticism of their employer or superiors.

Implications For Labour Laws And Rights

Considering that Indian law generally necessitates confirmative behaviour from the employees, and considering that courts do not generally involve in issues between employers and employees of an institution, the judgment goes a long way in limiting the arbitrary power of the employer to discipline the employee, by granting the latter the right to express one’s healthy criticism, even though such person is an employee.

Though the Kerala High Court’s judgment is a step in the right direction of recognising the right of the employee to express bona fide criticism, even it is against the employer, much more needs to be done in the form of judicial recognition and legislation, to prevent the SLAPP culture from becoming a legal, or even worse, a constitutional phenomenon.

Thankfully, there has been some judicial cognisance of the fact that SLAPP suits can be used to stultify free speech and expression, and therefore, it is now upon the Parliament and the state legislatures, to legislate laws which abolish or strictly regulate the use of SLAPP suits.

With regards to the effect of the judgment on labour rights, yet again, much more needs to be done, both on judicial and legislative fronts to ensure that scope of misconduct is narrowed so as to not include free and genuine expression of healthy criticism by an employee.

Considering that the word “misconduct” is open-ended, judicial interpretation of the term has hardly been consistent, and on many occasions, courts interpreted misconduct in an unduly broad manner, by including within its ambit even a peaceful demonstration against the policies of the employer.

The Supreme Court’s refusal to recognise the right to strike as a fundamental right of the employees can also be said to have routed from this unsatisfactory understanding of misconduct. 

In order to ensure that the benefit of the salutary exposition of the above-mentioned right to express healthy criticism is made available to workers across the country, this exposition of the Kerala High Court should be legislated in the form of a provision in all the relevant national labour legislations, so that expression of healthy and genuine criticism by employees is not considered misconduct.

This article was originally published in The Leaflet.

Raja Dandamudi is a law student at the OP Jindal Global Law School, and is currently interning with Senior Advocate Indira Jaising.

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

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.