Moral Policing under Constitutional Law in India: A Self-defeat of the Judiciary

Recently, on a show being aired by a news channel, the Hon'ble Supreme Court, in an order primarily dictated by Justice DY Chandrachud, the airing of the show related to UPSC and the recruitment of persons for the Indian Civil Services (and obviously the controversy on an NGO behind the coaching of a community of people) was blocked, after the Delhi High Court did, which was then ‘annulled’ by the Central Government. Adv Gautam Bhatia makes a liminal point, which is interesting to read:

Our main point in the IA is that there needs to be certain standard to judge hate speech. Here in this case, a community is being vilified to that extent that they are not being able to respond. Here in this case pre-telecast restraint parameter is different. [Bar & Bench on Twitter at 16:11 hours IST, Sep 15, 2020]

Well, several issues like these have been raised, with regards to a single community, which I am interested to highlight, since it is a legal matter. Now — there are various schools in jurisprudence, which have utter disagreements and agreements over the modus operandi of what hate speech can be. However, it is a truth that anthropological circumstances define and twist the fiat of Freedom of Expression, which itself is not under any ‘legal’ control. The reality is that Free Speech, in a true liberal-conservative democracy, will be endless. Politics drives the anatomy of free speech, but moral policing should never be the work of the state. The Indian Judiciary in judgments has tried to distance itself from being not a state under Article 12 due to some exceptional ramifications. However, such a restrictive behaviour also is not reasonable because the judiciary is a politically undemocratically formed body under the Indian Constitution. It follows some procedural democratic acts, but by any cost, it is not elected, neither we need such changes. Nor I am interested to propose the same.

Still, in this issue, what has been exposed is that constitutional morality and its bedrock, which is known as moral policing, is a damning and unreasoned failure. I will give an example from Australia to prove it. Amidst the #BLM riots across developed countries, a brodcaster had to pay 10,000 AUD — just because she liked an alleged ‘transphobic’ hate comment on Facebook. There can be many contexts on such issue, and thus — it can be a bigger problem. Nevertheless, having a fine does not fix the transphobic or LGBTQIA+ hate the innocent people have to face, nor does it help anyone in any matter whatsoever, because the same has no practical basis. Redemption cannot offer solutions, and thus, obsfuscation of issues must be discouraged.

What do we learn from this issue?

We learn a simple thing that moral policing does not help anyone, neither it is possible to impose top-to-down legal approaches to curb exercise of human rights. In the issue of the broadcast of a particular show on UPSC and a particular community, let us be clear and honest — that it is purely an act of judicial overreach by the Supreme Court because you cannot make hate speech standards to curb and cause problems. There can be limited policy measures to avoid hate speech, provided it is unbiased, which never happens in mainstream democracies. India is no exception to it, and since we know that a global progressive moment exists today, which undermines international law, constitutionalism, civilizational issues and even collective rights, while in the name of Liberalism, they destroy and mingle with illiberal actions, which itself — does not help the so-called oppressed people around the globe, it is important that such sham progressivism, based on clear ideological obscuration is limited. It does not matter what gymnastics of respect, decency and patience is being played because if free speech is disproportionately handled, then it does have severe anthropological implications, which nobody dares to deal it under the legal framework. Remember the Kafeel Khan case? Mr Bhatia argued passionately on Twitter that the state must compensate for Mr Khan’s arrest on his speech. I agree with him that the Indian state should focus on better compensation on such issues. However, Mr Khan must also remember that the ‘political vendetta’ which he had to suffer must not be weaponized for revenge Olympics, or he would be then considered a player of the same minority appeasement politics.

Now, on this issue, here are the issues which arise:

  1. Regulating hate speech in a third world state like India is not easy — and it would be unreasonable to block the broadcast of the show. Adv Bhatia’s claims that the community is not given a chance is responded is too much of a collectivist take, because it has no reasonability. I agree that speech exercise causes its own Brownian motion and so, various implications can arise. However, if the Indian state considers a harsh detachment of legalism and morality, then let it be as it is. It is not the job of a top court to cause judicial overreach and police people;
  2. Even if the question of public interest and national security comes in — which I believe is important — a legal restriction cannot help much, because moral policing even in that case is unreasonable. The best solution can be based on these aspects — (1) the act must be avoided; (2) legal action must be taken with a degree of relevance, but a political consensus must exist — obscuration of issues is just unreasonable at all costs; and (3) security considerations must be preserved, but trust on such matters is not possible to be met via legal remedies, and thus, it should not be a moral policing question, but a responsibility question first. Individual responsibility is not a collectivist idea, and the linearity of actions are irrevocable. Therefore, moral policing is never a long-term solution, and hurts people the most in short-term matters;
  3. With regards to the obfuscation of the matter, cannot it be claimed easily by the aggrieved party, that is the mass media platform that it was a political vendetta or a politically motivated act? Remember — political consensus exists where the law’s reach is not inexperienced and appalling. On the other hand, political motivations exist where experiments are being performed through any possible means — whether it is a lockdown order amidst the SARS COV 2 pandemic in a state, or a reservation bill on private sector jobs in a state.

Interestingly, political motivations are more frugal, and it takes years to form political consensus. That is why populism is never the best means to cause solutions, because that is a social and aesthetic overreach to the dignity of any subject-matter.

Therefore, the Supreme Court has unfortunately committed a judicial overreach and it is therefore important that such acts are avoided, otherwise, the moral capital of the court will crumble — which is not good. Rule of law cannot work if the legalistic dimensions of moral policing exist. Moral policing can work in simple, issues where the subject-matter is related to procedural problems (where proceduralism is a political matter under question whether it is motivated or consensual), like Constitutional Amendments, passing of bills and resolutions, any administrative act and so on. In the issues of national security, the judiciary has to have a bigger and reasonable outreach towards political problems to drive democracies and make judicious use of judicial review, like we have in Israel and the US. The Supreme Court of India lacks conviction and standards to understand political motivations and consensuses & their inherent anthropological realities, which causes havoc to the Indian democracy, whether it is ADM Jabalpur, Sabarimala, or for that matter, any issue concerned. I am not hopeful that the Court can really take up this issue in a reasonable way because they fail in harmonising ideologies, and they are an utter failure when it comes to reasonability in action and the reflection of the edifice of pure dignity.

P.S.: I have no issues to agree to disagree. Thank you. Also, I don’t support ranting in journalism. The issue I have raised is about the anthropological propensity of the due process of law.

Founder and CEO, Internationalism™ | Founder & Chairperson, ISAIL | AI-Law Futurist | YouTuber | Researcher | Poet

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