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Freedom of Speech and Bail: Can Courts Deny Social Media Access?

August 3, 2020

 

Different constitutions all around the world have, time and again, vehemently discouraged excessive and stringent restrictions imposed by Courts while granting bail to an accused. Be it England’s Bill of Rights, or American Constitution’s Eighth Amendment, the Courts has always advocated that excessive constraints or hefty monetary punishments are against the order of law and that restrictions while granting bail should be tailored in such a manner that they are least intrusive in nature. The Criminal Law in India is drafted on the same lines as far as the restrictive bail conditions are concerned. As the precedents speak for, the object of bail is neither punitive nor preventative. [1] It is granted to secure the attendance of the accused and pioneer the presumption of innocence until his guilt is proven. However, a recent judgement passed by the Allahabad High Court which imposed a bail condition that mandated the accused to abstain from operating any social media platform has raised many eyebrows. In this article, we will analyse the constitutional merits of the judgement with respect to the same restrictive condition. 

 

The Case of Sachin Chaudhary

Sachin Chaudhary, a member of the Indian National Congress from the Amroha district was arrested on April 11 under multiple sections of the Indian Penal Code, Disaster Management Act, and the Information Technology Act. [2] He was taken into custody for holding a press conference in the lockdown that violated the rules of lockdown prescribed by the government. He was also accused of sedition for blatantly criticising the Central government and the State government of Uttar Pradesh in an impermissible and offensive manner for failing to grip the spread of coronavirus and helping the low-income groups with food and finances.

 

However, on May 20, he was released on bail by an order passed by Justice Siddharth of the Allahabad High Court. Among the various bail conditions that included diligent cooperation in the course of the trial and keeping away from any criminal activity on release from custody, one of them was the condition that he refrains from using social media till the pronouncement of the final verdict. As against this, a petition was filed in the Supreme Court by Keshav Ranjan, the advocate of the petitioner, on the grounds that the restriction on the use of social media was patently erroneous and contrary to law. The Supreme Court is, thus, under an obligation to examine a herd of questions concerning the constitutional validity of the bail condition that put a barricade on the petitioner’s use of social media, the most fundamental of them being, can the Courts restrict an individual’s use of social media as a condition of bail? 

 

The Indian Courts are aligned with the Eighth Amendment of the US Constitution, and have relied on the notion - ‘Bail is the norm and jail is the exception’. However, a grant of bail is not unimpeded in nature and is accompanied by several restrictions. Both the U.S. Supreme Court and the Supreme Court of India (in the Shreya Singhal case) have held that a restriction in order to be reasonable must be “narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” [3]

 

However, a perusal of the Allahabad High Court judgement gives food for thought on its constitutional merits and raises pertinent questions of law against it. Imagine a person accused of murdering someone with a knife seeking bail before the Court. Would it not be irrational to ask the accused to abstain from using a knife till the end of his trial? Or imagine a person who is accused of recklessly running down a pedestrian while driving. Would it not be ludicrous to ask him to not drive a car till the Court comes out with its final verdict? In the same vein, is it not baseless to ask a political figure as recognised as Sachin Chaudhary to refrain from using social media, especially when the crime is not even remotely related to the misuse of social media? A social media restriction, prima facie, looks patently onerous, constitutionally unfounded, and is liable to be set aside on multiple grounds.

 

The first ground on which the judgement can be challenged is that it is in flagrant contravention to Article 19 and Article 21 of the Indian Constitution. Freedom of Speech and Expression which is covered under the ambit of Article 19 forms the bulwark of the Indian democratic system and grants the liberty to freely express one’s opinions, views, and beliefs. By completely depriving the accused of the use of social media, the High Court is interfering with Choudhary’s right to express his opinions to the public at large. This violates his fundamental right to speech and expression as explained under Article 19(1)(a) of the Constitution and on this ground alone, the condition is likely to be set aside. 

 

Moreover, it is a common understanding in criminal jurisprudence that the conditions under which bail is granted should be prudent in nature and should not jeopardise the right to life and personal liberty of the accused on frivolous grounds. Sachin Chaudhary is an active member of the Congress party and had contested the Lok Sabha elections in 2019. With over 48000 followers on Twitter, he is recognised as a prominent political figure. Thus depriving an established political figure access to social media is equivalent to cutting the wings of a bird and then setting it free.

 

Such a condition strikes at the very heart of Article 21 of the Indian Constitution that mandates the right to life and personal liberty as a fundamental right. A politician is recognised by his opinions and social work and social media forms the linchpin of the very few platforms where he can be vocal about his opinions and give an account of his social work which he has done for the masses. Apart from compromising his freedom of speech and expression, a protracted abandonment of social media for 18 long months or till the pronouncement of the judgement could prove to be quite detrimental to his political career.

 

In research carried out by the New York Times Consumer Insight Group [4], it was explained that every individual has some motives that drive him towards social media participation. Inter alia, people are motivated to use social media as it helps in the growth and nourishment of relationships, and is a source of self-fulfillment. In the wake of the Covid-19 pandemic, social media is metaphorically the crutch to a crippled communication architecture. A complete ban on the use of social media platforms like WhatsApp, Facebook, Twitter, and so on is not only fractured on constitutional grounds but is also flawed on humanitarian grounds. Asking the accused to completely abandon participation in social media is likely to grisly effect his interpersonal relations as it is the only way by which he can stay connected to his family and friends under the given circumstances. Needless to say, the Court failed to acknowledge the indispensable role of social media during these testing times before slapping a non-participation bail condition on the accused.

 

 

 

 

However, this was not the first time when a Court had imposed an irrational restriction on the usage of social media as a bail condition. As recent as June 3, the Patna High Court asked the petitioners to deposit irrationally tidy monetary amounts ranging from Rs. 5000 to 25000 to the PM-Cares Fund as a condition of bail after recovering alcohol from their respective vehicles.[5] The financial punishment fell ruthlessly on the petitioners who were necessitous truck drivers struggling to fend for themselves in the wake of coronavirus. Moreover, in 2019, Justice G.R. Swaminathan of the Madras High Court granted anticipatory bail to the Kanyakumari resident, Jabin Charles, for posting a morphed image of Prime Minister Narendra Modi on Facebook.[6]

 

This was accompanied by a reprehensible one year ban on the accused’s use of social media. While the Madras High Court judgement was marginally legitimate on the sole justification that the crime involved a direct use of a social media platform (Facebook), the same rationale cannot be applied in the present case of Sachin Chaudhary. It is pertinent to bring to light that the accused faced no allegations of a misuse of a social media platform. Neither did the Allahabad High Court provide any justifications before imposing the bail condition that could logically underpin it. Hence, on these grounds too, the High Court judgment has erred in law.

 

Justice Arun Monga of the Punjab High Court, in the Anil Jindal case, had observed,

 

“The condition of bail or the burden imposed on it, therefore, ought not to be such so as to defeat the very meaning of bail.” [7]

 

In the same context, the stringent condition imposed on the political leader Sachin Chaudhary that bars him from using social media is, prima facie, defeating the very purpose of granting him bail. Given the above mentioned legal loopholes of the judgement, the High Court, though unintentionally, has foisted such a severe condition, that it transgresses the acceptable legal yardsticks of reasonable restriction. Moreover, the Court has drastically contradicted itself while granting bail to the accused. Even though it has acknowledged the larger mandate of Article 21 with the dictum of the Supreme Court in the Dataram case, it has failed to take cognisance of the true scope and literature of the Dataram ruling.[8] 

 

The Court has overlooked Justice Madan Lokur’s observation in the case which read as

 

"... conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory." 

 

By imposing an excessive bail condition, the High Court has created a virtual jail for the accused and has inadvertently gone against the very ruling of the case on which it laid its justification. This implies that the Court has done nothing but pay mere lip service to the Dataram ruling.

 

 

 

 

Consequently, this leaves the Apex Court with the task of reframing the bail condition. A more rational and constitutionally founded approach would be to ask the petitioner to desist from any online engagement that would make him criminally liable. This would specifically be related to his involvement on social media where he should be barred from offensively criticising government officials, defaming or infuriating any individual, and flouting the norms of the lockdown, the violation of which would result in the cancellation of his bail. Such a restriction would not only be more judicious in nature but would also fit comfortably in the literature of Article 19 and Article 21 of the Constitution.

 

In the initial hearings of the case, the Bench was leaning towards upholding the High Court judgement. Chief Justice S.A. Bobde’s contention was,

 

“We don’t think it’s too onerous… if a person’s participation on social media creates mischief, why can’t the court say you don’t use the instrument by which you caused mischief?”

 

Opposing this, Salman Khurshid, appearing on behalf of the petitioner, submitted that the allegations nowhere mentioned the misuse of social media by the accused. This made the Bench reanalyse the charges against Chaudhary. Even though the Court rejected the interim plea advanced by Chaudhary for lifting the restrictive condition, the Bench assured him and Khurshid that the court will examine the petition in detail and pass proper guidelines accordingly. The next hearing is scheduled on August 28. Will the Court overstep fundamental rights by uncritically upholding the Allahabad High Court judgement, or, will it champion the rule of law and overrule the preposterous bail condition? Only time will tell.

 

References

[1] Sanjay Chandra v. CBI, (2012) 1 SCC 40

[2] https://www.livelaw.in/top-stories/can-trial-courts-impose-restrictions-on-social-media-use-as-a-bail-condition-sc-to-examine-159707

[3] Shreya Singhal v. Union of India, (2013) 12 SCC 73

[4] https://foundationinc.co/wp-content/uploads/2018/12/NYT-Psychology-Of-Sharing.pdf

[5]https://www.outlookindia.com/newsscroll/patna-hc-grants-bail-on-condition-of-donating-money-to-pm-cares-fund/1854924

[6] https://lawstreet.co/judiciary/madras-hc-asks-man-booked-for-posting-against-pm-modi/

[7] https://www.livelaw.in/pdf_upload/pdf_upload-377577.pdf

[8] Dataram Singh v. State of U.P., (2018) 3 SCC 22

 

Views expressed are solely those of the author.

 

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About the Author

Saahas Arora is currently reading law at the ILS Law College, Pune. He has been enthusiastic about writing and debating which he pursued with a Debating and Public Speaking course from the University of Oxford in 2016. As a budding lawyer, he takes a keen interest in Constitutional Law, Criminal Law, and women’s rights. Gathering experiences from working under the Indian National Bar Association, LexLife, and the Central Law Agency, he likes analysing and decoding government policies and diplomatic affairs and has been dissecting several socio-legal issues through his writing. At leisure, you would find him indulging in reading, food, and FIFA.

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