Tuesday, February 05, 2008

Free speech, multiple proceedings and chilling effects

The Supreme Court has dismissed an application by painter MF Hussain 'for immunity from prosecution in any court in the country except in Delhi'. Multiple proceedings against Shilpa Shetty, Khushboo and MF Hussain recently have seen the abuse of a procedural loophole to punish them for speech acts even before the crime can be established.

Here is an argument why this procedural loophole is unconstitutional:

1. All criminal acts that have 'speech' or 'expression' as constituting actus reus need justification under Article 19(2) as a 'reasonable' restriction.

2. This applies not only to substantive laws but also procedural laws.

3. Irrespective of the content of the speech, the possibility of multiple legal proceedings against a person in several parts of the country (that the current law on criminal jurisdiction allows) has serious 'chilling effects' even before the speech is made [Chilling Effect - 'a situation where speech or conduct is suppressed or limited by fear of penalization at the hands of an individual or group']. This is a restriction on Article 19(1).

4. The restriction is unreasonable because -
(a) no state interest is served by having the same act tried in several jurisdictions. Because no person can be convicted of the same act twice, even if two courts find him/her guilty, only one punishment will sustain. Therefore, in reality, the speech acts only amount to procedural harrassment.
(b) multiple proceedings waste precious judicial time. what 10 different courts can do, one court can do equally well. Public resources are also wasted because such multiple proceedings inevitably lead to a case-by-case Supreme Court intervention (like for Shilpa Shetty and Hussain) ordering transfers - a one time solution will save precious judicial time.
(c) all this, of course, besides the harrassment of the speaker EVEN BEFORE THE SPEECH IS FOUND TO BE CRIMINAL, and the chilling effects of such restriction.

Remedy:
An exception to be carved in the jurisdiction clauses of the Criminal Procedure Code for all crimes that are constituted by 'speech or expression'so that a criminal case in such crimes can be filed only at the defendant'splace of ordinary residence (if in India), or in Delhi (if outside India). This must be irrespective of the content of the speech.
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