What the Court missed in the Allahbadia case

On February 18, the Supreme Court made headlines after its oral remarks about the YouTuber Ranveer Allahbadia, who was seeking legal protection after a crass joke that he had made on his channel sparked outrage and led to police proceedings against him in multiple states. Before the Supreme Court, Allahbadia made a very basic prayer: As there were police FIRs against him in more than one state for making the same joke online (a tactic that is often used by states to harass individuals by making them run from place to place when summoned by the police), he asked that these FIRs be “clubbed” together so that he could defend himself in one place rather than be dragged from pillar to post.

This is a very common-sense relief that should have been given for the asking. However, the Supreme Court instead chose to lash out at Allahbadia, stating that he had a “perverted” and “dirty” mind and that his joke would have shamed the “mothers, sisters, and younger brothers” of society. This is unfortunate, as the role of the Court is to dispassionately consider the case before it on the touchstone of law and the Constitution, instead of taking up the cudgels of outrage on behalf of society at large. A joke may be crass and distasteful, but there is a reason why the law does not criminalise such jokes: if it did so, most of the country would be behind bars at some point or the other.

What is more unfortunate, however, is that the Court’s sense of outrage appears to have crept into the judicial order that it passed. Allahbadia was granted limited relief: Protection from arrest and a direction that further FIRs would not be filed against him for the same joke. However, the Court did not immediately allow his request for clubbing the FIRs, which means that until further orders, he will have to travel to the states where the police investigation is ongoing if asked. The Court’s unwillingness to grant relief sets a bad precedent for future cases, where individuals may be harassed through the filing of multiple FIRs in different states for something that they say on the internet.

Furthermore, the Court directed Allahbadia to surrender his passport and banned him from travelling abroad without the Court’s permission. This appears to be both punitive and unnecessary. However, what is even more punitive was the Court’s final direction, which was to ban Allahbadia or “his associates” from airing any show on YouTube or any other audio/visual mode of communication till further orders. This, it should be clear, is manifest judicial overreach, where the Court essentially acted as an advance censor, shutting down Allahbadia’s right to free speech not as a legally mandated punishment for something that he had done, but as a pre-emptive ban for something that he might go on to do in the future. There is no warrant in the Constitution or in law for such advance censorship, and once again, it sets a disturbing precedent for the future.

Finally, the Court’s sense of outrage revealed itself in an alarming sense of oral remarks, which did not find their way into the judicial order. The Court expressed a necessity for “regulating” online content, and invited the Attorney-General, on behalf of the State, to come up with “regulations” (the Court said that it would be very happy if the State did so). While “regulation” may sound like an innocuous word, it is worth remembering that the State’s previous proposed legal framework – the Broadcast Bill – was so draconian that it was criticised across the board and was shelved. The Court’s oral remarks, however, now raise the worry that it has given an advance imprimatur to the return of the Broadcast Bill, in some form or the other. It is worth noting that the Court’s role is to test speech-restricting laws on the anvil of the Constitution’s fundamental rights – not to egg on the State to bring in such laws! Indeed, it is ironic that the Court made these remarks in a case where a YouTuber was facing harsh legal proceedings under the existing legal framework – which is what drove him to come to the Supreme Court in the first place! It is, therefore, unclear why the Supreme Court, on the one hand, saw fit to grant protection to Allahbadia from coercive proceedings under the existing legalregime (harsh enough as it is), while at the same time calling for further legal restrictions upon online content.

It is important to note that the issue goes beyond Allahbadia and his freedom of speech (important though that is). It concerns the freedom of speech of journalists, dissidents, satirists and humourists, and all those who use the Internet to communicate their points of view. When these are the stakes, the Supreme Court should remember that its primary role is to protect our fundamental rights under the Constitution — and not to be swept away by a moment of outrage and invite a regime of censorship.

Gautam Bhatia is a New Delhi-based advocate.The views expressed are personal