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Free speech is a sine qua non for democracy. One person’s free speech can threaten the security of the state, or can hamper tranquillity in the society or affect decency and morality, could lead to contempt and also infringe other person’s right(s), to check and balance these things laws are made to regulate free speech. Any such restriction on free speech must stand the test provided under Article 19(2) and if it does not, it is prima facie unconstitutional.[i] But sometimes the laws impose more restriction than permitted.[ii] This causes the problem of overbreadth and vagueness, which ultimately sums up to cast a chilling effect. A doctrine which applied in the United States of America, South Africa and the European Court of Human Rights.[iii] This article aims to describe these concepts, how they curb legitimate speech and their recognition in the United States and India. It makes an attempt to talk about jurisprudence in a concise manner. I also tackle a few measures taken by the government which cast chilling effect.
What is chilling effect doctrine?
The chilling effect is stifling of legitimate speech through excessively broad laws.[iv] In its pith and substance, it is the unwanted prohibition of one’s free speech for the fear of criminal sanction. It does not directly affect free speech but has the impact of self-censorship.[v] The direct, as well as the inevitable consequence of the restriction imposed, must be considered by the court while deciding the constitutionality of legislation.[vi] The restriction, thus, imposed by the legislation must be given the narrowest possible form.[vii] Overbreadth and Vagueness together give rise to the problem of the chilling effect.[viii]
A problem of overbreadth arises when a law prohibits something that the state is constitutionally entitled to prohibit and something which it is not.[ix] In Kameshwar Prasad v. State of Bihar[x], the Supreme Court struck down a rule, prohibiting every kind of public demonstration, on the same ground. Whereas vagueness is defined on two grounds, firstly, the law must give a man of reasonable intelligence the opportunity to know what is prohibited and what is not and, secondly, to avoid arbitrariness and discrimination the law must provide explicit standards.[xi] When both these aspects are absent, there is a vagueness in the law and it can be struck down using the void for vagueness doctrine.[xii] Indian courts have struck down laws on grounds of overbreadth[xiii] and vagueness[xiv].
To understand it better, let’s look at a hypothetical, viz, the government of nation ‘X’ imposes a blanket ban[xv] on any or all publications for the matters which are sub-judice before the higher judiciary and penalises them. This legislation inter alia casts a chilling effect on freedom of speech and expression. The phrase “any or all” is wide enough to cover protected as well as unprotected speech and the term can also be considered vague for want of explicit standards. The ban covers fair comment or even discussing the daily orders. [xvi] Now, if a person is under fear of criminal sanction, he/she may not exercise his/her right of free speech thereby it casts a chilling effect.[xvii] Thus, a court of law (with requisite jurisdiction) can strike down such a draconian law on grounds of overbreadth and vagueness. I define chilling effect as – an indirect interference on one’s right by the state through vague laws (which carry sanctions) and impact of self-censorship.
It was in 1965 that chilling effect was used as a legal term by Justice William Brennan in Lamont v. Postmaster General[xviii], back then it was referred to as deterrent effect on freedom of expression. The US Supreme Court in NY Times v. Sullivan[xix] while recognising chilling effect observed that erroneous statements are inevitable in a free discussion and thus must be protected to allow freedom of speech to have a breathing space. The concept has been recognised in India in R.Rajagopal v. State of Tamil Nadu[xx] and S.Khushboo v. Kanniammal[xxi], the Supreme Court held that laws should be construed in a manner so as to avoid chilling effect over freedom of speech and expression. In Shreya Singhal v. Union of India[xxii], the Court struck down Section 66A of the Information Technology Act, 2000s on the same ground.
In October 2018, the Jawaharlal Nehru University attempted to impose Central Civil Services Rules, 1964 [hereinafter “CCS Rules”] on its faculty.[xxiii] There was an uproar by the JNU Teacher’s Association [hereinafter “JNUTA”]. Though this ordinance was withdrawn in 276th meeting of the JNU Executive Council, yet a charge sheet was registered against some faculty members under Rule 14 of the CCS rules.[xxiv]
CCS rules are framed for persons who are appointed to the civil service or to service in connection with the Union. [xxv] The first test is whether a teacher is a civil servant or not? Civil service is defined by the US courts as services which are rendered to and paid by the state or nations and are concerned with great administrative departments.[xxvi] While the Supreme Court of India in State of Gujarat v. Ramanlal Keshavlal[xxvii] describe a civil post or civil service on the grounds of existence of a master-servant relationship between the person and the union. These definitions certainly do not include teachers, professors and the faculty member in general as there no administrative function or a master-servant relation between the faculty members and the state. Thus, at the very basic level, there exists a problem which is that the CCS cannot be imposed on faculty of any University.
Furthermore, the JNUTA claims this violates their freedom of speech and expression, casting a chilling effect. The following paragraph gives an overview of how the application of CCS Rules casts a chilling effect.
Rule 5 of the CCS prohibits taking part in politics and elections, Rule 9 prohibits criticism of the government. A teacher or a professor cannot be deprived of free speech, without having an opinion one cannot teach or propagate her idea. Academicians today depend on writing academics articles or essays which might criticize the government, or support a particular political theory. Application of CCS in such a profession would cast a chilling effect on the faculty members, as there will be a constant fear of losing a job. The implications of such imposition must be kept in mind, It will reduce academic writing in Universities, particularly faculty of law at the University will not be able to talk about practicality. It is hard to imagine social sciences lectures without criticism of the government or without forming political opinions.
To protect free speech and ensure the sustenance of a democracy, it is required that laws are not broadly or hazily drawn and the free speech has breathing space. If the legislature fails in this task, suppressing free speech would be plain sailing for the executive. In such situations, the courts should be as liberal as possible while interpreting the fundamental rights and the broad interpretation must be given preference over the narrow one.[xxviii] There must be close to perfect, if not perfect balance between the fundamental rights, aim of the law, the legislative intent and the need for the law. In the words of George Washington, –
“If freedom of speech is taken away, then dumb and silent we maybe led, like sheep to slaughter.”
[ii] Bennett Coleman v Union of India AIR 1973 SC 106; PUCL v Union of India AIR 1997 SC 568; Shreya Singhal v Union of India, 2015 (5) SCC 1 (India); Bijoe Emmanuel v State of Kerala AIR 1987 SC 748.
[v] Gautam Bhatia (n 3).
[vii] Shreya Singhal (n 2) at ¶ 90 (India); S. Khushboo v. Kanniammal (2010) 5 SCC 600 ¶ 47 (India).
[ix] As defined by Merriam-Webster Legal Dictionary.
[x] AIR 1962 SC 1166.
[xv] A rule that affects everyone and covers all possible events/cases.
[xvi] Orders and Judgment are different in the sense that judgment has the final verdict and the reasoning involved therein while orders can be passed while the proceedings are still going on.
[xix] The New York Times Company v L B Sullivan, 376 US 254 (1964) ¶ 58; Attorney General v Guardian Newspapers Ltd (1990) 1 AC 109 affirmed in R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.
[xxi] S.Khushboo (n 7).
[xxii] Shreya Singhal (n 2) at ¶ 94.
[xxv] § 1, CCS Rules, 1964.
[xxviii] Broad interpretation goes beyond the black letter of law, whereas the narrow interpretation sticks to the law verbatim. Broad interpretation follows the law in spirit.