Speech, Association, Personal Liberty, and the State of Exception: Jyoti Chorge v. State of Maharashtra

This essay examines the judgment of the Bombay High Court in Jyoti Chorge v State of Maharashtra, in which the Court granted bail to members of the Kabir Kala Manch, who were accused of being Naxalites, under the provisions of the Unlawful Activities Prevention Act. I shall argue that Jyoti Chorge vs State of Maharashtra was a transformative judgment, because it represents the clearest and most coherent example of judicial resistance to an almost overwhelming trend in Indian constitutional jurisprudence: the Courts’ willingness to uphold and endorse laws that severely curtail civil liberties by citing “exceptional situations.” I shall begin by outlining the gradual evolution of the Supreme Court’s jurisprudence on the freedom of speech and association, which is meant to apply to times of “normalcy.” Over time, the Court has incrementally strengthened free speech and association rights under the Constitution (culminating in Shreya Singhal v Union of India) (I); these protective standards, however, have never been applied by the Court to two legal regimes that are specified under the Constitution: preventive detention under Article 22 (II), and the state of “Emergency” (III). In the context of the relationship between individual rights and State power, both these situations have seen the Court invert its “normal” legal and constitutional standards. However, while preventive detention and Emergencies are defined within the Constitution itself, over time, the Court has allowed its approach to these exceptional situations to become a norm. The Court’s scrutiny of laws that are neither preventive detention laws, nor passed under an Emergency, but are justified on the touchstone of fighting terrorism, has replicated its jurisprudence of the states of exception. Instead of testing anti-terror laws on the touchstone of the Constitution, the Court has modified constitutional doctrine in order to “fit” anti-terror laws, thus endorsing the creation of “a permanent state of emergency.” (IV) It is in this context that I shall argue that Justice Thipsay’s judgment in Jyoti Chorge repudiated every element of this “permanent state of exception jurisprudence.” (V). Furthermore, this approach was the correct one: the framing of the Constitution marked a decisive break from a permanent state of exception under the authoritarian British regime, to rule-bound regime where exceptions were to be strictly and narrowly defined. The Supreme Court’s interpretation of anti-terror laws has mirrored colonial legal practices in legitimizing a permanent state of exception, and has therefore failed to maintain fidelity with the transformative character of the Constitution. By contrast, Jyoti Chorge’s judgment did so (VI). I shall conclude by examining the impact of Justice Thipsay’s approach upon other restrictive legal regimes such as the Goonda Acts and the Public Safety Acts that exist in various states, and argue that its transformative vocabulary provides us with the language and resources to think afresh about these laws, and to challenge their continued existence on the statute books, on grounds of personal liberty. (VII).