Judges, like Rajya Sabha MPs, enjoy freedom of speech

Like judicial independence and parliamentary sovereignty, freedom of speech forms part of the basic structure of the Constitution which is under attack today as it was formulated by judges who were selected in secrecy and not elected openly, according to those who rule us. Chief Justice of India (CJI) DY Chandrachud directed that some corruption cases against the TMC being heard by Justice Abhijit Gangopadhyay of the Calcutta High Court should be shunted from his court after the judge gave an interview to a Bengali news channel about the case he was hearing. The judge’s dogged pursuit in the recruitment scam resulted in TMC minister Partha Chatterjee being jailed. 

Judges who are hearing cases should refrain from exercising their right to freedom of speech. And in another incident involving freedom ofspeech, CJI Chandrachud shot down a report of the Intelligence Bureau stating advocate Firdosh Pooniwala’s senior had written an article voicing concern about lack of freedom of speech and expression in India during the last six years. The CJI that said what Pooniwala’s senior wrote did not impact the junior’s suitability as a judge of the Bombay high court. 

The Supreme Court also refused to stay the release of The Kerala Story, a film about women being converted to Islam in Kerala and forced to join ISIS. The producer claims in an interview to a news channel that the film is based on factual evidence that thousands of women in Kerala were converted to Islam by young Muslim boys whom these girls fell in love with. Whether this film is propaganda or authentic history is debatable. 

The government has successfully thwarted the elevation of senior advocate Saurabh Kirpal from Delhi for publicly declaring he was in a “relationship” with a same-sex employee of the Swiss embassy on grounds of national security which was again shot down by CJI Chandrachud. The government also thwarted the elevation of Somasekhar Sundaresan for being “highly opinionated” while commenting on sub-judice matters which is exactly what Justice Gangopadhyay did. 

But if you contrast the verdict by Justice Jasmeet Singh of the Delhi High Court quashing the show-cause notices issued to MNS chief Raj Thackeray for his alleged hate speeches about chhath puja which is mainly observed in north India with the Gujarat High Court refusing to stay the conviction of Congress MP Rahul Gandhi for his jibe at the Modi surname, there appear to be different parameters although both involve freedom of speech. Hate speech is more serious as it promotes enmity between groups but Gandhi was given the maximum sentence of two years jail for asking: “How come all thieves have the same surname — Modi?” He said this during an election rally before the 2019 Karnataka assembly elections. 

The latest casualty is CPM MP John Brittas for writing an article in the Indian Express in February which raised the hackles of a BJP politician from Kerala. He complained to the Rajya Sabha chairman Vice President Jagdeep Dhankar who summoned Brittas for his allegedly “seditious” opinion piece. The complainants against both MPs Rahul Gandhi and John Brittas are BJP leaders. The US has laid down the principle of “absolute malice” which says that unless a newspaper knowingly publishes what is false, public figures cannot be sued for defamatory statements against them. This has the effect of chilling public discourse which is exactly what is happening in India

While addressing election rallies, politicians freely use jibes and mock their rivals which is good for a democracy because we learn about the shortcomings of all the contestants. But by filing defamation cases, there is a chilling effect on public discourse. The UK has scrapped the law of sedition which is dragging on interminably in the Indian Supreme Court which has shown an inclination to strike down this obsolete law. Accusing Brittas of sedition for his utterances in an opinion piece flouts his right to free speech. 

Justice KM Joseph whose elevation to the Supreme Court was opposed by the government has declared in open court that certain quarters do not want him to hear the Bilkis Bano petition challenging the release of the 11 convicts. Joseph will retire in July and another bench will hear this sensitive case, like the Bihar government’s release of Anand Mohan Singh who was convicted for the murder of Gopalganj district magistrate G Krishnaiah. The prison rules were tweaked to enable him to walk out of jail just as the 11 convicts who raped Bilkis Bano and killed her family were garlanded when they walked out of jail. 

That judges like KM Joseph can do precious little is proved by the fact that the Madras High Court chief justice Sanjib Banerjee who had made strong statements against the Election Commission of India (ECI) was transferred to Meghalaya soon after the ECI filed an ill-conceived petition in the Supreme Court asking the top court to declare the media should not publish the judges’ oral remarks but only their signed orders. The Modi government has not approved the proposal to transfer Orissa chief justice S Muralidhar to the Madras High Court culminating in Justice SV Gangapurwalla taking his place. 

India has fallen 11 places to the 161st slot out of 180 countries in the World Press Freedom Index published each year by Reporters Without Borders. It ranks 85th out of 180 countries in the global Corruption Perception Index published in 2022 by Transparency International while it has slipped to the 108th ranking out of 202 nations in the Electoral Democracy index published in 2023 by V-Dem. We are moving very fast towards an autocratic state but our ministers will ridicule these global indices as propaganda by anti-national corporations. 

And as we mull over the futile assassination bid of Russian President Vladimir Putin, we must ask ourselves whether we truly believe thatfreedom of speech gives us the right to offend others while freedom of thought allows us not to be offended by what others say. If that is true, we must allow Raj Thackeray and Rahul Gandhi with John Brittas to say whatever they think is right.

Dr Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court