By Justice Markandey Katju-
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)
The Bhojpuri folk singer Neha Rathore has been served a notice by the Kanpur police, harassment which caused her such mental agony that she was hospitalized, and her husband dismissed from his job.
And what was her ‘crime’? That she criticized the UP govt and spread communal discord.
As regards the charge of spreading communal discord, it is laughable, considering it is coming at the instance of a political party in power that thrives on religious polarisation and inciting and spreading hatred against minorities, and the police only act as their master’s voice.
But is criticizing the government a crime in India, which claims to be a democracy ?. This needs to be considered.
In the Indian constitution promulgated on January 26, 1950, there are a set of fundamental rights of the people, modeled on the Bill of Rights in the US Constitution. The judiciary was made the protector and guardian of these rights, otherwise, they would remain only on paper.
Among these fundamental rights is Article 19(1)(a) which guarantees freedom of speech and expression to all citizens of India.
A few months after the promulgation of the Constitution, a Constitution Bench of the Supreme Court held in Romesh Thappar vs State of Madras that in a democracy people have a right to criticise the government. The court observed, “Criticism of government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression, or of the press ”.
The same view in different words was taken in by Justice Abdul Quddhose of the Madras High Court in his historic verdict in Thiru N. Ram vs Union of India and anr in which the learned judge observed, “A very important aspect of democracy is that citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power.” He went on to say, “Criticism of policies of the government is not sedition unless there is a call for public disorder or incitement to violence.”
Justice Quddhose also observed, following the Supreme Court’s 1956 verdict in Kartar Singh vs State of Punjab, that people in power must develop ‘thick skins’. In other words, the authorities should have broad enough shoulders to bear criticism.
This decision is very relevant in the prevailing situation today. Nowadays politicians in power ( of all parties ) are often very touchy, with huge egos, and unwilling to put up with any criticism from anyone.
A large number of instances can be given of illegal and unwarranted arrests and detentions at the instance of vindictive politicians. The question is whether, like Bheeshma Pitamah turning a blind eye to the disrobing of Draupadi, the Supreme Court should ignore these blatant and glaring illegalities. What then will remain of the numerous verdicts of the court itself stating that the Supreme Court is a guardian of the people’s rights?
In a democracy, people have a right to criticize the government, since the people are the masters, and the govt only their servant.
In Ghani vs Jones (1970), Lord Denning observed: “A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest ground.”
Whenever a habeas corpus petition (a petition praying for release from illegal custody) comes before a British judge, he sets aside all other files, and takes up the petition as having priority over every other case, since it relates to individual liberty.
But what was the performance of the Supreme Court in the habeas corpus cases of Kashmiri leaders detained after the evisceration of Article 370 on August 5, 2019? The cases were adjourned month after month, and some perhaps are still pending, whereas the petition of Arnab Goswami, known for his affinity to the government, was taken up on top priority basis. What message does this send? I was informed by a senior Allahabad High Court lawyer that bail applications/habeas corpus petitions keep pending undisposed off often for 6 months or more after filing.
In my opinion, the Supreme Court (and high courts) should take suo motu cognizance of these patently illegal arrests and detentions, and quash them with heavy penalties and costs, not only on the government committing these illegalities, but also on the police officers who carried out these illegal orders.
In an earlier article, I argued that policemen should refuse to carry out illegal orders. In the Nuremberg trials, Nazi war criminals took the plea that they were only carrying out orders of their superior Hitler, but that plea was rejected and many were hanged. So the plea of ‘orders are orders’ is no defense when the order was itself illegal.
It is time now for courts to resume their solemn duty of protecting the liberties of the people, and start imposing heavy fines and punishment on politicians at whose instance illegal arrests and detention orders are passed, as well as policemen carrying out such illegal orders of political authorities.
It is said that Neha Rathore has in her songs criticized politicians, judges, and the police. But there is nothing wrong in that, as that is a democratic right. Many people have done that, including this humble self.
In 2010 the former Union Law Minister and senior Supreme Court lawyer Shanti Bhushan filed an application in the Supreme Court stating that half the previous CJIs were corrupt
Since then there have been grave question marks over several subsequent CJIs e.g. Justice Gogoi. Corruption in the subordinate judiciary is said to be rampant.
As regards the police, everyone in India knows it is largely corrupt.
So what was wrong in what Neha said?