A person approaches a court not to be rebuked but to be protected against what he regards as injustice done to them. It is a right which is given to them and protected by the constitution. Of course, if the right does not exist or is not to be granted for legal reasons, the court will be justified in declining the relief sought. However, while performing its solemn function of dispensing justice, no court has the right to make personal remarks or personal attacks on the seeker of justice.

The context here is what transpired on August 4 before a bench of the Supreme Court, headed by Justice Dipankar Datta, in a petition filed by leader of opposition in Lok Sabha Rahul Gandhi for quashing of summons issued against him by a subordinate court regarding a defamation case for his remarks concerning the face-off between Chinese and Indian soldiers in Galwan Valley in 2020. 

Though the top court granted temporary reprieve to Gandhi by staying the proceedings before the court below for three weeks, it reportedly made highly damning observations against him which were far worse than facing trial before the concerned subordinate court. Before referring to the observations so made, let us see what was so offensive that Rahul had said that he incurred the wrath of the Supreme Court.

In the wake of the Chinese incursion in Galwan Valley, Rahul Gandhi is reported to have said, “People will ask about Bharat Jodo Yatra but they will not ask a single question about the Chinese capturing 2000 sq. kms. of Indian land, killing 20 Indian soldiers and thrashing our soldiers in the clash.”

On the aforesaid remarks, Justice Dipankar Dutta reportedly asked: “How do you get to know that 2000 sq. kms. of land was occupied by the Chinese?” 

Not only did the bench ask for authentication of the claim made by Gandhi, it also questioned his loyalty by observing that “if you are a true Indian you would not say such a thing”. It went on to observe, “You are the leader of opposition. Say things in parliament, why do you have to say it on social media?”. 

Simply put, the aforesaid observations of the Supreme Court are tantamount to telling not only Gandhi but every citizen that any critical comment on the action or the inaction of the government affecting the nation would be unacceptable, or at least not welcome unless it is backed by solid evidence, failing which he will be an object of ridicule at the hands of the judiciary. 

Rahul Gandhi was also told by the bench that if he were to make any statement, he should have made the same in Parliament and not on social media. This effectively means that the LOP, or for that matter any other leader of opposition can only make statements or question the government on the floor of the house and not outside of it. If this is so, is it not a restriction – and an assault – on the freedom of speech and expression of people’s representatives, and in turn of people themselves as guaranteed under Article 19 of the Constitution of India? 

Coming from the highest court of the land which, under the constitution, is supposed to be the guardian and protector of fundamental rights of a citizen, this is not only ominous but also does not augur well for our democracy.

Furthermore, with due respect to the bench, does it not know how many times our parliament meets in a year, and does it also not know that more often than not, pandemonium prevails inside the parliament and that we rarely witness a healthy and effective debate or discussion on matters requiring urgent attention of the House, particularly concerning sovereignty and integrity of the country? 

In any case, should leaders of opposition parties wait for parliament to be convened before making any statement on an issue of national importance and concern? Should they, in the meanwhile, remain silent?

It will be apposite to mention here that this is not the first time that the Supreme Court has made ominous remarks on the freedom of speech and expression. Not very long ago, a bench of the top court, while referring to a youtuber Ranveer Allahabadia’s allegedly obscene comments on the show ‘India’s Got Latent’, though rightly expressing disapproval of the comments, went on to say: “We know some people writing articles in the names of freedom of speech etc…, we know how to handle them also… in this country there is nothing like a fundamental right on a platter… the fundamental rights are followed by a duty.” 

It went on to urge the Union government to address the vacuum in regulation of online content. What more can a State which has let loose agencies to tame the citizens into submission have desired?

Coming back to Gandhi, the bench has also called into question his being “a true Indian”. This, notwithstanding the fact that he has a family history of freedom fighters and prime ministers. He himself is the leader of opposition, and thus occupies a position which deserves respect. In the Westminster system of governance, which we have adopted, the LoP is considered a shadow prime minister, and therefore, on that score too he deserves to be treated with dignity and honour. 

As for the reported remarks of Gandhi that Chinese soldiers had thrashed our soldiers, it seems that they are being quoted out of context. They seem to have been made not out of contempt for our armed forces but out of concern for them. However, that is a matter of trial and should be best left to the concerned court to adjudge as and when it happens.

Given the aforesaid background, the judges will do well to always remember that no citizen, no seeker of justice and no person regardless of his status should be made to feel that justice delivery system of India smacks of subservience – not to the laws framed as per the constitution, but to those in power. The citizens seeking justice cannot be ridiculed, insulted or humiliated merely because he is seeking justice against what he regards as unjust. 

It is time for judges to know that they too are under scanner. They too are being observed and examined.

Rekha Sharma is a former judge of the Delhi high court.

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