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Watch | Going to Court Doesn’t Negate Right to Protest, SC Must Clarify: Justice Lokur

In an interview with Karan Thapar for The Wire, the former Supreme Court judge said trying to subvert the right to protest through other means would create serious problems.

Justice Madan B. Lokur, one of the Supreme Court’s most illustrious former judges, has strenuously refuted comments made by sitting Supreme Court judges on Monday which suggest that the right to protest cannot be allowed if you have challenged in court the issue you are protesting against.

Justice Lokur went one step further and pointed out that what Justice A.M. Khanwilkar said on Monday contradicts the stand taken by former chief justice S.A. Bobde in December 2020 and forcefully added the court must clarify the situation, otherwise the people and the government will be confused.

Justice Lokur also said that although the right to protest is not an absolute right because the constitution requires it to be peaceful and without arms, nonetheless it’s one of the most important rights and “trying to subvert it through other means would create serious problems”.

Finally, Justice Lokur said the Supreme Court must remember that farmers are “not foreigners, not enemies” and even if their grievance is not legitimate you must “hear them out” and not make comments which are based on preconceived opinions or ex-cathedra judgements.

In a 29-minute interview with Karan Thapar for The Wire, Justice Lokur was first asked whether going to court precludes and negates the right to protest. This was his carefully argued answer: “Let me break my answer into a few parts. First, if an individual farmer goes to court, challenging farm laws, does it preclude all other farmers protesting over this matter? I don’t think so.” He pointed out that the individual who has gone to court cannot be said to represent every farmer in the country. Second, he said, there is nothing in the constitution or the law that stops protests just because a court is seized of the matter. As he put it “you can do both things”.

“Now, suppose an organisation goes to court, does it represent all farmers in the country? Unlikely. In fact, why can’t its members carry on protesting? Why not?”

“Now, suppose the matter is raised in a PIL. Does that PIL really represent everyone in the country? Does it stop everyone else from protesting? I would not say so.”

“Whichever way you look at it, whether it’s an individual or an organisation or a PIL that has gone to court, there is nothing that prevents other farmers from protesting.”

At this point, it’s worth recalling what Justice Khanwilkar said on Monday (October 4): “When you have already challenged the law, why should you be allowed to protest? You choose only one option. Either you appeal to parliament or you come to the court. You cannot be doing everything.”

Questioned about the fact that Justice Khanwilkar’s comment seems to contradict the stand taken in December 2020 when former chief justice Bobde, also speaking to farmers, said: “We clarify that this court will not interfere with the protests in question. Indeed, the right to protest is part of a fundamental right”, Justice Lokur explicitly said this contradiction “must be clarified”.

He said though these comments were not part of a written judgment but only spoken verbally, nonetheless, there can’t be a contradiction between what two judges have said. If that contradiction continues, people will be confused and the government will be confused. This is why it must be clarified.

Questioned about the fact the Kisan Mahapanchayat did not move the court in relation to the three farm laws but against a decision by the police to deny permission to protest at Jantar Mantar, Justice Lokur said the court had made “an error” confusing the two issues and treating them as one.

Questioned by The Wire about comments made by the Supreme Court that it wants to examine whether the right to protest is an “absolute right”, Justice Lokur said it’s not an absolute right because there are checks and balances in the constitution – protests have to be peaceful and without arms, but, that apart, “trying to subvert it through other means would create serious problems”. Justice Lokur agreed that the right to protest is a very important right because if it is negated or circumscribed it would affect the right to dissent, differ and disagree and, in turn, that would impinge upon and deleteriously affect freedom of speech.

Speaking about comments made by another bench of the Supreme Court on October 1, blaming farmers for “strangulating the entire city”, an accusation the farmers deny and instead maintain that the roads have been deliberately blocked by the police to discredit their movement, Justice Lokur said that he has concerns about such comments from the court on two grounds. First, they suggest that the Supreme Court, a people’s court, is siding with the state against the people. Second, such comments reflect preconceived opinions and ex-cathedra positions, which it is not fitting for the court to express or rely upon.

At the end of the interview, Justice Lokur was asked if he agrees with a former Delhi high court judge, Rekha Sharma, who, in an article in the Indian Express on October 5, said the Supreme Court has shown “no empathy” for farmers and in reply said there is a need for the court to show “sympathy”.

Justice Lokur also agreed it was sad that he, a former judge, should have to point out that fellow judges were making comments that suggest they are relying on preconceived opinions and ex-cathedra positions.

The above is a paraphrased precis of Justice Madan Lokur’s interview with Karan Thapar for The Wire. Although recounted from memory it is not inaccurate. There is, however, a lot more in the interview than has been covered by this precis. Several important issues raised in the interview are not covered in this precis. Furthermore, Justice Lokur has spoken, not just forthrightly and even bluntly, but very fully about all the issues that were raised in the questions put to him. You need to see the full interview to appreciate the richness of his logic and arguments.

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