‘Citizens need not say only what rulers like’: Justice Abhay Oka on free speech, protests

Delivering the inaugural Advocate Haroon Solkar Memorial Lecture on the theme “Articles 19(1)(a) & 21 – Followed or Forgotten?”, Oka said governments had increasingly failed to respect the constitutional guarantee of freedom of speech and expression and lamented that dissenters were often prosecuted for expressing views contrary to those in power

MUMBAI: “Citizens are not expected to say only those things which are liked by the rulers. Seventy-five years into our Republic, we can’t be in a situation where a poem or a stand-up comic scares us,” former Supreme Court judge Justice Abhay S Oka said on Saturday, warning that democracy cannot survive unless criticism of governments and peaceful protests are protected.

‘Citizens need not say only what rulers like’: Justice Abhay Oka on free speech, protests

Delivering the inaugural Advocate Haroon Solkar Memorial Lecture on the theme “Articles 19(1)(a) & 21 – Followed or Forgotten?”, Oka said governments had increasingly failed to respect the constitutional guarantee of freedom of speech and expression and lamented that dissenters were often prosecuted for expressing views contrary to those in power.

“Rarely do we see our governments respecting the idea of freedom of expression. I can list out 100 cases,” he said, while stressing that the freedoms guaranteed under Article 19 and the right to life and personal liberty under Article 21 form the bedrock of India’s constitutional democracy.

Emphasising that dissent is integral to democracy, Oka said those in power must respond to criticism instead of criminalising it.

“Those in power do not accept criticism. If views expressed are wrong, they should also be answered patiently,” he said, adding that governments were duty-bound to consider citizens’ demands. “If that’s not allowed, there will be no democracy.”

Drawing from several cases decided during his judicial career, Oka referred to litigation involving denial of permission for peaceful protests against the Citizenship (Amendment) Act, prosecution over a poem advocating love while resisting injustice, criminal proceedings against stand-up comedians and disciplinary action against a teacher who refused to participate in a school prayer. Without naming individuals, he said such prosecutions frequently targeted people expressing views that governments disliked.

“It seems police and the machinery are unaware of the fundamental rights protected under the Constitution,” he said, adding that political leaders and law enforcement agencies were failing to uphold their constitutional duties.

Oka said peaceful protests were indispensable to democracy and reminded constitutional courts of their responsibility to protect free speech.

“When such cases come before the court, it becomes the duty of the court to safeguard the freedom of expression. Peaceful protests must be permitted. If courts don’t protect these rights, who else will?” he said.

Touching upon Article 21, Oka said the right to life also includes the right to a pollution-free environment, pointing to deteriorating air quality, rising temperatures and large-scale tree felling in the name of development.

On personal liberty, he reiterated the settled legal principle that “bail is the rule and jail is the exception”. Asked after the lecture about the continued incarceration of former JNU student leader Umar Khalid, Oka declined to comment on the individual case but said he hoped all courts would continue to faithfully follow the settled law.