Colonial-era laws, and some of their successors in independent India, are often misused to curb free speech. The weaponisation of the provisions on criminal defamation under the Code of Criminal Procedure (CrPC) and the BNSS stand out. Too often, cases that appear politically motivated or rely on the loosely defined idea of “hurt sentiments” make their way through the system — often, they are seen as serving partisan ends. In such circumstances, it is for the judiciary — at every level — to separate politics from justice and protect free speech.
The sessions court of Special Judge Vishal Gogne in Delhi has risen, admirably, to the task of adjudicating a politically sensitive matter ahead of the assembly election. It must serve as an example across the country.
Judge Gogne quashed the summons against Atishi, underlining at least three principles that must become part of the judicial and political common sense. First, he reiterated that an essential part of free speech “permits one man’s subaltern to be another man’s Naxal, it permits one man’s freebie to be another man’s welfare”. Second, the court asserted that the final judgement on political comments and assertions “must be answered by the court of the people through elections and not courts of law through discussions on defamation”.
The court also questioned Kapoor’s claim of being aggrieved by Atishi’s statements: “A person looking to represent himself as ‘aggrieved’ by virtue of being a member of the party cannot claim legal status as an aggrieved purely upon his legal status as a member of the party”.
The judiciary, particularly at the trial court level, has been seen in recent times as passing the buck on politically sensitive matters, including defamation and the grant of bail. In August last year, then CJI D Y Chandrachud had asked trial court judges to exercise “robust common sense”. By insisting that, “a court of law cannot aid the tilting of the democratic balance between unequal political formations and against the right to freedom of speech”, the Delhi court has done just that. It is now also for the political class to introspect, and perhaps be more judicious in playing politics in court.
