On October 6, The Wire published a video interview with Justice Madan B. Lokur, prominent jurist and a retired judge of the Supreme Court. The interview focused on the issue of the ongoing farmers’ protests in the country, specifically on the question of whether or not the farmers have a right to protest against the farm laws while the same have already been challenged in court. In the interview, Justice Lokur refutes the position that several sitting judges have expressed: that protests on issues currently being considered by a court should not be allowed. Justice Lokur goes further to suggest that the Supreme Court has espoused contradictory views on the matter; one through Chief Justice S.A. Bobde in 2020 and the other more recently, in the context of the farmers’ agitation.Justice Lokur called for the Supreme Court to clarify the situation in order to clear up the current confusion surrounding the issue and also averred that the court should refrain from making ‘ex cathedra judgements, referring to the Supreme Court’s recent remarks that the farmers were “strangulating” the city.Below is the transcript of the 29-minute interview. It has been edited slightly. Watch the interview here.§Karan Thapar: Hello and welcome to our special interview for The Wire supported by Glenlivet books. If an association or an individual moves a court, does it automatically lose the right to carry out a public protest on the same issue? That’s a question the Supreme Court put yesterday to the Kisan Mahapanchayat. Today we ask, was it an appropriate question for the court to raise in the circumstances or could the court have made a serious mistake? That’s the issue I shall discuss today with one of the Supreme Court’s most illustrious former judges, Justice Madan Lokur.Justice Lokur, on Monday as I said in the introduction, the Supreme Court asked the Kisan Panchayat if they had a right to continue protesting, now that the matter was in front of the Supreme Court. I’ll quote for the audience Justice Khanwilker’s exact words: “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.” So let me ask you, first of all, as an illustrious former judge of the Supreme Court, when a person or an association moves the court, does that preclude and negate the right to carry on protests on that issue?Justice Madan B. Lokur: Thank you Karan for inviting me to your programme. As far as your question is concerned, I’d like to break it up into a few parts. One is that an individual goes to the court. Take the case of farm laws. If one individual farmer goes to the court and says that I want to challenge the farm laws, does it preclude all the other farmers in the country from protesting against the farm laws? I don’t think so. Does it preclude that one individual farmer from protesting? I don’t think so. The constitution does not say so; there is no law which says that if you go to court, you can’t protest. Why can’t somebody do both the things? Freedom of expression, freedom of assembly is a constitutionally guaranteed right. Even if one individual goes, it makes absolutely no difference. If he wants to protest, he can protest. Certainly, he cannot bind all the others. That’s one aspect. The second aspect is if an organisation goes. That organisation, if it purports to represent all the farmers in the entire country, is being a little facetious, I think; you can’t have one organisation representing all the farmers in all the parts of the country. Again, its members can be told, “You can’t ride both the horses” but answer is the same: Why not? There’s no law which prohibits that and it certainly does not bind anybody else. Others can also protest. Therefore, whichever way you look at it, whether an individual goes to the court or whether an organisation or an association of persons goes to the court, there is nothing that prevents that person or that organisation from challenging the law and also protesting simultaneously. You have the third category of public interest litigation where some third person – who’s not even a farmer – challenges the laws in public interest. Who is that individual representing? The person is representing the people, which means the entire country, theoretically. Why can’t the farmers protest if they want to and say, “All right, you can fight the battle for us in the court but we still have a right to protest.”So, whichever way you look at the problem, I don’t think there’s anything which prevents a person from going to court and also protesting against a law which that person believes is unconstitutional.Also read: ‘You Have Strangulated Entire City’: SC Tells Farmers Group on Highway BlockadeKT: This is crystal clear, Justice Lokur. You said whether it’s an individual who goes to court, whether it’s a PIL put by someone who purportedly claims to represent the country or whether it’s an organisation that purportedly claims to represent all farmers, in all three categories, that does not preclude other individuals, other groups, other people from protesting. That’s perfectly clear.In fact, I noticed that this is precisely what Chief Justice Bobde said in December, 2020. Ironically, at the time, he was addressing farmers in court. Perhaps the same farmers. His words were: “We clarify that this court will not interfere with the protests in question. Indeed, the right to protest is part of a fundamental right.” Doesn’t that mean in less than two years, the question that the Supreme Court raised on Monday suggests that the court is in danger of taking two completely contradictory, polar opposite stands on the same issue?Justice Lokur: Yes, but look at it slightly differently. What has been said is actually not a part of the judgment; it’s an oral observation, which is what the judge feels. But it is important; it carries a lot of weight. Why does it carry a lot of weight? Because a sitting Supreme Court judge is saying it. Whether it’s the Chief Justice or some other judge, it carries a lot of weight. So even though it is not a part of a judgment and because it carries a lot of weight, there cannot be a contradiction. Otherwise, everybody is confused. What are the people supposed to make of it? Are they supposed to say, “We can’t protest?” Another section will say, “Why can’t we protest?” Some other judges may say, “Yes you can.” What is the state or the establishment to make of it? Suppose they want to go and break the protest. The protesters will say, “Who are you to break the protest?” In fact, if the establishment makes sense and says we can’t break the protest because it has been said by a sitting Supreme Court judge, that is perfectly valid. It just generates confusion. If I may say so with respect, when two judges of the Supreme Court or two benches of the Supreme Court take two opposite stances, it causes confusion in the minds of the litigants as well as the state. KT: So even though these two comments: Justice Bobde in 2020 and Justice Khanwilker on Monday, are only obiter dicta, nonetheless, you’re saying that they need to be clarified. You cannot have judges saying contradictory things; it sends out a confusing message. It leaves the people not sure what the position is. Therefore, even if it’s an obiter dicta, which is a spoken comment and not a written judgment, it still must be clarified. Justice Lokur: Yes and I would say that it’s not only the people who will get confused, it’s also the government that will get confused. What is the government supposed to do? Are they supposed to say that this protest is illegal or are they supposed to accept it and say it’s legal. It’s legal because Justice Bobde said so, it’s illegal because some other judge said so. It’s just confusing everybody on both sides. KT: Now, there’s a further element here that I want to clarify with you. It wasn’t the kisan mahapanchayat that actually moved the Supreme Court on the farm laws issue. That, I believe, was done by a PIL. What the kisan mahapanchayat did was to go to the Supreme Court in protest against the police not giving the it the permission to stage a separate demonstration at Jantar Mantar. These are clearly two different issues. But the court – or at least in the comments made by the judge – seems to have been confused and merged two into one. Was it a mistake to merge these into one when they are clearly two separate issues? Justice Lokur: Yes, it is an error. You can’t, in one case where you’re dealing with the validity of an order passed by the police, make an observation with regard to something else which is not before you. I mean, it may be before you in some other case, but keep it separate.Why did this kisan mahapanchayat go to the court? They said – at least they seem to have filed an affidavit saying – “We are not part of the protesting farmers. We want to protest against the farm laws, we want to go to Jantar Mantar.” When the police said no, we are not going to give you permission, they asked why. Whether the police give a reason or they don’t give a reason, whatever reason they give, the mahapanchayat is not satisfied with it. They decide to go to the court to challenge that decision or the refusal to give permission. This should be decided. Are you, as judges, satisfied that the grounds given by the police are valid? If not, strike it down. But if somebody else is on a protest somewhere else and therefore you are collaterally brought in ? I don’t think that’s fair to the kisan mahapanchayat. That’s not why they came to the court. KT: I’ll just repeat two things you said. First, you said this is an error and second, you said this is not fair to the kisan mahapanchayat. The court is amalgamating into one what are clearly two separate issues. There is a second issue also that I’d like to put to you, Justice Lokur. The court, through its question, is suggesting that you can’t protest once the matter is before the court. But on the other hand, the court seems to be in no hurry to conclude the matter that is before it. More than six months have passed since the committee appointed by the court presented its report in a sealed envelope. No one knows what that report says other than the judges who received it. The judges have done nothing about it. As laymen would put it, they’ve effectively sat on it for six months. Is it therefore fair to stop farmers from protesting, when you yourself don’t seem to be in any hurry to conclude the matter?Justice Lokur: Well, all I can say is that it’s very unfortunate for two reasons. One is, like you said, it (the court) has been sitting on the report for almost six months (I think it was given in March so about five or six months). At least open the report. Let the people know. Some persons whom you have appointed to look into the matter have given a report. At least give them that much importance and say, “Yes, you’ve given us a report, we’ll have a look at it. We may not agree with it.” I don’t know what the report contains but that’s one aspect.The second aspect is that the farm laws were challenged by somebody, maybe by farmers, maybe by somebody else. How about deciding on them? Take the Citizenship Amendment Act (CAA), for example, with protests all over the country. The cases were filed three or four years ago. Why are they not being decided? Then people are told now that they can’t protest. Suppose, the Supreme Court doesn’t decide it for the next ten years, so for 10 years you can’t protest on it? What happens? Also read: Interview | ‘Lakhimpur No Mishap, Delay in Probe Will Have Serious Impact’: BJP’s Birender SinghKT: This is a very good example that you have raised; the CAA. The Supreme Court has the matter before it. It’s not hearing it. It’s clearly, as layman would say, dragging its feet on the matter. Therefore, if the Supreme Court’s position on the kisan mahapanchayat is to be taken to its logical conclusion, it means that no one can protest over the CAA; if the court takes ten years or more to hear the matter, then you can’t protest for ten years. This is clearly not just unfair, it would look injudicious to many and it would seem illogical to many. I think you put that very well. Just to clarify, the sealed report was given to the Supreme Court in March. Therefore, today being the October 6, we’re over six months since it was given.Now, there are two other issues that arise because of questions that were asked by the Supreme Court judges on Monday. First, the Supreme Court asked, “Have you taken permission of the citizens living nearby?” Is such permission necessary and, if that wasn’t taken or if the citizens didn’t grant it, does it make the protest illegal?Justice Lokur: As far as I’m aware – and please correct me if my information is incorrect – the farmers who are protesting wanted to come to Delhi and to protest on the Ramlila ground, where so many protests have taken place in the past. ‘India Against Corruption’ was there. They (the farmers) have been stopped from coming to Delhi; they were told that they couldn’t enter. So what are they supposed to do? They have two options. One is to go back home as they can’t enter Delhi, so they can’t protest. The second is to say, “Alright, you’re not letting us enter Delhi, we’ll protest at the border.” What did they do? They chose the second option. They said, ‘We are going to protest at the borders.” Now, if the people in that area are inconvenienced, they are inconvenienced not because of the farmers protesting over there but because the farmers have been compelled to protest over there. If the farmers had been allowed to come to Ramlila grounds in Delhi, these neighbours would not have been inconvenienced. How can you blame the farmers for this? You tell a person that you won’t let them enter and then you say that, because you’re outside, you’re causing problems to somebody else. I’m sorry, it doesn’t make any sense to me.Barricades being set up by the police near the site of farmers ongoing protest against farm reform laws, at Singhu Border in New Delhi, Monday, Feb. 1, 2021. Photo: PTI/Kamal SinghKT: And it also, therefore, follows from your answer that there’s no need to seek the permission of citizens living nearby. That’s irrelevant. Justice Lokur: Right. In fact, the police should have said, ‘Listen, do you mind if these farmers protest over here?’ The police should have taken permission. Why the farmers? The police have compelled the farmers to be there.KT: Absolutely. Now, there’s a second issue that arises, again, out of questions raised by the Supreme Court on Monday. The Supreme Court said it wants to examine whether the right to protest is an absolute right. As someone who’s been one of the most illustrious Supreme Court judges of recent times, what’s your answer to that question? Is the right to protest an absolute right? Justice Lokur: It’s not an absolute right in the sense that there are some checks and balances that are given in the constitution. You have the right to protest, the right to assemble but there are some checks and balances that are there in the constitution. Now surely, when it was debated in the constituent assembly, the members of the constituent assembly knew what they were doing. But if you try to subvert that right through some other means, then there’s a problem. You had mentioned, Karan, something about inconveniencing the neighbours. Now it appears – again correct me if I’m wrong – that when the Shaheen Bagh protest took place against the CAA, the police had blocked some roads for the purposes of diverting traffic. The blocking was done in such a manner that there would be a traffic jam and the commuters would get harassed. That harassment was then said to be because of the protest, but what is the reality? The reality is that those barricades were put up by the police; they created the situation. You’ve had occasions in Delhi when metro stations have been shut down. Why? Isn’t that inconveniencing people? And who has shut down these metro stations? It’s not the protesters at Shaheen Bagh; they didn’t do it. They can’t; they don’t have the authority or the power to do it. It has been done by the state. It is the state which has caused the inconvenience when they close down metro stations. KT: I want to take up, in a moment’s time, the very important point you just made about how the state blocked roads by closing entry and exit points and then tried to blame it on the farmers. But before I come to that point, just to clarify on this big question of whether the right to protest is an absolute right or not, are you saying that the fundamental basic check is that it must be a peaceful protest? If it is peaceful and if it is within the law then it is a right?Justice Lokur: You’re right. Peaceful and without arms. That’s what the constitution says.KT: In other words, a peaceful protest without arms is legitimate, legal, constitutionally valid and cannot be stopped in a democracy. Justice Lokur: Yes, it should not. I mean, unless there’s good enough, sustainable reason that the group is going to cause mayhem. Then, perhaps, permission can be refused. KT: Can I put one other point to you which I make as an anchor rather than someone who’s a lawyer? To me, it seems that the right to protest makes effective the right to dissent, the right to disagree, the right to differ. In fact, you could even argue that it makes freedom of speech effective. If you can’t protest about what you don’t like – and I admit it has to be done peacefully – then freedom of speech, the right to dissent, the right to differ and the right to disagree all become ineffective. So, in that sense, it’s a very important right. Justice Lokur: Correct, absolutely. I am 100% in agreement with you. You see, there are various forms of protest. I’m a literate person so I write and protest. If I am an illiterate person, I can’t write and protest, so what do I do? I get hold of another 100 people like me who are illiterate and we hold a dharna or a sit-in or something. What’s wrong with that? It is my form of expressing disagreement or my dissent and, as long as I’m doing it peacefully, you can’t stop me. Also read: ‘Not Satisfied’ By UP Govt’s Actions on Lakhimpur Kheri Incident: Supreme CourtKT: In fact, you’ve made a very important point Justice Lokur. In a country where literacy is limited to 70% – and by the way, I’ll just add for the audience, often literacy is judged not by your ability to write properly but simply by the fact you can sign your name. Therefore, that’s not really literacy even though the government claims this is literacy – the right to protest becomes even more important. It’s the only way you can indicate to the government or the authorities that you disagree. Therefore, to curb it means that the 30% who are not literate are suddenly denied the right to dissent and disagree and to make that known.Justice Lokur: Correct, absolutely right. I’m in complete agreement with you. KT: Let me then come to the point you made about how it’s the police, the state and the authorities who often put up blocks on entry and exit points, thus creating problems for traffic for movement of the people, but blame it on the farmers.This was a point that refers to what happened in the Supreme Court, but to a different bench, on October 1st. That bench said to the farmers, “You have strangulated the entire city.” The farmer’s defence is that it’s not they who block the roads, it’s the police who put barriers on entry and exit points to give their movement a bad name. Judges are meant to be discerning. Judges have a duty to be accurate. Surely, that bench of the court should have made some effort to ascertain the truth before it pinned the blame solely on farmers?Justice Lokur: Right. You’re absolutely right on that. You see, I don’t want to go into history, but one of the reasons why the Supreme Court was considered to be the most powerful court in the world is because it was the people’s court; people came first. What does the constitution say? The constitution says that it guarantees to me the fundamental rights. If somebody tries to violate those fundamental rights, I can go to the court and say to them, ‘Please protect my fundamental rights.’ That’s how it becomes the people’s court; when it starts protecting the fundamental rights of the people. But when you assume that the people are strangulating the city of Delhi without ascertaining whether the people are doing it or whether the state is doing it, you deviate from being a people’s court and that’s where the problem lies. The state becomes more important, not the people. What is important for our constitution – and for our courts – are the people. The moment you say that, ‘You’re (people) there but I think somebody else (state) is little more important than you,’ there’s a problem.KT: In layman’s language, what you’re saying in making that comment to farmers, the court gives the impression of siding with the state against the people. Firstly, this undermines the belief that this is the people’s court, which is the basis on which our Supreme Court becomes perhaps the most powerful Supreme Court in the world. But secondly, if you give the impression of siding with the state against the people, then you’re becoming partisan and that also affects the image of the quality of justice you give.Justice Lokur: Not necessarily because here I’m assuming it’s an off the cuff comment because there has been no basis for coming to the conclusion that if Delhi has been strangulated, it’s only because of the farmers. It could have been strangulated because of blockades by the police. So you have to get both the facts and then come to a conclusion.KT: Absolutely. The judges should have the facts known as to what happened and then seek to pin blame or make comment rather than to do so without having the facts clear. We’re coming right to the end of this interview, Justice Lokur. Finally, I want to put to you a point made yesterday in the Indian Express by Rekha Sharma, a former Delhi high court judge. She says, “The Supreme Court is being very uncharitable to the farmers.” That’s an exact quotation from her. She also says, “There’s no empathy for them. They’re not being treated with the dignity and respect they deserve.” Would you agree?Justice Lokur: This is where the concept of the people’s court comes in. These farmers are not foreigners, they are not enemies. They are Indians; they have a grievance. The grievance may not be legitimate, but hear them out at least, instead of saying, “You are the cause of strangulation, you are the cause of the problems.” How do you know if you don’t hear them out? So many cases come to the court. It doesn’t mean that every case is a good case. Some grievances may not be legitimate at all, that’s why they get dismissed. So, it’s possible that the grievances of the farmers is not legitimate. But don’t go on the assumption that they are causing a problem and so many people are being inconvenienced. And commuters of all the people? What about all the other traffic jams that are taking place in Delhi which those commuters face? Blaming them (farmers) with that sort of ex cathedra statement, I think, should be avoided.KT: I want to pick up very quickly on something you said. You said, “…don’t go on the assumption,” and then you said, “…blaming them with ex cathedra statements should be avoided.” Those are not things one expects from judges. You expect judges to be very conscious of actually being objective; putting their assumptions aside and relying only on facts; completely avoiding any ex cathedra statements. That’s what judicial training makes a judge very conscious of. Isn’t it sad that you, a former judge, had to make that comment about people who are your fellow judges? I’m not asking you to be personal about them, but isn’t it sad that this has to be said?Justice Lokur: Yes, it is sad. I can’t say I’m very happy with the statement. It is sad and you see, judges are responsible people. Whether they are at the high court level or the Supreme Court level, they’re all responsible people. The situation is delicate, you know, just handle it with a little bit of sensitivity. KT: Right sir, it’s a delicate situation. It should be handled with sensitivity. Justice Sharma of the Delhi high court said, “With empathy I take it that sympathy and empathy are synonymous terms in this situation.” I thank you, Justice Lokur, for this interview. I thank you in particular for very clearly and forthrightly laying out the situation and making it clear that, whether it’s an organisation, an individual, a PIL, that does not preclude the right of other people to maintain and continue peaceful protests on the same issue regardless of going to court or not. That’s very important because I think it clarifies the situation for everyone. Thank you sir. Take care. Stay safe.Justice Lokur: Thank you. All the best.
