The following speech was delivered on August 1 in Mumbai, by Justice Abhay S. Oka, former judge of the Supreme Court, as part of the inaugural Advocate Haroon Solkar Memorial Lecture. The programme, organised by the Lawyers’ Alliance for Justice, also felicitated Senior Advocate Rafique Dada with the ‘Juridical Excellence Award 2026. ’Justice Oka’s remarks on the courts’ role when it hears cases on protests, and on the broader aspects of dissent, have made headlines. The following is the full text of his speech, transcribed by Saras Anand, an editorial intern at The Wire.Mr Rafique Dada, Mr Darius Khambata, Mr Vishwajeet Sawant, Senior Advocates, members of the Solkar family, my former colleagues in the Bombay High Court who are present here, senior members of the Appellate side bar, other senior advocates and members of the bar and law students.I consider myself to be lucky to be part of this function to felicitate Mr Rafique Dada.I have seen the late Mr Haroon Solkar sitting in room number 18. I have seen him appearing before various courts, but I did not have much of a personal acquaintance with him. I have seen him arguing forcefully before benches dealing with criminal matters. Those are the days when we juniors were told to always sit in the court and not to stand in corridors, and therefore I have the privilege of hearing so many cases conducted by Mr Solkar.I know that Mr Darius Khambata is going to speak on Mr Rafique Dada. But I want to briefly speak about Mr Rafique Dada. In 1995-96, he was the Additional Solicitor General of India. It was a group of first appeals arising out of land acquisition references from Raigad district, where the issue was whether the persons in possession of salt works were the owners of the salt works or whether the same were vested in the Union of India.The trial court had held in favour of the persons claiming to be the salt work owners, and that was a group of about 95 first appeals, and Mr Rafique Dada, who represented the Central Government had told the bench headed by Justice Dudhat that he was going to take about 8 to 10 days because he had to devote a lot of time to argue on law and argue on facts in each case.I remember that late Mr Bhausaheb Bobde, Senior Advocate, was appearing for some of the claimants. Dr D. Y. Chandrachud, as he then was, was appearing for other claimants, and I was representing about 27 claimants. I was in the early years of practice, and I knew that Mr Dada would argue for about eight days. My matters were being called out in other courts. I was rushing to other courts.Late Mr Bhausaheb Bobde saw that, and he told me at the end of the day, he said, “Please don’t do this because you will learn so much from the arguments of Mr Rafique Dada. So, don’t miss that”.And please remember Bhausaheb Bobde was opposing Mr Dada. I still remember the arguments of Mr Dada. He started with the history of land revenue laws in India. He told the court how revenue records evolved. He discussed the 1879 Bombay Land Revenue Code and 1921 rules under the Bombay Land Revenue Code, and it was a treat to hear him.He submitted his written arguments, and since I used to appear in many such matters, I preserved those written arguments. But unfortunately, when I transited from here [Mumbai] to Bangalore and Bangalore to Delhi, somehow I lost the copy of the written arguments submitted by Mr Dada. In 2018, when I was heading a division bench, again I had an opportunity to hear a great performance by Mr Rafique Dada.I think in 2017, an amendment was brought to the Mumbai Municipal Corporation Act which permitted the municipal corporation to levy property tax on capital value.So, he argued, I think, on behalf of the Property Owners’ Association, where the challenge was to the amendment and rules framed pursuant to that amendment. It was really a mesmerising performance. I must say that we could not decide in his favour, but I remember his performance.There is one aspect of Mr Rafique Dada I don’t think anybody will point out. Therefore, I want to point it out. I believe the bench headed by Justice Ajit Shah appointed a committee of lawyers, architects, and eminent citizens of Bombay to monitor activities on Chowpatty beach, and Mr Rafique Dada was the chairman, and I must tell you that later on, as a judge, I had occasion to deal with that litigation. I must tell you that it is only because of Mr Rafique Dada and his colleagues that we see an encroachment-free Chowpatty today, and I can’t resist the temptation to say something about what he did as a member of the committee.I think in 2015 or 2016, the Government of Maharashtra applied to the committee because the committee’s permission was required. The Government of Maharashtra applied to the committee for holding a Make in India event, where they sought permission to construct a huge pandal and a huge stage on the Chowpatty. The committee headed by Mr Rafique Dada wrote a long order, and brilliantly written order, giving reasons why such permission cannot be granted.It was challenged before me by the Government of Maharashtra, and I confirmed it. At the mentioning stage, the Supreme Court granted an interim order permitting the event to be held. Later on, due to a very unfortunate event, we realised how right Mr Rafique Dada was because after that huge pandal was erected, it was gutted by fire, and it caused so muchdamage that the entire sand on the beach was burnt, and that was one of his reasons in his order.I don’t want to take more time because Mr Darius is going to speak on Mr Rafique Dada. Today’s topic is very interesting: Articles 19(1)(a) and 21, followed or forgotten?Of course, I am going to express my personal views on this subject, but most of these personal views find place in my judgments. As all of us know, there are two important fundamental rights conferred on us by the Constitution. One is Article 21, and the other is Article 19(1)(a). And we always say that freedom of speech and expression is one of the most important fundamental rights. Of course, it is subject to clause two of Article 19. You cannot exercise your freedom of speech and expression by violating the law which is framed under clause two of Article 19.Democracy will become meaningless if we do not have freedom of speech and expression. Under Article 21, everyone has the right to lead a dignified and meaningful life. The freedom of speech and expression under our Constitution is not confined to written or spoken words; it extends to art, literature, drama, comedy, cinema, etc. And most importantly, it includes freedom to express opinions. In the absence of a fundamental right under Article 19(1)(a), no one can lead a dignified and meaningful life, and that is how violation of Article 19(1)(a) always amounts to violation of Article 21.There is one more important provision of the Constitution that we have actually overlooked rather than forgotten. It is Article 51A which lays down fundamental duties of the citizens. Article 51A was brought into the Constitution by the infamous 42nd Amendment during the dark days of the Emergency. And that must be one of the reasons why we overlooked Article 51A. In fact, if you go through Seervai’s great commentary on constitutional law, third edition, he has devoted only 15 to 16 lines to Article 51A. If I am not wrong, Mr Seervai says that it is not at all important because it is not a law.Later on, we realised that Article 51A is so important, especially in view of the decisions of the Supreme Court, which held that the fundamental duty of the citizens becomes the fundamental duty of the State. So, all fundamental duties under Article 51A are the fundamental duties of the State and naturally its instrumentalities and agencies, and that is how 51A becomes very relevant.The first fundamental duty laid down in Article 51A is the duty to abide by the Constitution and to respect the ideals under the Constitution. All our laws are framed under the Constitution, and therefore, it becomes a collective duty of the state to abide by not only the Constitution, but laws framed under the Constitution. Under the second part of clause A (a)of Article 51A, the duty of citizens is to respect the ideals under the Constitution. Now, what are the ideals under the Constitution?You’ll find them in the preamble. One of the ideals is secularism; the other is democracy. And most importantly, liberty of thought and expression is also an ideal under the Constitution, and therefore, it becomes the duty of the state to respect these ideals and provisions of the Constitution, especially the chapter on fundamental rights. But today, we rarely see the government respecting the ideals under the Constitution. I have been a judge of three constitutional courts for a fairly long period of 21 years and 9 months. Based on my personal experience as a judge, I can candidly say that I have seen gross violations of freedom ofspeech and expression in our country. I can give hundreds of examples of gross violations, and it starts at the grassroots level.Two cases that I dealt with were referred to by Mr Vishwajeet Sawant, and I am going to elaborate on that. But about 12 or 13 years back, there was a case before me. It was by a teacher working in an aided school in Maharashtra in one of the taluka places. In that school, there was one rule: the morning session began with a particular prayer, and every student and teacher was supposed to stand with folded hands and sing it.This teacher thought it was a religious prayer; therefore, he exercised his freedom of speech and expression and his freedom to express his thoughts, and he candidly told the school authorities that he did not believe in singing this prayer and could not be compelled to join it. He exercised his constitutional fundamental right under Article 19(1)(a). Disciplinary action was taken against the teacher, and that case came to the high court, which I had to deal with.File photo of protest against Citizenship (Amendment) Act and NRC at Malerkotla, Punjab. Photo: Special ArrangementAnother case which I want to refer to is from Karnataka. When the CAA came, people wanted to have a peaceful protest against the CAA. The Government of Karnataka never wanted to allow even peaceful protests, and therefore promulgated an order under Section 144 of the CrPC for prohibiting that agitation. It was not an agitation; it was a protest, and all that citizens wanted was to have a protest in Freedom Park. Freedom Park is like Jantar Mantar in Delhi, but the government prohibited it.Even that was carried to the court. One of the two cases referred to by Vishwajeet Sawant was of a professor from Maharashtra. It was all about his WhatsApp status. He put on the WhatsApp status that 5th August should be celebrated as a black day for Jammu and Kashmir because that is the day on which Article 370 was abrogated. In the second message, he wished Pakistan a happy Independence Day. And there was a third posting he made, in which he said that we are not happy with the abolition or abrogation of Article 370. An FIR was registered against him very promptly, alleging an offence under Section 153A. And what was the allegation? The allegation was that his WhatsApp status promoted disharmony, feelings of enmity, hatred, or ill will between different religious groups.Another example Mr Sawant gave is of a political leader singing a poem in a video. And what was that poem? The meaning of that poem was “While fighting to secure our rights, if weare met with injustice, we will face it with love. ” And there was a very strong statement in that poem. It said that “if bodies of our loved ones are a threat to the rulers, We willbury our loved ones happily”. In fact, if you read the entire poem, it was a poem giving a strong message of non-violence. Still, this man was charged with very serious offences under Section 196, 197, 299, and 302 of the Bharatiya Nyaya Sanhita. 196 and 197 are equivalent to Sections 153A and 153B of the IPC, and what were the allegations? The allegation against him was that he promoted enmitybetween religious groups. His imputations were prejudicial to the national interest, and he uttered words with deliberate intent to wound the religious feelings of many persons.These are only a few examples, but what I learned from my experience as a judge is that perhaps we have forgotten that tolerating divergent viewpoints is an essential part of democracy. Democracy is also one of the ideals and basic features of our constitution.Tolerating thoughts which are contrary to the mainstream is a cardinal value which constitutes the foundation of a democratic form of government. The manner in which law-enforcing agencies target people who express thoughts which are against the popular sentiments shows that law-enforcing machinery like police machinery is either ignorant about fundamental rights under Article 19(1)(a) or does not care about it, and one of the main reasons is that they don’t know their fundamental duty of upholding the Constitution and ideals under the Constitution.In fact, it is the fundamental duty of every citizen, including the police and political leaders, to abide by the Constitution; therefore, it is their duty to ensure that the fundamental rights of freedom of speech and expression and fundamental rights under Article 21 remain protected.As I have freedom of speech and expression, it is my duty to protect the same right available to others. Even if others express thoughts which I do not like, I must uphold their right to express those thoughts. Unfortunately, neither political leaders nor law-enforcing agencies are abiding by their duty to protect this important fundamental right. I have seen during the last several years, and especially during the last few years that offences under Section 153A and 153B of the Indian Penal Code, and offences under Section 196 and 197 of the BSA, are applied very casually only because the views expressed by certain persons are not liked by others. A stand-up comedian makes fun and says something. He is booked for an offence under Section 196 of the Bharatiya Nyaya Sanhita.Again, the reason is that the law-enforcing agencies are ignorant about the basics of our Constitution. Our police have always ignored, and even sadly, some of the courts have also ignored, a very brilliant exposition of law by Justice Vivian Bose as a judge of the Nagpur high court. He said this in 1946 before the Constitution came into force. He was sitting in a full bench of the Nagpur high court dealing with the applicability of Section 124A of the Indian Penal Code, the offence of sedition, and he delivered a majority judgment. And what he has said is important, but unfortunately it is not followed by many. Now, what he says is, while deciding the issue of the applicability of Section 124A, the offence of sedition.What Justice Vivian Bose says is that while deciding the issue of applicability of Section 124A, the spoken or written words must be judged from the standards of reasonable, broad-minded, firm, and courageous men and not those of weak and vacillating minds, nor of those who see danger in every hostile point of view. So, therefore, you cannot apply the offence of sedition or offence under Section 153A or 196 of the IPC only because the persons who see danger in every hostile point of view feel that they are offended. Now, this is the test laid down.What is the effect of spoken and written words? Not on somebody who is very weak or not on somebody who sees danger in every hostile point of view, but the effect on reasonable, broad-minded, firm, and courageous men. This is the test laid down, and at least in three or four judgments of the Supreme Court, this test has been accepted. In fact, the Supreme Court has applied this test even to offences under Sections 153A and 153B of the Indian Penal Code, but now we find that when people in positions of authority are not able to tolerate a hostile point of view, they register offences under these provisions.As I said, the police cannot say they will not apply the test laid down by Justice Vivian Bose, but sadly, some courts do not follow it, even though it is binding on every court because the Supreme Court has adopted it.Bengaluru City Police (BCP) Dog Squad personnel participate in a full dress rehearsal on the eve of 80th Independence Day celebrations at Field Marshal Manekshaw Parade Ground, in Bengaluru, Karnataka, Friday, Aug. 14, 2026. Photo: PTI.If you look at the history of freedom of speech and expression, when I go to law colleges and law schools, I always tell young students to read a defence speech or an address by Lokmanya Bal Gangadhar Tilak to the jury members in the second sedition trial. It was in 1908. In fact, the entire address to the jury is available on the website. He says two things which are very interesting. Tilak says that only because a few people feel that his writings are seditious, his writings will not become seditious. In different words, he says what was laid down later on by Justice Vivian Bose.Another important statement which he makes is that merely because the British government does not like him, that will not entitle them to allege sedition against me. He uses the words “I know that I am persona non grata of the British government, but that does not mean that they can prosecute me under Section 124A”. Now, this was said more than a century back. Even today, it is very relevant when we decide cases under Section 153A. Now, per se, the offence of sedition is not there in the BSA, but it is in a different form.Unfortunately, what he said in 1908 is required to be used today while defending criminal cases. Now, we see intolerance towards thoughts which are not liked by the majority. Those who are in power do not tolerate criticism.I am not speaking about any particular political party, but this is the feature of our political system. We have forgotten that if you do not like a particular viewpoint, instead of attacking the person who expresses it, we must try to convince him by presenting our own point of view.Even if you feel that the views expressed are wrong, they should be patiently answered by adopting a thought process which we feel is right. Due to ever-increasing intolerance, the freedom of speech and expression is under threat. In a democracy, which we adopted on 26th of January 1950, every citizen has the right to put forward his demands to the state and its machinery. Making demands and representations is his right. The state cannot ignore such demands or representations. It is the duty of the state to deal with every request, every representation, every expression of thought by a citizen of India.The government may or may not accept it, but it is the duty of the government to consider it. The government must have dialogue and discussion about any demands put forward by citizens. But perhaps with the passage of time, we have all forgotten these golden principles. If demands are not considered, citizens have the right to stage a peaceful protest because it is the only way to express displeasure.We always remember the last address by Dr Babasaheb Ambedkar to the Constituent Assembly on 25th of November 1949, where he said that after the Constitution comes into force, we should not adopt the means of protest like Satyagraha, etc. But if you see the entire discussion in the Constituent Assembly, nobody at that time imagined that the citizens’ demands would not be considered by the government or by the state, or they would be ignored and there would be no dialogue.Therefore, here comes the right to make a peaceful protest. Peaceful protest within constitutional means. And if we do not allow people to express displeasure by making a peaceful protest, there won’t be any democracy. There are citizens who are compelled to approach the courts and, in particular, constitutional courts on the ground that by registering an offence their freedom of speech and expression is sought to be infringed. When such cases come before the court, it is the duty of the court to quash the offences if it is found that no offence is made out. The court may not like what the petitioner has said or expressed, but it is still the duty of the court to protect freedom of speech and expression. It is not the function of the court to preach or teach the petitioner what he should say and what he should not have said.That’s not the function of the court at all. All that the court has to see is whether an offence is made out and whether there is a violation of the fundamental right of freedom of speech and expression, and if the court is satisfied that there is a violation, the court has to grant relief. The court is not concerned with whether it likes what the person has said.A few days back, I read a speech rendered by my esteemed colleague in the Supreme Court, with whom I shared a bench for a long time. He referred to a case decided by, I don’t know which, high court. It was a case where somebody wanted to hold a peaceful protest to deprecate what had happened in some foreign country. Permission was denied by the police. The petitioners approached the court. The court told the petitioners, “Look, why are you bothered about something happening in a foreign country? Do something about what is happening in our country”, and the court refused to grant permission. Now the court is not concerned with this aspect. Somebody wants to have a peaceful protest without committing any offence.Police have to permit it. The protest may be on any ground. So long as it is a lawful protest within the constitutional framework.It is the duty of the courts to permit it, and since I am on this topic, this was the case referred to by my esteemed colleague Justice Ujjal Bhuyan in his speech in Bhopal. I must read one sentence of the judgment of our bench, which was authored by Justice Ujjal Bhuyan. That was in the case of Wikimedia Foundation versus Union of India. I want to read only one sentence.What Justice Bhuyan said in the course of the judgment is that the courts must not be seen to regulate or stifle the freedom of speech and expression. It’s very important. The courts must not be seen to regulate or stifle the freedom of speech and expression. It is a very important message in the form of law laid down by the Supreme Court to all the courts. I always feel that the courts, and in particular constitutional courts, must be at the forefront in protecting the fundamental rights of citizens.Demonstrators take out a protest rally against Jharkhand Public Service Commission (JPSC) over the alleged irregularities in several examinations, at Albert Ekka Chowk in Ranchi, Wednesday, July 29, 2026. Photo: PTI.In fact, it is the bounden duty of the courts to ensure that the Constitution and its ideals are not trampled upon. The endeavour of the courts should always be to protect and promote fundamental rights, including freedom of speech and expression, which is one of the most cherished rights a citizen can have in a liberal constitutional framework.As a matter of fact, the court must remain ever vigilant to thwart any attempt to undermine the Constitution and constitutional values. The reason is that if courts are not going to protect these freedoms, these fundamental rights, who else is going to protect them? Which institution is going to protect the fundamental rights of the citizen? So, it is a bounden duty of the courts to do so.Now, let us come to Article 21. Under Article 21, I am going to deal with the issue of bail, which necessarily has to be dealt with if I deal with Article 21. But, under Article 21, we have the right to live in a pollution-free environment, and look at what is happening every day. There is a breach of this fundamental right. This year, on 25-26th, AQI of Bombay reached 300.So, we want to compete with Delhi. Delhi has, of course, 400 and 500 from October to January. Now, Bombay was saved only because of the sea breeze. During the last few years, we have systematically seen indiscriminate cutting of trees in the name of so-called development. And see what happens this year. In March and April, Bombay’s temperature crossed 41-42. We have never seen that happening. And why is it happening? Because we don’t perform our fundamental duty of protecting and preserving the environment, and we indulge in massive tree cutting in the name of development.A recent example I want to share with you is a court that permitted the cutting of 45,000 mangroves for a particular infrastructure project. Mangroves are not shrubs. If you go and see mangroves, they are fully grown trees, even 10 metres or 15 metres tall, and they are the soldiers which protect the environment. All that activists said was, please appoint some expert agency.We don’t want to come in the execution of the project. It was a coastal road, but let an expert agency examine and find out whether some mangroves can be saved. Even this prayer was not granted by the court, which was being granted day in and day out in MC Mehta’s case. When authorities used to come to the Supreme Court, especially in respect of the Delhi ridge area, seeking permission to cut the trees, the Court used to take a report of the CEC and invariably, the CEC used to point out that lesser number of trees were actually required to be cut.That is how some trees could be saved. Now, this is happening pan India. We had an example of this which is a matter of recordThough nobody was allowed to cut trees in the Delhi Ridge area without permission of the Supreme Court in the MC Mehta case, we have classic examples of the Delhi government cutting more than 1,100 trees without permission of the court. And what do we talk about? We say that all right, we are doing compensatory afforestation. Now, if you’re going to fell 50-year-old and 100-year-old trees and you’re going to make compensatory afforestation at a distance away from the place where original trees existed, how many years will it take to see those trees growing?These are very disturbing aspects of violations of our right to live in a pollution-free environment. This is happening in every city. Every city is rapidly losing green cover, and we are now facing the consequences. As we are playing with the environment, climate change is one of the main consequences.And again, I say that it is a fundamental duty of the state to protect and preserve the environment. That’s what clause (g) of Article 51A says, but no government entity is bothered about this fundamental duty, and therefore this leads to a violation of Article 21.Well, let us come to the bail. Now, we have jurisprudence laid down by Justice Krishna Iyer that bail is the rule and jail is the exception. But today, unfortunately, we see that, you know, in the magistrate triable cases, people have to reach the Supreme Court to get bail. There’s Najib’s case decided by a beautiful judgment by a bench of three judges. It’s a very simple proposition that long incarceration cannot become punishment if trial is delayed.If trial is inordinately delayed and there is long incarceration, notwithstanding all stringent provisions for grant of bail, a person has to be released on bail. How many courts are following that verdict? There are four judgments of the Supreme Court, not one, four, which hold that the requirement of communicating grounds of arrest to the arrested accused under Article 22 is mandatory. Now, some high courts are not following that, including our Bombay High Court.Now, these judgments don’t say anything more than what is said in Article 22. There is another peculiar thing which I have seen very recently while sitting in the Supreme Court. There are cases where people are granted bail for a limited period by a high court. One example I’ll give you. I have seen series orders filed by one particular high court where, in regular criminal appeals against conviction, an application was made for suspension of sentence and grant of bail. There was a series of orders passed granting bail, say for one year or one and a half years, and liberty to renew the bail again if the appeal is not heard.There are cases where the High Court comes to a conclusion that the applicant is entitled to bail, but bail is granted for 6 months. I said in open court in the Supreme Court that such orders benefit only one class, the class of lawyers. The moment this temporary bail expires, you have to go to a lawyer and the lawyer will charge fees. So, lawyers are the beneficiaries. But the principle of law is that if the court comes to the conclusion that the applicant before it is entitled to bail, then it is the duty of the court to release him on bail. Whatever conditions you want to impose, you can impose.But why do you have half-hearted measures like this temporary bail for six months or one year? And mind you, these orders are not passed on health grounds or any other ground. The courts recorded a finding that the person is entitled to bail, but bail was granted for a limited period. Another example I will give. There is a reported judgment. Delhi high court stayed the order granting bail. There was an ex parte stay of bail. There is a reported judgment of the Supreme Court which says that, as a matter of rule, the order granting bail should not be stayed; only in rare and exceptional cases can it be stayed.Now, we have a scenario where an ex parte stay of the order of bail is being granted by the high court contrary to the law laid down by the Supreme Court, again, following Article 21 of the Constitution of India. I can give several instances of conditions which are imposed while granting bail. There was one condition imposed of dropping a pin on Google Maps as a condition for grant of bail so that after a person is released on bail, police can track every movement of that accused. Of course, the Supreme Court said that such conditions cannot be conditions of bail. But we still find, even after the Supreme Court has ruled, that such conditions are being imposed in bail orders. These are cases of violations of Article 21 and of the fundamental right of freedom of speech and expression; what is the solution?I think the only thing we can do today is to teach democratic values to our children in schools and inculcate the quality of tolerance in them. In fact, we must tell our children that they should stand up against every state action which violates fundamental rights, and the state must become more tolerant. When it comes to freedom of speech and expression, I remember a quote of Sir Thomas Moore, a famous poet and writer from Ireland. Now, what Sir Thomas Moore says is very apt. He says that we must be bold enough to tell the king what he ought not to do and not what he wishes to hear. That’s what he said; he gave a clear message about 150 years back that we must be bold enough to tell the king what he ought not to do.Citizens are not expected to say only those things which are liked by the rulers, and therefore, if democracy is to survive, we must guard and protect our freedoms under Article 19(1)(a) and other, of course, other fundamental rights along with Article 21 of the Constitution of India, even if we have to pay a huge cost of protecting these fundamental rights. I think I have exceeded the time allotted to me, and I want to end by reading something from my own judgment that is very relevant to these two issues.What we have said is that 75 years into our republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem or, for that matter, any form of art or entertainment such as stand-up comedy can be alleged to lead to animosity or hatred amongst the different communities. Subscribing to such a view would stifle all legitimate expressions of view in the public domain, which is so fundamental to a free society. In fact, this is what I wanted to convey today on this topic.I thank the members of the Solkar family for giving me the opportunity to participate in this function and to express my views. Thank you.