'Right to Dissent Is Hallmark of Democracy, Allows Criticism of Govt': Retired SC Judge

At a webinar on the right to dissent, former SC judge Deepak Gupta condemned the use of sedition laws to curb dissent.

New Delhi: Retired Supreme Court judge Deepak Gupta on Friday condemned the use of sedition laws to curb dissent, saying no party is immune to criticism.

He was speaking at a webinar on ‘Our Right to Dissent’ that was conducted by the Delhi High Court Women Lawyers Forum in association with digital legal news portal LiveLaw. Justice Gupta, senior advocate Rebecca John and advocate Chitranshul Sinha were the keynote speakers in conversation with advocates Ritu Bhalla and Manali Singhal. Advocates Arundhati Katju and Swaty Singh Malik were also part of the press conference.

Justice Gupta said that the experiences of Bal Gangadhar Tilak and Mahatma Gandhi, who faced sedition cases during the British Raj, would have ensured that the law of sedition would not exist in independent India.

Also Read: How Bal Gangadhar Tilak’s 1897 Trial Marked the Criminalisation of Dissent

“Disaffection is such a broad term that anything could amount to sedition. Our democracy gives us the right to freedom of speech and expression. Right to dissent is a hallmark of democracy. Even if one party comes into power, it is not immune to criticism and right to dissent allows such criticism,” he said.

He continued, “Look at the conviction rate, it is so low. One’s reputation is destroyed even if one is not convicted. There can be no progress if we stifle dissent. In the last 9-10 years, we have lost our sense of humour. Even today, I’m scared to share or crack a joke even with someone close to me because they might find it offensive.”

He further said that people should get together instead of getting divided. In response to whether the Supreme Court should take up cognisance of stifling of right to dissent and not be a “mute spectator”, Justice Gupta said that suo moto cannot be taken up in every case. “The Supreme Court cannot take up suo moto in every case. But, I do believe that high courts should take up the cause. They are entitled to do so. Manali Singhal now refers to how her daughter Shreya Singhal was of the same age as Disha Ravi when she had challenged Section 66A of the IT Act and that any dissent against the government is seen as anti-national now,” he said.

Justice Gupta warned against tarnishing the image of the entire judiciary. He said, “You do more harm to this movement by tarnishing the entire judiciary because of some aberrations. There are good judgments coming and there are bad judgments coming. It has always happened.”

Justice Deepak Gupta. Photo: Wikipedia

‘Jail is rule, bail is exception’

Senior advocate Rebecca John said that currently, the legal doctrine of ‘bail is rule, jail is exception‘ has been reversed. Talking about the provision of bail under UAPA, she said that Section 43D(5) of the UAPA makes getting bail a virtual impossibility, and how the exceptions in such cases have become the norm. “Why is bail treated as the be-all and end-all of criminal law? I would say everybody is entitled to bail,” she added.

She also said that after FIRs were filed against journalists in connection with the death of a farmer during the Republic Day tractor parade,many journalists have become wary of putting out stories or tweets.

John said, “As a lawyer what I’m doing is looking at articles written by journalists because now they seek opinion before they publish them just in case they are not violating any laws. I have senior journalists send me their tweets before they put it out. What kind of regime is this? Surely we have thicker skin than this and can look at criticism, even the most extreme kind, a bit more constructively,” she said, adding that people are being punished by laws such as the UAPA for their dissent.

On the arrest of Ravi, she said that there are lacunae in the legality of procedures that went into her remand and police custody. She said, “I don’t understand, when she had her lawyer of choice, why was he not brought in. There was no transit remand order also taken. The Delhi high court order of 2019 categorically states that transit remand order is required, unless exigencies exist.” 

Priya Ramani with senior advocate Rebecca John. Photo: Twitter/@AnooBhu

Agreeing with Justice Gupta, she said, “He rightly said that remand is a judicial function. It’s the first important function a magistrate performs when it comes to a criminal case. There is a lack of application of mind which happens at this stage. I cannot emphasise enough the need for magistrates to carefully look into FIRs, case diaries and high court rules and orders – to see whether remand is needed or not. Why is it that intrinsically these judicial functions are treated casually?”

She added, “This is happening in Delhi and not in some obscure corner in India that the magistrate doesn’t realise that these are bailable offences.” She added that personal liberty is intrinsically linked with procedural law and if one does not follow the procedural law, there will be a great breach of liberty and right of that individual to a fair trial.

Also read: ‘Right to Protest Cannot Be Anytime and Everywhere’: SC on Shaheen Bagh Protests

Advocate Chitranshul Sinha said that the Kedar Nath Singh judgment is not being followed by the police. Giving the example of Uttar Pradesh, when some Kashmiri students who apparently supported the Pakistan cricket team were booked under sedition, he said, “Sedition is an offence against the state. But, you see individuals coming forward claiming that the State is feeling threatened because of the acts of some people. Whatever anyone might say, our democracy is not that brittle. The right to dissent is the most important one, and there is no democracy without it. Dissent is in fact a duty.”