Justice Gupta said,
“Criticism of any institution is to be protected — the executive, legislature,
judiciary, and even the armed forces. There is no holy cow when it comes to
dissent.”
The government has no
right to stifle or quell protest as long as the protests are peaceful, Supreme
Court judge Justice Deepak Gupta said on Monday.
Delivering
a lecture on “Democracy and Dissent” organised by the Supreme Court Bar
Association, Justice Gupta said, “Criticism of any institution is to be
protected — the executive, legislature, judiciary, and even the armed forces.
There is no holy cow when it comes to dissent.”
“No
doubt, these views must be expressed in a peaceful manner, but citizens have a
right to get together and protest when they feel that actions taken by the
government are not proper. Their cause may not always be right, but at the same
time the government may also not be right,” Justice Gupta said.
“Societies
will remain stagnant if there is no challenge to accepted norms,” the judge
added.
After
becoming a judge of the top court in February 2017, Justice Gupta has presided
over many important environment cases, including the case seeking to curb air
pollution in the national capital. He is also part of the bench hearing the
case seeking proper implementation of the Protection of Children from Sexual
Offences (POCSO) Act. He is due to retire on May 6.
“I
was given a number of topics, but I chose to speak on this topic ‘democracy and
dissent’ because of what is happening in the country. Dissent must not only be
tolerated but also encouraged,” the judge said.
“Disagreement,
dissent and dialogue alone can run a democracy. The government and country are
two different things. You can be critical of the government without being being
critical of the country,” he added.
The
judge also said that while the rule of the majority is inherent to a democracy,
majoritarian rule cannot be accepted.
“Especially
in a first past the post system, those in power do not represent the majority
of the voting electorate, let alone majority of the citizens. The government is
not only for whatever percentage of population that voted for them, but a
government of all citizens,” Justice Gupta said.
Speaking
on the significance of dissent in the judicial system, the judge said that
there can be no democracy without a fearless and independent judiciary.
“The
judges must be independent of political power and media influence, and must not
fear to pen a dissent,” Justice Gupta said.
However,
he was quick to point out that personal opinions of judges must not be taken
for dissenting with the law laid down by the court. “Not every case should be
referred to larger bench at the drop of a hat,” he said.
“Even
if I feel that a five-judge bench ruling has not laid down the law correctly, I
am bound to follow it when I sit in a two or three-judge bench. My disagreement
is personal and we should uphold the precedent for certainty of law,” the judge
said.
Justice
Gupta also called out resolutions passed by certain Bar Associations, refusing
to represent individuals deemed to have committed “anti-national activities”.
A lawyer’s refusal to
represent an individual is “totally unacceptable” and “obstruction of the
judicial process”, he added.
