Dissent and Democracy

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.