“The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree.”

Thus, the right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen, and those in power, and propagate what he believes is his belief. He said that though every society has its own rules, if over a period of time people only stick to the age-old rules and conventions, society will degenerate. New thinkers are born when they disagree with the well-accepted norms of society. If everybody follows the well-trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found. If a person does not ask questions and or raise issues questioning age-old systems, no new systems would develop and the horizons of the mind will not expand. He cited the examples of Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx and Mahatma Gandhi, stating that no new thoughts and religious practices would have been established if they had quietly submitted to the views of their forefathers and not questioned the existing religious practices, beliefs, and rituals.

“Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution.”

Justice Gupta then proceeded to cite the famous dissenting judgment of Justice HR Khanna in the infamous ADM Jabalpur Case .

“The judgment of HR Khanna, J in A D M Jabalpur case, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible judge. Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill-will. First and foremost part of the duty is to do one’s duty without fear.”

No Decision on Sedition Charges Against JNU Students Yet: Kejriwal

“While appearing before Sessions Judge Broomfield, Mahatma Gandhi while dealing with the word ‘disaffection’ had this to say: ‘Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.’ I think this brilliantly sums up what I want to say today that mere criticism without incitement to violence would not amount to sedition.”

However, the Mahatma was sentenced to undergo imprisonment for 6 years, Gupta J. noted.

“I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual.”

Sedition can arise only against a government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the government…. Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony, the judge explained.

“It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country. In a country which professes to live by rule of law, this cannot be permitted.”

Thus, the law of sedition is more often abused and misused and the people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from the court, he has suffered the ignominy of being sent to jail. The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition. Sedition is a crime only when there is an incitement to violence or public disorder. But the law as laid down in Kedar Nath Singh’s case regarding sedition is not being followed.

“India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the Government. Criticism of the government by itself cannot amount to sedition.”

In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives. He urged those in power to develop thick skins and to be magnanimous to accept criticism. They cannot be oversensitive to people who make fun of them. In a free country, people have a right to express their views.

“The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view. Criticism of the policies of the government is not sedition unless there is a call for public disorder or incitement to violence. The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. In a free country, people have a right to express their views.”

Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony.

“In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected.”

Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be.

“He, in fact, had not appreciated the Satyagraha Movement. He, who wrote the national anthem also held the view that “nationalism is a great menace”. I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindranath Tagore less an Indian, less a patriot than any of his contemporaries.”

Merely because a person does not agree with the government in power or is virulently critical of the government in power, does not make him any less a patriot than those in power. In today’s world, if any person was to say “nationalism is a great menace” he may well be charged with sedition said Justice Gupta before concluding his speech with Tagore’s “Where the mind is without fear.”

Right to Dissent is Guaranteed Under Constitution, Criticism of Government Not Sedition: Justice Deepak Gupta, Supreme Court Judge

Supreme Court judge Justice Deepak Gupta gave a stirring speech on law of sedition and freedom of expression today.

He was giving the valedictory address on the topic ‘Law of Sedition in India and Freedom of Expression’ at the Workshop of Lawyers organised by Praleen Public Charitable Trust and Lecture Committee in Ahmedabad, Gujarat.

Berating the recent tendencies to stifle free speech by governments in power using the law of sedition, Justice Gupta, in a strongly worded address, reminded that in a first-past-the-post system, majoritarianism cannot be the law and the minority also has the right to express its views.

Justice Gupta also came down upon the tendency to bracket people as ‘anti-national’ for having a different point of view and criticised the trend of social media trolling due to which people are scared to express their views.

Read excerpts from his speech below:

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Criticism of the Government is Not Sedition: Justice Deepak Gupta

All the highlights from the Supreme Court judge’s speech on how sedition law has been misused in India.

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Topics: Sedition Freedom of Speech Dissent