The court is not Rahul Gandhi’s uncle. Its job is to protect rights, not preach

Which humanitarian crisis should be prioritised, which words are ‘simple’ enough to avoid hurt feelings, or who is a ‘true Indian’, are not questions warranting court input.

File photo of Supreme Court | ANI

How do you know that 2,000 sq km was acquired by China? What is the credible material? A true Indian would not say this. When there is a conflict at the border, can you say such things?” said a two-judge bench of the Supreme Court Monday, dealing with Rahul Gandhi’s petition asking for quashing of defamation proceedings against him. All this, while the court stayed the proceedings and issued notice to the complainant to show cause why the criminal complaint should not go on.

Leaders of the INDIA bloc were quick to react, describing these as “extraordinary” and “unwarranted” observations.

“It is the responsibility of political parties, especially the Leader of Opposition, to comment on issues of national interest. When a government fails so spectacularly to defend our borders, it is every citizen’s moral duty to hold it accountable,” said the statement.

On the other hand, Maharashtra Chief Minister Devendra Fadnavis has expressed his “gratitude” to the Supreme Court, and Kerala BJP President Rajeev Chandrashekhar said, “I don’t think there is anybody in this country who will disagree with what the Supreme Court has said.”

The Supreme Court has only itself to blame for being censured by an opposition bloc and becoming part of a political slugfest.

Moral policing by courts

This comes on the heels of the wisdom spewed by the Bombay High Court about a week ago. While dismissing a writ petition by the CPI(M) and CPI challenging the Mumbai Police’s denial of permission to protest at Azad Maidan in support of Gaza, the court questioned the parties’ patriotism.

“You are looking at Gaza and Palestine while neglecting what is happening here. Why don’t you do something for your own country? Look at your own country. Be patriots. People say they are patriots, but this is not patriotism. Show patriotism for the citizens of our own country first,” said the high court.

The CPI(M) Polit Bureau condemned the court’s observations in a sharply worded statement. “Ironically, the bench appears to be unaware of either the provisions of the Constitution which enshrines the rights of a political party, or the history of our country and our people’s solidarity with the Palestinians and their legitimate right to homeland… The observations overlook the fact that Mahatma Gandhi in the 40s of the last century, the national movement and subsequent foreign policy of independent India had not flinched from supporting the cause of Palestinian people’s right to freedom and homeland,” the document read.

Following this, a senior advocate urged the court to take suo motu cognisance of the CPI(M)’s press note as criminal contempt. But the judges wisely refrained, sparing themselves further embarrassment.

There have been other instances of the courts making ex cathedra observations while giving protection to petitioners—observations which smack of moral policing or ‘lessons in good taste’.

In the case of one YouTube video creator, the Supreme Court observed: “There is something dirty in this person’s mind that has been vomited by him through this program. Why the courts should favour him?” It proceeded to protect him from arrest.

In a case regarding a university professor’s Facebook post in the context of the recent India-Pakistan conflict, the Court remarked: “This is what we call in the law – dog whistling! … Some of the opinions are not offending to the nation as such. But while giving an opinion, if you … [choose words] deliberately .. to insult, humiliate or cause discomfort to other persons… he could convey the very same feelings in a simple language without hurting others.”

A court’s purview

This judicial proneness to verbal excess is not something new. I remember writing about this 28 years ago in the context of gratuitous observations made by judges of those times. Today, wide publicity to court proceedings and live-streaming should have had a sobering effect on our judges. They ought to be circumspect and apply constitutional tests to cases coming before them.

This is not to say that judges should be robotic, hyper-formal entities. They are human, and the stray comment while thinking through legal problems, or a humorous or frustrated aside, is not only inevitable but a necessary reminder of this humanity.

However, the court is not the citizen’s uncle. It is not there to teach or preach. Which humanitarian crisis should be prioritised, which words are “simple” enough to avoid hurting anyone’s feelings, or who is a “true Indian”, are not questions warranting the courts’ input.

When a citizen approaches a court complaining that their right to free speech—or any other fundamental right—has been violated, it only needs to see whether they are entitled to constitutional protection. The citizen does not need to be told what they ought to have said or done.

Raju Ramachandran is a Senior Advocate at the Supreme Court of India. Views are personal.

(Edited by Prasanna Bachchhav)