Right to freedom of speech and expression guarantees individuals the liberty to express themselves, criticise others and comment on issues. All these must necessarily be peaceful. But can any court shut an individual’s right to protest against judgments and orders?
The Supreme Court did just that in the contentious Cauvery water issue. Escalating protests coupled with violence in Karnataka and Tamil Nadu made the SC say , “There cannot be any agitation when it relates to an order passed by the court.”
The SC was right in asking the authorities to clamp down on violence. But the anxiety to see return of normalcy cannot be a ground to convey that even peaceful protests and agitations against SC orders would not be tolerated.
We are witness to public protests against orders of the highest courts world over, including India.On June 2015, the US Supreme Court by a slender five to four majority declared gay marriages con stitutionally valid, mandating all 50 states of the federal republic to recognise same sex unions (Obergefell vs Hodges, Director, Ohio Department of Health).
The LGBT community celebrated. But the church erupted in protest. Billy Graham Evangelist Association, Southern Baptist Ethics and Religious Liberty Commission and US Bishops Conference virtually rebelled against the judgment. Some of the churches said they would not conduct same-sex marriages.
In India, too, we witnessed this.An SC judgment closed a small window opened for the LGBT community by the Delhi High Court, which decriminalised Section 377 to exempt consensual relations between adults of the same sex in private from penal consequences.
The rainbow community protested, albeit peacefully, against the SC judgment.
The SC’s decision to limit the height of `dahi handi’ and bar participation of minors in Janmashtami celebrations in Maharashtra saw 500 `dahi handi mandals’ congregate at Shivaji Park on August 22 to protest against the court or der. In May , several hundred Kosovo Albanians protested against a ruling of the Kosovo Constitutional Court for confirming the rights of Serbian Orthodox Visoki Decani monastery to 24 hectares of land.”The constitutional court trespassed on justice,” read the banners with protesters.
A person may militate against a perfectly valid and legitimate court order because in his perception it was an unjust judgment. Can we deny him the right to protest against the court order? Are court orders infallible?
Even the SC cannot claim infallibility. More than 70 years ago, US SC judge Robert H Jackson had said judges, despite being addressed as Lords, shared the human susceptibility to err.
In Brown vs Allen, (1944 US 443 at 540), he had said, “Reversal by a higher court is no proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”
True, Indian Constitution under Article 144 mandates “all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court”. But it does not even remotely suggest that while implementing an SC order, one must wholeheartedly subscribe to it. A five-judge bench of the SC in Bihar Legal Support Society vs Chief Justice of India (1986 SCC (4) 767) had in a short and crisp judgment told judges that they were neither infallible nor their words the last. Legally may be, but not in the perception of a common man.
The society’s petition had protested against a midnight sitting of the SC to grant bail to two industrialists -Lalit Mohan Thapar and Shyam Sundar Lal -and asked the CJI why similar expeditious hearing was not accorded to bail petitions of poor men languishing in jails? This question is ironic and bound to inspire a feeling of deja vu in those who have been following the SC for some time.
The SC had conceded that it would not be possible for it to right all wrongs because it was not immune from making mistakes. To make judges realise that they did not possess the panacea for all ills, it had said, “The apex court must interfere only in limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, blatant and atrocious miscarriage of justice.
“Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers.”
The 30-year-old judgment needs to be put up in bold big font in the inner chambers of the SC, which has forayed into unimaginably diverse fields from constitutionality of jokes on Sikh community to mushrooming of NGOs.