Supreme Court and free speech

Supreme Court’s observations while hearing Khushboo’s case have offended many well-meaning people. “Why did you make such an extensive wise statement on virginity?” the Bench comprising the CJI,J.M.Panchal, and B.S.Chauhan asked. And according to some reports, the Bench also ticked her off for being immature and irresponsible, even declaring: “It is difficult to digest her statement. We cannot accept her contention that she did not commit any offence”. The bench asked for the full transcript of the magazine interview.

Antara Dev Sen, in this hard-hitting article in Asian Age, not only regrets the Court’s attitude to Khushboo’s remarks on pre-marital sex, but asserts: “Even if the Supreme Court judges are uncomfortable with what is being said — and it would be tragic if our Chief Justice and others find liberal values undesirable — the right of an Indian citizen to speak her mind cannot be denied.” Sen also expresses outrage at two other episodes which threaten free speech.

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  • I find it insulting to recognize that judges across the world found it easy, and fairly agreeable, to evolve the Wednesbury principles, but they nonetheless, virtually to a man or woman, found a judgment on morality irresistible. They have effectively declared the moral stand, in their interpretation, of Chennai and T.N. The approach, and hence the perspective, is all wrong. If you approach a determination of the scope of a fundamental right from an analysis of firstly, and merely, the scope of the restriction, then you have failed to incorporate due regard for the essence and purpose of the right. Your approach is inverse to the preservation of rights. "You" in the preceding two sentences may be a judge of the Supreme Court or a Joe Bloggs. The position remains unchanged by either.

    Your blog is an exceptional read.

  • I think we should be careful of passing quick judgement (pun intended) on the basis of what is reported in the newspapers during the course of arguments in Court.

    In my experience, reporters invariably tend to get the context wrong and don't often understand the legal niceties of an issue, but look for the potential headlines-grabbing statements and put it into the article.

    That said, my experience of the CJI and J Chauhan's articulation on matters like this tells me that this is probably par for the course in the Chief's court.

  • Just playing devil's advocate.

    Are we reading too much into Judges remarks?

    I have heard Judge's defense that most of their questions are for eliciting truth about a case and that a judge can only be read by the written judgment.

    So in that case we do not know the context in which the judge asked the question and as to what he was thinking.
    And if that is true then the whole condemnation seems incorrectly placed.

  • I doubt there's much context that could justify the judges' attitude and I don't think, on this occasion, they deserve much charitable commentary. Here's an excerpt from the HC judgment: "It is very unfortunate that an accused in a sensitive case, who has been granted relief and directed to comply with certain conditions so as to ensure that again a turbulent situation should not arise, had the audacity to
    pass adverse comments against the court and the legal system."

    All she did was make a comment to the effect that what had said ought to fall within free speech. Now, the same archaic attitude has been replicated by the SC. The CJI reacted with similarly narrow views when a case came up regarding an orkut/facebook community that was critical of Sonia Gandhi and also in relation to publisher's liability on the internet. Sample this:

    Khushboo's case is a continuation of a trend, and any one who values free speech will find it impossible to defend the Court's recent views.