The Supreme Court, in a series of judgments, had recognised dissent as a “symbol of a vibrant democracy” and held that a country becomes a jail if citizens are made to move under the “scrutinising gaze” of the police. The judgments are very crucial amid the present crackdown by law enforcement authorities on the free movement of peaceful protesters and detention of dissenters, including septuagenarians and women lawyers for drawing kolams (rangoli), against the Citizenship (Amendment) Act (CAA) and National Register of Citizens (NRC).
“Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes,” Justice D.Y. Chandrachud observed in his dissenting opinion in 2018 on a petition filed by historian Romila Thapar against the arrest of five activists for alleged Maoist links in the aftermath of the Bhima-Koregaon violence.
In another dissent, Justice K. Subba Rao in the 1962 Kharak Singh case said “movement under the scrutinising gaze of a policeman is not free movement. The whole country is his jail”. Justice Rao wrote that restrictions cannot be imposed on free speech and dissent on the basis of the “personal sensitiveness”.
Justice Rao’s dissent was resurrected by a nine-judge Bench in the 2017 privacy judgment, which said “neither life nor liberty are bounties conferred by the State”.
Again, in the Shreya Singhal judgment, Justice Rohinton Nariman said “protected and innocent speech” cannot be curtailed on vague grounds that it was “grossly offensive” or “causes annoyance or inconvenience”. What offends, annoys or inconveniences one may not have the same effect on another.
“The free flow of opinions and ideas is essential to sustain the collective life of the citizenry. An informed citizenry is a pre-condition for meaningful governance,” the Supreme Court laid down in 2010, while upholding actor Khushboo’s right to comment on pre-marital sex.