Judicial overreach: on the top court and democratic dissent

The Hindu

4 days ago

The Supreme Court of India's recent handling of defamation charges against Congress leader Rahul Gandhi marks a troubling shift from established norms of free speech and jurisprudence on constitutional protections for political discourse. This became clear when the Bench led by Justice Dipankar Datta, while staying the proceedings on Mr. Gandhi's remarks on the Galwan clash in 2020, made problematic oral observations. Among others, Justice Datta said that had Mr. Gandhi been a 'true Indian', he would not have said what he did. The Court's primary function is to adjudicate on questions of law and constitutional principle rather than to prescribe standards of national loyalty. In a democracy, surely a 'true Indian' is one who fearlessly pursues the truth and holds the government accountable — not one who accepts official narratives without question. Mr. Gandhi's commentary, in which he questioned the government's border policies and drew attention to credible reports of Chinese intrusions, also fell well within the legitimate ambit of Opposition politics. This critiquing does not, and must not be seen to, undermine the nation. Such criticism is protected by the principles of free speech and is indispensable for a healthy public discourse. The Court's remarks, by implying otherwise, risk chilling legitimate dissent and setting an inimical precedent for future Opposition conduct.
Equally, Mr. Gandhi's statements regarding Chinese occupation of Indian territory and confrontations are not without backing in public and governmental sources. Open-source satellite imagery, parliamentary discussions, and journalistic reports have documented the aftermath of the Galwan Valley clash, including new Chinese activities along the Line of Actual Control (LAC). A parliamentary committee report has acknowledged the loss of access to certain patrol points in eastern Ladakh. Military officials and independent analysts have corroborated, at various times, the ongoing disputes and loss of patrolling rights over substantial stretches of territory, including parts of Ladakh's Galwan and Depsang areas. Local residents are also unable to access grazing lands. The loss of about 2,000 square kilometres, cited by Mr. Gandhi, is also based on estimates by independent defence experts studying China's LAC transgressions. The general thrust of Mr. Gandhi's remarks — i.e., China has altered the status quo to India's disadvantage and that the government's public statements have not always aligned with ground realities — is supported by public evidence. Thus, the Court must resist the temptation to offer moral or patriotic judgments and instead direct its considerable energies to the rigorous and impartial adjudication of legal questions. Only by adhering to this principle can the Court reinforce its legitimacy and protect the tenets of free and open public debate.