Justice Deepak Gupta, Who Spoke Against Misuse Of Sedition Law And Majoritarianism, Demits Office

Justice Deepak Gupta, who served the Supreme Court as a judge for over three years, had his last working day at the top court on Wednesday.

He assumed the office of SC judge on February 15, 2017.

The Supreme Court Bar Association gave a "virtual farewell" to Justice Gupta on Wednesday evening on account of the lockdown - a first of the kind event in the SC history where a judge is given farewell via video conferencing.

Spoke against misuse of sedition law, majoritarianism.

While Justice Gupta was part of several notable judgments, he will be particularly remembered for his candid and bold speeches on the misuse of sedition laws and the rising tendency to muzzle dissenting voices.

In a speech delivered as part of Justice PD Desai Memorial Lecture at Ahmadabad in September 2019, Justice Gupta said 

"The last few years have given rise to a number of cases where the law of sedition or creating disharmony have been misused rampantly by the police to arrest and humiliate people who have not committed the crime of sedition as laid down by the Constitution Bench of Supreme Court. The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition"

Commenting on the tendency to brand those who raise questions at the government as "anti nationals", he said :

"Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today's world, if any person was to say "nationalism is a great menace" he may well be charged with sedition."

"A very important aspect of a democracy is that the citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live, if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media", he added.

Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition, he emphasized.

In a talk given at an event organized by the SCBA last February, Justice Gupta spoke about the dangers of majoritarianism.

Majoritarianism is an antithesis of democracy, the judge said.

If some party gets 51% Votes, it doesn't mean that the other 49% should accept whatever is done by majority without protesting, he added.

"In a country like India, where democracy is based on the 'first past the post system', more often than not, those in power will not represent the majority of the voting electorate, let alone the majority of people", he said.

Right to dissent is a part of right to life itself, Justice Gupta said.

"...right to dissent and right to question is not only an inherent part of democracy, it is also the inherent party of right to life itself.

"If a country has to grow holistically, not only in terms of economic development and military might or anything, civil rights of the citizens must be protected.

To question, to challenge, to verify, to ask for accountability from government, these are every citizen's rights. By taking these rights, we will become an unquestioning, moribund society, which will not be able to develop any further"

After this powerful speech, Senior Advocate Dushyant Dave, SCBA President,  told Justice Gupta in return "in today's environment of fear, what you have said would warm many hearts".

"Your lecture will assume great significance in today's times as you have encouraged us to speak up", Dave added.

In the farewell function, Attorney General, K K Venugopal, referred to the speeches of Justice Gupta and commented "It was a bold statement for a sitting judge to make"

Notable judgments

Justice Deepak Gupta, sharing bench with Justice M B Lokur,  authored the judgment in the Nipun Saxena case, which laid down elaborate guidelines for protecting the privacy and dignity of rape survivors while reporting rape crimes.

He was also part of the bench in the case Independent Thought v. Union of India, where the SC read down exception 2 to Section 375 IPC to hold that sex with minor wife would amount to rape.

Justice Gupta headed the bench which issued suo moto directions for the creation of special courts and appointment of Special Public Prosecutors in POCSO cases.

His recent judgment in the case Shilpa Mittal vs State of NCT of Delhi is significant for describing what amounts to a "heinous offence" under the Juvenile Justice Act 2015.

In D.A.V. College Trust And Management Society vs. Director Of Public Instructions, a bench led by him held that NGOs which are substantially financed by government would be subject to Right To Information Act 2005.

He was part of the bench (along with Justice Arun Mishra), which passed a slew of directions to control pollution in Delhi, and also ensured implementation of BS-VI norms for automobiles as per the deadline. In this connection, it may be pertinent to note that he had headed the "green bench" as a judge of the Himachal Pradesh High Court.

The judgment which quashed the Income Tax re-assessment notices issued to NDTV was authored by him (as part of bench headed by Justice Nageswara Rao).

Shortly before retirement, a bench led by Justice Gupta held three persons guilty of contempt for making "scandalous and scurillous" allegations against SC judges, and sentenced them to three-month imprisonment. 

Justice Gupta's separate but concurring judgment in the Constitution Bench decision Rojer Mathew v. South Indian Bank Ltd And Others, is notable for the observations on judicial independence and post-retirement benefits.

"One cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post retiral sinecures", he said in the judgment.

Also Read : Justice Deepak Gupta: The Humane Judge

Constitution Is Judges' Holy Book: Justice Deepak Gupta In Farewell Speech