Opinion In censuring Rahul Gandhi and laying down a singular definition of Indianness, Supreme Court goes against its own record

While granting him a reprieve on Monday in a defamation case over his alleged remarks on the armed forces in the wake of the 2020 Galwan clash with China, the Supreme Court censured Leader of Opposition Rahul Gandhi for speaking out on the issue. It also doled out a prescription for being a “true Indian” — “If you are a true Indian, you would not say all these things”, it said. Only days earlier, the Bombay High Court questioned the Left parties’ patriotism while upholding Mumbai Police’s denial of permission to the CPM and CPI to hold a protest rally at Azad Maidan in solidarity with Gaza. The court criticised the prioritising of foreign affairs over national concerns — “You are looking at issues in Gaza and Palestine. Look at your own country”, it said. The observations by the apex court and the high court are disquieting.

For one, they mark an institutional overstepping. It is not the court’s remit to define, and to circumscribe Indianness, or to hand out certificates of patriotism, or to decide the LoP’s responsibilities and the political party’s priorities. In a climate of political polarisation, in which the right to freedom of speech is often in need of constitutional protection, and when “anti-national” is a label frequently used to demonise the dissenter and delegitimise dissent, the restrictive strictures of the Supreme Court in particular — on which questions can be asked of the government in times of conflict, and which can’t, and on who is and who is not a “true Indian” — are especially dispiriting. The SC, after all, is the custodian of the constitutional letter and spirit. As such, it is the bulwark against any encroachment of fundamental rights, including and especially free expression. In fact, the Court only has to look back on its own record to see why its current stance touches off concerns. It has established a rich tradition of checking executive overreach and protecting and upholding civil liberties. In earlier judgments, it has underlined, for instance, that “national security” cannot be invoked as a ground to curb fundamental rights. In the 2021 case involving the alleged use of Pegasus malware against citizens, the SC held that while there are limits to judicial review when it comes to national security, “this does not mean that the state gets a free pass every time the spectre of ‘national security’ is raised”. And that “National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”.

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The Constitution of India is distinctive for its capaciousness, for enlarging spaces for expressions of diversity and difference. It accommodates and enables plurality, while enforcing rights and accountability. By laying down a singular definition of Indianness, by turning a restrictive eye on questions asked of the dominant narrative and the government, the Court goes against its own past record and does a disservice to the Constitution. That the oral observations of the Court are not legally binding, that they are only part of the deliberative process, is not a mitigating factor. The Court must recognise that it is a measure of the enormous respect for the institution of the judiciary that what it says is taken seriously — and that, by the same token, in an argumentative democracy, it can have an undesirable chilling effect.