MUMBAI: It is not the function of courts to "preach or teach" citizens on what they ought to say or not, retired Supreme Court Judge Abhay Oka observed said while urging constitutional courts to quash criminal cases initiated just to silence dissent.
Speaking at the inaugural Advocate Haroon Solkar Memorial Lecture Series in Mumbai on Saturday, Justice Oka emphasised courts must strive towards protecting citizens' fundamental rights irrespective of whether or not the judges agree with the views expressed by the petitioners. He insisted that everybody has a right to protest in a peaceful manner, and this is recognised by the Constitution.
Quoting Irish write Sir Thomas Moore, Justice Oka said citizens are not expected to say only those things that are liked by the rulers of the day.
"If democracy is to survive, we must guard and protect our freedoms guaranteed under Articles 19(1)(a) and 21 of the Constitution of India (dealing with fundamental rights) even if we have to pay a huge cost to protect these fundamental rights," he told the gathering.
Citizens are compelled to approach courts seeking to quash criminal cases filed over the infringement of their fundamental right to freedom of expression.
When such cases come up for hearing, it is the court's duty to quash them, Justice Oka stressed.
"The court may not like what the petitioners have said or expressed, but still it is the duty of the court to protect the freedom of speech and expression.
It is not the function of the court to preach or teach the petitioner what he or she should have said or not said," the former Judge maintained.
All that the court has to see is whether an offence is made out or not and if there was a violation of the fundamental right of freedom of speech and expression, Justice Oka said.
He added that every citizen has the right to put forth his or her demand and it is the duty of the state to consider the same.
"If demands are not considered, the citizens have a right to stage a peaceful protest, because that is the only way of expressing displeasure," noted Justice Oka, who served in the SC from August 2021 until May 2025.
He further opined that it was the duty of courts to ensure that freedom of speech and expression of every citizen is protected and not stifled upon and to remain ever vigilant to thwart any attempt to undermine the Constitution and its values.
"I always believe that the courts must be at the forefront to protect the fundamental rights of citizens. It is the bounden duty of the courts to ensure that the Constitution and its ideals are not trampled upon," he observed.
If courts are not going to protect these fundamental rights then who is?, Justice Oka questioned.
Reminding the government of its fundamental duties and obligations, the former apex court Judge said when the state infringes upon the fundamental rights of a citizen, then it was basically violating its duty.
The Constitution has certain ideals like secularism, democracy, liberty and so on and it is the state's duty to respect these ideals and provisions of the statute book, he insisted.
"But in the present day, we rarely see the government respecting the ideals under the Constitution," Justice Oka said.
The former top court Judge expressed concern over the rising intolerance towards criticism and said if one does not like or agree with a particular viewpoint then the proper manner to react to it is by expressing your own point of view instead of attacking the person in question.
In a democracy, every citizen has a right to put forth his demands and it is the duty of the state to deal with the same, Justice Oka said.
"The government may or may not accept it (demands), but it is the government's duty to consider it, have a dialogue and discussion.
But perhaps with the passage of time, we have all forgotten these golden principles," he noted.
