Supreme Court Justice Expresses Concern Over Shrinking Public Space for Dissent and Restrictive Bail Conditions
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BHOPAL – Justice Ujjal Bhuyan of the Supreme Court has voiced significant concerns regarding the diminishing space for expressing divergent views in India, criticizing the increasing trend of arrests for peaceful protests and the imposition of stringent bail conditions that curtail fundamental liberties. Speaking at the 5th Justice G.P. Singh Memorial lecture organized by the National Law Institute University, Bhopal, Justice Bhuyan underscored the importance of debate and dissent as essential elements of a healthy democracy.
Justice Bhuyan observed that public avenues for accommodating varied opinions are contracting, leading to situations where students protesting for their rights are arrested and face prolonged detention without bail. Even when bail is granted, he noted, courts often impose conditions that severely restrict personal freedom. While refraining from commenting on specific ongoing events, he stated it was “not an exaggeration” to claim that the public sphere for expressing differing opinions is indeed shrinking. He highlighted instances where activities like environmental advocacy, which address genuine concerns, are treated as criminal offenses, and protesting students are suspended, arrested, and denied bail for extended periods.
Elaborating on the issue of bail, Justice Bhuyan cited a case where young individuals were arrested for organizing an Iftar party on a boat in the Ganga river, questioning the denial of bail for an activity that, in his view, did not constitute a crime. He remarked on the absurdity of individuals being jailed for three months for consuming chicken biryani, an act for which no law prohibits consumption on the river. He emphasized that citizens are observing these developments.
Furthermore, Justice Bhuyan criticized the growing practice of courts imposing bail conditions that effectively compel self-censorship. He gave an example of an individual who faced an FIR for a Facebook post commenting on a minister’s conduct. While anticipatory bail was granted, conditions included surrendering a passport, despite no flight risk, and a prohibition on future social media posts. He also referenced the “Gulfisha judgment” concerning the Delhi riots, where student activists, after long incarceration, were granted bail but directed to surrender passports and refrain from participating in any public meetings, physically or virtually. Justice Bhuyan questioned whether such restrictive orders might be interpreted as a message from the courts to discourage public engagement.
The Supreme Court Justice also expressed his “amusement” and strong disagreement with a Bombay High Court order that dismissed a petition seeking permission for a solidarity protest with Palestine against actions in Gaza. The High Court had reportedly questioned the petitioners’ focus on international issues, urging them to be “patriots” and address domestic concerns instead. Justice Bhuyan found this reasoning problematic, especially given India’s traditional recognition of Palestine and the presence of a Palestinian Embassy. He further contextualized the issue by mentioning South Africa’s petition to the International Court of Justice regarding alleged genocide in Gaza and the UN-accepted report by former Orissa High Court judge Justice Muralidhar on the violence. He stressed that such global issues should indeed agitate and engage the minds of students and scholars, asserting that universities must be spaces for critical thinking and research.
Beyond the shrinking space for dissent, Justice Bhuyan also touched upon the fundamental principle of separation of powers, particularly criticizing former judges who join politics after retirement. Using the analogy of a three-legged stool, he argued that if two legs (representing the judiciary and executive) are positioned together, the stool (democracy) would collapse. He specifically called out a former Chief Justice of India who stated his intention to join the Rajya Sabha to “bridge the gap” between the judiciary and the executive, deeming it “fundamentally wrong” and a “fundamental fallacy” against the principles of separation of powers.
Finally, Justice Bhuyan defended the jurisprudential legitimacy of the landmark Kesavananda Bharati judgment, which established the basic structure doctrine of the Constitution. He criticized both a former Vice-President and a former Chief Justice of India for questioning this judgment, which has stood the test of time and been applied numerous times by Constitution benches. He asserted that such questioning undermines a foundational legal precedent.
Justice Bhuyan’s remarks served as a powerful call for upholding fundamental freedoms, ensuring judicial independence, and fostering an environment where critical thinking and dissent are not only tolerated but encouraged, particularly within academic institutions.
