Former Supreme Court judge Justice Abhay Oka on Saturday said that constitutional courts must quash criminal cases instituted to silence dissent and protect citizens' fundamental right to free speech, irrespective of whether judges agree with the views expressed.

He stressed that it is not the function of courts to "preach" or "teach" citizens what they should or should not say.

Justice Oka said,

"Peaceful protest within the constitutional means are a fundamental right of citizens and if we do not allow people to express displeasure by making peaceful protest, there won't be democracy. There are citizens who are compelled to approach the courts and in particular, constitutional courts on the ground by registering an offence. Their freedom of speech and expression is sought to be infringed. When such cases come before the court, it is the duty of the court to quash the offences. 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 s/he should say and what s/he should not have said. That's not the function of the court at all. All that court has to see whether an offence is made out and whether there is violation of fundamental right of freedom of speech and expression. And if court is satisfied that there is violation, court has to grant relief. Court is not concerned whether court likes what the person has said."

Further the judge said that it is the 'bounden' duty of the courts to ensure the freedom of speech and expression is 'protected' and not 'stifled upon' and in fact the courts must remain ever vigilant to thwart any attempt to undermine the constitution and its values.

"The courts must not be seen to regulate or stifle the freedom of speech and expression. I always believe that the courts and in particular constitutional courts must be at the forefront to protect the fundamental rights of the citizens. In fact, it is the bounden duty of the courts to ensure that constitution and ideals of the constitution are not trampled upon. Endeavour of the courts should always be to protect and promote fundamental rights including freedom of speech and expression which is one of the most cherish cherish rights a citizen can have in a liberal constitutional framework. The reason is that if courts are not going to protect these freedoms, these fundamental rights, who else is going to protect? Which institution is going to protect the fundamental rights of the citizen? So, it is a bounden duty of the courts to do so," Justice Oka clarified.

Justice Oka then referred to the recent speech of Supreme Court judge Justice Ujjal Bhuyan who had criticised a Bombay High Court judge for disallowing a group of persons to peacefully protest the killings of children and women in Gaza.

"Few days back I read a speech rendered by my esteemed colleague in Supreme Court, with whom I shared bench for long time. He referred to a case decided by I don't know which is the High Court. It was a case where somebody wanted to hold peaceful protest to deprecate what has happened in some foreign country. Permission was denied by the police. The petitioners approached the court. The court told the petitioners that look why you are bothered about something happening in foreign country, do something about what is happening in our India in our country and the court refused to grant permission. Now court is not concerned with this aspect. Somebody wants to have peaceful protest without committing any offence. Police have to permit it. The protest may on any ground so long as it is a lawful protest within the constitutional framework. It is the duty of the courts to permit it," Justice Oka said.

Justice Oka was speaking at the inaugural lecture of Advocate Haroon Solkar Memorial Lecture Series, wherein he spoke on the topic - 'Article 19(1)(a) and Article 21: Followed or Forgotten.' The event was organised by Advocates Mubin Solkar and his team.

In his speech, Justice Oka reminded that Article 51A which provides for fundamental duties of the citizens are the same duties of the State and its instrumentalities as well and thus, when the State infringes the fundamental rights of citizens' right to free speech and express, it is basically violating its fundamental duty to uphold the fundamental rights of the citizens and to respect the 'ideals' of the Constitution of India.

"All our law laws are framed under the Constitution and therefore it becomes collective duty of the State to abide by not only the Constitution but laws framed under it. Now what are the ideals under the constitution? We'll find in preamble. One of the most important ideals is Secularism, other is Democracy and most importantly Liberty and liberty of thought and expression is also an ideal under the Constitution and therefore it becomes duty of the State to respect these ideals and the provisions of the Constitution especially chapter one fundamental rights. But in the present day we rarely see government respecting the ideals under the Constitution," Justice Oka said.

Unfortunately, Justice Oka highlighted, that neither political leaders nor the law enforcing agencies are abiding by their duty to protect this important fundamental right.

"I have seen during last several years, last few years especially that offences under section 153A and 153B of the Indian Penal Code and offences are applied very casually only because the views expressed by certain persons are not liked by others. A standup comedian makes a fun and says something. He is booked for an offence. Again the reason is the law enforcing agencies are ignorant about the basics of our Constitution. Our police have always ignored and even sadly some of the courts have always ignored this. But now we find that when the people in position are not able to tolerate the hostile point of view, they register offences under these provisions. As I said police, we can't blame police if they don't apply the test laid down by the Supreme Court. But sadly, some of the courts do not follow that test. It is binding on every court because Supreme Court has adopted that test," Justice Oka said.

The judge further pointed out the increase in intolerance to the thoughts which are not liked by the majority.

"Those who are in power do not tolerate criticism. I'm not speaking about any particular political party but this is the feature of our political system. We have forgotten that if you do not like a particular viewpoint, instead of attacking the person who expresses it, we must try to convince him by presenting our own point of view. Even if we feel that the views expressed are wrong, they should be patiently answered by adopting a thought process which we feel is right. Due to ever increasing intolerance, the freedom of speech and expression is under a threat. In a democracy, every citizen has a right to put forward his demands to the State and to the State machinery. That is his right. The State cannot ignore such demands of representation. It is the duty of the State to deal with every request, every representation, every expression of thought by a citizen of India. The government may or may not accept it, but it is the duty of the government to consider it. The government must have dialogue and discussion about any demand put forward by citizens. But perhaps with the passage of time, we have all forgotten these golden principles," Justice Oka said.