Markandey
In a democracy do people have the right to criticise the government ?
Markandey Katju 6 May 2025

The sedition case against Bhojpuri singer Neha Singh Rathore for criticising the Government of India raises the pertinent question whether in a democracy people have a right to criticise the government ?

https://www.indiatoday.in/india/story/case-bhojpuri-singer-neha-singh-rathore-criticising-government-pahalgam-terrorist-attack-2715976-2025-04-28

In feudal times the king was supreme, and the people were his subjects, and subordinate to him.. Hence the people had no right to criticize the king, and were punished for doing so. 

However, in a democracy this relationship is reversed. Now the people are supreme, and all authorities, whether the President of India, Parliament, the ministers, or judiciary, or bureaucrats, or police, or army, are nothing but the servants of the people. Surely the master has the right to criticize his servant, and take him to task if he is not working properly or doing something improper.

After India became independent in 1947 a democratic Constitution was promulgated on 26th January 1950. This Constitution contained a set of fundamental rights of the people, including the right of freedom of speech and expression in Article 19(1)(a).

In State of Maharashtra vs Bhaurao Punjabrao Gawande (2008) the Supreme Court observed that while the first object of the founding fathers was to give to the people a constitution whereby a government was established, their second object, equally important, was to protect the people against the government. The court observed:

The imperative necessity to protect the people’s rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years of the freedom struggle, and had seen an alien government trample upon human rights which the country had fought hard to preserve. They believed, like Jefferson, that ‘an elective despotism was not the government we fought for ‘. And therefore while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that these powers were not abused to mutilate the liberties of the people “

A few months after the promulgation of the constitution, a Constitution Bench of the Indian Supreme Court held in Romesh Thappar vs State of Madras, 1950, that in a democracy people have a right to criticise the government. The court observed, “Criticism of government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression, or of the press.”

The same view was taken in a decision by Justice Abdul Quddhose of the Madras High Court in his historic verdict in Thiru N. Ram vs Union of India and anr in which the learned judge observed, “A very important aspect of democracy is that 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.” He went on to say, “Criticism of policies of the government is not sedition unless there is a call for public disorder or incitement to violence.”

Justice Quddhose also observed, following the Supreme Court’s 1956 verdict in Kartar Singh vs State of Punjab,  that people in power must develop ‘thick skins’. In other words, the authorities should have broad enough shoulders to bear criticism.

 Nowadays politicians in power are often very touchy, and unwilling to put up with any criticism from anyone. Well known cases are of Safoora Zargar, a young Kashmiri woman arrested on patently fabricated charges for criticising the Citizenship (Amendment) Act, Dr Kafeel Khan and Sharjeel Imam, etc.

Prof Ambikesh Mahapatra of Jadavpur University was arrested in 2012 for sharing a cartoon of West Bengal chief minister Mamata Banerji on social media, cartoonist Aseem Trivedi was arrested on a charge of sedition for making a cartoon depicting politicians as corrupt, and folk singer Kovan was arrested in Tamil Nadu in 2015 for criticising Jayalalithaa in connection with corruption in liquor business.

Journalists who criticise the govt or a Minister are often slapped with sedition charges or detained under draconian laws like NSA or UAPA, e.g. Kishorechand Wangkhem who was arrested in 2018 for criticising Manipur CM Biren Singh. A journalist, Pawan Jaiswal, was arrested in Uttar Pradesh in 2019 for reporting that children in a primary school in Mirzapur were being given only roti and salt as a mid-day meal. 

On May 11, Dhavai Patel, editor of a Gujarati online portal  ‘Face of the Nation’ was arrested for sedition for publishing a news item that the Gujarat chief minister, Vijay Rupani, was likely to be replaced.

A large number of similar instances can be given of illegal and unwarranted arrests and detentions at the instance of vindictive politicians. The question is whether, like Bheeshma Pitamah turning a blind eye to the disrobing of Draupadi, the Supreme Court or High Court should ignore these blatant and glaring illegalities. What then will remain of the numerous verdicts of the court itself stating that the Supreme Court is the guardian of the Constitution, and protector of the people’s rights ?

In one of its early decisions in State of Madras vs VG Row, 1952, the Supreme Court held, “As regards fundamental rights the court has been assigned the role of a sentinel on the qui vive”, an expression that  has been reiterated again and again in several decisions of the court e.g. I.R.Coelho vs the State of Tamil Nadu, (2007), Navtej Singh Johar vs Union of India, (2018), Shakti Vahini vs Union of India, (2018), C.Ravichandran Iyer vs Justice AM Bhattacharjee ( 1995 ), Padma vs Hiralal Motilal Desarda (2002), Bachan Singh vs State of Punjab (1982), Indra Sawhney vs Union of India (1992), etc.

In Ghani vs Jones (1970),  Lord Denning observed: “A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest ground.” Whenever a habeas corpus petition (a petition praying for release from illegal custody) comes before a British judge, he sets aside all other files, and takes up the petition as having priority over every other case, since it relates to individual liberty. But what was the performance of the Supreme Court in the habeas corpus cases of Kashmiri leaders detained after the abrogation of Article 370 on  August 5, 2019? The cases were adjourned month after month, whereas the petition of Arnab Goswami, known for his affinity to the government, was taken up on top priority basis. What message does this send?

It is time now for courts to resume their solemn duty of protecting the liberties of the people.

In a recent decision, the Indian Supreme Court has again reiterated that the people have a right to criticise the government in a democracy

https://www.newindianexpress.com/nation/2024/Mar/07/every-citizen-has-right-to-criticise-decision-of-state-supreme-court

https://indiankanoon.org/doc/32533784/

The Court observed "  Every citizen of India has a right to be critical of the action of abrogation of Article 370 and the change of status of Jammu and Kashmir. Describing the day the abrogation happened as a “Black Day” is an expression of protest and anguish. If every criticism or protest of the actions of the State is to be held as an offence under Section 153-A, democracy, which is an essential feature of the Constitution of India, will not survive. The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a). An opportunity to peacefully protest against the decisions of the Government is an essential part of democracy. The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21 ''. 

Now coming to the case of Neha Singh Rathore, it can be seen that she had not given a call for violent rebellion nor created public disorder. She had only criticised the government. Hence from the above discussion it is evident that she was only excercising her fundamental right of freedom of speech guaranteed by Article 19(1)(a) of the Constitution of India, and had committed no offence.


By Justice Markandey Katju, former Judge, Indian Supreme Court


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