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Justice Surya Kant, who held Nupur Sharma ‘single handedly responsible’ for murders committed by Jihadis, now says free speech is sacrosanct, must be ‘zealously protected’

The harsh rebuke by a bench comprising Justice Surya Kant and Justice JB Patriwala gave a clear indication that those who dare to speak against Islamist fundamentalism even as rebuttal or response to derogatory comments against one's own faith, can face dire consequences and will be held responsible for the crimes committed by Islamists.

On 10th May, Supreme Court Judge, Justice Surya Kant, stressed the importance of free speech, particularly about the press. He stated, “Freedom of speech needs to be zealously protected, especially for journalists”. Justice Kant’s comments reflected a strong defence of freedom of speech necessary for the functioning of democracy. He added, “In a democracy, if the fourth pillar (media) is weak, then the building will not be strong”.

His perspective is significant as it is a robust endorsement of the media’s role in a democratic society. It suggests that the freedom to report and express opinions is fundamental. However, it is essential to look at his views critically, especially because he was one of the judges on the two-judge bench which heard former Bharatiya Janata Party’s (BJP) spokesperson Nupur Sharma’s plea to club all FIRs in the matter linked to alleged controversial remarks against Prophet Mohammed in 2022.

Justice Surya Kant’s remarks on freedom of the press

On 10th May, Justice Surya Kant spoke at the launch of the book titled Comparative Advertising: Law & Practise’ written by Senior Advocate Chander M Lall. Along with Justice Surya Kant, Supreme Court Judge Justice KV Viswanathan, Delhi High Court Acting Chief Justice Manmohan and Delhi High Court Judge Justice Vibhu Bakhru were present at the event and participated in the discussion.

Justice Kant said, “There cannot be any second opinion that the right to free speech needs to be zealously protected and we must take all measures to protect that right. There may be some direct or indirect efforts in different ways [to curtail the right to free speech] because it is an innovative world and people keep on inventing different kinds of methods and mechanisms. Sometimes, these are misused to trample on this right. But I think our system is such…  It [freedom of speech] is not only a constitutional guarantee but a part of the right to a dignified life. This right to dignified life also includes the right to free speech.”

Speaking specifically on the freedom of speech of journalists, he said, “Particularly, for the journalists and media that rights need to remain protected, subject to whatever constitutional restrictions are there. These are qualified as reasonable restrictions, beyond that, the right must be protected. Much also depends on a case-to-case basis. Sometimes we may find that it qualifies as reasonable restriction but when it is found that in the name of reasonable restriction, the effort was to gag then that has been strongly disapproved by the courts.”

Remarks in the Nupur Sharma case by Justice Surya Kant

In stark contrast to recent views, when the Supreme Court was hearing the matter involving Nupur Sharma, Justice Kant’s observations were severe and questionable. The bench had infamously remarked, “Her loose tongue has set the entire country on fire,” and put Sharma under scrutiny for the violent repercussions of her allegedly controversial remarks on Prophet Mohammed.

Justice Surya Kant had noted, “She is single-handedly responsible for what is happening in the country”. Notably, following the controversy, there were riots and murders across the country for which the Supreme Court judges blamed Sharma, not the jihadi Islamists who were actually committing the crimes. Though the oral remarks did not find their way to the final order, it set a wrong precedent to blame victims for doxing, trolling, death threats and Islamic fundamentalism.

The harsh rebuke by a bench comprising Justice Surya Kant and Justice JB Patriwala gave a clear indication that those who dare to speak against Islamist fundamentalism even as rebuttal or response to derogatory comments against one’s own faith, can face dire consequences and will be held responsible for the crimes committed by Islamists.

The Nupur Sharma controversy and what happened during the infamous hearing

In May 2022, Nupur Sharma was one of the panellists on the Time Now show along with Taslim Ahmed Rehmani on the Shivlinga found at the Gyanvapi disputed structure site. During the debate, Rehmani used derogatory language against Bhagwan Shiv that irked then-BJP spokesperson Nupur Sharma.

Sharma countered her and questioned how would he react if she used the same language for Islam and the Prophet. Though it was a counter statement, Alt News’ co-founder Mohammed Zubair found it to be the perfect opportunity to ruin Sharma’s life. He cunningly trimmed Rehmani’s remarks that came before Sharma’s counter remarks and presented as if Sharma was insulting Prophet Mohammed. The propaganda against Sharma worked and it sparked an international outrage.

Regardless of the fact that what Sharma said about the Prophet’s marriage to the 9-year-old Ayesha, which is mentioned in multiple Islamic hadiths, Nupur Sharma was branded as a ‘blasphemer’, with Islamic organisations openly declaring that she should be murdered.

Following the witch-hunt against Sharma, there were protests and riots across the country. People who supported Sharma were threatened by Islamists online and offline. FIRs were filed not only against Sharma but also against those who supported her. Notably, Kanhaiya Lal, a Hindu tailor from Udaipur, Rajasthan, and Umesh Kolhe, a businessman from Maharashtra’s Amravati, were brutally murdered by Islamists for supporting Sharma.

When Nupur Sharma approached the Supreme Court seeking clubbing of FIRs against her, the two-judge bench that heard the matter seemed to have already formed an opinion against her based on the disinformation and misleading propaganda running in media and on social media. Justice Surya Kant, in his oral observations, blamed Nupur Sharma for what was happening in the country.

Senior Advocate Maninder Singh repeatedly informed court that it was the other penalist (Rehmani) who provoked Sharma but Judged did not remark on that part. Ironically, Justice Kant supported “freedom of speech” when it came to Rehmani’s statement.

Notably, Sharma was not in the court to get the FIRs quashed. She only sought to club them as it would have been life-threatening to travel to different parts of the country. Since the controversy erupted, Nupur Sharma was not only suspended from BJP but has to live under threat to life. Her public appearences have been limited while Rehmani is enjoying his freedom. OpIndia’s detailed analysis of the hearing can be checked here.

Justice Kant on Protection of Judges

Interestingly, Justice Kant has also been vocal about the security of judges. In 2022, He lamented, “We had to struggle to get minimal security,” and highlighted the challenges faced by the judiciary in maintaining its autonomy and safety in the face of threats. His remarks reveal concerns that without sufficient protection, the judiciary cannot operate independently or fearlessly, which is essential for upholding the rule of law and democracy. His remarks on the security of judges came after he disregarded the life threats against Nupur Sharma.

According to reports, in 2021, a Supreme Court bench led by Chief Justice NV Ramana and Justice Surya Kant had remarked that the Intelligence Bureau (IB) and Central Bureau of Investigation (CBI) are not supporting the judiciary at all.

The bench had lamented that judges are not prioritised by investigative authorities and that their concerns are not taken seriously, despite the involvement of specialised bodies such as the Central Bureau of Investigation.

The bench including Justice Surya Kant had observed, “We have seen that in criminal cases involving high-profile people, there is a new trend of maligning judges. There is no freedom for judges to work. The CBI, the police, and the IB do not help the judiciary….. In several cases across the country involving gangsters and high-profile and powerful accused, they threaten judges, not just physically but also mentally through abusive messages, peeping into judges’ online accounts, etc. We are very sorry to say that the CBI did nothing about complaints made to it… There is still no change in the attitude of the CBI.”

Who is justice Surya Kant?

Justice Surya Kant was born in a farming family in the village of Petwar in Hisar, Haryana in 1962.  In 1985, he started his legal career in the Punjab and Haryana High Court, where he also held the position of Advocate General of Haryana.

The Punjab and Haryana High Court appointed Surya Kant as a judge in 2004. On October 3rd, 2018, he took the oath of office as the Himachal Pradesh High Court’s Chief Justice. His appointment caused quite a stir since Goel J, a consultee who had been promoted from the Punjab and Haryana High Court to the Supreme Court, disagreed with the Collegium. However, the Collegium still elevated Justice Surya Kant to the Himachal Pradesh High Court as Chief Justice.

Justice Surya Kant was appointed to the Supreme Court by the Collegium in 2019. In appointing him, the Collegium stressed the need of having enough representation from all High Courts in the SC.

Ayodhra Ram Mandir special coverage by OpIndia

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B.Sc. Multimedia, a journalist by profession.

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