In a compelling address on Saturday, Supreme Court Justice Joymalya Bagchi highlighted the fragile nature of free speech, asserting that a legal triumph in court does not necessarily translate to enduring freedom outside it. Recalling his defense of author Taslima Nasrin against a governmental ban on her work, he noted that while the courtroom battle was won, the larger fight for freedom was not. Justice Bagchi poignantly stated, “If the lamp of justice dies in the hearts of the people, no court can save it.”
Despite the legal victory, public unrest led to restrictions on Nasrin’s visa, ultimately compelling her to leave India. Justice Bagchi remarked that this scenario exemplifies how the rule of law can be overshadowed by the rule of the mob, even when a court ruling is favorable. He was speaking at the 5th Justice HR Khanna Memorial National Symposium, organized by the CAN Foundation, discussing “From Classrooms to Courtrooms: Syllogisms, Stories & Lessons of Life from the Bench.”
Addressing how constitutional jurisprudence should evolve to balance state interests with the risk of suppressing speech, Justice Bagchi reflected on the Nasrin case. He observed that, “whenever expression touches raw nerves, the State takes the safe route. It does not preserve expression; it regulates expression and, thereby, preserves outrage.” This pattern, he noted, is not exclusive to India but is a common approach by governments worldwide, as they often prioritize maintaining order over expanding rights.
Justice Bagchi also discussed the notion of security in the judicial context, distinguishing it from status. “In the Indian context, security is often mistaken for status,” he said. “But from the perspective of judicial independence, security means ensuring that a judge is free from fear and has the confidence to deliver, perhaps, an unpopular verdict.” He emphasized the need for protecting a judge’s digital presence as much as their physical safety, with threat assessments tailored to the severity of cases.
Touching on the gap between declared law and lived law, Justice Bagchi explained why the Supreme Court continually reiterates settled legal principles, like the necessity of communicating arrest reasons. “The law exists in a normative state, whereas it is experienced in a kinetic state, in litigation and real-life situations,” he said. Bridging this gap requires more than standard procedures; it demands committed young lawyers to ensure justice reaches every individual, even those at society’s periphery.
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He concluded by reminding the audience that while Supreme Court judges can declare justice, they alone cannot deliver it across the nation. Justice Bagchi’s insights underscore the importance of nurturing a collective societal will to uphold justice beyond the confines of the courtroom.
