From the validity of demonetisation to freedom of speech and expression for lawmakers, Supreme Court Justice BV Nagarathna has delivered two dissenting judgments in as many days.
The Supreme Court on Monday upheld the validity of Centre’s 2016 note ban and on Wednesday it held that there can be no additional restrictions on freedom of speech for public functionaries, both by a 4:1 majority with Justice Nagarathna giving the dissenting judgment.
Who is Justice BV Nagarathna?
Justice Nagarathna, born on October 30, 1962, is the daughter of former CJI ES Venkataramiah. She enrolled as an advocate on October 28,1987 at Bangalore and practised in the fields pertaining to the Constitution, commerce, insurance and service.
She was appointed as an Additional Judge of the High Court of Karnataka on February 18, 2008 and became a permanent Judge on February 17, 2010. She will have a tenure as an apex court judge till October 29, 2027 and may have a tenure of over one month as the first woman CJI after September 23, 2027.
Justice Nagarathna was elevated to the Supreme Court in 2021 and is in line to become Chief Justice of India in September 2027, albeit for a period of only 36 days, which would make hers the third shortest stint as CJI in Supreme Court history.
Her scheduled elevation as CJI would also mark the second time that someone has followed in their father’s footsteps to the top of the Indian judiciary. Justice Nagarathna’s father ES Venkataramiah was CJI for a six-month duration in 1989.
When Justice DY Chandrachud became CJI in November 2022, he became the first CJI whose father too had occupied the position, in this case Justice YV Chandrachud who had become CJI in the late 1970s.
Justice Nagarathna on Lawmakers’ Freedom of Speech
On Wednesday, Justice Nagarathna, who was part of the bench ruling on the freedom of speech for lawmakers and public functionaries, agreed that greater restriction cannot be imposed on free speech, in addition to grounds under Article 19 of the Constitution.
She, however, said such statements can be vicariously attributed to the government in case a minister makes disparaging statements in his “official capacity”.
Justice Nagarathna said hate speech strikes at the foundational values by making society unequal and also attacks citizens from diverse backgrounds especially “in a country like us that is ‘Bharat’.” She said freedom of speech and expression is a much needed right so citizens are well informed and educated on governance.
The court was hearing a plea filed by a man whose wife and daughter were allegedly gang-raped in July 2016 on a highway near Bulandshahr. He was seeking transfer of the case to Delhi and lodging of an FIR against then Uttar Pradesh minister Azam Khan for his controversial statement that the gang-rape case was a “political conspiracy”.
The judgment came on a question of whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression.
Justice Nagarathna on Demonetisation
In her dissenting judgment on demonetisation, Justice Nagarathna on Monday said the government’s November 8, 2016 notification delegalising currency notes of Rs 1,000 and Rs 500 denomiations was “unlawful”.
Observing that Parliament cannot be “left aloof” in a matter of such importance, Justice Nagarathna noted there was no independent application of mind by the Reserve Bank of India and the entire exercise was carried out in 24 hours.
In her 124-page separate verdict, Justice Nagarathna said at the outset that she wish to differ on the reasoning and conclusions arrived at in the majority judgment with regard to exercise of power by the Centre under sub-section (2) of section 26 of the Reserve Bank of India Act, 1934 by issuance of the November 8, 2016 notification.
She said what ought to have been done through a parliamentary enactment or plenary legislation, could not have been carried out by simply issuing a notification under sub-section (2) of section 26 of the Act by the central government.
Justice Nagarathna said the action of demonetisation initiated by the Centre by issuance of the notification was an exercise of power “contrary to law” and therefore unlawful and consequently, the 2016 ordinance and 2017 Act are also unlawful.
“But, having regard to the fact that the demonetisation process was given effect to from November 8, 2016 onwards, the status quo ante cannot be restored at this point of time,” she said.
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