Policing the past through courts

A recent exchange at the Supreme Court of India mirrors a concerning trend regarding judicial involvement in political speech about historical figures.

While granting relief to Rahul Gandhi in a defamation proceeding that arose out of his comments on Vinayak Savarkar, Justice Dipankar Datta issued a verbal warning that “irresponsible statements” about “freedom fighters” could invite a suo motu proceeding. At the time of writing this piece, it is not clear whether these remarks are a part of the order. But that makes little difference, as they have been widely reported and its effects, which I shall allude to at the end of this piece, are already in place.

This judicial utterance invites a series of critical questions about the role of the courts in regulating political discourse, especially when they pertain to contested historical narratives. Of course, this is not some unique situation that has arisen in India. One can find parallels in authoritarian regimes such as Turkey and Russia, where the judiciary actively police speech about historical events and figures, mostly to the detriment of opposition voices.

In Turkey, criminal defamation laws have been galvanised systematically to target opposition figures who challenged official narratives. The prosecution of  Selahattin Demirtaş, former co-chair of Turkey’s pro-Kurdish Peoples Democratic Party, illustrates this pattern. He faced multiple prosecutions for public statements on historical events such as the Zilan massacre, and for criticising ‘Turkish state institutions’. Courts have sentenced him under laws prohibiting “insulting state institutions” and “inciting hatred”, with observers noting these cases targeted his political speech on Kurdish rights and state violence rather than any direct incitement. His ongoing detention has been widely condemned by international human rights organisations as politically motivated, aimed primarily at silencing a prominent voice of the opposition.

Similarly, Canan Kaftancıoğlu from the opposition camp received a prison sentence for charges that include “insulting the President” and “degrading the State of Turkey”. The prosecution stemmed from her social media posts and public statements, some of which touched upon politically contested issues. While the prosecutions focused on her criticism of the key figures of the state, rather than her challenges of official narratives, the case demonstrates how these laws (and courts) function as tools under an authoritarian regime, to penalise figures who challenge the ruling dispensation.

Perhaps, Russia demonstrates the most explicit form of judicial enforcement of state-sanctioned historical narratives. Since 2014, laws have criminalised the dissemination, knowingly, of “false information about the Soviet Union’s activities during World War II.” Several persons have been convicted under this law, for acts such as suggesting that the Soviet Union shared responsibility with Nazi Germany for triggering World War II, through their joint partition of Poland; or that Stalin was as much of an aggressor as Hitler was; or even for stating that the Russian armed forces were targeting civilians during military operations.

Across all these cases, courts stood for prioritising the official narratives of history, closing out avenues for public dialogue. Courts, in these cases, functioned contrary to their expected role of protecting free speech, instead acting as gatekeepers who determined which interpretation of history enters public discourse.

With the Supreme Court of India, we now see something beyond all of these – the emergence of preventive restrictions. Courts are not just punishing past speech, but pre-emptively limiting any future discourse. This forward-looking censorship, achieved through verbal judicial threats, creates an environment where the opposition figures must now navigate an even narrower corridor of permissible speech. Of course, one could say that the oral observations do not matter, as only what is written constitutes enforceable law. But then, the judicial office carries vast symbolic and institutional power. The “chilling effect” works through the threat of potential sanctions, and when the threat emanates from an institutional seat of power, it tends to get taken quite seriously. In effect, this undermines the constitutional protection of freedom of speech and expression as politicians and public figures would fear that courts may penalise certain interpretations of history and its figures, and choose to self-censor.

Even more concerning is the judicial self-appointment as the ultimate arbiter of historical truth - of which interpretations of past are legally permissible. The chilling effect potentially extends not just to the political arena, but also to the scholarly sphere - locations where societies strive to negotiate their understanding of complex pasts. By removing certain figures from the spaces for contestation, courts restrict the sphere of scholarly and political debate. When courts instead become enforcers of historical narrative, as we see from cases from Turkey and Russia, they become instruments of authoritarian control rather than checks on power.

Mahesh Menon is currently a Doctoral Candidate at Lund University in Sweden.

The author acknowledges the use of AI for writing this piece.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.