–Masoom Sanyal, Gujarat National Law University, India
Introduction
With Justice Surya Kant’s swearing in as the Chief Justice of India, we have entered into the era of what I, and many, choose to call the “Kant Court”. If all goes well, it will last for up to 14 months. It promises to be an intriguing time for constitutional lawyers as well as lay persons. I think it is fair to say that CJI Kant is a slightly controversial judicial figure (see here). Indeed, the first few days of his Chief Justiceship have already attracted some criticism.
In this essay, I discuss two instances that demonstrate the first fatalities of the Kant Court. Further, I analyse some comments that have flown from the learned judge — during and before his chief justiceship — that demonstrate a cause for concern. Although oral observations of a judge are not necessarily part of the judicial record, any analysis that completely eschews these oral observations — which serve to, at the very least, uncover the prejudices and preferences of a mind — would be incomplete and intellectually dishonest.
The Episode in the Samuel Kamalesan Case
A bench led by Kant CJ, comprising of himself and Bagchi J, refused to interfere with the judgement of the Delhi HC which upheld the termination of an army officer on the grounds that he refused to enter the sanctum sanctorum of a temple, owing to his own monotheistic Christian faith. The officer in question, Samuel Kamalesan, would enter the courtyard of the temple, but did not enter the sanctum sanctorum out of respect for his own faith as well as the faith of the Hindus who could probably be offended by a Christian entering the temple and performing rites (although, I concede, it is very unlikely given the largely liberal inclinations of Hinduism). The men that served with Kamalesan had no problems with it. However, one particular Commanding Officer (“CO”) took offence and ordered Kamalesan to enter the sanctum. When Kamalesan explained to the CO his predicament, the CO refused to listen, and in a retributive spirit, prevented Kamalesan from appearing for exams that could lead to promotions, and adversely affected Kamalesan’s character record. Ultimately, he was sent a show cause notice and, without a court martial, terminated from service under Section 19 of the Army Act read with Rule 14 of the Army Rules, 1954.
Any constitutional court would see through the seminal constitutional issues involved herein. To point out a few:
(i) The contours of the right to freedom of conscience and whether a person’s right to practice his religion is subject to military discipline, and if so, to what extent?
(ii) Whether a person gives up his right to freedom to practice his religion under article 25 when he joins the army?
(iii) Whether not entering a sanctum sanctorum of a temple constitutes “misconduct” inviting termination of service under the relevant legal provisions?
(iv) Whether Kamalesan should have at least been afforded the opportunity of a court martial instead of an expedited termination after a mere show cause notice?
The Delhi High Court, in its judgement, held that the freedom of conscience is certainly subservient to military discipline. It, however, does not show us where it gets this position from — because the constitution, arguably, does not say so. The army regulations as well allow every officer to practice his or her faith. To get out of such fixes, the army has come up with the concept of a Sarv Dharm Sthan — an all-religion place — where a person of any religion can pray, in order to avoid such issues. The whole case of Kamalesan depended on the factual reality that in his case a Sarv Dharm Sthan was not present, but a mere temple and a gurudwara. In such a situation, what is an officer to do?
Although the fundamental rights of army officers are subject to article 33, which allows the parliament to adopt laws that impose additional restrictions on those rights, the parliament has not enacted any such law in this regard, and it cannot be left to the will of the army or the government to determine the contours of the fundamental rights of military persons. The restrictions must be uniform and statutorily laid down, as article 33 provides. The alternative threatens to create extraconstitutional and uneven restrictions on fundamental rights of military persons. This issue, too, the Delhi HC did not address in its judgment fully.
The Delhi High Court mischaracterises the issue as one of non-compliance with the order of a superior officer, instead of being a constitutional issue regarding the contours of and restrictions on the right to freedom of religion. The Delhi HC, relying on section 41 of the Army Act, held that Kamalesan’s termination was valid since his misconduct really amounted to the disobedience of the superior officer’s command that Kamalesan enter the sanctum. Although the court tries to suavely evade addressing the core issue — the contours of the rights to freedom of religion and speech and expression — it failed to do so effectively. Since even if one were to accept the line of argument extended by the Court — disobedience — the provision in question, section 41, requires that the order of the superior be lawful. Therefore, it requires a separate enquiry and determination that whether an order of a superior officer to his subordinate that the latter enter into a temple (or perform some act that violates his own religious beliefs, such as, for example, asking a Muslim officer to drink alcohol or asking a Hindu officer to consume beef) — which is clearly in the teeth of the officer’s fundamental right to practice his religion freely — constitutes a lawful order? The Delhi HC did not entertain this important enquiry in its judgment. The judgment would require an appellate hearing only for this reason. But there are a host of others, as I pointed out above.
When the appeal came up before the bench of Kant CJ and Bagchi J, it was however dismissed without substantive arguments and a reasoned judgment. There was a minimum expectation from the court of substantive engagement with the constitutional issues and the arguments involved and lay down a clear position of law for future cases.
Contrast this with the celebrated judgement in Bijoe Emmanuel, which broadly construed the right to freedom of religion of three Jehovah’s Witnesses and held that they need not sing the national anthem so long as they displayed enough respect for it. Extending the line of argument in Bijoe Emmanuel, it could be argued that Kamalesan need not enter into the sanctum of the temple, so long as he demonstrated enough respect for the religion and solidarity with his men (which, the record tells us, he unflinchingly did). However, the outcome in Kamalesan is opposite to that in Bijoe Emmanuel — and while a distinguishing element that Kamalesan is a military person is present, it should be remembered that the only additional restrictions on military persons must be promulgated by parliament through a law under article 33, which had not happened. In the absence of that law, there is no reason for us to think that the contours of Kamalesan’s fundamental rights differ at all from those of the three children in Bijoe Emmanuel.
The most concerning part of this whole episode is that the supreme court refused to provide reasons for its decision. On his analysis of the legacy of Chief Justice Gavai, Gautam Bhatia pointed out the trend of the Court’s increasingly avoiding providing legal reasoning for its decisions to avoid scrutiny and critique, thus insulating itself from accountability. The Kamalesan episode indicates an egregious continuation of this disturbing trend under the new Chief Justice.
The Overreach in the Latent Matter
The Supreme Court’s handling of the gamut of cases involving standup comics Ranveer Allahbadia, Samay Raina and others in the aftermath of a particularly distasteful episode of India’s Got Latent (referred to as “the Latent Matter” for short) has been unusual and at the receiving end of much criticism (see here and here), especially from free speech absolutists. In a case where originally Allahbadia himself had approached the SC to seek protection from being harassed by the registration of multiple FIRs, i.e. police complaints, in different parts of the country, the SC allowed interventionist writ petitions and converted the whole matter into an opportunity to lay down guidelines for content regulation on social media platforms.
Respectfully, the court overstepped when it undertook this role — it was not a Public Interest Litigation (‘PIL’) that Allahabadia had instituted but a Writ Petiton to seek a relief, but, later, the Court on its own widened the scope of the hearing and converted it into a PIL. Moreover, the court’s job is not to impose restrictions on the freedom of speech, which it did when it directed Allahbadia to refrain from continuing his YouTube channel. Later, however, he was allowed to resume posting content, since the YouTube Channel was his only source of livelihood (or so he claimed). The matter should have ended there, but it has dragged on. In the most recent hearings, the bench comprising of Kant CJ and Bagchi J directed Samay Raina and other comedians (who came under fire for disrespecting disabled persons) to invite such persons onto their show and share their stories as inspirational. Benevolent as the intention of the court may be, one is not sure where it got its jurisdiction from. Earlier, I pointed out how there is now a trend of disappearance of legal reasons for orders which started under Gavai CJ and continues under Kant CJ. In this episode as well, the Court has not passed any written order directing them to host disabled persons on their shows. Nor is it clear where the Court’s power to do so comes from. If the Court traces its power to article 32(2), which allows the SC to pass any directions or orders for enforcement of fundamental rights, the court should have clearly stated so.[1]
More unusually, the Court could exercise its extraordinary power under article 142 to direct Raina and others to host disabled persons on their platforms. The power under article 142 doesn’t face the fetters that the power under article 32 would. But here, too, the Court ought to have specified which power it was exercising, under what provisions, and on what grounds.
But the Court, alas, has not done so. And by way of an unwritten, unreasoned order, it has abridged the right to freedom of speech of these individuals by directing them to say and do something which they may not want to.
This episode is another instance of the earliest fatalities of the Kant Court — freedom of speech and expression, and the assigning of judicial reasons. In the United States, commentators have labelled this phenomenon “vibes jurisprudence”.
Anecdotal Instances: Fundamental Rights as Judicial Conferments?
In addition to these two specific episodes, there are anecdotal instances that demonstrate Kant CJ’s inclination to treating free speech as a judicial conferral and not as a fundamental right.
During the Latent Matter hearings, Kant CJ and Bagchi J mooted the idea of imposing regulations on user-generated content on social media. Kant CJ pointed out how certain videos just start automatically on these platforms and there is no way to ascertain the age of the viewer. In a dumbfounding suggestion, Kant CJ proposed that a mechanism could be implemented where one’s Aadhar Card — a government issued identity card — is demanded before one can watch a video. The idea is absurd — imagine you have to enter your social security number every time you want to watch something on Netflix! He then clarified that the suggestion is merely illustrative (fortunately!) and asked the Union to come up with some guidelines for user-generated content. What he said next is concerning: “let something come up on pilot basis and if it clogs free speech and expression it can be looked at then.”
What the Chief Justice is apparently suggesting is the introduction of regulations that probably infringe free speech, but if they indeed clog free speech, this can be looked at later by the Court. I do not know what this “looking at” would entail — perhaps striking down, or reading down, or modification. Be that as it may, this goes on to show that Kant CJ is — for whatever reason — treating free speech not as a fundamental right but as a judicial conferment.
Why I say judicial conferment is because Kant CJ’s orders and statements have demonstrated — as we saw in the Latent Matter — that he is prone to the belief that the judiciary can impose restrictions on free speech. It clearly cannot, because its job is only to check whether a restriction imposed by the Executive or Legislature is constitutionally permissible. Merely because the constitution provides certain reasonable restriction on the right to free speech does not mean a court can impose those restrictions on its own or direct the executive to impose such restrictions.
Another such instance is the order of Kant J (as he then was) in the Mahmudabad Case. There, too, the court imposed a restriction on Professor Mahmudabad — that he would not say anything about the India-Pakistan conflict on his social media handles. This too is extraordinary, and perhaps extraconstitutional for a court to do.
During the Mahmudabad hearings, two observations of Kant J stand out:
“we don’t know … I have a right to this , right to do that, as if the whole country is distributing rights for the many years” (see LiveLaw’s coverage here)
There cannot be a clearer indication of a belief that rights are a matter of conferment of distribution and not fundamental entitlements of citizens.
Kant J’s second observation appears to reinforce this view.
“today only we read in paper, the students and professors- if they dare to do anything, we will not accept this, if they try to join hands etc, we know how to deal with these people, they are within our jurisdiction” (see LiveLaw’s coverage here)
The students and professors in question were merely protesting, which they have a right to do under the constitution. However, the observation “we know how to deal with these people” demonstrates a belief that fundamental rights are not fundamental rights but judicial conferments. And as judicial conferments, they can be taken away any time, even by way of an unwritten, unreasoned order.
Suggested citation: Masoom Sanyal, The First Fatalities of the Kant Court in India: Right to Religion, Speech, and Reasons, Int’l J. Const. L. Blog, Dec. 24, 2025, at: http://www.iconnectblog.com/the-first-fatalities-of-the-kant-court-in-india-right-to-religion-speech-and-reasons/
[1] Notwithstanding the legal question that Raina and others are non-state actors, and given that only certain fundamental rights are held to be horizontally applicable, the directions for their enforcement horizontally can only flow in respect of those rights. The Court, therefore, ought to have identified in a reasoned order which rights are being enforced specifically by way of its directions, and whether those rights are horizontally applicable.