The Bombay High Court’s Observations on Gaza – Indian Blog of International Law

Sarthak Sahoo

On 9 June 2025, the All India Peace and Solidarity Organisation (AIPSO) applied to the Mumbai police to let them protest the ‘ongoing Israeli genocide in Gaza’ at Azad Maidan, a famous protest site in Mumbai. The police rejected this application on 17 June. In response, the Communist Party of India (Marxist) petitioned the High Court at Bombay on 10 July. Amongst other things, they sought to set aside the police’s orders rejecting AIPSO’s application. 

On 25 July 2025, the High Court at Bombay dismissed this petition. See Communist Party of India (Marxist) through Shailendra Kamble v State of Maharashtra WP (Crl) 3798/2025. The High Court’s order stated that only AIPSO has the standing to challenge the police’s rejection order, as it is the party aggrieved (para 5). It also noted that the original application by AIPSO was non est, as it did not have sufficient AIPSO office-bearers (para 3).

That apart, the pleaders for CPI(M) stated that they filed a fresh application with the Mumbai police on 19 July seeking permission between 1 to 8 August for a protest of their own. The High Court has directed the police to assess the application and make a decision on it (para 7-8).

However, the dismissal instantly went viral. This was not due to the Ratio of the decision about the technical nuance of locus standi, but rather because of a variety of oral observations made by the two-judge bench of  Justices Ravindra Ghuge and Gautam Ankhad, on the  CPI(M)’s decision to protest the events in Gaza. 

As the Deccan Herald quotes – mainly Justice Ghuge:

‘Our country has enough issues. We don’t want anything like this. I am sorry to say, you are all short-sighted. You are looking at issues in Gaza and Palestine. Look at your own country. Be patriots. This is not patriotism. People say they are patriots. You are an organisation registered in India. If you could take up issues like garbage dumping, pollution, sewerage, flooding. We are just giving examples. You are not protesting on those but on something happening thousands of miles outside the country.

‘You don’t know the dust it could kick up. Getting on to the Palestine side or the Israel side. Why do you want to do this? It’s obvious, going by the party you represent, that you don’t understand what this could do to the foreign affairs of the country.’

Subsequently, the CPI(M) put out a statement saying that the Bench’s “observations smack of distinct political bias in line with the central government”. Since then, the same bench has refused to initiate contempt proceedings against CPI(M) for issuing this statement.  While the High Court’s order is – in my view – correctly decided on law,  the Justices’ oral observations – especially as they sought to prevent CPI(M) from protesting, merit examination under both international law and constitutional law. 

In this piece, I will briefly explore the importance of oral observations in Indian legal culture,  the relevant constitutional framework for this case, and the compatibility of the High Court’s observations with its municipal and international law commitments. 

On Oral Observations

To begin with, some may doubt the relevance of examining the Justices’ oral observations. It is a trite fact that the reasons for judicial action are founded in judgments, and not the Justices’ oral observations, which always claim plausible deniability as hypothetical arguments or devil’s advocacy. As the Supreme Court has previously reminded us, oral observations are neither actionable nor relevant. Thus, even if they are prima facie errant in law, they are per se inconsequential.

These assertions are undoubtedly true and must remain so for the preservation of effective judicial deliberation and independence. Nonetheless, these oral observations merit analysis. Often, statements from the bench are implicit signals to the parties on what they should prefer to plead. They also end up as signals to other public authorities and lower courts on how to rule. 

Thus, even if the court provides its reasons in its written Orders, its oral observations have the potential to hamper other authorities’ dispassionate constitutional duties. This risk is particularly high in juridical cultures like India.

By entailment, these observations also risk judicial commitments to impartiality, reasoned decision-making, and the appearance of justice. To be clear, this is not a case of just the High Courts running amok. There has now been a sustained record of the Supreme Court itself moralising from the bench, reducing resort to precedent and law in deciding cases. I have elsewhere dubbed its approach as being ‘jittery about the propriety of speech, rather than its legality.’   

Interestingly, for this case, LiveLaw reports that when it was making its oral observations, the High Court noted that ‘the Supreme Court has said that “right to free speech is being misused.”’ Such consciousness about the Supreme Court’s oral observations, without regard to strict constitutional legality, proves that oral observations have a corrosive downstream effect.

This is not merely a rule of law problem. Often, loose moralising by judges can end up punishing those who come to Court to enforce their rights. Take, for example, the case of Zakia Jafri v State of Gujarat (2022). In that case, the Supreme Court had to decide if an SIT closure report was satisfactorily closed or not. The Court had to provide reasons necessary to reach the conclusion it did (ratio decidendi) – that the closure report was not errant. However, as part of its obiter dicta, it went to castigate and polemicise the petitioners for having the ‘audacity to question the integrity of every functionary involved in the process’; and that ‘all those involved in such abuse of process need to be in the dock’.  The effect of these statements was that, only a day later, Teesta Setalvad, a petitioner in the case, was arrested, with this observation as part of the FIR.

On Permissions

To the uninitiated readers, the idea of protesting with permission may appear somewhat confusing. After all, Article 19(1)(a)-(b) of the Constitution guarantees to all citizens the right to protest. In this regard, Article 19(2)-(3) provides ‘reasonable restrictions’ that can be imposed on the exercise of that right. Constitutional courts in India have occasionally observed that seeking police permission is a necessary component of some forms of protests. Public authorities can impose time and place restrictions on protests conducted in public spaces. 

For example, in In Re: Ramlila Maidan Incident (2012) decision, the Supreme Court held that ‘the requirement of associating police […] while holding such large-scale meetings, dharnas and protests, would not infringe the fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution.’ (para 286.5) The Court has, however, stated that when considering these applications, the police must act in a ‘very objective manner’ to enable the exercise of the applicant’s Article 19 rights. Restrictions must be used ‘sparingly and very cautiously’.

This view has been affirmed multiple times since. For example, in 2018, this view was upheld in the context of Jantar Mantar – a protest site in New Delhi, much like Mumbai’s Azad Maidan (paras 61-62). Similarly, in 2020, the Court found such restrictions necessary to balance the right to protest and public interest (para 16-19). 

With this context, the decision of the Mumbai police not to grant permission to AIPSO to conduct protests – perhaps due to the technical issues in their application – cannot yet be faulted as a failure on free speech. Similarly, the High Court’s order in respect of the CPI(M) does not fail any constitutional standards, as it does not prejudice the police’s consideration of CPI(M)’s application based on the subject matter concerned. 

However, the oral observations made by the court could theoretically prejudice the police’s willingness to permit them to protest, thus eventually affecting Article 19 guarantees set by Ramlila Maidan. This assessment can be made once the police respond to the CPI(M)’s application.

On Speaking Out

As far as the oral observations are concerned, they seem to seriously contradict settled constitutional values of the Constitution. Article 19(2) provides that ‘friendly relations with foreign States’ is a reasonable ground on which speech can be restricted. However, such restrictions must be proportionate to the state interest at play. 

It is fundamentally unclear how CPI(M)’s speech would have an inhibiting effect on India’s relationship with, presumably, Israel. It is not uncommon for allied states to have political parties that advocate for positions against them. These don’t seem to empirically affect relations between states per se. These mean that to prevent CPI(M)’s expression would be unnecessary. 

These observations also take a particularly short view of India’s foreign policy towards the Israel-Palestine conflict. While it is true that over the past few years, India has increased its security relationship with Israel, it has always supported a two-state solution in the region. It was one of the first states to recognise Palestine as a state in 1988. It has constantly batted for Palestinian self-determination, including voting in favour of an Israeli withdrawal from Palestine to its pre-1967 borders. In fact, India has reaffirmed this commitment as recently as 30 July this year.

In this context, it is doubtful if the CPI(M)’s stand, to the extent that it supports Palestinian interests, can be considered a serious departure from Indian foreign policy. Where differences have arisen, such as on Israel and its characterisation of recent events in Gaza as a ‘genocide’, such differences of opinion are certainly permitted by the Constitution. 

Finally, it is crucial to note that this analysis is being conducted ex ante, before the impugned expression has even been made. Thus, to restrict CPI(M)’s speech would amount to prior restraints on speech. A litany of case law has held that prior restraints by the state are generally impermissible unless specifically authorised by legislation.  

On Going Global

That said, it is even more plausible that the High Court’s observations, if presented as legal reasons to prevent CPI(M) from protesting, would violate the International Covenant on Civil and Political Rights (1966), which India has ratified. Article 19(2) of the Covenant permits freedom of expression to ‘impart information and ideas of all kinds’. Article 21 secures a ‘right of peaceful assembly’.

To begin with, the restriction to this freedom of expression, provided in the Covenant’s Article 19(3), does not permit a test for the impugned speech to comply with the state’s foreign policy interests, as may be found in India’s Constitution. 

The next closest analogue may be  ‘national security’, which is also untenable, as it requires a high threshold for restricting expression. For example, the Human Rights Committee in Shin v Korea (Communication No. 926/2000, para 7) has noted that:

As the Committee has consistently found, however, the State party must demonstrate in specific fashion the precise nature of the threat to any of the enumerated purposes caused by the author’s conduct, as well as why seizure of the painting and the author’s conviction were necessary. In the absence of such justification, a violation of article 19, paragraph 2, will be made out.  In the absence of any individualized justification therefore of why the measures taken were necessary in the present case for an enumerated purpose, therefore, the Committee finds a violation of the author’s right to freedom of expression through the painting’s confiscation and the author’s conviction. (emphasis added)

None of these individualised and specific threats were established at the hearing stage, nor could they have been, as the speech had not even taken place. 

Furthermore, it is settled by decisions on Article 19 that political speech enjoys a greater degree of protection, as ‘the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society…’. See General Comment 34 CCPR/C/GC/34 (para 34). The High Court pays no heed to this, opting to ignore that permitting such political speech will promote democratic accountability. 

Moving to Article 21, its guarantees of peaceful assembly are even more relevant to the case at hand.  Denials of prior authorisation to make peaceful assemblies based on political standpoint have been considered incompatible with this right. See Paul M. Taylor, Commentary  (pg 593 fn 11) for the examples of Gambia, Congo, Madagascar, and Belarus. It is safe to say that Justice Ghuge’s comments that ‘We don’t want anything like this’ and ‘You are looking at issues in Gaza and Palestine. Look at your own country’ squarely constitutes political viewpoint discrimination.

Article 21’s restrictive clause states that restrictions on this right must be ‘necessary in a democratic society’. This formula, adopted from the European Convention on Human Rights (1950), once again places a premium on protecting assembly for a variety of purposes unless seriously deleterious. In fact, pluralism – the acceptance of a wide variety of views, including those of the CPI(M), even if disagreeable to the Justices  – is important for a democratic society. As the European Court of Human Rights noted in interpreting ‘necessary in a democratic society’ in its famous Handyside case: ‘such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.’ (para 49)

All of the abovementioned established, it is crucial to remember that these violations of international law exist on the international plane alone. They are neither recognised nor actionable in India’s municipal fora. This is because, under Article 253 of the Constitution, for an international treaty to be law in force in India, it must be specifically incorporated by Parliament. Although some public authorities have a limited mandate to oversee the Covenant’s implementation under the Protection of Human Rights Act 1993, Parliament has not incorporated Covenant rights as directly enforceable legal entitlements. For a contrary account of Indian jurisprudence on this point, see here. 

Yet still, these legal facts don’t affect the general impropriety of the Bombay High Court’s remarks. At once unnecessary, unjudicious, prejudicial, and impregnated with assumptions about how citizens should choose to live their lives, these observations demonstrate little respect for individual liberty within the confines of the law.

Conclusion

The events that have transpired at the Bombay High Court indicate a dual consciousness at India’s constitutional courts. While the official story of orders leaves a paper trail that remains – at least prima facie – consistent with the law, it leaves out the tangible effects of unrestrained observations on citizens’ choices. Such observations inevitably militate against the judicial duty to resolve legal disputes. 

Take to contrast a recent decision of the New South Wales Supreme Court, although, admittedly, involving similar and not same legal questions. Despite law enforcement rejecting permission for a pro-Palestine march owing to public disruption and public safety, the court permitted the march noting that ‘[t]he public interest in freedom of expression, at this time, in the manner contemplated, for the reasons advanced, is very high.’ In such matters, India’s constitutional courts must shift away from the judges’ wisdom on propriety and return to the judicial wisdom on legality.