What was said at JNU is worthy of condemnation. Disagreement with it though does not justify the deplorable reaction that has followed. Lawyers, upholders of the law, are breaking it in premeditated acts of violent rage. The Police watch quietly, registering nameless FIRs even where evidence exists indicting protestors outside Patiala House. The goons responsible for both attacks at Patiala House have since been garlanded (literally), while their social media accounts stand flowing with praise for teaching protestors a lesson in nationalism. A BJP MLA, after having committed battery on tape, went on to state that he’d have used a gun were one available to him. He too walked free for days until pressure from the media forced the police to take cognizance of that matter. Students who had little or nothing to do with the allegedly seditious slogans in question have been detained; one student was detained for four hours simply because his bag had a flag of the Students Federation of India. And above and beyond all of this, and perhaps the worst part of our present plight, journalists have been attacked by these self-proclaimed keepers of patriotism.
When India seemingly ‘lost it’ over Coldplay’s exotic portrayal of the country in the band’s new music video, one comment on the scenario best described our current state of mind: the only thing Indian about Coldplay’s music video was India’s reaction to it. Now, months after monotonous debate on intolerance, we find ourselves faced with issues of significant national and constitutional importance. India’s reaction to incidents at JNU and thereafter is perhaps the most ‘anti-national’ part of this scenario. I would go even further by saying that the reaction to the allegedly seditious speeches runs contrary to constitutional principles to an extent far greater than the speeches themselves.
*****
Courts often read-into codified rights, a process whereby a liberal or expansive interpretation is accorded to the plain and simple meaning of constitutional or statutory texts. It is through this process, for example, that our codified right to life and personal liberty gives us the unwritten rights to live in a clean environment or have a speedy trial. The rationale behind such liberal interpretations of constitutional rights is a presumption of liberty inherent to democracy. In its most simplified sense, this presumption envisages a notion of ‘residual liberty’ where one may act as one pleases so long as such actions are not restrained by law. Free speech, however, is a right that carries with it the restraints residual liberty warns of. The two restraints important here are found in Article 19(2) of our Constitution and in Section 124A of the Indian Penal Code. Article 19(2), popularly referred to as the ‘reasonable restriction’ clause, doesn’t limit free speech on its own. What it does, however, is give the State a right to enact laws that restrict free speech in the ‘interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.’ One such law restricting free speech is the archaic offence of sedition found under Section 124A of the Indian Penal Code. An offence under Section 124-A is constituted when anyone ‘… brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India.’
The questions that arise now are these: First, does a provision criminalizing sedition deserve any place in post-colonial India; and second, do the speeches made at JNU constitute sedition under the law as it presently stands? The answer to the first is, quite simply, no. Members of our Constituent Assembly, the founding fathers of modern India, unanimously removed the expression ‘sedition’ from the draft text of Article 19(2). Nehru famously called the law ‘obnoxious’, while Constituent Assembly member T.T. Krishnamachari of Madras rightly remarked in the Assembly – ‘in this country we resent even the mention of the word “sedition” because all through the long period of our political agitation, that word “sedition” has been used against our leaders, and in the abhorrence of that word, we are not by any means unique’. Freedom while we may guarantee, Section 124A subsists. Paradoxically, what stands out here is the expression ‘freedom’, a concept that must necessarily entail diversity in thought, in expression and indeed, in belief, faith and worship. The guarantee of such diverse views is a demand of pluralism. In one sense, criticism of Government is the essence of democracy. From Asim Trivedi to Binayak Sen, 124A has been used and misused in the interests of allegedly majoritarian views and against the very idea of India our Constitution dreams of. One cannot help but reproduce a slogan often used in support of Dr. Sen. It reads: ‘Mohandas Gandhi was jailed under colonial oppression; Aung San Suu Kyi was Imprisoned by a military dictatorship; Nelson Mandela was imprisoned by ‘white-imperialists’; Binayak Sen was jailed by the largest democracy in the world.’
Answering the second question raised above, however, is a far harder task (less because of how the law stands and more because our emotions risk running riot upon hearing what was said). At JNU, slogans hailed Pakistan, condemned India, declared that India would be torn apart, called for the secession of Kashmir from the Union, praised a convicted terrorist, and warned that other martyrs like this terrorist would be born in every home in Kashmir. Personally, I disagree (and disapprove) with each point. To quote Evelyn Beatrice Hall (with words so often wrongly attributed to Voltaire), ‘I disapprove of what you say, but I will defend to the death your right to say it.’ What I believe or what Voltaire didn’t say, however, is irrelevant. There is an understandable emotional outcry that condemns what was said and calls for those involved to be imprisoned. One mustn’t jump to declare this outcry unreasonable. When Justice Holmes said that the freedom of speech was freedom for the thought that we hate, not the one that we cherish, he accounted for this outcry. Hate will bring reaction; democracy hopes for it to bring reaction. It is the form this reaction has taken that is questionable.
Outdated as the sedition law is, it is law nonetheless. Governments across party lines have misused 124-A for their own benefit. From Trivedi and Sen to only yesterday, when folk-singer Kovan and fifty-six others were arrested for protesting against the Police’s handling of the JNU issue. Kovan, unhappily enough, has already had a sedition charge slapped on him for singing a song that allegedly insulted Chief Minister Jayalalitha. Even Macaulay, whilst writing section 113 of his draft Penal Code of 1837, may not have foreseen cases wherein insults against individuals could become offences against the State. Our Courts, thankfully, have been cognizant of this. They have recognized the possible mala fides of majoritarian government and made it significantly difficult to establish an offence under 124-A. Justice Maurice Gwyer had the vision to identify the nature of sedition law as early as in 1942. In Niharendu Dutt Mujamdar v. The King Emperor, he accurately observed that the right of every organized society to protect itself against attempts to overthrow it could not be denied; however, attempts that seem grave or even atrocious to one age may be the subject of ridicule in another. Later, in Kedar Nath Singh v. State of Bihar, a bench of five judges was presented with an opportunity to hold that Section 124-A was unconstitutional and violative of the ‘Freedom of Speech and Expression’ guaranteed under Article 19(1)(a). However, in the judgment rendered by Chief Justice Sinha, the section was saved to the extent that it was protected by the saving clause in Article 19(2). In this light, it was laid down that ‘…the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.’ To constitute sedition, therefore, words spoken or written must be accompanied by disorder and violence or the incitement of disorder and violence. Where an individual called for an armed rebellion to create an autonomous state of Khalistan, our Supreme Court agreed that while such statements were violent, no act of violence followed.; they dismissed all sedition charges. In my own opinion, what was said at JNU was in no way seditious. It is, nevertheless, for the courts to determine whether or not enough was done to incite violence or disorder. In considering this, courts will adopt a strict interpretation of the restrictions 124-A places – a practise accorded to all limitations placed on individual freedoms. Justice K.T. Thomas, for example, observed that it is expected that graver the offence, greater should be the care taken to ensure that the liberty of a citizen is not interfered with – ‘… [The] section imposes restrictions that are far too wide and cannot be justified as being solely “in the interest of public order”’.
*****
It is not illegal to be unpatriotic, to be anti-national, and to the extent explained above, to raise voices against the nation. This is precisely why, in granting Binayak Sen bail, the apex court noted, ‘We are a democratic country. He may be a sympathiser [of Naxals]. That does not make him guilty of sedition”. It is precisely this reality which makes our nation’s reaction so disappointing. Arnab Goswami, another self-proclaimed keeper of patriotism, has spent this last week conducting a trial on his daily news show. It was only last year that he sat in support of free speech, questioning those who opposed free expression, and quoting this piece of brilliance from the Indian Supreme Court: ‘[The freedom of speech] is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no democratic society.’ Unfortunately, Arnab isn’t the only one to have lost his memory. Patients of Namonia are a case in point. The BJP’s handling of this situation does point to certain contradiction within their own narrative, elements of hypocrisy they are yet to explain. The BJP’s ally in Jammu & Kashmir hasn’t merely called for an Azad Kashmir, it too considers Afzal Guru to be a martyr. The BJP, much like the Congress before it, has also negotiated extensively with separatist/secessionist forces in Kashmir and Nagaland. It’s a little rich to negotiate with voices that have the power, ability and willingness to incite violence, while placing charges of sedition on students who may have raised similar demands. Yet, the party and its supporters seem to forget this obvious contradiction in putting their stamp on nationalism.
*****
The freedom to voice dissent is the backbone of any democratic organization. The freedom of speech and expression entails discussion, advocacy and dissent. In a culturally, ethnically and religiously diverse nation like ours, discussion and debate on sensitive social, economic and political issues is quintessential to our democratic functions. Dissent, therefore, forms an imperative aspect in the governance of a country that has a democratic and republican form of government, for both better decision making and having an informed public
The greatest menace to freedom is an inert people; that public discussion becomes a political duty. It is hazardous to discourage thought, hope and imagination. The path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, while the fitting remedy for evil counsel is good ones. When men govern themselves, it is they and no one else who must pass judgment upon un-wisdom and unfairness and danger. And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, anti-Indian as well as Indian. If it be argued that the Constitution is a good document, it is equally allowable, in that situation, to say that the Constitution is a bad document (Alexander Meiklejohn, 1960). If it be argued that Kashmir is a part of the Indian Union, it can also be contended that it should have the right to determine its own future. These conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant. To be afraid of ideas – any ideas – is to be unfit for self-government.
Jayavardhan Singh
Advocate
Candidate: LLM in Litigation and Dispute Resolution (UCL)
The views expressed above are entirely my own. I do not proclaim to be truthful beyond questioning or wish to profess that my truth is better than another’s truth. “Some propositions seem true or false beyond rational debate. Some false and harmful, political and religious doctrine gain wide public acceptance. Adolf Hitler’s brutal theory of a ‘master race’ is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. The liberty cannot be denied to some ideas and saved for others. The reason is plain enough: no man, no committee, and surely no government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what is false. To license one to impose his truth upon dissenters is to give the same licence to all others who have, but fear to lose, power. The judgement that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free people.” (Archibald Cox on the ‘First Amendment’, 1986)
The Consiglieres 