Demonstrators shout slogans as they hold placards during a protest demanding the release of Kanhaiya Kumar, a JNU student union leader accused of sedition, in New Delhi, on 2 March 2016. (Photo: Reuters)
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View: Dissent Isn’t Sedition, But Incitement of Violence Is

Today, we are living in a world where we are forced to stand for the national anthem at a movie theatre, we are told what we can and cannot eat, what we can and cannot see, and what we can and cannot speak about. Dissent, especially in the university space, is being curbed, and sloganeering and flag-raising have become tests for nationalism. We have a 21-year-old university student who is subject to severe online hate, abuse, and threats, only because she dared express her views.

In any society, at any given point of time, there will always be people holding divergent views. Such views are integral and inevitable in a healthy, functioning democracy.

Nowhere has this been better expressed than by the judgment of the Bombay High Court in FA Picture International v CBFC, where the Court said:

History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon.

Unfortunately, however, our institutions of learning are under attack today and there is a concerted attempt to destroy any independent thought. Today, sadly, in this country I love, if anyone holds a view that is different from the government’s “acceptable” view, they are immediately dubbed as “anti-national” or “desh-drohi”. This marker of “anti-national” is used to intimidate and browbeat voices of dissent and criticism, and more worryingly, can be used to slap criminal charges of sedition against them.

All these factors have led me to choose the present topic to generate further discussion and debate. I think it is all the more important to discuss and talk about nationalism.

Is ‘Anti-National’ the Same as Anti-Government?

India is a diverse country and people hold different views about nationalism, the idea of India, and our place in the world. We must respect these differences, not silence those who hold a different view on nationalism and patriotism for the country.

Elevating only a single view – one that idolises the nation and staunchly rejects any internal or external criticism – will only polarise citizens against each other. At the end of the day, it is important to question, what is the defining characteristic of a nation – is it the territorial boundary or the collection of people that is a country’s defining feature?

Our Constitution starts with a solemn declaration of “We, the people of India...” In this context, is being anti-national equivalent to being anti-Government or is the hallmark of an anti-national that they are against the interest of the people, especially the minorities and the depressed classes? Can an entire University and its student body be branded “anti-national”?

Our current state of affairs is especially sad when we consider that the freedom struggle gave us a country and a Constitution that was committed to the ideals of democracy, free speech, civil liberties, and secularism. Unlike Pakistan, religion is not the founding basis of our nation.

Our right to free speech and expression is not a gift or a privilege that the Government bestows on us; it is our right, guaranteed by the Constitution of India, and won after decades of struggle and sacrifice by the people of India.

A news channel airs false and doctored footage, while others openly flame the fans of this ‘patriotism’ and ‘anti-national’ debate. It is ironic that the media, which played a critical role in asserting its right to free speech during and after the Emergency, and in the process helped develop our Article 19(1) jurisprudence, is now the institution that is compromising and challenging the same freedom of speech of the dissenters today.

We also have social media, where online trolls and threats of rape and murder are regularly made against people supposedly making anti-national statements. I am left to ask myself, which part of Indian culture permits or promotes the making of such statements threatening a girl with rape or murder?

Who are these people on Twitter and other social media, who take comfort in their anonymity to make such aggressive threats against individuals?

A Stifled Constitution

Laws criminalising speech such as sedition, defamation, and blasphemy have been used against activists, dissenters, and even political cartoonists to silence and harass them. In such a situation, using these offences to deter a person from speaking, instead of engaging with the underlying concerns of their speech, is detrimental to democracy.

In fact, the chilling effect and consequent stifling of free speech caused by the threat of invocation of these offences and tactics undermines the constitutional protection to free speech guaranteed by Article 19(1) of the Constitution.

More worryingly, though, a debate around nationalism and patriotism prevents a real conversation about the social and economic problems that ail the country.

The Strength of a Nation

The final case that I would like to discuss is the 1995 decision of the Supreme Court in Balwant Singh v State of Punjab, where it acquitted the persons who had shouted slogans such as “Khalistan zindabaad, Raj Karega Khalsa” outside a movie hall a few hours after Indira Gandhi’s assassination on charges of sedition.

Instead of simply looking at the “tendency” of the words to cause public disorder, the Court held that “raising of some lonesome slogans, a couple of times... which neither evoked any response nor reaction from anyone in the public” did not amount to sedition, for which a more overt act was required. The Court took cognisance of the fact that the accused had not intended to “incite people to create disorder” and that no “law and order problem” actually occurred.

It is through this lens that one should view the JNU incident. The law, as we saw above, is quite clear on the distinction between strong criticism of the government and the incitement of violence, with only the latter being related to sedition.

Thus, regardless of whether the JNU students’ slogans were anti-national, hateful, or an expression of contempt and disdain against the government, as long as they did not incite violence, it does not get covered under sedition.

As Upendra Baxi reminds us, we should remember the distinction between “constitutional patriotism” (and fidelity to the Constitutional purpose) and “statist patriotism” (what Gandhi called “manufacturing affection for the state”). Keeping this in mind, I would like to express my anguish on the language of the Delhi High Court’s bail order and the unnecessary invocation of patriotism and nationalism.

The strength of a nation is not gauged by the uniformity of opinion of its citizens or a public profession of patriotism.

The true strength of a nation is revealed when it does not feel threatened by its citizens expressing revolutionary views; when there is a free and open press that can criticise the government; and when citizens do not resort to violence against their fellow citizens, merely for expressing a contrary view. That is when we will have achieved liberty of speech. And that is when we will be truly free.

(The article is an excerpt from the MN Roy Memorial Lecture delivered by former Chief Justice of the Delhi High Court, Justice AP Shah. Titled “Free Speech, Nationalism and Sedition”, the speech was made on 19 April at New Delhi’s Constitution Club. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

Read the counter-view to Justice AP Shah’s speech here: Counter-View: India’s Not So Dismal, Justice Shah!