Our written Constitution guarantees freedom of Speech, but it does not guarantee freedom after the speech

Fali S. Nariman

Eminent lawyer Mr. Fali S. Nariman quoted the above words, remembering the speech by a prominent retired judge of the Court of Appeal of Malaysia made in a conference. The Judge may not have the persuasive value on the present Indian situation but by quoting him, Mr. Nariman had shot the bull’s eye.

The reference is made to the recent issue on speech of Kanhaiya Kumar, a comrade from JNU, some call him, who is charged for sedition, a controversial law as per which a person is punishable if he through words or by visible representation, brings or attempt to brings into hatred or attempts to excite disaffection towards the government established by law in India.The essence of the crime of sedition consists in the intention with which the language is used. In the landmark judgment of Kedarnath Das vs. State of Bihar (1962), C.J. Sinha observed

comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence”.

Here, the essence of discussion does not confine solely to the question as to whether the charges framed on Kanhaiya were appropriate, but hovers on the larger problem i.e., in a participative democracy can we not raise the question why? Can we not blame the government? Or can we not condemn ‘our’ selected government? Is the government always right? Is it immune from criticism? Or a more core issue, can we not dissent?

The incident has not escaped the eyes of those watching from abroad. The New York Times, after the incident, accused Prime Minister Narendra Modi’s government for its lynch mob mentality and its determination to silence dissent in university campuses in India. They had their own opinion, that may be true. But, can we determine the fact that we have the right to dissent? Or is it a trap to sedition, as the case of JNU suggests.

We must not forget that the essence of Indian democracy has been attained by the immense dissent by the freedom fighters against the British Raj. The extent of the dissent was the only reason why the provision of sedition was incorporated in the Indian Penal Code, 1860. But ironically, the charge of sedition has been used more often by free India’s government than the colonial government did during the 77 years of its presence in the Penal Code. So evidently, the said section provides better utility to post independence leaders than the pre-independence rulers. But whether such utility is serving the nation in anyway should be the essence in determining whether such law should prevail or not.

Who decides the status ofbeing un-Indian?

India, being a diversity in itself, cannot be defined in just five letters (I-N-D-I-A). It’s not a definite diversity but an indefinite one. Speaking of which, one cannot have unanimity in all the ideas. In fact, dissent becomes inevitable in such a diverse community. The only thing which unites India, as it seems, is the idea to stand together, a ‘solemn resolution’ to constitute India in itself. This unanimous resolution determines the code of conduct among people and their representatives. And whenever there appears to be a sense of lawlessness i.e., a situation which lacks the code of consensus (not determined by the unanimous call) dissent becomes the prime duty.

So, while performing one’s duty, can the creator of lawlessness claim the defense of Sedition? Can an alleged violator claim protection from the aggrieved? Should the violator have the capacity at that moment to decide the next recourse of action? And if yes, then whether the violator should be allowed to do so? Definitely, the answer to the above questions shall be in the negative. Then why are the victims called un-Indian when they are very much serving India.

Obviously, the majority dictates as to what has to be done and thus emerges a sense of competition as to who is a bigger nationalist (as in our case). As a consequence, the ones with the dissenting opinion, are mixed with mud or declared to be anti-national or most commonly, condemned for sedition. This is a huge concern for those who consider their upbringing as a debt to the nation and thus wish to pay it off through reformation.

The time has compelled us to ponder again on the importance of freedom of thoughts in democracy and therefore, we must again remember the very passage from Justice Oliver Wendell Holmes, Jr. from the case of Abrams vs. United States, (1919) where he dissented and stated:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

Thus, this living nature of the Constitution can not only survive by the dictate of majoritarian but the diversity for which it is constituted should also be taken into account. For it is this very diversity which becomes the intrinsic part of the Constitution and if any of its part gets vitiated, then the whole functionality collapses.

Therefore, the idea of dissent must be viewed in this context. A living creature evolves due to the changes which took place from within. Similarly, in a nation, evolution starts with a pre-conceived idea (thesis) countered by an anti-idea (anti-thesis) which results in an emergence of synthesis, which is the resultant of the collision that occurred. Thus, dissent is natural and an intrinsic part of evolution. Naming it anti-national or seditious is wrong on the part of those who try to submerge this dissent and thereby hinder the whole process of evolution and development.