How to govern dissent
Written by UPENDRA BAXI | Updated: February 27, 2016 12:28 am
Demonstrators shout slogans as they hold placards during a protest demanding
the release of Kanhaiya Kumar, a Jawaharlal Nehru University (JNU) student union
leader accused of sedition, in New Delhi. (Express photo by Oinam Anand)
I have had the privilege of serving two universities — South Gujarat and Delhi —
as their vice-chancellor and teaching law for about three decades in India.
I have had a ringside view of politics within and outside the campus. I have
been witness to remote-controlled party politics on the campus,
especially during the Mandal and Kamandal days in Delhi.
But never before had an entire university been declared by anyone —
whether a member of the ruling party, government, or the opposition —
as "anti-national". Never before has the police entered the university, save the
dark days of the Emergency, without the permission of the VC or the head of
the concerned institution. Nor were presidents and office-bearers of student
unions arrested, or media (and others) manhandled by members of the bar in and
near the court compound, or the media asked with violence not to do its reporting.
Never did members of the armed forces seek to return their degrees.
Never before were street marches held against democratic dissent.
Never before did citizens of neighbouring areas surround the entrance to a
campus seeking to intimidate its denizens. And at no time have popular or party
patriotic sentiments ran so volatile as even to ask a politician father to "kill" his
student daughter for participating in an "anti-national protest"
(as a BJP national secretary is reported to have said recently in Chennai).
Obviously, patriotic sentiments are running high to a point of public frenzy;
yet never was so pressing the need for a reasoned dialogue as now. Do the
present happenings around and within JNU, the protest and
violence, portend any lack of patriotism on our campuses?
Constitutionally sincere citizens agree on two things: First, any assailant of unity,
integrity and democratic sovereignty ought to be dealt with according to the law;
and second, intimidation and violence, especially aggression or predation —
moral vigilantism of any sort — have no place in any pursuit of rashtra bhakti.
Both violate the basic structure, fundamental rights, directive principles and
basic duties of all Indian citizens prescribed explicitly by the Constitution.
Fully flouted, thus, is constitutional pluralism — the fundamental duty of all Indian
citizens to preserve our "composite culture", "spirit of critical inquiry and
social reform", and "excellence" in all walks of life under Article 51A.
Some deplorable anti-India utterances were made at a rally on the JNU campus.
Who made them and why can only be found out by an authoritative inquiry.
Currently, a plethora of inquiries and investigations are underway:
JNU, NHRC, police, Bar Council, and Supreme Court and Delhi High Court.
These different modes of inquires are all necessary, provided they cater to justice,
and not obfuscate the causes, career and consequences of the violence and intimidation.
The protest and counter-protests raise basic concerns about what
Jürgen Habermas called "constitutional patriotism", different from "statist patriotism"
(what Gandhi called "manufacturing affection for the state").
Fidelity to constitutional purposes alone can help us to discern public reason.
Constitutional norms affect us all, stimulate a larger debate, help discriminate
rational arguments against irrational ones and bind us to jurally ordained public morality.
May there be different forms of patriotism, each vying with the others? Can each
political party have its own brand of patriotism and vigilante citizen cadres, and
what do we do when these conflict and collide? Are ministers bound by the oath under the
Third Schedule or their own type of patriotism? Should any government, whether
at the Centre or in a state, be allowed to resile from the duties prescribed by
constitutional patriotism? Is unbridled popular patriotism to replace constitutional patriotism?
Not to reason, and act, together may risk the demise of constitutional democracy as we know it.
We have also to learn the simple truth uttered by Karl Mannheim in 1940
that in a "democratic mass society, especially with great social mobility,
no group can succeed in deeply influencing the whole of society". When
different elites compete for power and influence, it is a costly error to think that
political leadership alone can impose its will on society. Indeed,
Prime Minster Narendra Modi rightly asked us to affirm the motto:
"Sabka saath, sabka vikas" (roughly, inclusive constitutional
development is the only worthwhile development).
Accordingly, sedition should never be a way of governance of dissent. Our SC
has ruled early that every citizen has a right to discuss and dissent; only incitement
to violent or criminal action stands outlawed. Shouting slogans that are not
demonstrably anti-India, and conducting and joining protest marches, are
regarded by the court as an integral aspect of freedom of speech and expression
and democratic dissent. This law was further elaborated in the
Khusboo (2010) and Shreya Singhal (2015) cases.
The law forbids recourse to the offence as part of an ensemble of governance;
acquittal on sedition charges (lumped under other IPC offences by the National
Crime Records Bureau) is the rule rather than the exception. But a charge of
sedition and persevering in prosecution have a demonstrably "chilling effect"
(in the SC's words in 2015) on the democratic right to disagree and dissent.
Our Constitution doesn't allow free citizens to be pre-trial detenus for years on end —
punishing non-violent dissent is constitutionally offensive, even when it may be
politically expedient to preserve the colonial law after more than six decades of the republic.
Even if such a law is to remain in the statute book, its exercise by the police and
executive must be reasonable under Article 14. Certainly, it's time to consider
decriminalising speech-related conduct, making such offences bailable and negotiable,
prescribing a regime of prior sanctions, and providing standard-based objective
satisfaction for prosecution. The march of law should forthwith prohibit all forms of
violent vigilantism and simultaneously move towards a fresh law narrowly tailored
to prevent threats to the unity of a sovereign, democratic, secular and socialist India,
avoiding at the same time a "chilling effect" on free expression.
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