Disagree, Don’t Label

It is not anti-national to denounce a court judgment or ask for azaadi for Kashmir.

Written by Shanti Bhushan | Updated: February 25, 2016 12:03 am
Delhi Police personnel at Parliament Street, minutes before hundreds of JNU students, teachers, artists and leaders marched into the area Thursday. (Express Photo Tashi Tobgyal) I may not agree with the view of azaadi for Kashmir, but there is nothing anti-national in that demand. (Express Photo Tashi Tobgyal)

A big debate is raging in the country today on what acts are anti-national and can be denounced even though they might not be punishable under the law.

On one side of the spectrum, we are witnessing Jat agitators in Haryana burning cars, buses, railway bogies and even buildings to fuel their demand for reservation. Are these activities not anti-national?

On the other side, there are allegations that some Jawaharlal Nehru University students raised slogans inside the JNU premises on the third anniversary of Afzal Guru’s hanging denouncing his execution. The JNU students deny the allegation against them, and insist that they were not party to any such sloganeering, and that these slogans were, in fact, raised by some outsiders who were students from Kashmir. I shall not go into this controversy and only consider the action of whoever raised the slogans and answer the question on whether the raising of such slogans can by itself be regarded as an anti-national act.

There is considerable doubt about what slogans were actually raised in view of the doctored videos that were played on television channels. However, let us assume that some of the slogans raised were asking for azaadi for Kashmir, and denouncing the Supreme Court judgment convicting Afzal Guru.

It is settled law that the fundamental rights conferred on every citizen include the right to criticise even a judgment of the Supreme Court and claim that, in one’s opinion, the judgment is incorrect. In saying so, the citizen is exercising her right and cannot be faulted in law. One may or may not agree with her views. In fact, I myself strongly disagree with the view that the conviction of Afzal Guru by the Supreme Court of Prevention of Terrorism Act offences was wrong, but would still concede the right of the other person to express her own view.

However, so far as the infliction of the death sentence on Afzal Guru by the Supreme Court is concerned, I am myself of the view that while his conviction as a conspirator in a terrorist offence was correct, the death sentence awarded was not only incorrect, but also quite illegal. There is a section in the Prevention of Terrorism Act that says that if any provision of the act is inconsistent with the Indian Penal Code, the provision in the Prevention of Terrorism Act will prevail. Now, in the Prevention of Terrorism Act, the maximum sentence for a conspirator is imprisonment for life, not death. As Afzal Guru was not party to the attack on Parliament but alleged only to be party to the conspiracy, he could only be sentenced to imprisonment for life and the death sentence to him was wholly illegal.

Also, I may not agree with the view of azaadi for Kashmir, but there is nothing anti-national in that demand. In many places, the issue of reorganisation of the country has been discussed and decided democratically and peacefully. These include Great Britain and Canada in the recent past. Other countries, such as Bangladesh and Yugoslavia, where such issues were not allowed to be peacefully and democratically settled, have had violent and bloody partitions.

In this view of the matter, a calm and cool consideration would lead to the conclusion that while one may disagree with the slogans, there is nothing anti-national in being party to the slogan denouncing the Supreme Court judgment or asking for azaadi for Kashmir.

It is the principles enshrined in the Indian Constitution of the right to life, liberty and freedom of speech and expression that define our nation, and any act that threatens these great principles is anti-national.

I would also like to add that the peaceful atmosphere in the country should not be spoilt by manufacturing a frenzied one. The dangers in that path must be recognised immediately, and tempers must be cooled.

However, acts like the destruction of life and property in Haryana are clearly anti-national and must be stopped with a heavy hand.

The writer, a senior advocate at the Supreme Court, was Union law minister from 1977-79

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