India’s democracy was born out of non-violent seditious speech. As Gandhi led the protesters in the Great Salt March of 1930, they sang, at his urging, his favourite song: Rabindranath Tagore’s “Ekla Cholo Re”, a song in praise of dissenting speech. “If no one says a thing, oh you unlucky soul,/If faces are turned away, if all go on fearing — /Then opening up your heart,/ You speak what’s on your mind, speak up alone.” The paradox of a mass of people singing an ode to solitary dissent is really no paradox, since dissenting speech is protected in a democracy only when people love the freedom of speech and affirm it, both in their hearts and through their legal arrangements. India’s founding was such an affirmation.
The freedom of speech never has an easy road in any democracy, and it has not had one in India. Throughout the nation’s history, parties across the political spectrum have tried to suppress allegedly dangerous speech with a variety of laws against sedition and religious offence. The recent events at JNU show that dissent has dangerously lost ground. Despite widespread protest of the government’s actions in arresting the dissenting students, notable figures, not just on the right, have spoken in favour of drawing some line and terming some speech too dangerous to permit. No less a liberal than Ramachandra Guha describes what was said at JNU as “a provocation where perhaps the freedom of speech limit has been crossed” — even though he quickly criticised the arrests, and even though nobody should claim to have an accurate idea of what was said, given the evidence that recordings have been doctored.
Much has been written about India’s vacillation between Tagorean/ Gandhian protection for speech and fearful support for legislation against speech. It seems useful, at this point, to gain some historical distance, looking at a case far away in place and time.
In 1918, towards the end of World War I, the US Congress passed the Sedition Act, which set harsh criminal penalties for anyone who uses “disloyal, profane, scurrilous, or abusive language” about the US government, flag or war effort. Eugene Debs, famous labour leader and five-time Socialist Party candidate for president, was convicted of violating a similar earlier law by speaking up with strong denunciation of the war, which he said was a bosses’ war and injurious to the working classes. Debs did not physically obstruct military recruitment or registration, but the prosecutors reasoned that his speech was a form of obstruction and as such violated the act. Debs went to jail, where he soon contracted tuberculosis, from which he died several years later (after his sentence was commuted in 1920). Meanwhile, however, the case changed the face of free speech law.
The US Supreme Court upheld Debs’s conviction, but a dissenting intellectual, and a foreigner at that, spoke up alone. Ernst Freund, a German Jewish professor of political science and law, and the chief architect of the University of Chicago Law School, had long been a troublemaker. He wrote extensively about abuses of police power and opposed the mass deportations of immigrants that had been proposed (then as now!). He insisted that a law school should be not a place where young lawyers learn traditional doctrine but, instead, a place where they learn to think critically, challenging the social order: Thus philosophy, economics and sociology would be part of their legal education. And, in 1919, he spoke up on behalf of Debs.
Freund’s article, “The Debs Case and the Freedom of Speech”, quickly became a classic, ultimately leading US law to shift ground, so that now it is universally agreed that even disloyal and seditious speech, and even during wartime, is protected under the First Amendment — unless there is a direct and imminent incitement to specific acts of violence. He made three arguments, all of which are applicable to the JNU case. First, however strongly Debs had urged the case against the war, he was not obstructing recruitment; he was influencing people by ideas alone. So too at JNU: Whatever the student protesters actually said, and no matter how “disloyal” or “abusive” it was, it was in the realm of ideas and speech, and nobody has even suggested that they engaged in violent action.
Second, and crucially, Freund argued that all sedition laws are in their nature vague, and thus they function as invitations to arbitrary and capricious political suppression of opposition. The Debs case showed that government will use such laws to suppress a popular labour leader, thus serving corporate interests. The JNU case shows that government will use similar laws to go after not just ideas it doesn’t like but a distinguished university that has been a thorn in its side, thus serving the interests of the RSS and other supporters of the government. The vague slur “un-Indian” is no better than the vague US slur “disloyal”: Both are handy tools to suppress critique.
Third, Freund argued that dissent is a crucial linchpin of democracy. Conformity and fear are democracy’s poison; dissent is a source of strength and health. This was what he said, but also what he practised by creating an academic institution that employs and vigorously protects subversives such as me and my colleagues, who might encourage counter-arguments to the unreflective pieties of the day. (And I mean pieties of both left and right: I just finished teaching a class on public morality and legal conservatism with my most conservative colleague, providing a theatre of respectful difference and searching critical argument.) Like JNU, and unlike what the government would wish JNU to become.
The US has not always heeded Freund’s wise arguments, but at least they have shaped the legal tradition, where freedom of speech is concerned. India, whose embrace of free speech is, historically, deeper and more foundational than that of the US, should rise up in protest against the very idea of punishing “seditious” speech, seeing the truth in the ideas that Freund, Tagore and Gandhi all stood for, in their different ways. In both the US and India, dissent is always fragile, and the dissenter always runs a risk. For this reason, Tagore’s song ends with the dissenter having to light the light of reason by striking a flame from his own ribs, and “burning alone”. But India’s ideal is better than that. It is the ideal of a nation built upon respect for and love of the solitary dissenter, a nation of people who marched for freedom singing Tagore’s song.
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