How to govern dissent

It’s time to decriminalise speech-related conduct, making such offences bailable and negotiable.

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 on Thursday. (Express photo by Oinam Anand) 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.

The writer is professor of law, University of Warwick, and former vice-chancellor of the Universities of South Gujarat and Delhi