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

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First Published on: February 27, 2016 12:25 am
  1. A
    ami g
    Feb 26, 2016 at 11:05 pm
    Baxi I challenge you to shout antinationals slogans in your adopted country and see what happens
    Reply
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      ami g
      Feb 26, 2016 at 11:03 pm
      Baxi is a sycophant. He lives in England and talks about India. Duplicitous plici
      Reply
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        ami g
        Feb 26, 2016 at 11:01 pm
        Baxi is a sycophant. He lives in Wngland and talks about an expert in iNdia. Load of bull
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          ami g
          Feb 26, 2016 at 11:06 pm
          Meanwhile in heaven Ishrat Jahan is enjoying 72 Virginia men .. Thanks to congress
          Reply
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            Rohit Sharma
            Feb 27, 2016 at 12:47 pm
            Baxi just because you are a professor of a godforsaken subject Ina western country does not provide u a license to yap nonsense. Freedom of speech has limits and you cannot abuse your country and its consution
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              Afzal Ahmad
              Feb 27, 2016 at 8:54 pm
              The partly informed or ill informed persons have poisoned this forum so bitterly that it has become rather impossible to expect some constructive and intelligent suggestion from the writers. Whatever will be the problem, the Mullas, Muslims, Jihadis, Islamic terrorism, Kashmiri Pandits will be quoted in some way or the other as if this will solve every problem. And to justify they will travel to every part world simply forgetting their own country. For the time being, even if we suppose that some wrong things have been done by Mullas, Muslims or against Kashmiri pundits, doing another wrong against Muslims is no justification. Two wrongs don't make one right. But these intellectual writers try to communalise everything in Hindu/ Muslim divide irrespective of subject and they end up in making mockery of themselves. Probably, they have forgotten the history. If Muslims are invaders, so are the Aryans, and it is they who created SHUDRA by enslaving the original local tribels living in this part of land now called as India. Moreover, Aryans are Race and not religion. Even Muslims and Christians are Aryans. It is for their information that when Islam reached India most of the SHUDRAS (who were original residents of this land) converted to Islam. Therefore, a lot of Muslims in the country are its original residents and were here even before the invasion of Aryans who came from central Asia and settled in fertile Gangetic plain. Thus it's Aryans and not Muslims who are invaders. They should also remember that Hindu was never a religion because it is a Persian word given by Arabs to everyone living east of Sindhu River. There is no gain in digging the old graves. It will create bitterness which is always harmful. There let's work for the benefit of the country which will give way to our happiness.
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                ak dev
                Feb 26, 2016 at 8:21 pm
                One more confused soul trying to contribute his part to the JNU confusion. Only these learned stu pids can treat breaking and ruining of India as dissent under freedom of speech. These traitors would feel no difference if India is again ruled by British or Muslims or converted to an islamic country. This is because these filthy creatures are parasites. They will suck the blood of any one who rules India.
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                  ak dev
                  Feb 27, 2016 at 10:56 am
                  Zahil, ganwar is far better than being anti-national i.e. GADDAR. Got it?
                  Reply
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                    Anil Tandale
                    Feb 27, 2016 at 2:35 pm
                    Shreya Singhal and Khushboo cases do not relate to exhortation for disintegration of India or secession of JandK. Other than these categories, freedom of expression can be elastic, but subject to the prohibition of Article 19[2] of the Consution, which none wants to read.
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                      Dr B
                      Feb 27, 2016 at 7:03 am
                      author is dog donkey pak dharjina. its my opinion it is just freedom of speech
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                        Sekhar
                        Feb 27, 2016 at 12:14 pm
                        After 3 years of deliberations, on 26 January 1950, unimpeachable Indians gave themselves a consution that guaranteed liberty, equality and fraternity. The first amendment to the consution of India curtailed freedom of speech. Since then, it has been a slippery slope. Has the time come now to declare all amendments to consution that curtailed freedom of speech, equality before law and differential rights for sections of society as illegal? .
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                          Sanjay
                          Feb 27, 2016 at 9:39 pm
                          Instead of quoting foreigners like a true sepoy to buttress your case, you should have had the common sense and insight to figure out that the entrenched Christian/ Jihadi hyenas at JNU are encouraging the clueless punks that go for students these days in creating false narratives of Dalit atrocities etc. only to malign Hindus. This is a project that has to be destro.
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                            Dilip Sinha
                            Feb 28, 2016 at 11:50 am
                            Emergency sir, if you forgot, or chose to. By the way, lets not jump to conclusions. Wait and see; and the facts would be out. The matter is before court and the judge would rule. Baxi saab, there was no rule of law at the time of the emergency. People have short memories, and how you find the current situation the worst ever is beyond comprehension, is this a case of confirmation bias? You could be hauled by the police without charge during 1975-77, when the entire opposition was in jail and the 42nd amendment was ped. But you noticed not.
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                              Dr. Sonali
                              Feb 27, 2016 at 10:35 pm
                              How "stupid" can so called "intellectuals" be??!! Out of context. Irelevent. Meaningless.
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                                Dr. Sonali
                                Feb 27, 2016 at 10:38 pm
                                ISI has really selected mentally blind people. Or made them blind.
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                                  Dr. Sonali
                                  Feb 27, 2016 at 10:37 pm
                                  Paid for out of context statements.
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                                    Dr. Sonali
                                    Feb 27, 2016 at 10:36 pm
                                    Totally out of context. .
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                                      Sam
                                      Feb 27, 2016 at 9:12 am
                                      Total bakwas!!! Stop nonsense, I feel even writing uselessly like this for selfish pupose should be stopped immediately. All one sided congi brainless still destroying country.
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                                        POLITICALONION
                                        Feb 27, 2016 at 10:43 am
                                        "It’s time to decriminalize speech-related conduct, making such offences bailable and negotiable." OK. Mr Intelligent, what is meant by NEGOTIABLE OFFENCE? Before people like you start writing, please use some sense, if you have any.
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                                          George Cruz
                                          Feb 26, 2016 at 11:39 pm
                                          The even in western liberal democracies like US the anti-national behavior, and related slogans in public spaces/universities is serious crime and carries severe punishment. Upendra Baxi is a congress party pseudo secular who is promoting the JNU anti-national elements who supporting/glorifying the actions of the terrorists/killers like Afzal Guru and Yakub Memon who were sentenced to death by the Indian judiciary after a thorough review of terror and killing spree and another division of the country. The JNU has already become a hub for the Kashmir separatist Islamic jihadi goonda elements who get admission on the basis of quota/reservations, free education, free boarding, and to commit terror acts against the country.
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                                            Lovely
                                            Feb 27, 2016 at 5:52 am
                                            Ours is a fragile republic we require tough laws. US , Russia, China and many many more small and big countries have tough laws to deal with sedition.
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