Protect the dissenter

That is the state’s responsibility. It must punish those who violently target dissent

Written by Soli J. Sorabjee | Published:September 9, 2017 12:26 am
Gauri Lankesh, Freedom of expression, Lankesk murder, Dissent, Dissent in a democracy, Democracy, Tolerance, Indian Express People hold placards and candles during a vigil for Gauri Lankesh, a senior journalist who according to police was shot dead outside her home on Tuesday by unidentified assailants in southern city of Bengaluru, (Reuters Photo)

One critical test to adjudge the claim of any country of being democratic is its tolerance of dissent and the protection afforded to the dissenter. The recent premeditated murder of Gauri Lankesh, apparently not for any personal enmity or monetary gain, was most deplorable. Equally deplorable is the consequent murder of democracy — because dissent is the soul of democracy.

In any civilised society, people will have different notions of what is good and beneficial for the country. A truly tolerant society grants a fair field and an honest race to all — radicals and reactionaries, industrialists and workmen, the religious and the free thinkers, capitalists and communists, and all the infinite variety of crackpots, fanatics, and self-appointed saviours of mankind. The dissenter must feel free to express his views vigorously, pungently, without any lurking fear of incarceration. The only requirement is that there should be no incitement to violence.

It is wrong to consider a dissenter as a mischievous law-breaker or an anti-national or unpatriotic person. Remember, patriotism is the last refuge of a scoundrel.

In the words of the eminent American jurist Benjamin N. Cardozo, “the dissenter speaks to the future, and his voice is pitched to a key that will carry through the years and for the moment, he is the gladiator making a last stand against the lions.” According to US Chief Justice Charles Evans Hughes, a dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, and as observed by Justice Felix Frankfurter, dissents in the US Supreme Court have gradually become majority opinions.

Courts in India have also recognised the right to dissent. In 1967, the High Court of Bombay in the case of Anant Karandikar significantly ruled that “it is implicit in the freedom of press that every one ought to have the privilege of expressing opinions which are unpopular or distasteful. Right to dissent is the very essence of democracy. Conformity to accepted norms and belief has always been the enemy of freedom of thought.”

The Supreme Court of India in a decision pronounced on November 12, 1974, observed: “Peaceful protests and the voicing of a contrary opinion are powerful wholesome weapons in the democratic repertoire. It is, therefore, unconstitutional to pick up a peaceful protester and to put him behind the prison bars.”

The historic dissent of Justice Fazl Ali in 1950 must be noted. In the A.K. Gopalan case, the Supreme Court was required to construe Article 21 of the Constitution which reads as “Protection of life and personal liberty — No person shall be deprived of his life or personal liberty except according to procedure established by law.” The majority in that case ruled that the expression “procedure established by law” in Article 21 means positive or state made law. It rejected the plea that the procedure prescribed by law should comply with the basic principles of natural justice.

Justice Fazl Ali dissented. He held that Article 21 is not complied with by mere prescription of a procedure pursuant to a law enacted by the state, but the procedure must comply with certain “fundamental principles of justice which inhere in every civilised system of law and which are at the root of it.” Justice Fazl Ali ruled in his dissent — that “a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs. Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence.”

After two decades, Justice Fazl Ali’s dissent was expressly accepted by the Supreme Court in January 1978 as laying down the correct law in the case of Mrs Maneka Gandhi whose passport was impounded by the authorities. The Supreme Court ruled that the concept of reasonableness must be projected in the procedure contemplated by Article 21 and stated that the minority view of Justice Fazl Ali “must be regarded as correct and the majority view must be held to have been overruled.”

The voice of dissent, when it is not the voice of violence, is essential for the advancement and progress of society. But for bold dissenters, the scourge of Sati and other social evils would be still haunting us. One need not accept the dissenter’s views. They can be rebutted in a dialogue.

It is said that Gauri was vehemently anti-Hindutva. She was hated for her views. She was called a Naxal sympathiser, a Hindu hater. But however strong her views, she posed no threat to those she opposed. Dissenting views cannot be silenced by the bullet of a gun. The recent cases of M.M. Kalburgi, Narendra Dabholkar and Govind Pansare evince a disturbing trend. The fact that we still don’t know who killed Dabholkar, Kalburgi and Pansare points to a war between fundamentalism and rationalism, with the former showing its virulence.

Union Minister for Minority Affairs Mukhtar Abbas Naqvi rightly stated that “tolerance is the culture and commitment of India and it is our constitutional duty to protect and strengthen the culture of tolerance.” In that case it is the duty of the state to protect the dissenter and not to penalise him or her for the dissenting views. It is also the duty of the state to severely punish those who violently target the expression of dissenting views.

Let politics not be injected into the matter. Let us respect and honour the dissenters for their courage and fearlessness. In doing so, we shall, in effect, be preserving and strengthening our democracy.

The writer is a former attorney general of India
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