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Thursday, October 29, 2020

Nation must reassess its legal systems: Former law minister Ashwani Kumar

'To stifle freedom of thought in terms of what one party perceives as nationalist is unacceptable'

Written by Manoj C G | February 29, 2016 2:04:41 am
nationalism, ipc, legal system, india legal system, law minister, india law, india law minister, Ashwani Kumar, india news Ashwani Kumar

Amid a debate over the JNU incident, Congress leader and former law minister Ashwani Kumar speaks about the need for India to reassess its legal systems, processes of justice and rightful limits of freedom.

There is a raging debate over nationalism triggered by developments in JNU, which has somewhat overshadowed the Rohit Vemula issue. Where is this debate — on whether one citizen is more patriotic than the other — leading?

The most unfortunate loss of life of Rohith Vemula is a matter of shame for the entire nation and certainly for all those whose actions contributed to it. That the young boy struggled to be where he was adds poignancy to the way he ended his life. Sans a political debate about it, we need to ask a fundamental question: whether compassion of the Indian society and those who speak on behalf of the people have become so insensitive as to not even acknowledge a moral responsibility for a loss of life. As if this was not enough, we see a premier educational institution under siege for allegedly being the hub of anti-national activity. That begs the question as to what is anti-national and what is national. Is it conceivable that in a country born to freedom and for freedom, one citizen will define whether the other is a nationalist or not?

In the Constitution, the cherished value of freedom is the foremost value from which all other rights and obligations are derived. This is because freedom is not a largesse or a concession of the state. A civilized state is obligated to defend the fundamental freedoms of its citizens. The BJP’s attempt to define a narrow, myopic and perverse view of nationalism and to pit it against constitutionalism is a brazen attempt to frame the terms of reference of the debate that is raging in the country to derail the real issue. The real issue today is the rightful limits on the fundamental right of freedom, thought and expression and the limits of tolerance. Descartes said I am because I think. Now the right of free speech and expression has also defined the progress of human civilization. Hegel said the progress of civilisation is none other than the awareness of the consciousness of freedom.

I was amazed and a bit surprised when the HRD minister quoted Cicero and stated that a traitor inside the gate is worse than a murderer. I know Smriti Irani will not be inspired by Nehru’s vision of the noble mansion of freedom. But I would like to remind Irani of what Thomas Paine had said, that he who rebels in defence of reason and against tyranny of any kind is the only true defender of the faith. So when students in JNU, including JNUSU president Kanhaiya Kumar, talk of azaadi from exploitation, unemployment, poverty, and at the same time about India as defined by constitutionalism and Parliament, even if some of the words are capable of being misinterpreted, can this speech by any standard amount to a seditious speech?

There has been a demand for scrapping the sedition law. Do you agree?

My personal view is that in a free country there should be no rule for a charge of sedition per se against its own citizens unless there are compelling circumstances where somebody has exhorted a kind of mutiny or rebellion by armed forces against the state. Short of that, the Indian Penal Code and criminal law of the country is sufficiently strong to deal with any brazen anti-national activity. Nobody defends anti-nationalism. But to stifle freedom of thought and expression in the name of what one party in the country perceives as nationalist is entirely undemocratic and unacceptable. In England in 1933, there was a debate in the Oxford students’ union where the motion was ‘this house resolves not to fight for the king and the crown’. This debate was carried with 275 votes in favour of the resolution as against 173 against. Nobody in England thought of invoking the law of sedition.

If you remember, Mumbai Police arrested cartoonist Aseem Trivedi on charges of sedition. The Congress was in power then. The UPA was in power for 10 years, why didn’t it amend or scrap the sedition law?

In the life of a nation there come moments when one is compelled by the force of circumstances and in the light of experience to reassess the state of the nation, our laws and political democracy. I think the JNU incident is certainly that moment which this nation must reassess its legal systems, the processes of justice, the rightful limits of freedom and the limits of restraint on that freedom. That something happened in the past should not be an argument that we should continue with something which we believe we need to at least reassess. Let there be a free debate on what should be the contours of the law of sedition. Even today, considering the judgments of the Supreme Court, the case against Kanhaiya does not admit to a charge of sedition. This is a colonial, draconian law of the 1870s. The first principle of criminal jurisprudence is that harsher the law, the more strictly it must be applied. It should be used sparingly and in the most compelling of circumstances.

The BJP has managed to bring the nationalism debate to the forefront. Many feel it was in a spot over the Rohit issue. Do you think there is a need for reviewing the Congress’s strategy?

I think we have put an outstanding case in an outstanding manner in the Lok Sabha and Rajya Sabha. The real issue is the idea of India where each citizen, as Nehru said, lives in larger freedom in this noble mansion of free India. Is that idea of India under siege by what we are seeing either in Hyderabad, JNU or Jadavpur? It is not a question of inventing a theory of nationalism in which everything else is subordinate? There cannot be an Indian nation without the Constitution. The idea of India has been incorporated by our founding fathers. Civilized democracies have always ensured that the political discourse does not regress into a kind of a mobocracy. It is precisely to arrest that kind of a tendency that all right-minded India citizens must assert themselves today. This is the moment all of us must seize. And speaking for myself, I believe that even if I am in a minority of one, I will always be prepared to get hanged for the cause of freedom.

But many of the parties in Parliament, barring the Left and JD(U), are not as vociferous as you.

My sense, at least in the Rajya Sabha, is that except for those parties that are politically aligned with the BJP, there is widespread sympathy for the cause of freedom and the way Kanhaiya has been treated. How can we claim to have a system of justice when an accused is not assured of his safety even inside the court premises. A free trial repels and rejects the idea of a trial by accusation and inquisition. Any idea of a fair trial must reject a trial by media or inquisition. The fact that lawyers who went from the Supreme Court were roughed up and the police were watching is a sad commentary on the kind of political management of the state today.

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