India’s not so dismal Justice Shah!

Justice A.P. Shah shares his initials with the first two letters of the adjective “apocalyptic” which aptly describes his M.N.Roy Memorial Lecture.

His prophesies of doom notwithstanding, India is not in so grim a condition as he suggests.

Yes there is a tumultuous clamour within the political landscape today. But is that not the norm of a free society? As long as a polity retains the legal capacity to control the consequences of social encounters between competing ideologies – which India undoubtedly possesses – dislike for a contrary point of view should provide no cause for apprehension or alarm.

Preference to one of a competing set of opinions and condemning the contrary as dangerous has little to do with the content of the opinion and is based exclusively upon the values the self appointed arbiter subscribes to. Justice Shah may be attaching little value to the legally enjoined political integrity of India giving preference to freedom to divide the country over its being kept intact as is constitutionally prescribed and hence worry about “attacks” on “institutions of learning” but how does he conclude therefrom that a view contrary to what he holds is dangerous or wrong and harmful for the country? What is misdescribed as an “attack” is actually the repulsing of an assault on a perception of India as envisaged by its constitution. A tolerant society without self-defence is doomed to destruction.

Reference to “online hate, abuse and threats” to a “21 year old university student” is clearly a case of cherry picking suggesting, wrongly, that one point of view alone is made subject of online harassment. Similar abuses and ad-hominem attacks apply to almost every point of view which is expressed. The partisan approach of Justice Shah sows a predisposition towards a particular point of view which robs his view both of balance and perspective.

UP finds a mention with a pointed reference to “harassment of Muslims” but are Muslims alone harassed in the country? What about the ethnic cleansing of Hindus from Kashmir or the murder of Swami Lakshmanananda on Janmashtmi by Christians in Orissa? Similar examples can be multiplied. India did not yet break into tumult nor into an uncontrollable frenzy or disorder! Is ignoring a large number of related cases which contradict one’s stated position not unprincipled and unfair ?

Yes, as Justice Shah said, we must be “wary of enforcing a single ideology on a country as diverse as India”. The comment was made in the context of Mohan Bhagwat’s call for a national law against cow slaughter. Notwithstanding Bhagwat, under the Indian constitution the state legislatures alone have exclusive powers to legislate on the subject which is the reason why many of the states have enacted no legislation on the slaughter of cows. Bhagwat is, however, entitled to his views. Committed as he is to freedom of speech, can Justice Shah deny Bhagwat the right to hold views which Justice Shah may not like? Or is he intending, through negative verbal remarks, to create an antipathy towards a contrary point of view not shared by him and imposing a “single ideology” on a country as diverse as India. In any event there is no prescription in India about what one may or may not eat and laws in place to deal with any form of intimidation or coercion.

Justice Shah referred to the Censor Board rendering Hanuman Chalisa silent because prayer was not answered but chose to ignore referring to the movie PK which dealt with fraudulent godmen (all of whom were incidentally Hindus) nor even to 3 Idiots where students were shown to be worshipping several Hindu Gods and even feeding a cow in a desperate attempt to pass the examination. I doubt if as liberal or expansive satirizing or mocking of religious habits of any religion other than Hinduism could have been dared by any director or producer of any movie in India. This is a tribute to its maturity, sense and large-heartedness.

There is nothing wrong with the retention of the offence of sedition, to which Justice Shah objects, as law must reconcile the right of private criticism with the necessity of securing safety and stability of state. Prosecution for sedition is in the interest of public order which is included in clause 2 of Article 19 of the Constitution. And his regret that defamation was not decriminalised does not detract from the fact the judgment the Supreme Court rendered was indeed a well reasoned one.

A prejudiced mind can easily stigmatise. And cherry picking facts to resonate with your belief system can only bring about a doctored reality. While becoming a Cassandra of doom Justice Shah forgot that what he felt was reality was actually one feigned, invented and imagined by him only. India needs no moralising discourses from Justice Shah or others.

Rohith & Kanhaiya-Of Dalits & Students

Discipline becomes a “Dalit” issue and Sedition becomes a case of “stifling students”.

Rohit was not suspended for being a Dalit but because of his protesting the hanging of Yakub Memon who was convicted for the 1993 Bombay bombings. And Kanhaiya was arrested for subversive speech which enjoys no constitutional protection and students are not exempted out of the requirement. Yet we are fed constantly with cries of injustice to “dalits” and “students“.

Does identity (being a Dalit) immunise conduct and is location (JNU campus) the sole reason for a privileged position?

It is indeed strange that while protesting social inequality a privileged position is being created in the enforced exemption from norms which are otherwise of general application.

And the cognitive dissonance – conflict arising from holding of contradictory beliefs – is replaced by doublethink – the simultaneous holding of contradictory beliefs entailing as Orwell said the repudiation of morality while laying claim to it!

Thus the very law and system disparaged in speeches and protests is invoked both by Rohith’s kin and Kanhaiya to seek protection from action and redressal of perceived grievances. Is this not hypocrisy parading as virtue which actually robs the protagonists of the moral high ground they seek to occupy?

In any event the question is not who Rohith was but what he did and the mere fact that Kanhaiya spoke in University campus will not make a subversive speech less so.

The defence of both Rohith and Kanhaiya entails deriving moralistic conclusions from evaluative premises which is nothing but a moralistic fallacy. Two illustrations will explain such a flawed approach: Dalits have been treated badly THEREFORE punishing Rohith, a Dalit, is wrong. And students need a free environment there all restraint on them is bad. Considering the opposition of this group to fanaticism such bullheaded opposition to reason is indeed unseemly and inappropriate.

And what will then happen to civic nationalism? Considering the vociferous opposition of the group to any ethnic basis of nationalism – because of the perceived threat of cultural assimilation – even civic nationalism – which deals with shared rights and deference to similar political procedures- would be endangered by such an approach  for rights will be claimed for some which are denied to others and exoneration from procedures, applicable to all, yet sought for a class. There will be no commonality of goals nor cooperative effort. With utter want of mutuality and enclaves of exclusiveness will there not be greater fragmentation of society and alienation of its members with no chance of inclusiveness or adaptability which is being invoked in the defence of both Rohith and Kanhaiya?

There is something fundamentally wrong with what is happening. Such an attitude must not be allowed to prevail. Denying both moral and civic virtues we will then move away from integration to disintegration. And this is injustice to all – not just Dalits and Students!

 

 

 

 

 

Sedition explained

There has ben much uninformed comment on the law of sedition, as applied in India, and the judgment of the Supreme Court in Kedarnath v State of Bihar (AIR 1962 SC 955).

It has been alleged by Lawrence Liang in Plan B for Free speech (Indian Express, February 16, 2016) that “mere speech no matter how subversive it is does not amount to sedition” (emphasis mine). Another lawyer Colin Gonsalves said (Tribune, February 12, 2016) that an offence will be sedition “only if something said against the State is coupled with a violent act to overthrow it” (emphasis mine). Yet another lawyer, Prashant Bhushan, said that the offence of sedition could be established “only if there is incitement of violence or public order”. And Kapil Sibal said there should be “intent to overthrow the government.”

The purported exposition of law of each of the aforementioned persons is incorrect.

It would be appropriate to first refer to the facts of Kedarnath. Kedarnath in one of the appeals (Criminal Appeal 169/57) had given a “statement” mentioning “dogs of CID” and “Congress gundas” and talking about their “liquidation” said “we believe in the revolution which will come” and “those who loot the country would be reduced to ashes and on their ashes will be established the government of the poor and the downtrodden people of India.” Kedarnath was charged under Section 124A of the Indian Penal Code which punishes sedition.

If Lawrence Lang was right that “mere speech no matter how subversive is not sedition” Kedarnath should have been acquitted. The Supreme Court, however, upheld his conviction. The Supreme Court said that it was not contended before it on behalf of Kedarnath that the words used by him did not “come within the purview of the definition of sedition” and that no argument was advanced that “even upon the interpretation given by it” his case did not come within the mischief of the said section and hence his “Criminal Appeal 169/57 has to be dismissed”.

Before dealing with the interpretation given by the Supreme Court another equally significant aspect of Kedarnath may be referred to. There were two other appeals before the Supreme Court dealing with “speeches” given that “excited the audience with intent to create feelings of hatred and enmity against the Government. The accused were again charged under Section 124A. The High Court of Judicature at Allahabad had set aside the proceedings holding that Section 124A was ultra-vires Article 19(1)(a). If Lawrence Lang’s understanding of sedition is the law the appeals against the said setting aside should have been dismissed. But the Supreme Court instead of dismissing the said appeals remanded the matter to the High Court for consideration in light of its judgment and hence decide whether the speeches were seditious. The case against them, therefore, could not be rejected at the thresh-hold.

It is now necessary to understand what the Supreme Court held. The Supreme Court had before it conflicting decisions of the Federal Court and Privy Council on the meaning of sedition and accepted the interpretation of the Federal Court as to the gist of criminality in Section 124A. The Federal Court had held that “words, deeds or writings constitute sedition” if they create public disturbance, promote disorder or incite others to do so. And the Supreme Court summed up the law thus: “We have no hesitation in so construing the provisions of the section impugned in these cases to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

A “subversive” speech is inflammatory, treasonous and incendiary. The words “subversive” means a tendency to “subvert”. And “subvert” is defined in the New Shorter Oxford English Dictionary as “corrupt, pervert, disturb or overthrow a system” and “weakening or destruction of a country, government or a political regime”. A subversive speech is bound to have “the tendency” to create public disturbance and promote public disorder and hence is liable to prosecution for sedition.

The offence of sedition is made one because it is “in the interest of public order” which is one of the limitations on freedom of speech under Article 19(1)(a) of the Constitution of India. And as the Supreme Court itself held, “This Court as the custodian and guarantor of the fundamental rights of the citizens has the duty cast upon it of striking down any law which unduly restricts freedom of speech and expression. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law in words which incite violence or have the tendency to create public order.” This is precisely what the Federal Court had also held.

It is thus also wrong to say that sedition can be established “only if there is incitement to violence or public disorder. It is not only causing violence or public disorder which will attract the offence of sedition but independent of the same the tendency to create public disorder which equally attracts liability. Putting it differently it is not an actor’s willful and deliberate stirring of public disorder alone which constitutes sedition but likeliness of disorder because of the quality of inherent in the act which is equally independently seditious. Thus Kapil Sibal is wrong when he says that sedition is justified only when there is “an intent to overthrow the government.”

There is also no requirement as has been suggested by some lawyers that an offence will be sedition “only if it is accompanied with a violent act to overthrow the state.” Stephen’s Commentaries on the Laws of England was cited by the Supreme Court itself and it described sedition thus: “We are now concerned with conduct which on the one hand falls short of treason and on the other does not involve the use of force or violence. The law has to reconcile the right of private criticism with the necessity of securing safety and stability of the State…The seditious conduct can be by words, by deed, or by writing.”

A bad tendency alone is enough to attract the offence of sedition. The charge in Kedarnath’s case itself shows that the test for invocation of the offence of sedition is neither “imminence” of disorder nor “a clear and present danger of it”. Notwithstanding there being no immediate prospect of “revolution” which Kedarnath mentioned nor the immediate possibility of the existing dispensation “being reduced to ashes” as he desired the “bad tendency” of what he spoke was itself sufficient for his prosecution for sedition. The judgment in Shreya Singhal’s case is sometimes referred to for reliance on “clear and present danger” test as the basis of justification on any speech but what is ignored is not merely that the Bench Strength of the said case was two judges only (Kedarnath was five) but also that it specifically mentioned Kedarnath and other cases to affirm that restrictions on freedom of speech can be justified on the ground of their having a “tendency” to cause harm, the test applied in Kedarnath. In any event hatred, contempt or disaffection cannot never get constitutional protection.

Mr Sorabjee added a new twist to the whole issue. In an interview he suggested that Pakistan zindabad is not sedition but Hindustan murdabad might be sedition. This creates a piquant situation. Please consider the consequences. An Indian (according to Mr Sorabjee) is immune against action if he shouts Pakistan Zindabad but if he shouts Hindustan Murdabad its impropriety needs to be debated. And debate is protected! But if debate is protected how can that which is being debated (Hindustan Murdabad) be the cause of arrest? Arrest thus will be unwarranted in both cases whether one shouts Pakistan Zindabad or Hindustan Murdabad! Indians can thus travel the length and breadth of the country either shouting Pakistan Zindabad or Hindustan Murdabad and not be tried for sedition. But if one protests against this he is liable to be arrested for objecting to legitimate political action!

Four other aspects need to be noted here.

It is, firstly, said that Section 124A has been used to imprison Tilak and Mahatma Gandhi and the very use against such outstanding Indians shows abuses inherent in the provision. The criticism however misses the fact that interpretation of the said section as used to prosecute Tilak has been rejected by the Supreme Court which not only followed the Federal Court’s interpretation instead of that of the Privy Council but also rejected challenge to its legality for violating Article 19(1)(a).

The repeal of sedition in the UK is next referred to as necessitating a similar repeal in India. Such comments ignore the fact that the balance between unfettered right to speak and the necessity of national security is clearly affected by historical events and cannot be viewed in vacuum ignoring the effect national and international developments on the political atmosphere in the country. The conditions prevailing in India mandate retention of the offence of sedition notwithstanding the repeal in the UK.

It is next said that “sedition” was not included in Clause (2) of Article 19 – a fact mentioned by Mr Nariman in a recent article. The reason for its exclusion was the expansive interpretation put on the section by the Privy Council which at the time the Constitution was enacted was the law but which is no longer the law now. In any event the Supreme Court itself has held that the prosecution for sedition is “in the interest of public order” and “public order” was added to Clause(2) of Article 19 by the First Amendment.

Finally Balwant Singh’s case is relied upon for suggesting one can raise anti-India slogans and yet not be prosecuted for sedition. In so doing those relying on Balwant Singh confuse the findings peculiar to that case with the law it declared. The approach is flawed because what is binding in a judgment is the law it declares and not the conclusion it reaches. And in declaring the law the Supreme Court in Balwant Singh’s case applied literal interpretation of Section 124A (not limited by purpose or mischief of the provision) to hold that the application of the offence of sedition will be attracted “when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations.” The Court therefore expanded the reach of Section 124A. And the only reason it did not hold the accused guilty in that case was because the slogans were raised by a lone individual that too only a couple of times and evoked no response.

Uninformed criticism has little evaluative merit and no social purpose. Public discourse to be meaningful must be educated. It can otherwise lead to complete irrationality and would violate of Laws of Thoughts, the axiomatic rules on which rational discourse is based.