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print versionThe Indian Express - February 17, 2016
A test of freedom: “To be anti-Indian is not a criminal offence, and it is definitely not seditionâ€
Sedition in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/ or incitement to disorder and violence
Written by Fali S Nariman
(The writer is a constitutional jurist and senior advocate to the Supreme Court.)
“Sedition†is in the air. And a lot of hot air has been generated after the JNU incident.
It needs to be cleared. Under Macaulay’s penal code, “sedition†was declared, way back in the year 1898, as meaning: The bringing or attempting to bring into hatred or contempt (by words spoken or written, or by signs or by visible representation, or otherwise) “disaffection towards the government established by law.â€
In British India, the Federal Court had wisely said (way back in 1942) that it was not any want of affection for government that constituted the offence of sedition but “only such disaffection as was accompanied by an appeal to violence and a disruption of the public order†. The essence of the offence, the Federal Court said, was “the disturbance of the peace and tranquillity of the state†.
But the wisdom of this decision of British India’s Federal Court was questioned and the decision was overruled five years later by the Privy Council, then the last court of appeal.
Lord Thankerton spoke for the Privy Council when he said: “The word ‘sedition’ does not occur in Section 124A, it is only found as a marginal note to Section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contents of the section by the marginal note. In England, there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the chief justice of Bombay, but these decisions are not relevant when you have a statutory definition of that which is termed sedition, as we have in the present case. Their lordships are unable to find anything in the language of Section 124A which could suggest that ‘the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency’. Explanation 1 to Section 124A provides, ‘The expression “disaffection†includes disloyalty and all feelings of enmity.’ This is quite inconsistent with any suggestion that ‘excites or attempts to excite disaffection’ involves not only excitation of feelings of disaffection, but also exciting disorder. Their lordships are therefore of opinion that the decision of the Federal Court in AIR 1942 FC 22 proceeded on a wrong construction of Section 124A, penal code.â€
Fortunately for the people of India, India’s Supreme Court, when required to revisit previously decided cases — in 1962, when a challenge was made to the constitutional validity of the offence of sedition as incorporated in Section 124A of the Indian Penal Code — held that it preferred to follow the more liberal interpretation of the term “sedition†as given by the Federal Court in 1942 rather than the pedantic and strictly “colonial†interpretation of “sedition†rendered in the Privy Council opinion of 1947.
As a consequence, “sedition†in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/ or incitement to disorder and violence. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code. Likewise, mere expressions of hate, and even contempt for one’s government, are not sedition. When a person is dubbed “anti-Indian†, it is distasteful to India’s citizenry, but then to be “anti-Indian†is not a criminal offence, and it is definitely not “sedition†. (It only means that you are a freak, and that it is high time to have your head examined!)
Citizens in India are free to criticise their governments at the Centre or in the states — which they do quite frequently, and boldly and fearlessly as well; as they must, because that is what a participatory democracy is all about. It behoves the men and women of the law who advise government to impress upon their client that freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution — and to remind all governments (present and future) that “sedition†had been deliberately and designedly excluded by the framers of the Constitution from Article 19(2), the exception clause to free speech, only because, as the founding fathers had said, “Sedition is not made an offence in order to minister to the wounded vanity of governments!â€
The law in Singapore and Malaysia is different — they have followed the strict interpretation given by the Privy Council, and governments there have welcomed the interpretation, but alas, not their citizens. At a conference held some years ago in Kuala Lumpur, a prominent retired judge of the Court of Appeal of Malaysia said to a crowded hall of 500 delegates (at the International Bar Association conference held there): “Our written constitution guarantees freedom of speech†(loud applause). He then paused, and went on to frankly say: “but it does not guarantee freedom after speech.â€
In India, we cannot possibly countenance — we simply cannot live under — a regime that expresses like sentiments. As one of the judges in the Constitutional Court of South Africa recently said: “Speech is really free only when it hurts†.
The writer is an eminent jurist and senior advocate to the Supreme Court
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The Economic Times - February 17, 2016
JNU stir: Why ‘anti-nationalism’ is an empty abuse that has no place in a free society
SA Aiyar in Swaminomics | India | ET
Patriotism is the last refuge of the scoundrel. The current rant against ‘anti-national’ slogans at Jawaharlal Nehru University (JNU) highlights the abundance of scoundrels among Indian politicians and television anchors. The notion that there can be only one concept of what constitutes a nation, and that every other view is anti-national, is intellectually empty at best and authoritarian at worst.
Agitating students of JNU have called Maqbool Bhat and Afzal Guru (Kashmiris executed for murder) martyrs, and attacked the notion that India’s judicial system delivers justice. Some demand Kashmiri selfdetermination. Some even call for the break-up of India.
Gun vs Slogan
So what? You may disagree with these student slogans. But since when have students been a politically correct crowd mouthing patriotic hosannas? In all free societies, students have espoused all sorts of extreme positions, and must be free to do so. That is why they are called free societies.
Unfree societies are different. Communist China cracked down on Tiananmen Square and Hosni Mubarak in Egypt cracked down on Tahrir Square. But American students were at the very forefront of opposition to the Vietnam War. They rejected the government’s notion of patriotism.
Their right to dissent was not questioned even by those who condemned their views.
Oxford University is very establishment. But in 1933, the Oxford Union held a famous debate on the motion, ‘This house will in no circumstances fight for its King and country.’ The Union voted for the motion by 275 votes to 153. This ‘Oxford Pledge’ was later adopted by students at the universities of Manchester and Glasgow. This sent shock waves through Britain. The students were denounced as morons, cowards, anti-nationals and communist sympathisers.
But none dreamed of arresting the students for sedition. That puts in perspective the authoritarian interpretation of sedition by the NDA government. Worse is the ranting of media stars who ask in outrage how any student dare call for the break-up of India. They seem singularly ignorant of what a free society means.
The Scottish National Party (SNP) seeks to break away from Britain and form a separate Scottish nation. Are SNP leaders jailed for sedition? No. They have an honourable place in society, have been granted one referendum, and may soon get another.
Welsh nationalists also seek a separate Welsh country. Nobody dreams of jailing them.
In Canada, the Parti Québécois has long demanded independence for Quebec province, and this is treated not as sedition but a legitimate democratic demand. In Spain, the state of Catalonia has long had powerful secessionist parties, which in the 2015 state election won 47.8 per cent of the vote. The Spanish government strongly opposes Catalan independence, but doesn’t jail dissenters. France does not jail Corsican secessionists. The list goes on and on. Free societies do not jail non-violent secessionists.
India does. And that raises the question whether India wants to be a free society. And if not, why not.
Spain tolerates non-violent Catalans, but cracks down on terrorists using guns to create an independent Basque territory in the north. Britain cracked down on the Irish Republican Army (IRA), even as it gave legitimacy to the SNP. Free societies come down hard on those using or inciting violence, but bestow legitimacy on people advocating revolutionary change — even secession — through peaceful means.
Son of a Gun
They can hang a Maqbool Bhat for murder, but should not jail a JNU student leader for mere sloganeering.
India’s sedition law has been misused grossly for jailing a Tamil folk singer, sundry cartoonists, demonstrators against the Kudankulam power station, and even some people who simply ‘liked’ a Facebook post.
To me, these are all anti-national acts for which those in power should be held accountable. I reject the anti-national definition of the government.
In 1971, millions of Bangladeshis fled to India after a Pakistani Army crackdown. The Press Information Bureau (PIB) organised a trip for journalists to the refugee camps in West Bengal. I went for The Times. The PIB complained to my editor that I had asked “anti-national questions†.
I asked my editor what an anti-national question was. He had no idea. The PIB staff had urged us to ask questions like “Is the Pakistan Army bad?†and “Are you happy to get refuge in India?†I went much further. I asked whether the influx of refugees had caused job tensions with local people. Whether it had caused any Hindu-Muslim tension. And whether the refugees might abandon the camps and inundate Kolkata.
These questions, apparently, marked me as a traitor. The Times, sadly, played safe by not publishing my report. Then, two months later, the government organised a War Correspondents course for journalists, since a war with Pakistan was clearly coming. The Times nominated me for the course. The government rejected me, saying I was too anti-national to be trusted.
Ever since, I have seethed with rage at politicians, officials and media stars who define what patriotism is and condemn all others as anti-national. I know fully what is and what isn’t a free society. Patriotism is not merely the last refuge, but the first refuge of many scoundrels.
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Who is an anti-national?
by G. Sampath
For both Rohith Vemula and Kanhaiya Kumar, nationalism was about the welfare of the Indian people over that of the Indian state. This political vision made them threats in the eyes of goonda nationalists
In the rest of the world, history repeats itself first as tragedy and second as farce. In 21st century India, history repeats itself first as farce, and second on prime time.
Can a bunch of hysterical TV anchors really fool a nation into believing that the brightest students of one of its best universities are “anti-nationals†and their thuggish persecutors, “nationalists†? Can India’s famed diversity — of intelligence levels, if nothing else — save it from falling for the tired old game of witch-hunting anti-nationals? Well, the ruling dispensation seems to be betting against it.
So we’ve heard Bharatiya Janata Party (BJP) national president Amit Shah say that the Congress vice president Rahul Gandhi is an anti-national. Why? Because he has been siding with the anti-national students of Jawaharlal Nehru University (JNU). The political intent behind this accusation cannot be misread. But unfortunately for Mr. Shah, the idea of Mr. Gandhi as an anti-national is, at best, amusing; at worst, an affront to the imagination.
Already, according to the nationalist taxonomy of the Sangh Parivar, Adivasis in central India, Dalit students, Left intellectuals, human rights activists, a certain religious minority, anti-nuclear activists, beef eaters, non-haters of Pakistan, inter-religious couples, homosexuals, and labour activists are anti-nationals. If we take into account Monday’s episode of goonda nationalism at Patiala House in New Delhi, we must expand the list to include journalists, people dressed like JNU students, anyone without an identity card, anyone recording goonda nationalists in action, and anyone opposed to the said goonda nationalists.
At this rate, it seems likely that by the time the National Democratic Alliance (NDA) finishes its term, the vast majority of Indians — who are unfortunately still not members of the Sangh Parivar — would have turned into anti-nationals. The only cure for their anti-nationalism being the healing nationalist brutality of an Akhil Bharatiya Vidyarthi Parishad (ABVP) or Bajrang Dal lynch mob, while India’s nationalist police presides over the ceremony, peacefully.
What exactly is goonda nationalism? A goonda nationalist is anyone who arrogates to himself the job of certifying citizens as anti-national. So if I walk up to you on the street, slap you, grab your collar, and brand you an anti-national, I would be a goonda nationalist.
The turn to goonda nationalism
Goonda nationalism is not a new phenomenon. The German historian Arthur Rosenberg, in his book, Fascism as a Mass Movement, refers to two conditions (among others) as prefiguring the rise of fascism: the rise of right-wing nationalism, and an active connivance between the state and identitarian storm troopers. What India has witnessed over the past month, first in Hyderabad Central University (HCU) and now in JNU, is early consolidation of these two conditions for the furtherance of an agenda that we shall not call fascist because, as we’ve been assured repeatedly by eminent Indian liberals, India is too diverse and Indian democracy too resilient for us to use the f-word.
Yet the pattern is too striking to miss. In HCU, the crisis was sparked off by a students’ association expressing sympathy for Yakub Memon, whose execution has been questioned by several legal luminaries. The HCU unit of the ABVP spearheaded the persecution of this student body by branding them as “anti-national†. Its case was taken up by a BJP member of Parliament (MP) Bandaru Dattatreya, who sent a complaint to the Centre. The outcome: a pliant vice-chancellor and a pliable police acted against the students targeted by the ABVP, and the story hit the national headlines with the suicide of Rohith Vemula, a vocal critic of the ABVP and its violent majoritarianism.
In JNU, the crisis was sparked by a group of students organising a protest meeting in support of Afzal Guru, whose execution has been questioned by several legal luminaries. The ABVP spearheaded the persecution of the students involved by branding them as “anti-national†. Its case was taken up by a BJP MP, Maheish Girri, whose complaint led to an FIR being lodged. The outcome: a pliant vice-chancellor and a pliable police acted against the students targeted by the ABVP, and the story hit the national headlines with the arrest of JNU students’ union president Kanhaiya Kumar, a vocal critic of the ABVP and its violent majoritarianism.
The stick used to beat the students in both cases was nationalism — and not just any nationalism but one specifically of the right-wing kind, by which we mean one that is directed against a section of the country’ own citizens whose nationalism is deemed suspect. The stick is wielded, as Rosenberg noted, by the state giving free rein to identitarian storm troopers — in this case, the ABVP.
In the past, the marauding storm troopers have belonged to one or other of the mutant spawn of the hydra-headed Sangh Parivar — the Rashtriya Swayamsevak Sangh, the Bajrang Dal, the Vishwa Hindu Parishad, etc. Sadly, India’s liberal intelligentsia — and what’s called the Left in India is liberal and not left-wing in its politics — has been content to engage in a politics of exposure, trying to shame the perpetrators of repressive violence on the grounds, most famously, of intolerance.
It is therefore worth noting that the crackdown on dissent in the JNU campus, as well as the attack on journalists at Patiala House, comes after much public shaming of the NDA’s unwillingness to uphold the virtue of tolerance. It is as if the months of liberal backlash over intolerance has had zero impact on the NDA. Or perhaps it felt encouraged by the whole “award wapsi†phenomenon. Now that the awards have been returned, petitions have been signed, protests have been marched, and editorials written on the virtues of tolerance, what else can liberal pluralistic India throw at the ruthless advance of a divisive, monocultural nationalism?
Let down by the liberals
India’s bane has been the failure of its self-proclaimed ‘constitutional’ liberals to acknowledge that the forces of Hindutva and economic liberalism (or neo-liberalism) are a package deal. It is this failure that leads them to time and again frame such violence simply as attacks on free speech, while remaining blind to their own complicity in the political economy of repression.
In their heated embrace of economic liberalism, India’s liberal elites looked away as the state either went after or neglected the interests of labourers, the urban poor, the farmers, the landless, the land-poor — the vast majority of whom are from socially marginalised castes. Now they find the state looking away as their own liberal freedoms come under siege by state-endorsed illiberal forces.
Incidentally, both HCU’s Rohith Vemula and JNU’s Kanhaiya Kumar had the clarity of vision to see through such self-serving liberal delusions. Vemula tried to unite the twin minorities of Dalits and Muslims on the HCU campus. Mr. Kumar’s agenda was to unite the student community and informalised labour against the divisive politics of the ABVP inside JNU and neo-liberal economic policies outside. It was this acuity of political vision — owed in no small measure to their underprivileged origins — that made them such threats in the eyes of goonda nationalists.
Cops prowling around a university campus is a terrible cliché — one that’s been enacted hundreds of times in the brief history of the nation state. So is the use of ultra-nationalism to substitute the interests of a repressive state apparatus for the interests of the people it represses. Put another way, is nationalism about the welfare of the Indian people or that of the Indian state, which anyway seems beholden to foreign capital rather than Indian labour?
A more pressing question in the present context being: who has the right to label anyone as anti-national? And how should the average Indian citizen respond to the charge of being an anti-national?
The battle is already lost if one seeks to answer the charge by trying to prove that one is not an anti-national. The correct response, as Mr. Kumar showed in a brilliant speech that went viral on social media, is to go on the offensive, and ask what qualifies goonda nationalists to issue certificates of nationalism, and to question the motives of a government that allows them to do so.
sampath.g@thehindu.co.in
