“In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be,” Justice Gupta said in the address on “Law of sedition in India and freedom of expression” at a workshop of lawyers in Ahmedabad.
The address, organised by the Praleen Public Charitable Trust and Lecture Committee, was delivered on Saturday.
Justice Gupta said that in today’s world, if someone were to echo what Rabindranath Tagore had said about nationalism (“a great menace”), the person “may well be charged with sedition”.
The following are excerpts from Justice Gupta’s 33-page address. The sub-headings were added by this newspaper.
Freedom of speech
There cannot be any democratic polity where the citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner they feel like.
The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree.
Every society has its own rules and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with the accepted norms of society. If everybody follows the well-trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found.
We are not dealing with vistas and explorations in the material field; we are dealing with higher issues. If a person does not ask questions and does not raise issues questioning age-old systems, no new systems would develop and the horizons of the mind will not expand.
Whether it be the Buddha, Mahavira, Jesus Christ, Prophet Muhammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and religious practices would not have been established if they had quietly submitted to the views of their forefathers and not questioned the existing religious practices, beliefs and rituals.
The right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief.
A very important aspect of a democracy is that the citizens should have no fear of the government. They should not be scared of expressing views that may not be liked by those in power.
No doubt, the views must be expressed in a civilised manner without inciting violence, but mere expression of such views cannot be a crime and should not be held against the citizens.
The world would be a much better place to live in if people could express their opinions fearlessly, without being scared of prosecutions or trolling on social media.
It is indeed sad that one of our celebrities had to withdraw from social media because he and his family members were trolled or threatened with dire consequences.
The foremost thing that one must keep in mind is that this (sedition) law was introduced at a time when we were ruled by a foreign imperialist, colonising power. The British brooked no opposition and did not want to listen to any criticism. Their sole aim was to deprive the people of this country of their rights, including the right to express their views.
I would also like to refer to the Father of the Nation, Mahatma Gandhi, who in this city of Ahmedabad was charged with sedition.
While appearing before sessions judge Broomfield, Mahatma Gandhi, while dealing with the word “disaffection”, had this to say: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”
I think this brilliantly sums up what I want to say today — that mere criticism without incitement to violence would not amount to sedition. However, the Mahatma was sentenced to undergo imprisonment for six years.
You cannot force people to have affection for the government.
(Justice Gupta quoted Justice Nariman’s opinion in a case to cite three concepts that are fundamental to understanding the freedom of speech and expression. The first is discussion, the second advocacy and the third incitement. Justice Gupta quoted Justice Nariman: “Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression….” Article 19(1)(a) deals with freedom expression. Article 19(2) allows reasonable restrictions.)
This passage brilliantly sums up what should be applied even (to) the laws of sedition…. (But) the harsh reality is that the art of conversation is itself dying. There is no healthy discussion; there is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is, either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.
The constitutional validity of Section 124A (the sedition law) has to be read in the context of Article 19 of the Constitution of India. Thus, it is clear that advocating any new cause, however unpopular or uncomfortable it may be to the powers that be, must be permitted.
Majoritarianism cannot be the law. Even the minority has the right to express its views. We must also remember that in India we follow the first-past-the-post principle. Even governments which come in with a huge majority do not get 50 per cent of the votes. Therefore, though they are entitled to govern or be called (the) majority, it cannot be said that they represent the voice of all the people.
Sedition can arise only against a government established by law. The government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the government. During the dark days of the Emergency, an attempt was made by one party president to equate his leader with the country. That attempt miserably failed and, I’m sure, no one will ever try in future to equate a personality with this country of ours, which is much bigger than any individual.
Criticism of senior functionaries may amount to defamation, for which they can take action in accordance with the law but this will definitely not amount to sedition or creating disharmony.
I think our country, our Constitution and our national emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the national anthem is being sung but you cannot compel him within his heart to have respect for (it). How does one judge what is inside a person’s mind or in his heart?
In Manipur, a journalist made a vituperative attack on the chief minister of the state and used totally unparliamentary language against the Prime Minister of the country. The language was intemperate and uncalled for but this was not a case of sedition. It was at best a case of criminal defamation. The man was kept behind bars for months under the National Security Act.
In West Bengal, a party leader was arrested for morphing an image of the chief minister and in UP, a man was arrested for morphing the image of the Prime Minister and shockingly this image had been morphed five years back. What was the hurry to suddenly arrest this man after five years?
In my view, the law of sedition needs to be toned down if not abolished and the least which the government can do is make it a non-cognisable offence so that persons are not arrested at the drop of a hat.
Right to criticise
India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the government. Criticism of the government by itself cannot amount to sedition. The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept that there can be another point of view. Criticism of the policies of the government is not sedition unless there is a call for public disorder or incitement to violence.
The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony.
We all must be open to criticism. The judiciary is not above criticism. If judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected.
Criticism of the executive, judiciary, bureaucracy or the armed forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions, whether it be the legislature, executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be.
Gurudev Rabindranath Tagore had a view on nationalism which is the antithesis of the view which many of us have. He, in fact, had not appreciated the Satyagrah movement. He who wrote the national anthem also held the view that “nationalism is a great menace”. I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindranath Tagore (any) less an Indian, less a patriot than any of his contemporaries.
Merely because a person does not agree with the government in power or is virulently critical of the government in power does not make him any less a patriot than those in power. In today’s world, if any person was to say “nationalism is a great menace” he may well be charged with sedition.