As sedition is a serious crime with draconian provisions, in a vibrant democracy it is a strange bedfellow with free speech
As I write this at the repeated request of the publishers, I am struck by a delicious irony. I overcame my initial hesitation and early refusal of the magazine's request on the ground that fundamental principles of free speech—the topic invited by the publishers—itself obliges me to write in a magazine with which I usually disagree and whose managing Organisation I frequently criticise. But it is the victory of the Indian Constitution that I have been asked repeatedly, that I agreed and that I am attempting to alter an alternative viewpoint strongly held by the Organisation and publishers running this magazine!
India is not only the world's largest democracy but a singular exception amongst the 20-30 odd nations which emerged from the yoke of imperialism between 1930 to1960's. It has remained and flourished as a powerful, vibrant and real democracy in stark contrast to the South American, African, Australasian landscapes which are littered with the wrecks and ruins of Constitutionalism.
Amongst many bulwarks, the bedrock of this vibrant democracy and of Constitutionalism anywhere is freedom of speech and expression. Without this, any constitutional non theocratic, non monarchical entity would be an empty and hollow democracy. To use Daftary's delightful and naughty example, it would be like a republic without a pub which is a mere relic.
Free speech is not absolute but the restrictions imposable (eg on the grounds of security, public order, sovereignty and integrity, foreign affairs and defamation etc) have to be reasonable. Since dissent and disagreement, even vehement, loud and public, is the heart & soul of free speech, mere disagreement can never be culpable. Sedition is a draconian and extreme derogation from free speech.
Firstly, we are not discussing sedition's constitutional validity (already upheld) but the scope and manner of its application. Secondly, there has hardly ever been a conviction on sedition and it is invariably used as an instrument of harassment with no deterrent effect and wasteful squandering of scarce prosecution resources.
Thirdly, language many many more times vituperative and violent than that used at JNU have led nowhere. Examples of extreme language not found seditious include:
A) “Today the dogs of the C.I.D are loitering round Barauni. Many official dogs are sitting even in this meeting………. To-day these Congress goondas are sitting on the gaddi due to mistake of the people……. These officail dogs will also be liquidated along with these Congress goondas.” (1962, SC , Kedarnath Singh)
B) “Khalistan Zandabad , Raj Keraga Khalsa and Hinduan Nun Panjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da (1985, SC Balwant Singh)
C) Active membership of a militant outfit called Alehad having the object of liberating Kashmir from India and involved in spreading communal hatred amongst Muslim youth and spreading misinformation regarding atrocities by Indian Army held not to constitute a section 124 A offense even though it may be covered by TADA (1997, SC Bilal Kaloo).
Fourthly, the Apex Court has consistently held that a strong, even violent, verbal assault must establish a clear likelihood of public disorder or incitement and must be accompanied by overt acts likely to lead to public disorder and violence before section 124 A can even be attracted. This is a significant safeguard in favour of free speech, absent which every serious disagreement could be recharacterized as sedition.
Fifthly, sedition is a serious crime with a draconian maximum punishment of life imprisonment. Unless interpreted with minimum inbuilt safeguards and restrictions of having to prove a clear possibility of disorder, incitement and violence, the broad words of the section would permit an enormous amount of subjectivity and completely destroy free speech while allowing the authorities to selectively and subjectively target dissenters with severe punishment.
Sixthly, nationalism is not something which can be injected, manufactured or given as a handout. Nationalism must arise within the heart and soul of every individual through a sense of co-ownership of democracy, through a feeling of inclusion and the confidence that his/ her voice will be heard as much as the next person, irrespective of gender,region, race,religion or income level. Neither breast beating nor hysterical demonstrations of loyalty nor subjective punishment under draconian penal provisions nor dialectic sermons nor punitive enforcementwill ever create either a climate or a culture of nationalism. What will create it is compassion, a recognition that India is the most diverse spot on planet Earth, empathy, genuine non discrimination and an all pervading atmosphere of liberalism which encourages dissent and deviance and lives by Voltaire's eternal principlethat I may disagree with your view, but will defend to death your right to hold that view.
Seventhly, certainly, I as much as most of you may neither wish to speak what Kanhaiya spoke, nor do it in a manner / form or occasion as was done by Omar Khalid or Vinayak Sen or indeed Owaisi . Some of their utterances are truly reprehensible (example Owaisi) or disagreeable in content or form. But that does not make them seditious. The Constitution does not deny them the right to air it just like it does not prevent me or you from opposing their viewpoint and content as vigorously as we like. This is what makes us different from Pakistan and each one of our South Asian neighbors as also from the hundreds of larger or richer Nations than us which have no democracy or have affluent societies with no free speech ( eg: some of the so called Asian Tigers).
Lastly, we have this treasure which is the heritage of free thought, bold expression and uninhibited manifestation of our views. Let us cherish this heritage, conserve, preserve and promote it manifold by injecting ever increasing doses of liberalism into it. Instead, misguided elements who do not know the idea of India, are confining, cribbing& curtailing this unparalleled Indian tradition of liberalism &free speech by both serious &petty acts and omissions and thereby destroying something which is the pride of India and envy of the World.
Abhishek Manu Singhvi (The author is Member of Parliament; Sr Advocate; National Spokesperson, Congress Party; former Addl Solicitor General of India & former Chairman, Parliamentary Standing Committee on Law and Justice. Views are personal)