What Not To Tolerate

Fali Nariman is right when he says that expressing anti-national views is not sedition under law. He is  also correct in saying that it may not even be a criminal offence, even though Section 2(o)(i) of the Unlawful Activities Prevention Act (UAPA) defines “unlawful activity” as any activity which “supports... the secession of a part of the territory of India from the Union.”

This is because our SC has slavishly followed the American approach in holding that speech has to lead to imminent harm or violence in order to be restricted – an approach championed by the late Justice Antonin Scalia to protect racist speeches. Therefore, for a person to be punishable for supporting secession in India, it must be shown that his support actually incites violence for secession.

This interpretation goes against the plain terms of our Constitution’s Article 19(2) (as amended in 1963 at the height of the Dravidian secessionist movement) which allows the government to make laws which restrict any speech in the “interests of the sovereignty and integrity of India”. It does not require such speech to actually incite or cause violence. The degree of punishment and procedures for restriction definitely vary between a simple speech against India’s integrity and one that has the potential to provoke violence. But to say Article 19(2) does not permit the State to prohibit the former doesn’t flow from the plain terms of the provision and cannot certainly be our constitutional mandate.

The American approach to free speech has been the cause of serious discontent, interestingly, within the campuses of some of its most acclaimed educational institutes. Recently, in response to suggestions from free speech activists that students in Yale University must be free to wear Halloween costumes offensive to African-Americans and native Indians, many African-American and native Indian students wrote an open letter that said, “we are not asking to be coddled… [We] simply ask that our existences not be invalidated on campus. This is us asking for basic respect of our cultures and our livelihoods.” This confrontation spiralled into a major controversy over racism in the University.

In Snyder v Phelps, 8 out of 9 Supreme Court judges upheld the right of members of a church to hurl anti-homosexuality insults against the father of a US marine who was killed in the Iraq war, that too at the latter’s funeral. The majority of the judges refused to look into the victim’s pleas of emotional harm caused by such words. The judgment however has gained a lot of attention for the powerful dissent of one of the judges. Justice Samuel Alito, refusing to toe the majority line, held that “in order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like the petitioner.”

In insisting that speech has to cause physical harm or violence in order to be illegal, the American courts and the Indian Supreme Court have ignored that speech can be extremely distressing and hurtful to an individual’s emotional well-being and dignity. It is not surprising that discriminatory practices such as racism and homophobia continue to linger in the US not too far away from the mainstream, and there certainly appears to be no national consensus against them. After all, if they are allowed in people’s speeches, they are bound to grow in their minds.

The Indian national consensus against secession of territory is well represented in the sixteenth Constitutional amendment amending Article 19(2) as set out above. It is also reflected in the absolute lack of electoral support for secessionist politics in any part of the country. This consensus cannot be compromised by public expression of support for terrorism-aided separatist movements, especially when such movements are aided by enemy states and have been kept in check for decades by the sacrifices of the Indian armed forces.

National integrity, therefore, has to be a non-negotiable value for every Indian. The Parliament must make a separate law prohibiting views against national integrity and our Supreme Court must revisit its position on what is permissible speech. India must have a specific law on secessionism and separatism, which will prevent criticism of the usage of vague and indefinite grounds such as sedition for punishing people.

A good international example to follow would be the national consensus in many European countries against the denial of the Holocaust. European courts and the United Nations Human Rights Council (UNHRC) have upheld laws prohibiting anti-semitic views by interpreting free speech to exclude the right to propagate views against others’ freedoms.

On 13 July 1990, the French legislature passed the Gayssot Act, which amended the law on the Freedom of the Press of 1881 to make it an offence to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945, on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremberg in 1945-1946.

A University Professor challenged this law as being violative of his freedom of expression under the International Covenant on Civil and Political Rights. But the UNHRC rejected his case. The judges of the committee (which included India’s Justice P. Bhagwati) held that ‘incitement’ by speech need not be incitement of immediate physical violence but could also mean spreading hostility in a historical or social context. In the words of the committee:

Similarly the European Court of Human Rights in Garaudy v France held that denials of the Holocaust “undermine the values on which the fight against racism and anti-semitism are based and constitutes a serious threat to public order. Such acts are incompatible with democracy and human rights because they infringe the rights of others. Its proponents indisputably have designs that fall into the category of aims prohibited by the… convention.” Holocaust denial in Europe is considered to be an affront to the ‘ethical pact’ forged by nations expressing unconditional disapproval of the dynamics that dragged Europe into the horrors of war.

In the Indian context, one must not forget that suffering continues to be etched in the minds of millions of survivors of Partition and victims of separatist terrorism in Jammu and Kashmir and other states. The overwhelming majority of Indians still follow our freedom fighters in treating India with devotion. Bankim Chandra Chattopadhyay’s hymn to the ‘Mother’ still depicts the dominant imagery of the nation for the average Indian.

The right to tell these people that the nation should be dismembered once more, or that the nation does not even exist, cannot be protected under the Constitution. It is a provocation and insult to Indians who take pride in their national identity. These views mock the sacrifices of our armed forces and serve no public interest of any sort. National unity should be our unanimous resolve, both to ensure that history doesn’t repeat itself and to answer enemy states that eye our territory.

If Kanhaiya Kumar did not raise anti-India slogans, the judiciary will ensure that he is set free. But to protect these freedoms and the Constitution that guarantees them, it is absolutely essential that persons who raise such slogans are identified and punished.

(Disclaimer- The views expressed above are the author’s own and does not reflect the views of the Swarajya editorial team).