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Mainstream, VOL LIV No 10 New Delhi February 27, 2016

Grave Threat to Rule of Law and Constitutional Democracy

Sunday 28 February 2016

by Vijay Kumar

The slapping of the charge of sedition under Section 124(A) of the IPC on Kanhaiya, the President of the JNU Students’ Union, has extremely grave implications for democracy, rule of law and constitutionalism. The foisting of the sedition charge followed by assault on Kanhaiya, his lawyers, including the panel of eminent senior lawyers deputed to inspect the situation by the Supreme Court, and the journalists including women scribes, when he was produced in the court, have a chilling effect on freedom of speech and expression, particularly the right to dissent, which is the core of the said right. The alarming situation is reminiscent of the pernicious binary of ‘either you are with us or against us’ articulated by George Bush in the wake of the 2001 terror strikes on the US.

The events starting from liquidation of rationalists, dissenters, writers and culminating in the barbaric lynching of Ashfaq just outside the national Capital on the mere suspicion of having stored beef in his house, one had hoped, would be firmly behind us after the drubbing the BJP got in the Bihar elections. But that fond hope turned out to be completely misplaced. The slapping of the sedition charge on the President of the Students’ Union of India’s most prestigious university and he being assaulted in the campus of the court by a group of unruly lawyers owing allegiance to the BJP and RSS, and even the attack on mediapersons, including women journalists, and the team of distinguished senior lawyers sent to assess the situation at the direction of the Supreme Court underscores the prevailing frightening situation. When a group of lawyers start to take law in their own hands and indulge in assault, merely because their views are different, the rule of law is in danger of being completely annihilated, and the very foundation of constitutional democracy subverted. The comparison with the Emergency would be apt and the difference would lie in terms of degree rather than in kind.

The universities in the country are in ferment. The attempt to polarise the young minds has fateful implications for deliberative democracy. Here, the comparison with another era would be in order. When President Lyndon Johnson started the Vietnam war, the students all over the US protested. One of the students, who protested against the war, was Bill Clinton. When Bill Clinton was nominated for the presidential election in 1992 by the Democrats against Bush Sr., it was canvassed, rather aggressively, by the Republican Party that Clinton had opposed the Vietnam war. This aggressive campaign was rejected by a resounding verdict by the US electorate, who punished Bush Sr. for his misadventure in Iraq.

The word university is derived from ‘universitas litterarum’ which means unity of knowledge. Multiple ideas and narratives ought to compete in the university campus so that ‘public reason’ is engendered in the process. Slapping the charge of sedition against students lacks as much in proportion and reality as in legality and constitutionality.

Given the existence of democracy the freedom of speech and expression has critical relevance. The exceptions carved out in Article 19(2) of the Constitution do not include sedition. In fact, the constitutional validity of the draconian provision of Section 124(A) was upheld by the Supreme Court in 1962 in Kedarnath Singh versus State of Bihar, only after reading it down and making it subject to the condition that would entail incitement to violence. In Balwant Singh’s case, the accused was charged with sedition because he raised the slogan ‘Khalistan Zindabad’ at the time of assassination of Smt Indira Gandhi. The Supreme Court, again, held in as unequivocal terms as could be articulated that mere utterance without any overt act would not amount to committing the offence of sedition. However, in Kanhaiya’s case, he did not utter anything which can even remotely have any nexus to incitement to violence. The result is a complete subversion of the right to freedom of speech and expression.

Unlike Article 1 of the American Constitution, Article 19(1)(a) does not guarantee the right to free speech and expression in absolute terms. But the Supreme Court, right from its inception in the Ramesh Thapar case (1950) till its latest judgement in Shreya Singhal (2015), interpreted Article 19(1)(a) broadly in tune with liberalism. Justice Rohinton Nariman, while striking down Section 66(A) of the Information and Technology Act, copiously referred to all the leading judgments of the US Supreme Court and emphasised on the critical significance of right to freedom of speech and expression in a constitutional democracy.

Professor Randhir Singh, the most committed and authentic Marxist scholar who passed away on January 31, 2016, in his original work of great importance, Reason, Revolution and Political Theory (1966), theorised that religion and nationalism were the two most regressive forces for social democracy. The nationalism espoused by the BJP and its master, the RSS, is extremely narrow, jingoistic and firmly anchored in the hideous doctrine of majoritarianism with religious overtones a la the demonic doctrine of Nazism and rise of Hitler. Aggressive nationalism, historically speaking, has been the cloak for any authoritarian dispensation. Therefore, narrow and militant nationalism would only pave the way for the emergence of authoritarianism grounded in majoritarianism.

Professor John Rawls in his monumental work of great significance, Theory of Justice (1971), conceptualised the concept of ‘public reason’. This was entrenched further by Professor Amartya Sen in his seminal work of equal importance, Idea of Justice (2009). For production of ‘public reasoning’, there has to be a robust culture of freedom of speech and expression. The production of public reason through a liberating and pluralistic discourse is extremely critical for the health of democracy.

The chauvinist and belligerent conception of nationalism espoused by the RSS forecloses the imperative of dialogue. The concept of nationalism carries within it multiple conceptions and narratives. Prof Amartya Sen in Idea of Justice (2009) emphasised that “implicit in the very exercise of an engaging production of public reasoning entails supplementation of local knowledge with global knowledge and there is no harm whatsoever in looking to the wisdom of judges from abroad”. Prof Sen continued by asserting that “In the present globalised world also characterised by alarming rise in identity based policies and cultural relativism, the overreaching significance of cross-fertilization of local knowledge with the global knowledge cannot be over-stated. Even justice-enhancing changes of reforms demand comparative assessment” and “The requirement of producing public reasoning also warrants that justice should go beyond the boundary of state or a region, and these are based respectively on the relevance of other people’s interests for the sake of avoiding bias and being fair to others, and on the pertinence of other people’s perspective to broaden our own investigation of relevant principles, for the sake of avoiding under-scrutinised parochialism of values and presumptions in the local community.” In a similar vein, Prof Hans Kochler, one of the most respected professors of international law and philosophy and the founder of the International Progression Association (IPA), has been passionately advocating for an inter-cultural dialogue to be carried out on the twin concepts of ‘mutual respect’ and ‘toleration’.

John Rawls termed the Second World War as a ‘just war’ and justified it on the ground of the value of political liberalism and constitutional democracy in his last book, The Law of Peoples (Harvard University Press—2001). Rawls also justified the Second World War on the following grounds: “First, Nazism portended incalculable moral and political evil for civilised life everywhere. Second, the nature and history of constitutional democracy and its place in European history were at stake.”

Hitler came to power through the majority route and used the majoritarian impulse to establish fascism. The evil nature of fascism could be graphically captured in Rawls’ own language:

“Not to be overlooked is the fact that Hitler’s demonic conception of the world was, in some perverse sense, religious. This is evident from its derivation and its leading ideas and hatreds. His redemptive anti-semitism, as Saul Friedlander calls it, is one which includes not merely racial elements. ‘Redemptive anti-semitism,’ Friedlander writes, ‘is born from the fear of racial degeneration and the religious belief in redemption.’”

It is only after the defeat of Hitler that realisation dawned that the majority route to democracy could not be safe and reliable and over-reliance on the brute force of majoritaria-nism had a structural linkage with the repulsive doctrine of fascism. The tyrannical majority or majoritarian tyranny ceased to be an oxymoron expression, and became a hideous realty. It is the fascism established through the majoritarian route that proved to be a catharsis for the evolution of constitutionalism. Once again, the project of constitutional democracy, envisioned and built so assiduously by our founding fathers, is in distinct danger of being subverted through aggressive nationalism anchored in majoritarianism.

The author is an Advocate, Supreme Court of India.