Criticism of government not sedition, Majoritarianism cannot be the law: Justice Deepak Gupta

Supreme Court judge Justice Deepak Gupta gave a stirring speech today on Law of Sedition and Freedom of Expression.

He was giving the Valedictory address on the topic “Law of sedition in India and Freedom of Expression” at the Workshop of Lawyers organised by Praleen Public Charitable Trust and Lecture Committee at Ahmedabad, Gujarat.

Berating the recent tendencies to stifle free speech by governments in power using the law of sedition, Justice Gupta in a strongly worded address reminded that in a first past the post system, majoritarianism cannot be the law and minority also has the right to express its views.

Justice Gupta also came down upon the tendency to bracket people as anti-national for having a different point of view and criticised the trend of social media trolling due to which people are scared to express their views.

Excerpts from the speech below.

Right to dissent

Justice Gupta began his address by adverting to the Preamble of the Constitution of India which promises to secure for all the citizens- liberty of thought, expression, belief, faith and worship. This is an inherent human right and a part of the basic structure of the Constitution. 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 which 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”, Gupta J. said.

Thus, 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.

He said that though every society has its own rules, if over a period of time when people only stick to the age-old rules and conventions, society will degenerate. New thinkers are born when they disagree with the well-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. 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.

He cited the examples of Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx and Mahatma Gandhi, stating that no new thoughts and religious practices would have been established, if they had quietly submitted to the views of their forefathers and not questioned the existing religious practices, beliefs and rituals.

Gupta also made it clear that in a secular country, every belief does not have to be religious. Even atheists enjoy equal rights under the Constitution.

“Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution.”

Justice Gupta then proceeded to cite the famous dissenting judgment of Justice HR Khanna in the infamous ADM Jabalpur case.

“The judgment of HR Khanna, J. in A.D.M. Jabalpur case, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible Judge.  Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill will. First and foremost part of the duty is to do one’s duty without fear.”

Trolling on social media

Justice Gupta then spoke about the recent trends that have emerged which have instilled fear in people when it comes to expressing their opinions on criticising governments in power.

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 which may not be liked by those in power.  No doubt, the views must be expressed in a civilised manner without inciting violence but a mere expression of such views cannot be a crime and should not be held against the citizens, he said.

He also alluded to the recent instance of a Bollywood celebrity who had to quit social media after he was trolled and threatened with dire consequences. Terming the episode sad, he said that the world would be a much better place to live if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media.

“The world would be a much better place to live, 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 of dire consequences.”

On the law of Sedition

Explaining the history of how the law of sedition was introduced, Justice Gupta said that it was enacted at a time when India was ruled by a foreign imperialist colonizing 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, he said.

Interestingly, though sedition was an offence in the first draft of the Indian Penal Code (IPC) drafted by Lord Macaulay, somehow this did not find its way into the IPC when it was enacted in the year 1860. The IPC was amended in the year 1898 when Section 124A was introduced

When Section 124A was first introduced, we were told that this provision was not to curb legitimate dissent but was to be used only when the writer or the speaker directly or indirectly suggested or intended to produce the use of force.

Interestingly, another reason given was that there was a Wahabi conspiracy by a man who had preached Jihad or holy war against Christians in India and therefore the need to introduce such a provision.

Though Section 124A was inserted for fear of Muslim preachers advocating Jihad or religious war, it was initially used against Hindu leaders. The first such case was of Jogendera Chunder Bose wherein in a newspaper called Bangobasi, the Editor objected to the English rulers raising the age of consent of sexual intercourse for Indian girls from 10 to 12 years.

Subsequently, the British used the law of sedition to curb any demand for independence said Gupta citing the case of Queen Empress v. Bal Gangadhar Tilak.

Interestingly, Justice Gupta also referred to the sedition case against Mahatma Gandhi who was charged with the offence in the very city of Ahmedabad.

“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 6 years, Gupta J. noted.

Anti-National?

People to have affection for the Government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words. Thus, the Supreme Court judge made it clear that no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.

However, in present times there is no healthy discussion but only shouting and slanging matches, lamented Justice Gupta. If one does not agree with another, that person becomes an anti-nationalist, he said.

“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.”

Majoritarianism cannot be law

The constitutional validity of Section 124A has to be read in the context of Article 19 of the Constitution of India. Thus, advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted.

Interestingly, Justice Gupta also said that a majority government does not mean that minority voices should not be heard.

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.  Besides, he also stated that even Governments which come in with a huge majority do not get 50% of the votes.  Therefore, though they are entitled to govern or be called as majority, it cannot be said that they represent the voice of all the people.

Criticism of high functionaries is not sedition

The judge also did not hold back at the recent trend of prosecuting people for sedition because of criticism levelled against senior government functionaries. Reminiscing the days of the emergency, he said that “during the dark days of Emergency, an attempt was made by one Party President to equate his leader with the country”.

“I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual.”

Sedition can arise only against a Government established by law. Government is an institution, a body and not a person.  Criticism of persons cannot be equated with criticism of the Government….Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony, the judge explained.

Police cannot deal with law and order problems but have time for sedition

In a scathing criticism of the police forces across the country, Justice Gupta said that the police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under POCSO carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or Section 153A or implementing the provisions of Section 66A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity.

“It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country.  In a country which professes to live by rule of law, this cannot be permitted.”

Thus, the law of sedition is more often abused and misused and the people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from the court, he has suffered the ignominy of being sent to jail.  The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it.  Freedom of expression being a constitutional right must get primacy over laws of sedition.  Sedition is a crime only when there is an incitement to violence or public disorder.

But the law as laid down in Kedar Nath Singh’s case regarding sedition is not being followed.

Criticism of government not sedition

Criticism of government by itself cannot amount to sedition.

“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.”

In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives.

He urged those in power to develop thick skins and to be magnanimous to accept criticism. They cannot be oversensitive to people who make fun of them.  In a free country, people have a right to express their views

“The shoulders of those in power who govern should be broad enough to accept criticism.  Their thinking should be wide enough to accept the fact 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.  In a free country, people have a right to express their views.”

Everybody may not use temperate or civilised language. 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.

Judiciary is also not above criticism

Justice Gupta also said that the above principles are applicable to the judiciary as well and the judiciary should also be open to criticism.

“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, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition.  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.

Rabindra Nath Tagore on nationalism

Justice Gupta ended his speech by referring to Rabindra Nath Tagore’s views on nationalism.

“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 Rabindra Nath Tagore 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 said Justice Gupta before concluding his speech with Tagore’s “Where the mind is without Fear.”

[Read Full Speech]