Published Paper
Article Details
A TRYST
WITH DISSENT
Understanding Dissent In India As An
Integral Part Of The Right To Freedom Of Speech And Expression, The
Implications Of It And Challenges It Faces In A Robust Democracy.
AUTHORED BY - JOSEPH JUDE JACOB[1]
The spirit of the Indian Constitution
is well-captured in its Preamble. The Preamble is a reflection of the core
constitutional values that embody the Constitution.[2]
While the Preamble does not grant any substantive rights to the people and is
not a legally enforceable instrument, it contains the general aspirations of
our founding fathers, particularly with regard to the things they wanted their
future ‘free’ generations, citizens governed by their own will, to enjoy
without any restrictions. One such aspiration of our founding fathers was to
secure for all citizens the virtue of Liberty, so that they can be free in
their thought, expression, belief, faith and worship. The ideal of liberty, inter
alia, is a product of the French Revolution. From then until now, centuries
after the revolution, liberty along with the other values that the Revolution
fought for, has come about to occupy the eminent position of being cornerstones
of democracy. A democracy can have liberty either as a pre-condition or as a
consequence of it. As a precondition, certain basic civil and political liberties
are considered by many scholars to be essential elements, apart from
participation and contestation, that are crucial to defining and understanding
democracy. The concept of liberty as a consequence of democratic rule emerges
from the general belief that a democratic government will certainly work
towards protecting certain basic human rights of its people.[3]
One of the distinctive features of a
democracy is that the leadership is elected by diverse people with diverse
opinions, who all have a right to represent their opinions and pursue their
interests.[4] It
is imperative that the leadership elected by the people represent the true will
of the people and take decisions which are beneficial for them, rather than
arbitrarily exercising the power vested in them. From a practicality
standpoint, it would be nearly impossible due to the large populations we have
today in most countries of the world; to have an absolutely accommodative
fashion of decision-making wherein each and every individual opinion is taken into
consideration before reaching a finality on the course of action. Therefore, it
is only natural that opposing opinions or dissent will emerge, from the side of
those citizens, who feel that their opinion on a particular issue has not been
taken into consideration or those who feel that a certain state action is
arbitrary and detrimental to them as a whole. In an ideal situation, being a
guarantor of liberty, a legitimate democracy is not supposed to hush dissent.
Rather, a legitimate democracy must take efforts to acknowledge and promote
such dissent, check whether there’s any legitimate basis for the dissenting
claims and take into consideration such claims, if any. This is as long as the
dissent is non-violent and does not result in causing harm to any individual or
group of individuals or is an imminent threat to national security. Thus, the
right to dissent is a distinctive individual liberty granted to the citizens in
a democracy. Looking at the evolution of India as a nation through the lens of
constitutional provisions, court rulings and other statutes – from being a
colony of the Crown to becoming a crown jewel with regard to democratic
governance, occupying the enviable spot of being the world’s largest democracy,
would be a suitable exercise to figure out whether the Right to Dissent is, in
effect, available to the citizens of the nation.
Article 19 of the Constitution stands
tall as a dolmen protecting crucial individual rights such as the rights to
freedom and expression. Sub-clauses (a) to (c) of Article 19(1) promise
citizens rights such as the right to be free and express themselves, freedom to
assemble peacefully without the use of arms and the freedom to form
associations or unions in furtherance of any of their lawful interests.[5]
These rights are channels through which citizens can express their dissent to
state actions or anything happening in the society that is a cause of concern
for them. However, no right is absolute and it is liable to be restricted on
reasonable grounds. Clause (2) of Article 19 specifies the grounds on which the
freedom of speech and expression may be restricted. It enables the legislature
to impose reasonable restrictions on the right to free speech “in the interests
of” or “in relation to” the following: sovereignty and integrity of India;
security of the State; friendly relations with foreign States; public order;
decency or morality; contempt of court; defamation; and incitement to an
offence.[6]
The reasonable restrictions under these heads can be imposed only by a duly
enacted law and not by executive action.[7]
Article 25(1) of the Constitution
guarantees that subject to public order, morality and health and to the other
provisions mentioned in that Part, all persons are equally entitled to freedom
of conscience and the right to freely profess, practice and propagate religion.[8] As
Justice Deepak Gupta, former Supreme Court Judge, rightly remarked in a
conference – “The right of freedom of opinion and the right of freedom of
conscience by themselves include the extremely important right to disagree”.[9]
The right to dissent can thus be
deduced as an integral component of both Article 19(1) which guarantees right
to freedom of speech and expression as well as the right to conscience which
has been guaranteed by means of Article 25(1).
In the case of Bijoe Emmanuel and
Others v State of Kerala and Others[10],
three students had refrained from singing the national anthem while it was sung
during the school assembly due to them being members of a particular sect
within the Christian religion which forbade them from engaging in any rituals
apart from those which were part of their religious practice. Due to a series
of events arising from a patriotic gentleman who was also a Member of
Legislative Assembly taking note of this action from the side of the children,
the Deputy Inspector of Schools instructed the Headmistress to expel the
children from the school. The father of the children made numerous
representations pleading that the children be allowed to attend school. However,
in the absence of any positive response, they moved the Hon’ble High Court of
Kerala wherein a Single Judge and then a Division Bench rejected their prayer.
Having approached the Hon’ble Supreme Court of India by way of special leave as
their last resort, the Court held in their favor that their Fundamental Rights
under Article 19(1)(a) and Article 25(1) had been infringed and setting aside
the judgment of the High Court, directed the respondents to re-admit the
children in the school and allow them to pursue their studies without any
hindrance.
Through this decision, the Hon’ble
Supreme Court has made it clear that a person or group of people deviating from
any norm, social rule or practice is a manifestation of their Right to
Conscience guaranteed under Article 25(1) and such dissent, as long as within
legal boundaries, must not be met with oppression.
Similarly, in the case of S.
Rangarajan v. P. Jagjivan Ram[11],
too the importance of dissent can be figured out from the decision of the
Hon’ble Supreme Court of India. This case arose from a decision of the Madras
High Court revoking a ‘U’ certificate of exhibition granted to a film Ore
Oru Gramathile, which critiqued the reservation policy of the Government
and pushed the demand for reservation based on economic backwardness over the
existing system based on caste. There was no element in the film that was
explicitly violative of any Constitutional provision or any incitement for
secession or impairment to the integrity of the Nation that was being pushed.
While ruling in favor of appellants, the Court held that the fundamental
freedom under Article 19(1)(a) can be reasonably restricted only for the
purposes mentioned under Article 19(2) and the restriction must be justified on
the anvil of necessity and not on the quicksand of convenience or expediency.
In Para 35 of the above-mentioned
judgment, the Court has implicitly made a cogent statement on dissent and its
role in a democracy. The statement that ‘In a democracy it is not necessary
that everyone should sing the same song’ is a powerful reminder that legitimate
dissent is an essential component of a legitimate democracy. People can have
differing opinions and stances on the differing issues and questions that
arise, but the beauty of democracy lies in the fact that it accommodates all
such differences and tries to find a common ground to unite people. In the
successive paragraph, the need for open debates in a democracy is stressed
upon. The Court acknowledged the fact that a democracy can neither work nor
prosper unless people go out to share their views.
In the landmark case of Maneka
Gandhi v Union of India[12],
Justice P.N Bhagwati observed that democracy is essentially based on free
debate and open discussion, for that is the only corrective of Government
action in a democratic setup. This means that, in order to truly realize the
idea of democracy being government of the people by the people, it is requisite
that every citizen must be entitled to participate in the democratic process
and in order to enable him make a meaningful choice therein, free and general
discussion of public matters is necessary.
In the case of Naraindas Indurkhya
v State of Madhya Pradesh[13],
the Hon’ble Supreme Court observed that in a free society wedded to a
Constitution like ours, there must not only be freedom for the thought that we
cherish but also for the thought that we hate. The Court also upheld the
observation made by Mr. Justice Holmes in the case of Abrams v United States[14],
that the ultimate good desired, is reached by a free trade in ideas.
Despite all these rulings
establishing the right to dissent as an integral component of Articles 19(1)(a)
and 25(1) along with being fundamental to the functioning of any democracy,
India has had an ambivalent approach towards dissent in general. However, the
pro-active approach of the judiciary in ensuring that the state does not
overstep its limits has resulted in such an ambivalent approach being corrected
to a great extent.
A notable instance of this was the
2015 incident of environmental activist Priya Pillai, who worked with
Greenpeace India being offloaded from a flight bound to London, in order to
prevent her from testifying before the British All-Party Parliamentary Group
for Tribal Peoples on the activity of Essar Power, a UK-registered firm in
India. The Government had an interest in the Mahan Coal Limited project, a
joint venture of the UK-registered Essar company with Hindalco, to mine coal in
an old Sal forest area of Madhya Pradesh. Pillai had been active in campaigns
against the same in Mahan for several years. While Pillai wrote to the
Secretary, Ministry of Home Affairs, in order to understand the cause of such
an offloading being initiated against her, she was met with no reply. In an
Intelligence Bureau report addressed to the Prime Ministers Office, it was
stated that Greenpeace’s activities in India were a threat to national economic
security and development.[15]
In the absence of a formal reply from the Secretary, Ministry of Home Affairs,
Pillai approached the Delhi High Court.
In her case, Priya Parameshwaran
Pillai v Union of India and Others[16],
the court observed in its judgment, ruling in favor of the petitioner, that,
among the varied freedoms conferred on an individual, there is the right of
free speech and expression, which necessarily includes the right to criticize
and dissent. The Court acknowledged the fact that while criticism by an
individual may not be palatable, it definitely cannot be muzzled. This
re-affirms the democratic value that the State cannot exert undue influence on
citizens thoughts and expressions by interfering arbitrarily in the same.
In the year 2020 came the shocking
arrest of student activist Umar Khalid who was active in peaceful protests
against the controversial Citizenship Amendment Act (CAA). He was awarded with
a garland of charges ranging from offenses as laid down in provisions of the
1967 Arms Act to sedition in the IPC and last, but not the least, provisions of
the Unlawful Activities (Prevention) Act, indicting him for unlawful
activities, terrorist acts, raising funds for such acts and conspiracy.[17]
He has spent more than four years in the Tihar Jail awaiting trial.[18]
His application for bail was rejected three times in the lower courts, bail
hearing in the Supreme Court had been postponed at least a dozen times and on
at least two occasions, he was taken to Court only to come back to his cell
after the judge concerned recused himself from the case.[19]
This example clearly shows how the inherent design of our legal system has most
often been effective in ensuring that the process of trying to fight for
individual rights and legally escaping the deadlock of punishment is more
excruciating than the punishment itself. This makes one genuinely wonder
whether the price of dissent in a democracy is something which is affordable.
A look at India’s legislative history
shows that over the years there have been legislations which implicitly attempt
at curbing an individual’s right to dissent. A notable example was Section
124-A IPC, more commonly referred to as the ‘sedition law’. This sedition law,
drafted by Thomas Babington Macaulay in the year 1833 aimed to keep an eye on
the subjects of India so that they do not express disloyalty towards the Crown.
The law which was used in the colonial era to keep the freedom fighters, our
forefathers, in check, was widely used to shut reasonable criticisms of the
government.[20] It is
quite ironical, that the sedition law was abolished in the United Kingdom as
far back as in 2009[21]
while it was only in the year 2022 that the Hon’ble Supreme Court of India
ordered authorities to temporarily refrain from using the sedition law and
keeping all pending trials, appeals and proceedings on hold.[22]
While the legal provision with the
verbatim ‘sedition’ has been done away with in the new Bharatiya Nyaya Sanhita
(BNS)[23],
the Indian alternative for the colonial IPC, it is quite interesting to note
that the cardinal essence of the draconian 124-A IPC has been retained in
Section 152 of the BNS. Section 152 criminalizes any acts that endangered
sovereignty, unity and integrity of India. There have been genuine concerns
ever since the introduction of the new criminal laws as to whether Section 152
can indeed become a sedition law that is not on the face of it.
Addressing this concern, the
Rajasthan High Court quashing an FIR wherein offences under Section 152 and
Section 197 of the BNS were charged against a Sikh preacher for posting a
Facebook video expressing sympathy for the pro-Khalistani leader Amritpal Singh,
in the case of Tejender Pal Singh v State of Rajasthan and Another[24],
observed that there must be cautious application of Section 152 BNS in
consonance with the right to freedom of speech and expression. It opined that
to invoke such provisions, an imminent connection was necessary between the
speech and the likelihood of rebellion. The Court further noted that this
provision was not supposed to be seen as a sword against dissent but as a
shield required for national security. Whether this observation of the Hon’ble
High Court will be adhered to is something which only time can tell.
Despite the disposal of the infamous
sedition law, albeit, only to be replaced by the same spirit in a different
body, there remain other contemporary legislations such as certain provisions
of the Unlawful Activities (Prevention) Act 1967 [UAPA] that can be potentially
manipulated to dout dissent and uphold vested interests of those in power.
The UAPA has been criticized severely
for, inter alia, the wide and vague definitions of certain key terms and
offences that are crucial for the understanding and interpretation of the
statute.[25] Take
for instance, the definition of an unlawful activity, as laid down under
Section 2(o) of the Act. The section defines an unlawful activity as any
activity
(i)
which is intended, or supports any claim, to bring about, on any ground
whatsoever, the cession of a part of the territory of India or the secession of
a part of the territory of India from the Union, or which incites any
individual or group of individuals to bring about such cession or secession; or
(ii)
which disclaims, questions, disrupts or is intended to disrupt the
sovereignty and territorial integrity of India; or
(iii)
which causes or is intended to cause disaffection against India.
While the definition intended to be
put across by the lawmakers seems to be directed towards bringing activities
that promote secessionist tendencies under the ambit of unlawful activities for
the purpose of the Act, it is quite surprising that even acts such as disclaiming
or questioning have been put under the bracket of unlawful activities. While
there exists a possibility that these words may have been used in the absence
of a better terminology to effectively capture the legislative intent in the
instant situation, as long as this remains the rule, it is bound to be obeyed.
By this rationale, a mere questioning of any sovereign function, thereby,
becomes a questioning of the sovereignty of the State and hence constitutes an
‘unlawful activity’, punishable under the relevant provisions of the UAPA.
There also exists such an anomaly in
the case of the definition of a terrorist act as well. Section 15(1) of the
UAPA states that
“Whoever does any act with intent to
threaten or likely to threaten the unity, integrity, security 4[,
economic security,] or sovereignty of India or with intent to strike terror or
likely to strike terror in the people or any section of the people in India or
in any foreign country…...commits a terrorist act”.
The point of ambiguity here is the
fact that the likelihood of the outcome as a result of the act is placed at the
same level as the actual act and its outcome.[26]
Apart from these textual concerns in the legislation, the substantive contents
are also a cause to worry. For example, with regards to detention, the
executive has been given wider powers, while judicial oversight has been
significantly been limited.[27]
This, therefore, clearly provides an
entrée for arbitrary use of power by authorities, empowering them to bring any
form of dissent or deviation from expected standard of behaviour and
subservience, under the ambit of an act likely to cause threats to national
security.
The Constitution has guaranteed the
right to freedom of speech and expression to all citizens of the nation. The
right to speak freely, to express diverse opinions on various events are all
tools that allow humans to live in dignity rather than as mere animals. It has
been said that without access to free and unfettered speech and expression,
democracy is meaningless.[28]
The reasonable restrictions placed on this right, those “in the interests of” or “in relation
to” the following: sovereignty and integrity of India; security of the State;
friendly relations with foreign States; public order; decency or morality;
contempt of court; defamation; and incitement to an offence, often act as
hindrances in the absolute enjoyment of these rights. The decision of the
Hon’ble Court in the case of Rangarajan[29],
highlights that the restrictions placed on the right to freedom of speech and
expression must be justified on the anvil of necessity and not on the quicksand
of convenience or expediency.
However, the ambiguous nature of the
provisions laid down in legislations such as the UAPA often becomes a quicksand
of convenience or expediency to place restrictions on the right to freedom of
speech and expression of an individual, mostly on the freedom to dissent. Here,
there seems to be an apparent conflict between the language contained in the
legislative texts and the rule laid down in the Constitution as upheld by the
various Courts in our country from time to time. This places an onus on the
State to seek recourse to either of the two paths – clarify the ambiguities in
the contemporary legislations that can potentially hamper the right to free
speech and dissent, or, in case the ambiguities are not intentional but
part-and-parcel of the letter of the law, then ensure that the robust judicial
system places the effective role of a shield, protecting the right to speak and
register dissent in our democracy.
It is imperative that people should
have the agency to react freely to any development in the social or political
sphere in a nation. ‘Free speech’ is a right which every individual desires for
in the absence of such a right the echoes of their voice may not even be heard
by the rest of the world. Free speech can only be best served when it invites
discussions and disputes to seek the acceptance of a new idea, for which
dissent is the way forward.[30]
In any group communication, dissent has a very important role to play. It is a
hedge against groupthink and a lynch pin of functional decision making.[31]
Dissent must be understood not just as
registering protest or upholding a different opinion, dissent is an art, an art
which attempts to challenge perils such as conformism, blind obedience to
authority and adherence to majority opinion in a democracy. But our failure to
so view dissent from such a perspective arises from the possibilities of
certain acts that constitute dissent being a threat to national security,
sovereignty and other legitimate state interests. While our Constitution has
laid down the reasonable restrictions that can be placed on freedom of speech
and expression, of which dissent is a part, it in no way must be used as a
blanket to hide or hush dissent. The courts must play a pro-active role in
ensuring that free speech including dissent must not be suppressed under the
guise of threats to national sovereignty and security. Dissenters and activists
must also ensure that a fine lakshman-rekha is drawn between dissent and
arbitrary hate against the State so that they do not unnecessarily become prey
to penal actions by the State.
As Justice D.Y. Chandrachud rightly
observed in the case of Romila Thapar & Others v Union of India &
Others[32] - “Dissent
is the safety valve of democracy. If you don’t allow dissent, the pressure
valve of democracy will burst”.
It is very clear through an
evaluation of democratic principles and analysis of the various legislations
and court rulings that guarantee freedom of speech and expression and the
freedom of conscience that dissent is the bedrock upon which vibrant
democracies are built.[33]
While the acts of dissent committed by some may be unsettling to some, these
acts perfectly capture the essence of democratic freedom and are necessary for
the progress of mankind. And it is in the act of tolerance, of accepting each
other’s view points and opinions, that lies the beauty of a democratic society.
To conclude the reflection on India’s
tryst with dissent, it would be in order to think and base the future actions
of our glorious democracy on this particular observation made by the Honorable
Supreme Court in Para 27 of the Supreme Court judgment in the case of Bijoe
Emmanuel and Others v State of Kerala and Others[34]
-
“Our tradition teaches tolerance;
our philosophy preaches tolerance our Constitution practices tolerance; let us
not dilute it.”
**********
[1] First Year B.A. LL.B. (Hons)
student at School of Law, CHRIST (Deemed to be University), Bangalore.
[3] Russel Bova, ‘Democracy and
Liberty: The Cultural Connection’ [1997] Journal of Democracy John Hopkins
University Press 112
[4] EPW Engage, ‘Dissent in a
Democracy: Political Imprisonment under the UAPA in India’ [2022] Economic and
Political Weekly (Engage) <https://www.epw.in/engage/article/dissent-democracy-political-imprisonment-under>
accessed 24 February 2025
[5] Constitution of India, Article 19
[6] Mahendra Pal Singh, V.N.
Shukla’s Constitution of India,
[7] Express Newspapers (P) Ltd v
Union of India [1986] 1 SCC 133;
Bijoe
Emmanuel v State of Kerala [1986]
3 SCC 615
[8] Constitution of India, Article
25
[9] Murali Krishnan, ‘Criticism of
government not sedition, Majoritarianism cannot be the law: Justice Deepak
Gupta’ (Bar and Bench, 7 September 2019) <https://www.barandbench.com/news/criticism-of-government-not-sedition-majoritarianism-cannot-be-the-law-justice-deepak-gupta>
accessed 24 February 2025
[10] 1986 SCC OnLine SC 213
[11] (1989) 2 SCC 574
[12] (1978) 1 SCC 248
[13] 1974 SCC OnLine SC 104
[14] 250 US 616 (1919)
[15]Ritu Sarin, ‘IB report to PMO:
Greenpeace is a threat to national economic security’ (The Indian Express, 11
June 2014) https://indianexpress.com/article/india/india-others/ib-report-to-pmo-greenpeace-is-a-threat-to-national-economic-security/
accessed 14 March 2025.
[16] 2015 SCC OnLine Del 7987
[17] United States Commission on
International Religious Freedom, ‘Umar Khalid’ (USCIRF, 12 March 2024) https://www.uscirf.gov/religious-prisoners-conscience/forb-victims-database/umar-khalid
accessed 14 March 2025.
[18] Ishita Mishra, ‘Four
years and counting, Umar Khalid languishes in jail without bail or trial’ (The
Hindu, 14 September 2024) https://www.thehindu.com/news/national/four-years-and-counting-umar-khalid-languishes-in-jail-without-bail-or-trial/article68640212.ece
accessed 14 March 2025.
[19] Suhasini Raj, ‘Four Years
in Jail Without Trial: The Price of Dissent in Modi’s India’ (The New York
Times, 22 October 2024) https://www.nytimes.com/2024/10/22/world/asia/india-muslim-dissent.html
accessed 14 March 2025.
[20] Shariq Us Sabah, ‘Sedition
Law: Crushing Dissent in India since 1833’ (Citizens for Justice and Peace, 7
September 2018) https://cjp.org.in/sedition-law-crushing-dissent-in-india-since-1833/
accessed 14 March 2025.
[21] Prasun Sonwalkar, ‘Sedition
law in UK abolished in 2009, continues in India’ (Hindustan Times, 16 February
2016) https://www.hindustantimes.com/world/sedition-law-in-uk-abolished-in-2009-continues-in-india/story-Pkrvylv6J0T3ddY8uqvKsO.html
accessed 14 March 2025.
[22] Amnesty International, ‘India:
Supreme Court’s Temporary Suspension of Sedition Law a Welcome Step’ (Amnesty
International, 11 May 2022) https://www.amnesty.org/en/latest/news/2022/05/india-supreme-courts-temporary-suspension-of-sedition-law-a-welcome-step/
accessed 14 March 2025.
[23] Apurva Vishwanath, ‘Sedition law
repealed or strengthened in a new form? What the new IPC Bill says’ (The Indian
Express, 13 August 2023) https://indianexpress.com/article/explained/explained-law/sedition-law-repealed-or-strengthened-in-a-new-form-ipc-bill-8887864/
accessed 14 March 2025.
[24] 2024 LiveLaw (Raj) 413
[25] Abdul Haseeb and Kimi Pandey, ‘Breaking
Down the Fallacies in UAPA’ (LiveLaw, 13 June 2023) https://www.livelaw.in/articles/uapa-breaking-down-the-fallacies-unlawful-activities-230540#_ftnref8
accessed 14 March 2025.
[26] Vivan Eyben, ‘UAPA: Vague
Definitions and Sweeping Powers’ (NewsClick, 29 August 2018) https://www.newsclick.in/uapa-vague-definitions-and-sweeping-powers
accessed 14 March 2025.
[27] Ibid.
[28] Manupatra, ‘A Bird’s Eye View of
the Right to Freedom of Speech and Expression in India’ (Manupatra) https://articles.manupatra.com/article-details/A-Bird-s-Eye-View-of-the-Right-to-Freedom-of-Speech-and-Expression-in-India
accessed 14 March 2025.
[29] (1989) 2 SCC 574
[30] Terminiello v City of Chicago
337 US 1 (1949)
[31] J T Garner and J P Ragland, ‘Tabling,
Discussing, and Giving In: Dissent in Workgroups’ (2019) 23(1) Group
Dynamics: Theory, Research, and Practice 57 http://dx.doi.org/10.1037/gdn0000098
accessed 14 March 2025.
[32] 2018 (10) SCC
[33] Ojudubabafemi, ‘Dissent
in Democracy: The Crucial Role of Free Expression’ (Medium, 7 June 2024) https://medium.com/@ojudubabafemi/dissent-in-democracy-the-crucial-role-of-free-expression-57f8983340bb
accessed 14 March 2025.
[34] 1986 SCC OnLine SC 213
Article Information
A TRYST WITH DISSENT
Authors: JOSEPH JUDE JACOB
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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