DISSENT IN A DEMOCRACY : AN INQUIRY INTO THE INDISPENSABLE

Reading time : 8 minutes

INTRODUCTION :

Dissent is indispensable to the working of a democracy. The fundamental democratic ideal rests upon the well known principal of rule of the people, rather as Abraham Lincoln has said democracy means a government ‘by the people, for the people, of the people’; a system of government composed of representatives of the people elected by the people themselves, where the people are both the rulers and the ruled. The construct of democracy is, however, not related to the process of election of the government but extends to arenas far beyond that. A democratic government is one that guarantees to each and every citizen their basic human rights often called the fundamental rights, protects their civil and political rights and most importantly, it is the form of government where personal liberty of individuals surpasses all other rights.

In a democratic society, an individual should be able to exercise his/ her freedom of speech and expression freely without any fear of retribution from any sources, whatsoever. No freedom, however, is absolute and if the freedom of one person endangers or curtails the freedom of another, it must necessarily be regulated for the undisputed, smooth functioning of the society. Freedom of speech is inclusive of freedom to disagree, whether it be directed towards a particular government policy or a speech delivered by some government official, as long as such disagreement is expressed in a peaceful manner and does not intentionally aim to incite disaffection against the government or tries to propagate disharmony in the society, communal or otherwise; disagreements should be allowed to prevail in the society.  Freedom to agree entails the freedom to disagree, to dissent. Dissent is an inextricable part of freedom of expression. Suppressing dissent without reasonable causes means curtailing freedom of speech which goes against the democratic ideals of a society. Sadly, measures adopted by India as well as countries across the world reveal an unfortunate scenario which blatantly points at the government’s disapproving attitude towards dissenters. Data from the National Crime Records Bureau in India bears testimony to the aforementioned statement. In 2019, 1226 UAPA cases were filed, a 33% increase from the number reported in 2016[1].

In this article, the author has tried to present an analytical overview of national and international laws that legitimizes and upholds an individual’s right to dissent.

The Constitution of India under article 19(1)(g) guarantees the freedom of speech and expression to every Indian citizen. The  fundamental right of freedom of speech and expression, however, is not absolute. Reasonable restrictions can be imposed on it for the sake of sovereignty and integrity of India, the security of the state, friendly relations with other nations, public order, decency, morality, contempt of court, defamation or incitement to an offence.

Further, the Indian Penal Code deals with a number of laws that is capable of restraining free speech. Sedition and defamation are two such laws that can curb the unrestrained operation of the right.

Section 124-A of the Indian Penal Code defines sedition. Whoever intents to excite disaffection against the government and commits any act in that direction in the manner specified under the section commits sedition. The mannerisms extend from words, either spoken or written to signs and visible representations that are publicized and are capable of propagating hatred among the masses against the government. A person committing sedition can be incarcerated for a maximum period of three years with which fine maybe added. The explanations to the section state that the expression disaffection is inclusive of disloyalty and adversarial feelings towards the government. However, bona fide statements made with a view of altering the measures undertaken by the government by lawful means  or expressing dissatisfaction with the administrative or other actions of the government  do not constitute sedition.

Another, notoriously misused law that restrains the the right to dissent is that of defamation. In chapter XII of the Indian Penal Code, section 499 defines defamation. The crux of the section is that any person who publicizes, with the knowledge or intent, any information that maligns the reputation of any person, the person publicizing such information will said to have defamed the other person. Such information could be words, spoken or intended to be read or signs or visible representations. A number of exceptions like defense of truth, fair comment, conduct of public servants in discharging his/ her duty, etc. however, limit the operation of the defamation clause.

SPECIALISED LAWS :

  1. UNLAWFUL ACTIVITIES PREVENTION ACT, 1967

A law enacted prima facie to counter terrorism, the draconian UAPA has been criticized for its alleged arbitrary usage to clampdown on citizens voicing their dissent. Unlawful activity, whether committed by an individual or an association has been defined under section 2(o) of the Act as any action undertaken or words spoken or written or signs or visible representations publicized that can potentially endanger the sovereignty or integrity of India. Th Act treads upon precarious grounds under the non disclosure of information provision vis-a-vis sections 3(2) and 7(5) which empowers the Central Government to withhold any information in the best interest of the public. For reasons alike, no information relating to the investigation of funds used for any unlawful activity shall be disclosed without the consent of the Central Government according to section 7(5) of the Act. An Act that can engender the deterrance of free speech for its terrorist overtones or undertones has a further crippling impact on the offenders since it is almost impossible to obtain a bail under the Act except in cases where the Court does not not have reasonable grounds to ascertain whether the accusation against the perpetrator is prima facie true. Put succintly, the Act bestows unrestrained authority upon the police to arrest any person/ member of an association who commits a terrorist act or renders assistance to a terrorist organization vis-a-vis sections 15 and 39, respectively. 39(c) dwells upon the addressing of a meeting of a terrorist organization in order to garner support for the same.

  • NATIONAL SECURITY ACT, 1980

The National Securities Act is another legislation infamous for its usage which is incongruous to its aim. Enacted with the motto of providing for preventive detention of persons, the Act has been grossly misused for crushing dissent and for effecting politically motivated arrests. This stance has been reinstated by a judgement of the Allahabad High Court in 2019 regarding the arrest of Dr. Kafeel Khan against whom the NSA had been invoked for delivering a speech that allegedly incited disaffection against the government and spread communal disarray. Dr. Khan was later absolved of all criminal charges by the Court. The judgement read, “ the address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence.”[2]

Section 3 of the Act empowers the government to issue an order of detention against any person whose actions are prejudicial to the security, defence, public order of India. The Act has been particularly contentious in regards to section 8 of the Act under which a detainee can be informed of his/ her grounds of arrest my maximum of five days or fifteen days (in exceptional cases). Further, if public interest is the cause, such disclosure of grounds of arrest can be avoided in totality. Also, a person can be detained for a maximum of twelve months at a stretch in pursuance of any detention order.

  • OFFICIAL SECRETS ACT, 1923

In order to express dissent, sometimes dissemination of information is the sole way – and if such information is classified then the provisions of the The Official Secrets Act, 1933 can be attracted. Punitive laws for espionage (section 3), communication with foreign agents (section 4), wrongful communication of any information (section 5) has been laid down under the Act. Section 3 of the act states that if any person for purposes prejudicial to the safety or interests of the State— (a) approaches, passes over or is in the vicinity of, or enters, any prohibited place; or (b) makes any sketch, plan, model, or note which is calculated to be or might be, directly or indirectly, useful to an enemy; or (c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy will be liable for the offence of spying under this Act.such person shall be sentenced to imprisonment ranging from three to fourteen years depending on whether the classified information is related to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code. Section 4 of the Act states that any person who communicates with a foreign agent, irrespective of that agent being inside or outside the territorial boundaries of India, for the purpose of exchanging any classified information which can threaten the safety or the interests of the State can serve as the evidence for the commission of an offence under section 3 of the Act. A person may be presumed to have been in communication with a foreign agent if he has visited the address of a foreign agent or consorted or associated with a foreign agent, or  the name or address of, or any other information regarding, a foreign agent has been found in his possession, or has been obtained by him from any other person.Who maybe considered a foreign agent has also been defined under this section. “Foreign agent” includes any person who is or has been or in respect of whom it appears that there are reasonable grounds for suspecting him of being or having been employed by a foreign power, either directly or indirectly, for the purpose of committing an act, irrespective of the Act being inside or outside the borders of India, which is prejudicial to the safety or interests of the State, or who has or is reasonably suspected of having, either within or without, committed, or attempted to commit, such an act in the interests of a foreign power. Section 5 of the Act states that any person who is in the possession of any information that relates to a prohibited place or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained owing to his position as a person who holds or has held office under Government, or as a person who holds or has held a contract made on behalf of Government can commit an offence under this section if that person at will, communicates such information to an unauthorized person or uses such information for any vicarious benefit prejudicial to the safety of the State or unlawfully retains such information or refuses to act in the manner prescribed in relation to such information or negligently handles such information.

Most susceptible to come under the radar of the above mentioned section are the media personnel, especially those who conduct investigative journalism. Such was the case of Santanu Saikia[3] who had been arrested under the Official Secrets Act for publishing a secret cabinet note on disinvestment. After ten long years of court battle, Mr. Petrol ( as Mr. Saikia was fondly called ) was acquitted and absolved of all charges by the Delhi High Court. The court clarified the point that a document that is merely labelled as secret would not by itself qualify as a classified document. Such document must also have the capability of of threatening the sovereignty and integrity of the country, if publicized.

  • CONTEMPT OF COURT ACT, 1971

Dissent assumes paramount importance when it is directed towards the institutions of justice dispensation in our country – the judiciary. Last year when eminent lawyer and social activist Mr. Prashant Bhushan was convicted for contempt of court because of two of his tweets the subject matter of which was linked with our the then Chief Justice of India, Honurable Justice S A Bobde, the Contempt of Court Act resurfaced on all platforms and gained much prominence.

The Act vide section 2 recognizes civil contempt and criminal contempt and vide section 12 accords a punishment of six months imprisonment or both for the same offenses. Civil contempt aside, the criteria of criminal contempt rests on a particularly tumultuous and infirm ground. The words ‘lower the authority of any court’, ‘ obstruct the administration of justice’ require grave and meticulous considerations considering the subjectivity of their nature. There needs to be an exhaustive set of rules or a comprehensive legal framework to determine the contempt matter. Though the Act enumerates a number of defenses against contempt proceedings under sections 3, 4, 5, 6, 7 considering its sensitive link with the freedom of speech and expression, further elucidation on the topic is required. In the landmark case of Brahma Prakash Sharma vs State of Uttar Pradesh[4], the court held that it is enough to constitute contempt if there is a prospect of a defamatory statement interfering with the administration of justice and there is no need for a real or actual interference to be committed. To summarize any comment that is suggestive of the depraving or the degenerative nature of the judiciary and attempts to lower the faith of the people in the judiciary can come under the Contempt of Court Act.

FREEDOM OF SPEECH ON THE INTERNET

With the burgeoning rate of dependence of people on the internet and the enormous amount of information pouring over the internet every minute, it would no be wrong to say that the online world runs parallel to the offline world. As such safeguarding the right to dissent on the internet is an integral part of the freedom of speech and expression.

The Information Technology Act, 2000, popularly known as the IT Act, 2000 is a premier act that regulates the nature of the content in the online world. The erstwhile section 66A of the IT Act was a milestone in this regard which was scrapped down by the Supreme Court in the much celebrated case of Shreya Singhal vs. Union of India[5]. The judgement marked a watershed moment since under section 66A a perpetrator could be penalized for sharing any information which was of grossly offensive or menacing nature. The ambiguity and lack of clarity of the section was the reason for its struck down. However, the scrapping of the aforementioned section has not left information sharing on the online world unregulated. Multiple laws under the Indian Penal Code as well as the specialized statutes could be attracted to hold a person liable for disseminating any offensive/ hateful information. Section 67 of the IT Act penalizes the publicizing of any lascivious content of corrupting or depraving potential. Although expedient, the Government can exercise regulatory control over any sensitive information which is being transmitted through any computer resource, in the interest of the sovereignty or integrity of the country under section 69 of the Act.

Recently the infamous rumour of shutdown of the popular social media platforms like Twitter, Whatsapp, Instagram were afloat. This was owing to the enactment of the IT ( Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.  the problem bears its roots in section 79 of the IT act, 2000 that exempts any intermediary from the liability of any third party information that is shared or hosted on the platform, if such intermediary is able to prove his/ her ‘due diligence’ in discharging his/ her duties. The New Rules however, mandates the intermediaries to disclose the first originator of the information if such information is in the national interest of the country, its sovereignty, integrity or security. Social media companies as well as the human rights bodies have raised concerns over the infringement of the right to privacy issues of the rules. The companies not accepting the Rules will be stripped off their immunity that is accorded to them under clause 79 of the Act in case of their failure to comply with the guidelines.

DISSENT – AN INTERNATIONAL PERSPECTIVE

Democracies around the world have an almost insatiable desire of devising ways to muzzle dissenters. Therefore, the international organizations have been entrusted with the duty of thwarting any attempt at such. Freedom of speech and expression is an innate conduit of human rights which further legitimizes dissent. The Universal Declaration of Human Rights (hereafter referred to as the UDHR) and the International Covenant of Civil and Political Rights (hereafter referred to as the ICCPR) are the two principal actors in this domain. As a signatory of both the UDHR  and the ICCPR, it is imperative for India to abide by and uphold the provisions of both the declarations.

The UDHR, as its name suggests enumerates rights that should be universally available to every individual irrespective of any differences whether of religion, race, caste, sex or any other. The Declaration charts out a number of articles whose premises directly/ indirectly relate to the protection of expression and its concomitant right to dissent.

Article 19 of the Declaration says that every person has the right to freedom of opinion and expression which includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The words “without interference” are of significance here since multifarious interferences, comprising both state and non state actors, are being meted out to dissenters in an attempt to silence them. Article 18 of the Declaration says that every person has the right to freedom of thought, conscience and religion which is inclusive of freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.The words to manifest his religion or belief in teaching, practice, worship and observance and religious persecution for expressing opinions aligned to a particular religion are in direct conflict with each other. Instances galore of people being penalized for a tweet or a cartoon or a poster that allegedly propagates religious bigotry or hatred are around us. However the technical intricacy between countering religious hatred and harboring religious prejudices seems to get increasingly blurred.article 12 of the Declaration states that no person shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to any attacks upon his honour and reputation. Everyone has the right to the protection of the law against such arbitrary interference or attacks. The words attacks upon his honour and reputation are material to the workings of the Unlawful Activities Prevention Act. A person booked under the Unlawful Activities Prevention Act is named as a terrorist much prior to the time when his/ her trial at a court actually commences. Not only does  such a provision not abide by “innocent until proven guilty” factor but also dishonors and disregards a person’s right to reputation, a right intrinsic to right to life and personal liberty under article 21 of the Constitution.

The International Covenant on Civil and Political rights, the holy grail documents of human rights further embodies a number of articles, primarily articles – 17, 18, 19 that are indispensable to the right to dissent. Like the UDHR, the ICCPR deprecates vide article 17 any unlawful interference with a person’s honour and reputation and mandates the protection of law against such interferences. While article 19 talks about the freedom of speech and expression – its ambit covering the right to hold opinions without interferences and the right to express one’s ideas regardless of frontiers, article 18 upholds the freedom of  thought conscience and religion and manifestations of such, whether public or private, must be protected by the State.

CONCLUSION :

As far as popular memory can stretch back, dissent has, for time immemorial being viewed as a disruptive process that impedes the smooth course of societal activities. It is an unnecessary and unsolicited by product of democracy – such is the popular perception of people regarding dissent thanks to the selective coverage of instances by the popular media outlets. Dissenters remind to most people of angry mobs burning down public transports, breaking shutters and window panes, perpetrating violence against innocent citizens, engaging in physical abuses among other horrific and detestable instances. Violence aside, other forms of dissent should be allowed to operate in the country as long as it does not interfere with the public life and brings harm upon the masses.

Dissent does not always paint a gloomy picture. Dissent helps in the healthy functioning of a democracy. Disagreements present to us alternative viewpoints of society and open your minds to new avenues of thinking. It reminds us that there is no one, universal body of knowledge but the branches of knowledge are vast and widespread. A country that allows its people to freely ideate, progresses and develops over time. Dissent also keeps the government in check. History bears testimony to the fact that obliteration of opposition has made governments absolute and their powers unfettered. It lead to the emergence to dictatorships, oligarchies, etc. Thus, the role of opposition is of undeniable and great significance in a democracy. It serves as a system of checks and balances against the government. Lastly, in a multi religious, multi linguistic country like that of India’s the majority-minority conflict is perennial. As such vote bank politics leads governments to incline their policies towards the majoritarian community and minorities are  often exclude or disproportionately covered under the government policies. Vehement  opposition from different sectors of the society helps the government to understand how their policies are faring at the receiving end of the population. It also ensures an equitable and holistic development of all.


[1] The crippling effect of sedition and UAPA on dissent in India, available at :

https://www.hindustantimes.com/analysis/the-crippling-effect-of-sedition-and-uapa-on-dissent-in-india/story-QBCPtSpVcYgbdnavysc8UL.html ( Last Modified : Oct 12, 2020).

[2] Allahabad High Court Sets Aside NSA Detention of Kafeel Khan, available at: https://thewire.in/law/allahabad-high-court-nsa-detention-kafeel-khan-set-aside (Visited on June 23, 2021).

[3] He was called Mr. Petrol, available at :

https://www.thehindu.com/news/national/he-was-called-mr-petrol/article6920192.ece ( Last Modified April 02, 2016) .

[4] Brahma Prakash Sharma vs State of Uttar Pradesh, AIR 1954 SCR 1169.

[5] Shreya Singhal vs. Union of India (2013) 12 SCC 73 .

Author: Mekhla Chakraborty, Amity University, Kolkata

Editor: Kanishka VaishSenior Editor, LexLife India.

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