DISSENT IS NOT SEDITION: A LEGAL ANALYSIS

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INTRODUCTION

All of us agree and disagree to so many things in our daily life based on our preferences, opinions and other reasons. We can agree or disagree on something as simple as movies or something as important as the government incentives. It is one of the basic traits of each living being to be entitled to one’s own choices and opinions. Whether it is a personal unit of the society such as a family or the state units such as the executive, judiciary or the legislature, someone disagreeing to the proposed ideas takes the argument further and many times opens a new and better door to solve the issues at hand.

Since the inception of the concept of Democracy, the freedom it grants to everyone to voice their own opinions in every matter has been one of its strongest pillars that sets it apart from other forms of government. While the fundamentals of this democratic set-up consider the majority’s views as the final verdict, the views of those in minority are considered just as important and are not ignored. Such views are termed as ‘Dissent’. Unlike the old authoritarian times such as in colonial India, Hitler’s Germany or Stalin’s USSR, when whoever having other opinions than these tyrants, faced the harshest of punishments, sometimes even leading to a death sentence. Democracy is deemed to be the most favoured form of government in the modern times for its ability to give space and protection to anyone who want to voice their opinions, keeping in mind a few logical restrictions in place such as those opinions do not incite hatred, defame anyone etc.

The Oxford dictionary defines ‘Dissent’ as “to have or express opinions that are different from those that are officially accepted.”  Martin Luther, in the sixteenth century, nailed 95 objections to the Catholic faith on the door of a church in Germany that led to the emergence of the concept of Protestantism in Christianity. In the 17th century, Galileo Galilei angered the Church after he published in a book that the Earth and other planets revolve round the Sun. In India too, the history of dissent goes way back when the people started questioning the Brahmin system evolved in the Vedic period. Many bhakti saints such as Kabir das, Guru Gobind Singh etc. openly criticized the social system that was prevalent then. This shows that the act of questioning and disagreeing to authority is as old as the history of this country goes. Moreover, one of the most significant wars in the Indian history, i.e., the fight against the British empire was a result of this very concept. The uprising against the British rule was the outcome of people dissenting on their idea of governance and interference in the Indian society.

In modern times, with the onset of democracy, there are numerous advantages that the dissenting opinions presents to us. Some of them are as follows:

  1. Complete Representation of Opinions: There are as many opinions as there are people. No two people can always agree on the same thing with the same intensity. So, the first and foremost advantage of Dissent is that none of the voices go unheard. Many times, hearing the dissent makes us realize that things cannot always be black and white, sometimes the solution lies in the various shades of grey. Dissent paves the way for a more inclusive solution and ideologies that aims to benefit everyone and not just those who belong to the majority.
  2. Checking Abuse of Power: If the citizens feel like any law passed or any action taken by the government is not right then they have the right to peacefully assemble and protest in order to showcase their disagreements on the matter. This makes sure that the legislature or the executive are not abusing the powers given to them.
  3. People as Watchdogs: People act as watchdogs of democracy and constantly monitor governments’ acts. They in turn provide their insights and opinions to the governments about their policies and actions after which the mistakes are corrected by the concerned government through various methods such as, consultation, meetings, discussion etc. There are many examples of such protests being held in India against the policies of the State, such as: the Farmer’s protest against three bills- Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; the Farmers Empowerment and Protection) Agreement on Price Assurance and farm Services Act 2020 and the Essential Commodities (Amendment) Act, 2020; Protests in Shaheen Bagh (New Delhi) against the Citizenship Amendment Act (CAA), National Register of Citizen (NRC) and National Population Register (NPR).

Provision of Dissent Under the Indian Constitution

The Constitution of India is possibly the most well-written constitutions in the world. The makers have covered almost all the possible problems that were there at the time and have made possible for the future leaders to inculcate more laws regarding the issues that may arise with time.

The Preamble to the constitution is considered as a part of its basic structure that gives an idea as to what to expect from the entire constitution. It promises liberty of thought, expression, belief, faith, and worship thus guaranteeing complete freedom and autonomy to one’s own opinions and choices. This clearly means that both dissent and agreement are welcomed and protected by the very constitution of this country from its very first page.

The three ways in which the Constitution allows the people to express their dissent are given the Chapter III of the Constitution containing the Fundamental Rights. Article 19 (1) promises freedom of speech and expression; freedom to assemble peaceably and without arms and the freedom to form associations or unions in clauses (a), (b) and (c).

However, the Constitution gives right to the government to put reasonable restriction on these Fundamental Rights on the following grounds:

  • the sovereignty and integrity of India,
  • the security of the State,
  • friendly relations with foreign States,
  • public order,
  • decency or morality or in relation to contempt of court,
  • defamation or incitement to an offence.

However, since the right to dissent is a fundamental right, it can only be enforced against the government or any other such authority, which comes under the purview of the ‘State’ as defined under Article-12 of the Constitution.

Issues Surrounding Dissent

This concept has been in a lot of controversies lately with people often confusing dissent to be a destructive aspect of discussion rather than a constructive one. Especially, the social media has accelerated the damage that can be caused if the dissenting views are taken in the wrong way. Today, we are seeing a rise in number of reports and judicial cases where people are getting booked for acts of Sedition even though what they have said is purely a critical analysis of the situation. People on social media often exceed their boundaries in harassing those who have a different opinion so much so that the other sometimes delete their accounts for their safety and mental peace. So, to summarize, there are two major issues with the idea of Dissent in the current times:

  1. Misunderstanding the Dissent as Sedition: One of the main misunderstandings that has arisen overtime is using the words Dissent and Sedition interchangeably. The way these terms have been loosely thrown around recently has made the apex court wary of the inconspicuousness of meaning of the word ‘sedition’ in the present democratic set-up. The court has time and again dismissed the cases of people booked under the sedition law given in Section 124-A of the Indian Penal Code, 1860 and has talked about re-considering the relevance of this age-old law of colonial era in present times.
  2. Harassment of Dissenters: The said misunderstandings have created many problems for those who express their disagreements. Not only do they get booked by the administrative authorities primarily for sedition among other charges, which later gets dropped by the courts. But the social media provides a free platform to anyone who wants to abuse or threaten them. The social media sites, intended to be used in a positive way often get misused by some. This has also sparked a debate about what these platforms can do to make themselves safer for everyone. Both these issues together constitute a serious form of harassment for the dissenters.

Judiciary and Dissent

The Judiciary has been very forthcoming in protecting the rights of those who have propagated their opinions against important matters out in the open and in turn, have faced backlashes from people as well as legal proceedings due to the same. Given the history of the important dissents in the Courts over the course of time, there is probably no better institution to understand significance of an opinion than the protectors of individual rights and the Constitution of the country.

The relationship between dissents and Supreme Court is nothing new and that is why it never fails to give voice to those who are going against the current and are brave enough to voice their opinions and stand their grounds inspite of the possible repercussions.

In the Right to Privacy Case, Justice Rohinton Nariman discussed the case Kharak Singh v. State of UP and Others where the Supreme Court had earlier ruled that the right to privacy was not a fundamental right. However, Justice K Subba Rao was the only one who gave a dissenting opinion stating that the right to privacy was indeed a fundamental right. Justice Nariman termed this dissent as one of the ‘three great dissents.’ The other two are Justice Khanna’s dissent in the ADM Jabalpur Case to be discussed later and the another is Justice Fazl Ali’s dissenting opinion in the case of AK Gopalan v. State of Madras, the facts of which are as follows:

In this case, the interpretation of the words ‘procedure established by law’ appearing in Article 21 of the Constitution was given by Justice Fazl Ali as ‘a fair and reasonable procedure’ as opposed to ‘a semblance of procedure’ as per the majority view. His view was finally vindicated when the Supreme Court accepted this interpretation in Rustom Cavasjee Cooper v. Union of India (also known as the Bank Nationalisation Case).

Dissent is Not Sedition: SC

Recently, in at an online conference organised by the American Bar Association this July, Justice D.Y. Chandrachud talked about the importance of dissent in the democracy. His views are particularly important on the matter due to the case of Justice K.S. Puttawamy v. Union of India, popularly known as the Right to Privacy case where he overturned the ruling of his own father, Justice Y.V. Chandrachud, who wrote the judgement of one of the most important cases in the judicial history of India, ADM Jabalpur v. Shivakant Shukla in 1976.

In that case, out of the five-judge bench of the Supreme Court, the majority of 4 judges namely, Chief Justice A.N. Ray, Justice M. Hameedullah Beg, Justice P.N. Bhagwati and Justice Y.V. Chandrachud had held that the personal liberty guaranteed under Article 21 of the Constitution could not go against an executive order. Only one Judge, Justice Khanna gave a dissenting view on the matter which was met with much criticism during that time. However, that one dissent played a very instrumental role in giving strength to the future justices to voice their dissents in various judgments.

In fact, his views became the basis of the judgments written in the Right to Privacy case. Having written 266 of 547 pages of the Supreme Court order on the right to privacy, Justice DY Chandrachud, along with the other 8 judges of the nine-judge bench of the Supreme Court unanimously overruled the majority’s view of the four judges in the previous case of ADM Jabalpur v. Shivkant Shukla and held that the right to privacy was a fundamental right in India, as well as being incidental to other freedoms guaranteed by the Indian Constitution.

Speaking on the topic, the Justice Chandrachud said, “Criminal law, including anti-terror legislation, should not be misused for quelling dissent or harassment to citizens. As I noted in my judgement in Arnab Goswami Vs the State, our courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of citizens.”[1]

“Today, the world’s oldest and largest democracy represent these ideals of a multicultural, pluralist society where their constitutions are focused on a deep commitment and respect for human rights,”[2] said the judge. The Judiciary has been quite open-minded on which statements can be termed seditious in nature and which are merely thoughts against the Government policies and actions.

The Supreme Court recently in March dismissed another PIL on the same matter of sedition, seeking prosecution of former J&K chief minister Farooq Abdullah for the said offence under Section 124-A of IPC for expressing views against the decision of the Centre to do away with the special status given to the state of Jammu & Kashmir under Article 370.


“Dissent cannot be termed sedition,” held the bench of Justices Sanjay Kishan Kaul and Hemant Gupta. “The expression of a view which is a dissent from a decision taken by the central government itself cannot be said to be seditious.”[3]

In another petition filed by historian Romila Thapar in 2018 against the arrest of five activists for alleged Maoist links in the aftermath of the Bhima-Koregaon violence, Justice D.Y. Chandrachud observed in his dissenting opinion that, “Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.”[4]

CONCLUSION

There is no denying of the fact that disagreements are just as important to shape the country as agreements are. Both are complimentary and mandatory to each other; one cannot surely exist without the other in a democratic set-up. Otherwise, it will take a form of tyranny and dictatorship. The courts, social activists and the recorded history of all the important events in the world have rightly depicted how useful both the assents and dissents are in shaping a country. When one person states what is in their mind without any fear, the roads to endless possibilities open up to help make the right decision in choosing a solution for the various issues at hand.

India has come a long way in accepting all kinds of views and expression by the people overtime. From an era where only a few citizens and judges dared to express their disagreements and reservations openly, now we see more participation by a number of people in making this country better for everyone. Since the Hon’ble Supreme Court has already opened a possibility of debate on the existing sedition laws, this can mean that once the matter is settled and a modern, more-efficient definition of sedition is devised by the apex court, it will make a much bigger and better room for people to put out their opinions without feeling any fear or danger. The government should also give its all to create such space where the citizens feel encouraged to speak their minds and communicate with the administrative authorities regarding the laws and the policies of the state. After all, such laws and policies are made for the said citizens, so their maximum participation should be ensured.


[1] Anti-terror law not to be used to quell dissent: Justice Chandrachud, available at: https://www.hindustantimes.com/india-news/antiterror-law-not-to-be-used-to-quell-dissent-justice-chandrachud-101626200934586.html (Last Modified on 14th July, 2021)

[2] Anti-terror law not to be used to quell dissent: Justice Chandrachud, available at: https://www.hindustantimes.com/india-news/antiterror-law-not-to-be-used-to-quell-dissent-justice-chandrachud-101626200934586.html (Last Modified on 14th July, 2021)

[3] Dissent not sedition, can’t try citizens for anti-government views: Supreme Court, available at: https://timesofindia.indiatimes.com/india/dissent-not-sedition-cant-try-citizens-for-anti-government-views-supreme-court/articleshow/81319577.cms (Last Modified on 4th March 2021)

[4] Supreme Court judgments recognise dissent as a ‘symbol of a vibrant democracy’, available at: https://www.thehindu.com/news/national/supreme-court-judgments-recognise-dissent-as-a-symbol-of-a-vibrant-democracy/article30434644.ece (Last Modified on 31st December, 2019).

Author: KAVYA, VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES, NEW DELHI

Editor: Kanishka VaishSenior Editor, LexLife India.

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