Heart of the matter: Which dissent is impermissible in a democracy?

I celebrate student leader Kanhaiya Kumar’s walk back to freedom, his audacious challenge to communal politics, and his passionate espousal of what is most precious in our Constitution – justice, liberty, equality and fraternity. But two of his fellow university students, Anirban Bhattacharya and Umar Khalid, remain in jail, without bail, charged with sedition or crimes against the nation.

I find very worrying that sections, even of liberal public opinion, in the country seem to accept the argument that Kumar is innocent because he did not organise the controversial student meeting in Jawaharlal Nehru University on the anniversary of Afzal Guru’s hanging, and did not raise slogans in support of Kashmir’s freedom. The implication – explicit or implicit – is that if other students, such as possibly Anirban Bhattacharya and Umar Khalid, did indeed organise the meeting and join (or at least not prevent) the offending slogans, then they crossed a line of what is legally permissible, and merit the criminal action taken against them.

I do not want to comment on whether indeed these students did organise the meeting or raise slogans. There is credible evidence (including from a report by the Delhi government) that at least some of the videos that allege their “anti-national” sloganeering were doctored.

I have no basis to conclude that these specific students indeed played a role in the student meeting that has raised a countrywide storm, reverberating in the country’s Parliament, in universities and street protests, for and against, across the country. But the point I wish to raise here is that this question is not, should not be even pertinent.

A matter of opinion

The questions I wish to raise are different. There seems to be an underlying assumption even among many liberals that students in universities – and citizens in general – have the right to dissent against inequality and injustice, but there are limits to these rights. These limits are erected by the interests of the “nation”. Views and slogans that are deemed (by whom is not clear) to be against the interests of the nation are impermissible.

Unpacking this view further, it is important to ask if this impermissibility is judged to be on practical (strategic), political, ethical, or legal grounds. In other words, is such sloganeering unwise (perhaps in the emotionally surcharged contemporary shrill discourse on “nationalism”); is it politically perilous as it will estrange large segments of middle-of-the-road public opinion; or are such discussions ethically wrong because they in some way devalue the contributions of India’s armed forces in defending India’s integrity?

I believe that in a democracy, raising all these questions and taking diverse positions on them are legitimate. I can (and do) have strong opinions on each of these questions. For instance, I am dismayed and troubled by human rights abuses by security personnel in India’s North West and North East frontiers; I support Irom Sharmila’s epic fast against the Armed Forces (Special Powers) Act as I believe that this statute has fostered for far too long unacceptable impunity for crimes and violations by men in uniform including rape; I believe that the death penalty even against those charged with terror crimes runs against basic humanist principles; I oppose terror laws because they compromise with the rights of accused persons to prove their innocence; I believe that people who are even against the nation have the right to state their opinions without inciting hate or violence; and so on.

But I recognise equally that it is entirely valid for persons to hold views that are diametrically opposed to mine. I would prefer that these discussions are measured in tenor and based on reason, but it is permissible in a democracy for the tone of the discussions even to become shrill, angry and accusatory. Many like me have long become used to being labelled as being unpatriotic, against the nation, its path of economic progress and its majority faith. I might find some of these discussions, their content and tenor distasteful, but these are still entirely legitimate views to hold and propound in a democracy. I must defend and uphold the rights of people who hold opinions entirely opposed to mine (unless they incite hatred and violence).

The crux of the issue

The only critical question that remains is that even if people may believe that raising uncomfortable questions about security forces, human rights and the nation are strategically, politically and ethically unacceptable, is holding, airing or propagating such views a criminal act? And is it a crime as grave as sedition, that if proved can cause a person to spend a lifetime in prison?

Legal experts are clear that even raising questions or slogans deemed to be against the nation’s strategic and political interests does not amount to sedition unless there is a clear incitement to violence. Even so, the self-styled “nationalist discourse” deems student slogans in favour of Kashmir’s independence from India a criminal act of sedition. This is to be expected. But this opinion is not restricted to the far right of the political spectrum. The Delhi government’s report, while maintaining that many of the videos that form the basis of the claim that seditious slogans were raised in JNU on February 9 were doctored, concludes that Kanhaiya Kumar is innocent because he did not organise the meeting or raise any slogans. The implication (explicitly stated in the report) is that those who did organise the meeting and raise “anti-national” slogans were indeed guilty of crimes that should be investigated and punished. The observations of many liberal commentators seem to support this binary.

However, I find this distinction between legally permissible and impermissible forms of dissent – on campuses and outside them – intensely worrying, except when these indeed promote and incite hatred, enmity and violence. Many of the questions that were raised about whether the judicial decision to hang Afzal Guru for the terror attack on Parliament was just and appropriate, have been raised by many commentators including myself. This is what led me to write to the country’s home minister that if the students are deemed guilty of sedition, then I should in fairness be booked, jailed and punished for the same crime.

Sensible approach

Each day, media trials hold many of the country’s finest minds similarly guilty of sedition, the latest target being JNU professor Nivedita Menon, for arguing that places like Manipur and Kashmir are being occupied militarily, and people in other regions as well like parts of Chhattisgarh people are being militarily suppressed. She also declared memorably that the fact that you love your country does not mean that you claim it is perfect.

In the midst of all this high emotion, these two young students remain in jail, with no early signs of their release on bail. On the other hand, there can be no doubt that the persons who doctored the videos and aired them on national television actively and maliciously did incite hatred and violence, but they have not been punished for any crime, let alone sedition. The lawyers who attacked an accused student on the jail premises have been treated with kid gloves by the police, in telling contrast to their alacrity in charging and jailing university students for sedition, and opposing their bail.

There is no doubt that an entire generation of young people, in regions that have extensive military presence for many decades like Manipur and Kashmir, carries deep anguish and wounds in their collective psyche. Many among them may feel they should no longer remain in India. Are we going to criminalise all these sentiments and wounds and fill these young people in our country’s jails? Is it not far more fitting that they share their anger and pain with other students in the anchorage of a university, debate, sloganeer, and listen to other voices of other students and teachers, some who agree, some who are confused, some who don’t care, and some who passionately oppose them? Is there any other civilised and democratic way of dealing with their pain and angst?