Demur and Carp: New Idea of Patriotism By: Ameya Nath

By | October 5, 2018
Demur and Carp: New Idea of Patriotism

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Abstract

Nationalism can never be imposed on people through the authoritative use of power. There are a lot of ways through which the government can instil the feeling of nationalism in its citizen. If people are provided with proper education, food facilities and other basic services, then the need to infuse nationalism in them will diminish. If such basic amenities are made available to them, then nationalism will be self-imposed and there will be no requirement of its imposition through fiats. || Demur and Carp: New Idea of Patriotism By: Ameya Nath

The idea of infusing nationalism is not confined to schools and universities, but it has also reached the doorsteps of the court of law. If not, then why did the court take on itself the issue of playing National Anthem in the cinema halls?

The government is so involved and hypnotised in infusing nationalism that it has forgotten its primary role of good governance. The political leaders lecturing about nationalism must realise that instead of tackling with this issue, they must spend more time mulling over their failure to perform their job role and governance.

Anybody who points out the fallacies in the government’s policies or their incompetency to deal with the present issues is being termed as Anti-National. Therefore, we live in a country where not singing the national anthem is Anti-National but attacking people who do not sing it is considered to be an act of nationalistic zeal. The principles of Democracy are at stake here and a serious change of mindset is required to overcome this ideological war.

Introduction

India is a Democratic country. It runs strictly on the principle of ‘rule by the people’. This is an ineradicable principle of Democracy. But when we refer to a democratically elected government, it will be fallacious to assume that merely because it is chosen by its citizen they are bound to appreciate it. And it is downright justifiable in a Democratic State to be against the Government and criticize it for its dereliction. This criticism is not synonymous with detestation of the government, it is only for the Government to ameliorate its blemishes. Dissent is Democratic. This is how a truly Democratic country works, where habitual prizing of the Governments, not a norm. And if by any channel this dissent and criticism are being curbed or punished, then it is coercive to the whole object of Democracy. Any attempt to stifle with this right of criticism and dissent is a direct stifle with Democracy and it asphyxiates the very breath of a Democratic State.

The immediate state of India is quite stressful as the right to dissent is under siege. All sorts of condemnations are being termed as Anti-National and there is a rise of jingoism all over the country. The terms ‘Anti-National’ and ‘Anti-Government’ are being used interchangeably, without taking into consideration the difference between the two. When we use the term Anti-National, the question that arises is what is being national? And if the Constitution, the supreme authority and command, has itself not provided for the concept of nationalism, then how and on what parameters do we label or tag someone as Anti-National? Also, there is a huge distinction between being Anti-National and being Anti-Government. Government is something that comprises of elected representatives, who are elected and hold the office for a particular time period and are changed after the next elections. Whereas, when we talk about a nation or a State, it is something that, although, the concept of Government within its ambit, but also includes the Indian citizens, the territorial space, the various functionaries of the State like the Judiciary, Legislative and the Executive. The Government falls well within the bounds of the term nation and it does not work the other way round. Therefore, the mere reason that the person is against the Government is not enough to designate that person as Anti-National. There needs to be more than mere dissent of the Government for the person to be labelled as Anti-National.

Anti-National – When the Constitution Expounded it and its Genesis

Looking into the bygone era when the Constitution buttressed the term Anti-National, we find its existence under Article 31D, which in the current day stands repealed. During the emergency, a lot of changes were inaugurated into the Constitution. Insertion of article 31D was one such inauguration.  It was brought in with section five of the famous 42nd Amendment Act, 1976. The heading of this article was Saving of Laws in respect of Anti-National Activities. It is not a part of the Constitution today as it was repealed in the year after the emergency by section two of the 43rd Amendment Act, 1978. The provision supported laws that were made against Anti-National activities and associations even though they interfered with the fundamental rights. Therefore, the transgression of the fundamental rights was permissible under article 31D of the Constitution of India. It was clearly mentioned under Article 31D that any law made to prevent and prohibit the Anti-National activities and associations will not be considered void only on the ground that it violated the fundamental rights present under article 14, 19 and 31.  It had five major points that described the Anti-National activities. First, on intentions or and actions of solidarity to and towards cession and secession of territoriality of Indian State. Second, any activity which disclaims, questions, threatens and disrupts the sovereignty and unity of the country. Third, any intention of coup d’état. Fourth, intentions of creating and disrupting public services with the vaguely phrased internal disturbances. And fifth, the perpetrations of religious, racial, regional, caste and communal hatred.[1] Any persons who had allegiance with any of the five points were considered to be Anti-Nationals.

Back in the day, the term Anti-National was defined by the Constitution and the law. Unlike today, where the labelling is done by people extra-Constitutionally and by media reporters and journalists. The opposition used to suffer from preventive detentions on grounds of being Anti-National but all of it is backed by the Constitution. However, the use of this term is witness more in the present day India, even though 31D stands repealed as compared to the time when it was actually supported by the Constitution.

Anti-Government

As the famous English writer, Julian Patrick Barnes once said, “The greatest patriotism is to tell your country when it is behaving dishonourably, foolishly, viciously,”

If we look at the meaning of the term Anti-Government, Merriam Webster defines it as “opposed to or hostile toward governments or a particular government: opposing or resisting governmental policies and power”[2]. Just because people are lambasting the government, does not mean that they do not respect their nation. Deprecation has nothing to do with reverence, they exist simultaneously and do not even affect each other’s existence.

In the recent case related to the Bhima-Koregaon incident of the arrest of five great Human Rights activists, Hon’ble Justice DY Chandrachud and Justice Khanwilkar ruled that “Dissent is the safety valve of Democracy and if you don’t allow these safety valves, it will burst.”

Opposing the Government has nothing to do with self-determination, attacking the territorial integrity or sovereignty. When people who choose the Government they want to be governed by are not satisfied with the work of the same, they are just as free to criticize the Government as they were to choose it. This is a crucial exercise in a Democracy.

Constitutional Analysis

Fundamental rights laid down in the Constitution of India station the foundation of Democracy. If the right of choosing the Government is closely knitted to the idea of freedom of speech and expression, then so is dissenting and depreciation of the same.

Article 19(1)(a) of the Constitution of India guarantees to its every citizen the right to freedom of speech and expression. With this, the citizens are allowed to share and communicate their feelings and opinions without the trepidation of being swindled, victimised and exploited. Free speech is inherent to the idea of a Democratic Republic.

In Kesavananda Bharati v. State of Kerala[3], Supreme Court ruled that fundamental rights form a part of the basic structure of the Constitution. Any violation of the fundamental rights would amount to the ransacking of the soul of the Constitution. It also ruled in this case that, “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of the mankind, and the advent of the world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people”.[4]

The term Anti-Government is not synonymous with the term Anti-National as the former, through criticism and depreciation, seeks to better the state of the nation, while the latter, seeks to fracture and shatter the uprightness and probity of the nation. Therefore, a Democratic nation needs to mandatorily, respect and give regard to the freedom of speech and expression and other principles that are fundamental, radical and too rudimentary to be subdued.

Sedition: A Malediction to Free Speech?

Sedition is enshrined under section 124a of the Indian Penal Code, 1860. It was introduced through Macaulay’s draft and was added to the statute book in the year 1870. Sedition can be called a restriction to the right of free speech, whether reasonable or not, it still exists. During the colonial rule, it was to curb the voice of those radical movements that were launched against the despotism of the British regime However, we still have it as a law and lately, we have been using and abusing it abundantly.

Pre and Post-Colonial Analysis

The law came into effect in the year 1870 as an apparatus and mechanism to stricture any and every stance that stands contrary to the British government. It led to the arrest of Bal Gangadhar Tilak, the famous nationalist leader, on grounds of Sedition. He was convicted by a majority of 6-3 non-unanimous verdict and was sentenced to eighteen years of rigorous imprisonment, though he was released after a year.

In 1922, Mahatma Gandhi also pleaded guilty to a charge of Sedition in the District and Sessions Court of Ahmedabad and was sentenced to six years of imprisonment. He said and I quote, “I have no desire whatsoever to conceal from this court, that fact that to preach disaffection towards the existing system of Government has become almost a passion within me. Section 124A, under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code, designed to suppress the liberty of the citizen. 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.”[5]

The use and abuse of section 124A in the present time is almost a quotidian, a routine. It has been used as a tool to curb dissent and shut anyone who speaks differently about the government. The most famous case is the arrest of Kanhaiya Kumar, a JNU student. He was slapped with Sedition charges for castigating Afzal guru’s death and catechizing it on grounds that it was inconsistent with the soul, spirit and psyche of the Constitution. Aseem Trivedi was charged with Sedition for ridiculing and satirizing the National Emblem in correspondence to the corruption by the political elites. The arrest of a few college students for supporting Pakistan in a game, detention of Hardik Patel, the man behind the protests for reservation for quota.

All the above-mentioned acts do not really fit into the definition of Sedition. They are nothing but mere disaffection towards the Government actions and the criticism of the same. The Government must pay heed to them in a way to improve itself and make better governance possible. However, the Government always deals with this issue by shutting them down, by way of their arrest followed custodial torture and inhuman treatment by the Police.

Constituent Assembly Debate

During the constituent assembly, many national leaders and thinkers were unsympathetic and resisted the addition of the word “Sedition” as it was considered to be an arbitrary archaic law that undermined the spirit of the right of freedom of speech and expression. Pandit Jawaharlal Nehru called it “obnoxious and highly objectionable one in the body of law” and suggested that it should be done away with. Sardar Bhupinder Singh Mann and Prof. Yashwant Rai explicitly criticized the addition of word ‘Sedition’ under the Constitution during the debate on 2nd December 1948 pointing out the intent of the Sedition law under the IPC to suppress Indians and its limitation on freedom of speech and expression.[6]

Seth Govind Das stated, “I would have myself preferred that these rights were granted to our people without the restrictions that have been imposed. But the conditions in our country do not permit this being done. I deem it necessary to submit my views in respect to some of the rights. I find that the first sub-clause refers to freedom of speech and expression. The restriction imposed later on in respect of the extent of this right contains the word ‘Sedition’. An amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the deletion of the word ‘Sedition’.”[7]

Judicial History

In Tara Singh v State of Punjab[8], the Supreme Court declared the section 124A unconstitutional and in contravention to the freedom of speech and expression. Further, in the case of Kedarnath v State of Bihar[9], the Supreme Court held 124A to be Constitutional but it had to be narrowly interpreted, any wide interpretation would make it unconstitutional. The Supreme Court distinguishing clearly between disloyalty to the Government and remarking upon the actions of the Government without inciting public disorder by an act of violence.

In Indra Das v State of Assam[10], the Supreme Court rules that the law of Sedition needs to be in conformity with the fundamental rights and cannot abrogate it, if it does, it will be held ultra vires. The Supreme Court reiterated time and again that the speeches which amount to “incitement to imminent action” can only be criminalized. Recently in the case Shreya Singhal v Union of India[11], the Supreme Court clearly distinguished between “Advocacy” and “incitement”, in which only incitement can be punished.

Therefore, mere using of words and speech that are disrespectful and distasteful are not to be included within the realm of Sedition and not to be criminalised. 

Conclusion

The distinction between Anti-Government and Anti-National already exists. However, it needs to be more accepted by the people and Government of the country. People cannot be punished and put to suffer just to support the subjective notions of loyalty and patriotism. Constitutional morality must always be considered of imminent importance when compared with populist opinions. As Justice D. Y. Chandrachud said while reading down the draconian section 377, “Constitutional morality requires that this court must act as a counter-majoritarian institution which discharges the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe.”[12] This phrase depicts how the rights ingrained and intrinsic to the foundation of Democracy will always be upheld and supported. Similarly, the freedom of speech is something that the Constitution has given us as a matter of right and not something that the Government has bestowed upon us, and since it is not the source of these rights, it cannot take them away.

Therefore, being Anti-Government is not an issue in a country where Democratic values are considered to be supreme. And rephrasing of Anti-Government as Anti-National is an issue that needs to be addressed and dealt with the earliest.

BY: Ameya Nath

Dr. Ram Manohar Lohia National Law University, Lucknow


[1] Pradyumna Anil Purohit, When the Indian Constitution Defined ‘Anti-National’, The Wire (6th September, 2018, 10:52 am), https://thewire.in/law/Indian-Constitution-defined-Anti-National-revisiting-omitted-article-31d.

[2] Definition of Anti-Government, Merriam Webster (6th September, 2018, 11:11am), https://www.merriam-webster.com/dictionary/Anti-Government.

[3] Kesavananda Bharati vs State Of Kerala,4 SCC 225 (Supreme Court: 1973).

[4] Supra 3.

[5] Abhinav Chandrachud, Republic of Rhetoric 39 (Soli Sorabjee, 2017).

[6] Editorial team, Is Sedition Law Anti-Indian? A Legal Analysis, Savari (September 8th, 2018, 9:19 pm), http://www.dalitweb.org/?p=3079.

[7] Anonymous, Constituent Assembly debate on 2 December, 1948, Part 1, Indian Kanoon (September 8th, 2018, 9:25 pm), https://Indiankanoon.org/doc/1389880/.

[8] Tara Singh v State of Punjab, AIR 124 (Supreme Court: 1950).

[9] Kedarnath Singh v State of Bihar, AIR 955 (Supreme Court: 1962).

[10] Indra Das v State of Assam, 3 SCC 380 (Supreme Court: 2011).

[11] Shreya Singhal v Union of India, AIR 1523 (Supreme Court: 2015).

[12] Unable to locate the citation.


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Author: Keshav

He is a scholar of Masters in Diplomacy, Law, and Business at Jindal School of International Affairs; a law graduate; an ardent and passionate writer; an enthusiastic learner; a liberal opinionist, a workaholic, a night owl, and a humble, witty character.