Sedition case on Kanhaiya, others is wrong

Karan Thapar

I have long suspected that we, as a people, are prone to hyperbole and overreaction. Rarely, if ever, do we strike the right balance, hit the proper note or come up with the mot juste. When discretion and judgment are required, we have a knack of ending up in extreme positions. To put it bluntly, we often get difficult calls wrong.
The decision to press sedition charges against Kanhaiya Kumar and other students of Jawaharlal Nehru University has convinced me that I’m correct. The situation called for deft handling. We responded with a blunderbuss. In the process, the government and the police have embarrassed themselves.
First, however, let me make a little qualification. India is not Europe or America and slogans proclaiming “Bharat ki Barbadi tak Kashmir ki Azadi tak jung karenge jung karenge” or “Bharat tere tukade honge InsaAllah InsaAllah” cross a desi redline and are considered wrong. The key question is what should you do about them?
I would say that three factors need to be borne in mind when you consider your response. First, students tend to be anti-establishment and defiant of authority. Revolt and reaction is part of the process of growing up. We’ve all gone through it. More importantly, the challenge this poses often forces a valuable rethink. If nothing else, it’s how any society evolves. This is one reason for tolerating what you might consider the unspeakable.
Second, university campuses are places where debate and dissent is to be encouraged, not quashed. And encouragement means permitting, at times even encouraging, the unlikeable and, possibly, also the offensive. Otherwise you could undermine the raison d’être of a university.
Third, how much criticism that a government or state can tolerate is an indication of their self-confidence and maturity. Cracking down on dissidence suggests weakness, even if for some people it seems like a tough response. Here appearances actually deceive.
The astute move would have been to ignore the slogans after forcefully criticising them. When American university students rose in protest against the Vietnam war, including rallies in support of Ho Chi Minh and the burning of the Stars and Stripes, (then US President) Lyndon Johnson didn’t charge them with sedition or arrest them. Instead, he let them spend their passion, knowing it would eventually diminish. Similarly, in 1968, when Tariq Ali, then a Pakistani citizen, claimed that he was leading a revolution while living in the UK, the British didn’t slap sedition charges or even deport him. They simply advised him against travelling to France, where the authorities might not have been so tolerant! A few years later, they made him a British citizen.
Unfortunately, disregarding the above, the Delhi police has responded with charges of sedition. That’s like swinging a battleaxe to crack a nut. Not only is that defiance of Supreme Court judgments which say sedition can only apply when there is a clear and immediate incitement to violence — which definitely was not the case — it’s also a section of our penal code which wise leaders like Jawaharlal Nehru hoped would be scrapped or, at least, never enforced.
The Supreme Court first made its position clear in 1962 in the Kedar Nath Singh judgment, when it read down Section 124A of the Indian Penal Code, which is the sedition clause. In 1995, in the Balwant Singh case, when it ruled that “Khalistan Zindabad” is not seditious, it upheld the 1962 ruling. More recently, in September 2016, the Supreme Court explicitly reaffirmed this position. It pronounced: “We are of the considered opinion that the authorities, while dealing with offences under Section 124A of the Indian Penal Code, shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh versus State of Bihar.”
So why do our police forces continue to misuse the sedition law? More critically, why do our elected governments permit and condone it? Sadly, there are even occasions when some of our most learned and sophisticated politicians get it wrong. In a 2017 speech in London, Arun Jaitley had said: “Free speech does not permit you to assault the sovereignty of the country.” He’s wrong.
As long as that assault is verbal — and not physical and, therefore, violent — it is fully covered by Article 19(1). Furthermore, what most politicians forget is that while Article 19(2) permits restrictions on freedom of speech on the grounds of sovereignty it’s an enabling provision and not the law itself. After the law of sedition was read down, such a law no longer exists.
If the BJP wishes to criminalise anti-national slogans, it needs to create a specific law for this purpose. I have two reasons for hoping that it won’t.
Perhaps in the immediate years after Independence India was fragile and such slogans could genuinely threaten. That’s not the case any longer. Today we’re resilient enough to withstand provocative rhetoric or dissident behaviour. Indeed, the liberty to act or speak in defiance of public opinion should be proud proof of our strength.
Second, as far back as 1962, in his maiden speech in the Rajya Sabha, DMK founder C.N. Annadurai had said: “Dravidians demand the right of self-determination … we want a separate country for southern India.” If his speech was tolerated 57 years ago, surely the chanting of offensive slogans should be treated similarly today?
Let’s not in the name of nationalism commit the blunder of restricting free speech. We know that those who chant anti-national slogans are horribly wrong, but they have a right to be.