Where is the line between democratic protest and sedition?

There is deep and growing concern over the decisions of central and state governments and courts in different jurisdictions on the incarceration of political dissidents and human rights defenders – its “forerunners” (to borrow a expression of the American writer Yiyun Li) and its consequences. .

During learning and deliberations on the Constitution and criminal procedure, we were taught that procedural violations are violations of human rights and fundamental rights under the Constitution. This is all history, it seems. But is it?

The concern over unjust incarcerations is deepening with the simultaneous magnanimity and adjournment of the same courts and the government in releases, surrenders, parole and discharge in cases of aggravated and targeted crimes. These are crimes in the sense of crimes against humanity perpetrated against faith communities designated as “others” by the new definitions of “citizenship”.

Mundane neologisms like “urban naxal” are elevated to forensic descriptors – thus conferred official recognition as categories that invite custodial treatment regardless of the absence of specific actions that may warrant arrest and detention/ prolonged imprisonment; also in disregard of the law in force; and in disregard of the fact that strict respect for criminal procedure is essential to the protection of human rights.

What is unrecognized but growing day by day is the concern around travesties of justice, where the shadow cast by the khap panchayat falls on courtly environments reinforced by majority rhetoric.

For that reason alone, it’s time to turn things around. As an abundant precaution, “turning the tide” is a term I use to refer to non-violent grassroots resistance – non-cooperation, satyagraha, ethical disagreement (not “bloodless”) – to prison treatment which is by definition blood-soaked and viscerally violent. Prison treatment maims and shortens the lives and freedoms of those incarcerated for their faith in the freedom of conscience upon which this country’s Constitution rests.

I do not intend to repeat references to Zakia Jafri, activists Teesta Setalvad and Umar Khalid. Nor do I intend to repeat a comparative assessment of the Supreme Court’s reversal of the acquittal of former Delhi University professor GN Saibaba and his co-defendants on the one hand, with the remission by the government of Gujarat, with the sanction of the Centre, of the sentences of the men convicted for the gang rape of Bilkis Bano during the 2002 riots in Gujarat. Although I assert that it is a comparison that must be made.

From the Supreme Court hearing reversing the acquittal of GN Saibaba.

In the context of remission of convicts, I will not repeat the findings of various bodies including the National Human Rights Commission on the Gujarat riots of 2002, nor will I repeat the simple fact that the central government ( which sanctioned the surrender) was the government of Gujarat under whose watch these crimes were committed in 2002 in the first place.

Instead, let me recount earlier stories of forensic art and judicial understanding on dissenter freedom and free speech that might saliently include “incitement.” As the dissenting judge, Justice K Madhava Reddi, observed in Jwalamukhi v. State of Andhra Pradesh in 1972: “As Justice Holmes observed, ‘every idea is an incitement’ and the propagation of each of these ideas cannot, in my opinion, be called seditious. .”

While repressive and authoritarian states may fear the power of the word so much that they invent commonplaces – “literary crime” and “verbal naxal” (to describe poets of the 1970s) and “urban naxal” (a contribution of masala cinema third grade in the state arsenal to the present), the difference is that the courts of the 1970s ousted these trivialities while the courts of 2022 elevate them to the rank of judicial common sense. It is truly a sign of the dangerous road we are on today.

Rather than talk about what Jawaharlal Nehru or the 18th century French statesman Maximilien Robespierre said of the word “revolution”, and their understanding of revolutionaries, I will digress to remind us what the courts Free India’s Constitutionalists have said about the revolution and how In the past, parliamentary discourse has addressed issues concerning revolutionaries (not just ‘protesters’) and their treatment by the courts and the state.

The parliamentary debates on the treatment of the Naxalite leader Nagabhushan Patnaik in prison in 1971, and the post-emergency parliamentary debates on state violence in 1977 are instructive in that they restore to us a sense of history, as an affirmation of memory against oblivion.

Writing, speaking, singing, protesting publicly – on the roads, in universities and workplaces – is a public education in constitutional rights and gives citizens an opportunity to remind governments of their fiduciary responsibilities set out in the Constitution.

Regardless of the levels of impunity claimed and demanded by governments, we must at this time echo the literary critic and writer KV Ramana Reddy, imprisoned during the state of emergency, who appeared in court and asked:

“What good is this parliamentary supremacy? To bring down justice?

– Declaration of the court of February 23, 1976.

Then, as now, social transformation and public education are essential to the growth of constitutional common sense. To recall the words of the famous Telugu poet Nikhileshwar in court in 1971:

“Today’s society is the result of several contradictions. Getting to the root of these contradictions is my responsibility… My writings were within the limits of freedom of speech and expression provided for by the constitution… It is our duty to address the inequalities of this society and awaken the people . We wrote poetry as part of our responsibility. To say they are sadistic or obscene is the result of your perverse interpretation. The police department has no jurisdiction to decide what is sadism or obscenity in literature.… I don’t think writing, traveling, or attending meetings can pose a threat to the public safety or public order.

Judge O Chinnappa Reddy and Judge ADV Reddy hearing the case K Yadava Reddy and Others v Commissioner of Police, AP and Anr in the High Court of Andhra Pradesh in 1971 stated the reasons for the order invalid detention. In a pointed comment, Judge Chinnappa Reddy observed:

“The first three grounds of the three detention orders are identical…We see no relevance between these three grounds and the purpose of the detention, namely the maintenance of public order…Nor can we see how their beliefs in Marxism, Leninism and Maoism or their “vulgar and sadistic” references to certain categories of people in their writings have no rational connection with the purpose of detention. Beliefs are not subject to controls and no one can be imprisoned for their beliefs.

He quoted Chief Justice Patanjali Sastri who two decades earlier had “lamented”:

“…Notwithstanding this court’s repeated warnings that due diligence and attention must be given to matters involving the liberty of the individual, it is distressing to see such matters treated in a negligent and flippant manner.”

“After 20 years,” he said, “we find from the reasons given in these cases that the position continues to be the same and we can only join in the complaint of Patanjali Sastri, CJ. ”

Judge Chinnappa Reddy’s observations on poetic expression and incitement, as well as Judge Madhava Reddy’s recall of Judge Holmes, are particularly relevant and extend to speeches, slogans, songs. Protest performance has always been at the heart of popular defense of democracy and the Constitution in India, despite Nehru. To quote Judge Chinnappa Reddy again:

“Poetry is the spontaneous overflow of powerful feelings. It is the tale of the poet’s struggle from darkness to light, and the passion and extravagance go hand in hand with that. It is difficult to see how the mere outpouring of a poet’s thoughts and emotions in the form of a poem can have any rational connection to public disorder.

Leading a public meeting with “inquilabi salaam” or “inquilab zindabad” can in no way be described as a call for violence. And no, neither “revolution” nor “insurrection” are terms that must be prefixed with “bloody” or “bloodless” to arouse judicial ire or receive judicial sympathy, as the case may be. Chakka jams are a legitimate form of unarmed, nonviolent public protest and awareness-raising – relying as they do on the power of voice and speech, and on non-cooperation.

Hate speech by elected leaders and genocidal journalism, on the other hand, trigger riots, mass violence and impunity. Which is bloodless and which is bloody? Even more telling is the substitution of “non-violence” for “bloodless” in judicial discourse.

There are no woods or trees here, or embers dancing back and forth. Those who protest against arbitrary government action – a legitimate right – are confined behind the high walls of prisons, and those who direct and incite mobs to perpetrate violence roam free.

What is the democratic propagation of ideas and what is the restriction of speech and the violence of prison? It is up to us to deliberate and decide as citizens.

For when the courts agree that wars against the state can be fought inside the home and that neither the rules of procedure nor the rules of evidence require strict observance to justify incarceration or arrest, then Every citizen’s life of liberty is rapidly shrinking and guesswork takes the place of the rule of liberty. right.

Kalpana Kannabiran is Professor Emeritus, Council for Social Development, New Delhi and has translated and edited The Speaking Constitution: A Sisyphean Life in Law by KG Kannabiran.

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