The Idea and Practice of Democracy | Suranjita Ray

Many incidents in the recent days in particular that curtail freedom of speech and expression, compel us to engage once again with the idea and practice of democracy. Freedom of speech and expression guaranteed in the Constitution of India in Article 19 as a Fundamental Right is the essence of liberty. It includes the right to voice one’s opinion, the right to seek information and ideas, and the right to receive and impart information, which are essential to strengthen democracy. However, it is not an absolute right and ‘reasonable restrictions’ can be imposed on its exercise for certain purposes as specified in Article 19(2). Freedom of speech and expression can be reasonably restricted in interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation and incitement to an offence. Thus speeches or expressions which incite violence or commitment of offence that creates internal disorder or disturbs public order and public safety, or undermines the security of State, decency or morality of society, and affects the reputation or status of another person which amounts to defamation, need to be restricted.

But, many a times the restrictions imposed are found unreasonable. At this conjecture, the most important of these is invoking sedition charges to crush dissent, disagreement, and criticism against the government. Misuse of law of sedition to supress dissenting voices of the people during the last decade and a half has put many human rights activists, journalists, artists and scholars behind bars. Increasing arrests and humiliations are everyday experiences which remind us of the undemocratic propensities of the State. Right to free speech, free movement and peaceful assembly have become precarious today. Understanding democracy cannot be isolated from the lived experiences of people which undermine democratic values, norms and ethos.

While the essence of democracy is to preserve the space for debates, dialogues, differences of opinion, divergent thoughts and perceptions, and dissent, we see increasing decline of such space. The three contentious Farm Laws are the immediate reason for farmers protests and massive unrest countrywide that has drawn the attention of the world. The protests by the farmers have continued unabated in several states and at the borders of national capital for more than hundred days now. While the Prime Minister calls the farm laws as a ‘watershed moment’ in agriculture and explicates that it will provide more opportunities to the farmers to sell their produce at a better price thereby increasing their income, the protesting farmers see the laws as ‘anti-farmer’ and unfair. They demand repeal of the farm laws alongside the long-pending implementation of the recommendations of Swaminathan Commission.

Several rounds of talks till 22 January 2021 between the government and several farmers union have ended without any solutions. The government’s usual strategy to blame the opposition parties for spreading pernicious rumours/misinformation and misleading campaigns to instigate the protesters has become less convincing as more and more people from several backgrounds have overcome their fears and helplessness to stand united and express solidarity with the farmers. It is a historical movement that has gained momentum as it not only raises basic demands of farmers but also pushes for the right to peaceful protest and the right to dissent in a democratic country. The Prime Minister’s unequivocal message that there is no going back on the farm laws and statement calling the activists as andolanjeevi (professional protesters) and parjeevi (parasites) has only added to the distrust.

Abridged Dialogical Spaces

The shrinking space for dialogues, debates, disagreements and dissent has led to insistent subversion of democracy. It threatens a democratic culture that gives space to diversities and differences which are fundamental to strengthen a democratic state. A convenient strategy to use sedition charges against students, journalists, poets, artists, writers, activists, comedians, and filmmakers has seen obscurantist politics of denying dissenting voices any space in India’s democratic polity. Clampdown of internet, blocking of social media pages and websites, and police excesses to block/repress the protests on the pretext of preventing disorder reveal the power of a dominant state. Use of internet shutdowns as a successful way to curb communication between protestor has become an easy tool for the government to suppress dissent (see also Jaffrelot and Sharma, 2021:11). The National Crime Record Bureau has stated that between 2016-19, the number of cases of sedition under Section 124A increased by 160 per cent despite the drop in the conviction rate from 33.3 per cent in 2016 to 3.3 per cent in 2019.

Those reporting on the issues connected with the ongoing farmers protests in media or expressing support including personal tweets on social media are slapped several charges. Many people have been arrested and detained. FIRs have been lodged against people to silence disapproval and criticism of policies. Several of these charges are also linked to ‘international conspiracy’ to defame India. Frequent use of sedition charges to allegedly quell dissent has seen increasing anxiety, helplessness and anger amongst the ordinary people who do not confirm state policies. People feel insecure and threatened to express their opinions, views, concerns, and dissent as they fear of being castigated as anti-national.

There is no denying that the miscreants who entered the Red Fort on the Republic Day, 26 January 2021, to hoist a flag that was not tricolour should be punished for disrespecting the National Flag and violating the law of the land. The vandalism at the Red Fort is shameful and saddening and cannot be tolerated. Such acts are not supported even by the farmers who had organized the tractor rally on the Republic Day nor the supporters of farmers protests. But, such incidents should neither be used to malign the entire farming community who have protested peacefully during last three months nor should it curtail the freedom of expressing dissent or disagreement with certain Acts, laws or policies of the government. While necessary actions must be taken against the anti-social elements, the growing distrust and breakdown of any dialogue between the government and the farmers must come to an end.

An increasing number of internet shutdowns, frequent use of the law of sedition to deter free speech, and scapegoating Muslims for the spread of terrorism and COVID-19, has raised anxieties with regard to citizen’s freedoms, particularly the freedom of expression of dissent. The Washington-based noted think tank Freedom House which is the global democracy watchdog in its report states that rights and civil liberties in India ‘have been eroding since Narendra Modi became Prime Minister in 2014,’ specifically referring to mob violence against Muslims, use of the sedition law, intimidation of journalists, and the government’s response to COVID-19 pandemic including the lockdown (Jha, 2021:10). It downgrades India from ‘free’ to ‘partly free’ as its score decreased from 71/100 to 67/100. The ranking is based on an assessment that takes into account performance on 25 parameters and indices, measured and measurable, and concludes that ‘rather than serving as a champion of democratic practice and a counterweight to authoritarian influence from countries such as China, Modi and his party are tragically driving India itself towards authoritarianism’.

There are also apprehensions expressed regarding the notification of new rules by the government to regulate intermediaries and digital media through Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. The rules impose additional obligations on over-the-top (OTT) platforms, social media intermediaries and digital media entities as they aim to regulate online content by prescribing a code of ethics and a three-tiered grievance redressal mechanism for publishers. They set the guidelines to make the digital firms liable/accountable for the content they host or produce. While many policy analysts argue that it is a mechanism to restrict free speech and expression, and substantially increase surveillance and violate right to privacy, the government argues that the rules are an essential need as the code of conduct for digital media will not only ensure transparency but also ensure non-transmission and non-dissemination of prohibited content. The complexities and diversities of conflicts between individual rights and collective interest or public good has always remained a matter of concern and debate in a democracy. Public good or common wellbeing cannot be what the government decides to/can deliver and cannot be divorced from the fundamental rights and needs of the people. It is significant to address these conflicts by breaking silos and building a transparent and participatory policy making process which creates space for debates, deliberations, dialogue and dissent.

Right to Dissent 

We see that sedition charges continues to be invoked to restrict even the most inoffensive forms of dissent. In several cases of arresting people for expressing dissent or supporting protests the court orders are valid as they preserve the essence of democracy. Dismissing the plea against sedition charges against Farooq Abdullah, former Chief Minister of Jammu and Kashmir, over his remarks after the abrogation of Article 370 of the Constitution, the Supreme Court has stated that ‘expressing a view which is dissent from a decision taken by the Central Government itself cannot be said to be sedition’. The Court’s order on dissent as not amounting to sedition is significant given the frequent invocation of sedition charges in the recent times against people for expressing their opinion or dissent against the government’s policies and decisions.

A Delhi Court which granted bail to climate activist Disha Ravi arrested for allegedly editing a social media document, or toolkit, about the ongoing farmer protest against farm laws, stated that there was ‘scanty and sketchy evidence’ to back the charges of sedition against her. There was no ‘iota of evidence’ linking her to the violence at the Red Fort on the Republic Day. The court asserted that citizens could not be jailed simply because they choose to disagree with the policies of the government (www.hindustantimes.com ’ disha-ravi-gets bail in toolkit case: What the court said’, 23 February 2021).

It stated that difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies. The judge pointed out that ‘the offence of sedition cannot be invoked to minister to the wounded vanity of the government’. He stated that ‘citizens are the conscience-keepers of the government in any democratic nation’. An aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy.

The court stated that the right to dissent is enshrined in the fundamental rights guaranteed in Article19 of the Constitution. It added that the freedom of speech and expression includes the right to seek a global audience and there are no geographical barriers on communication. It is a fundamental right to use a platform to impart and receive communication as long as the same is permissible under the law and that applies to access to the audience abroad.

Wrongful arrest of citizens who fight against injustice and violation of basic rights are attempts to curtail freedom of speech and expression. Highlighting the importance of dissent in democracies, Justice D.Y. Chandrachud, part of a three-judge bench headed by Chief Justice Dipak Misra of the Supreme Court in the case of five human rights activists arrested by Pune Police across the country in 2018 on charges of involvement in the Bhima-Koregaon violence stated that ‘Dissent is the safety valve of democracy. If dissent is not allowed, then the pressure cooker may burst’.

The Bombay High Court had issued similar guidelines in the case of arrest of Award-winning Political Cartoonist Aseem Trivedi in 2012, under sedition charges of insulting the national flag, parliament and constitution,which stated that the police must evaluate objectively any material, words and actions before forming an opinion on whether it causes disloyalty, disaffection or enimity to the government as they must be of the magnitude that they incite violence or tend to create public disorder. The court had also cautioned not to misuse the provisions on sedition and to take legal opinion in writing from Law Officer of the District which must give reasons on how the pre-conditions are met and this must be followed by a second opinion from State’s Public Prosecutor (Verma, 2021: 7).

While one of the most cited verdict of the Supreme Court to uphold the constitutional validity of sedition, a law introduced in Indian Penal Code (IPC) in 1870, as a reasonable restriction on free speech is in the case of Kedar Nath vs. State of Bihar, in 1962, the verdict of the court makes it amply clear that ‘dissent is not sedition’. The verdict stated that a citizen has the right to say or write what one dislikes about the government, or its measures, by way of criticism or comment, as long as it does not incite people to violence against the government established by law or with the intention of creating public disorder. It was made clear that only violence, inciting violence, and tendency to incite violence of such a degree as to bring it within the purview of public disorder can amount to sedition. Thus the law of sedition cannot be used to quell dissent.

Since the citizens are disillusioned with sedition charges resulting in increasing distrust, it is important to revisit the law on sedition. What was constitutional decades back can become unconstitutional with the change in time. Laws cannot afford to remain static and must change with time. The Law Commission of India questioned how far it is justified to retain 124A as there are several statutes and laws against perpetrators of violence. A plea has also been filed before the Supreme Court appealing it to declare the law against sedition under section 124A of the IPC as ultra-vires. The petitioners, Advocates Aditya Ranjan, Varun Thakur and V. Elenchezhiyan, have filed the plea against the blatant misuse of section on sedition law and its effect on the constitutional democracy and fundamental rights under Article 19(1)(a) that guarantees freedom of speech and expression and Article 21 that guarantees right to life (https://www.livelaw.in/top-stories/sedition-law-124a-indian-penal-code-constitutional-validity-draconian-colonial-provision-threat-to-fundamental-rights-169468).

Resilience of Democracy

The future of democracy and the democratic state in India lies in the political articulation of diversities and aspirations of the large masses, empowering them towards liberation and self-determination. Right to be heard, to express one’s views, opinion, perceptions, and concerns empowers people in a democracy. When the people continue to feel increasingly threatened, isolated, alienated, marginalized, oppressed, suppressed, excluded, and insecure in their everyday living, the democratic values enshrined in the constitution such as equality, freedom, justice, dignity and inclusiveness remain mere abstract ideas/campaigns and slogans. Democratic political culture should respect voices of protest against increasing crimes and violence against women, Dalits, Tribal people, minorities, peasants, workers, migrants and marginalized.

Representative democracy even in its most inclusive form has not resulted in increasing participation particularly in the policy making process. Laws and policies made without deliberation and discussion with the concerned stakeholders will have far reaching implications for democratic ethos and governance. Since it is important to gain trust of the people, the deadlock between the government and farmers must come to an end. Delegitimising the idea of protest and the determination to crush those who dare to differ are serious developments when democracy slips to authoritarianism (Palshikar, 2021: 12). National building cannot exclude people who ask questions or express dissent. Dissent is not necessarily about criticism alone but provides an alternative argument and perspective. Dissent is an essential element of the democratic system and is not only indispensable for the survival of democracy but also for the survival of humanity.

A democratic state can only be built from practices that deal with dissent respectfully and rise above the narrow political interest. The trajectories of democracy are always tested by people’s experiences which compel us to revisit laws that have outlived their utility.

(Author: Suranjita Ray teaches Political Science in Daulat Ram College, University of Delhi. )

References 

https://www.livelaw.in/top-stories/sedition-law-124a-indian-penal-code-constitutional-validity-draconian-colonial-provision-threat-to-fundamental-rights-169468). visited on 8 March 2021.

Jaffrelot, Christophe and Aditya Sharma (2021), ‘The Digital Muzzle’ in The Indian Express, March 4, page 11.

Jha, Raj Kamal (2021), ‘Partly Free’ in The Indian Express, 5 March, Page 10.
Palshikar, Suhas (2021), ‘Barricaded Democracy’ in The Indian Express, 5 February, Page 12.

Verma, Satvik (2021), ‘Sedition Lies In The Effect, Not In Content’ in The Hindu 23 February, Page 7.

www.hindustantimes.com. disha-ravi-gets bail in toolkit case: What the court said, 23 February 2021, visited on 10 March, 2021.